(영문) 대구고등법원 2013.11.29. 선고 2012누127 판결

1. Of the judgment of the court of first instance, the part against the Plaintiff regarding a disposition to restrict the payment of a new employment promotion subsidy from July 18, 2007 to April 3, 2009, and an order to return KRW 34,834,340, which was paid during the period of restriction on the payment, shall be revoked, and the lawsuit corresponding to the revoked part shall be dismissed.

2. The plaintiff's remaining appeal is dismissed.

3. The 2/5 of the total costs of the lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim and appeal

The judgment of the first instance court shall be revoked. On December 17, 2009, the Defendant’s order to return KRW 17,922,580 to the Plaintiff, order to additionally collect KRW 17,922,580, additional collection of KRW 17,922,580, and order to return KRW 34,834,340 during the period from July 18, 2007 to April 3, 2009 shall be revoked.

Reasons

1. Details of the disposition;

A. On July 4, 2007, the Plaintiff (the Plaintiff changed from “B, before the change,” to its trade name as of September 30, 2008) applied for a new employment promotion subsidy on the ground that he newly employed C, D, and E (hereinafter collectively referred to as “C, etc.”) on July 5, 2007, and received KRW 1,80,000 on July 18 of that year from that year to April 4, 2008, and received a total of KRW 17,922,580 for new employment promotion subsidy for C, etc. for the same reason from the Defendant (from November 13, 2007 to April 4, 2008).

B. On December 17, 2009, the Defendant issued to the Plaintiff a false employment contract, etc. as if it satisfied the unemployment period even though it did not meet the unemployment period for receiving new employment promotion payment by March 5, 2007, and received the instant incentive by unlawful means, and thus, applied Article 35 of the former Employment Insurance Act (amended by Act No. 9315 of Dec. 31, 2008; hereinafter referred to as the "former Employment Insurance Act"), Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015 of Sept. 18, 2008; hereinafter referred to as the "former Enforcement Decree of the Employment Insurance Act"), Article 78 (1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 319 of Apr. 1, 2009; hereinafter referred to as the "former Enforcement Rule of the Employment Insurance Act"), and additionally collected the amount of the instant incentive to be returned to 20857.7.

C. On March 16, 2010, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission, which was dissatisfied with each of the dispositions of this case, but was dismissed on September 9 of that year.

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, Eul evidence 1 and 19 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the part of the instant lawsuit, among the instant lawsuit, requesting the restriction on payment of the instant case and the revocation of the order to return the grant is lawful

We examine ex officio.

A. The Plaintiff sought revocation of the instant restriction on payment and the instant order to return the payment grant to the Defendant.

B. If an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2004Du5317, Sept. 28, 2006).

According to the records and the purport of the entire pleadings, it is recognized that the Defendant revoked ex officio a disposition to restrict the payment of the instant case against the Plaintiff on November 1, 2013 and an order to return the grant of this case.

Therefore, among the instant lawsuits, the part seeking the cancellation of the instant restriction on payment and the instant order to return the payment incentive is unlawful as there is no legal interest in the lawsuit, since it is against the non-existent disposition.

3. Determination as to the order to return the amount of unlawful receipt of the instant case and the revocation of the disposition for additional collection

A. The plaintiff's assertion

(1) The non-existence of the disposition grounds

C et al. was unemployed on March 5, 2007 from the date of the registration of job seeking around November 2006 or around December of the same year until the date of entry into the Plaintiff Company. On March 5, 2007, the Plaintiff only posted a notice of the program (F tracking program, hereinafter referred to as “Plaintiff program”) developed by the Plaintiff Company on its customer’s Internet homepage prior to employment of C et al., and therefore C et al. satisfied the unemployment period requirements to receive the instant grant.

Even if C et al. did not meet the unemployment period requirements to receive the instant incentive, the Plaintiff did not know that it failed to meet such unemployment period requirements, and thus did not receive the instant incentive from the Defendant as “any false or other unlawful means.”

Therefore, there is no reason to issue an order to return the illegally received amount and to additionally collect the amount.

(2) Claim of violation of the principle of proportionality

In addition to the refund of considerable amount of the instant subsidy received, the instant additional collection disposition is also ordered to additionally collect the amount equivalent to the instant subsidy, and is excessively harsh to the Plaintiff, thereby violating the principle of proportionality.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Judgment on the non-existence of the grounds for disposition

(1) According to Article 18 of the former Employment Insurance Act (amended by Act No. 8429, May 11, 2007); Article 22-2(1) [Attachment 1] of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2030, Oct. 17, 2007); and Article 22-2(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2030, Oct. 17, 2007); etc., the Minister of Labor may provide the pertinent worker who employs the aged, etc. newly or is particularly difficult to find employment under normal conditions of the labor market (hereinafter referred to as “seniors, etc.”), to promote the employment of those who are taking other measures necessary for their employment safety; the Minister of Labor may provide the pertinent worker with necessary support as prescribed by the Presidential Decree for employment security from the date when the employer applied for employment promotion to other institutions prescribed by the Ordinance of the Ministry of Labor to the date of employment security office from the date of employment promotion.

(2) According to the purport of the Plaintiff’s argument at 20: (i) C and D applied for job seeking to the Employment Security Office on November 15, 2006; (ii) E and 48 posts posted the Plaintiff’s program to the Defendant on the Internet homepage from December 28, 2006 to March 3, 207; (iii) the Plaintiff’s online address and personal telephone number of the Plaintiff’s 20-based employees were clearly stated in the Plaintiff’s 20-based online service; and (iv) the Plaintiff’s personal online service provider was also indicated in the Plaintiff’s 20-based online service provider’s 20-based online service; and (v) the Plaintiff’s personal online service provider was indicated in the Plaintiff’s 1-based online service provider’s 7-based online service provider’s 20-based online service provider’s e-mail address and 27-based online service provider’s e-mail online service provider’s 28-based service provider.

(3) The following circumstances acknowledged by the evidence and the purport of the entire argument as seen earlier, namely, that the Plaintiff did not have any record of performing the Plaintiff’s business prior to entering the Plaintiff company on March 5, 2007, and merely posted a notice expressing the Plaintiff’s program on the Internet homepage. However, there is no evidence to deem that there was any special circumstance to lend the Plaintiff’s name, not the Plaintiff’s existing employee, for the promotion of the Plaintiff’s program. Even if the Plaintiff borrowed the name of the Plaintiff’s program, the contact details, etc. indicated in the promotional material are sufficient to enter the contact details of the Plaintiff or its employees, and thus, it is difficult to accept the Plaintiff’s above assertion. In light of the above, C et al., did not present the Plaintiff’s new employment promotion subsidy to the Defendant from March 5, 2007, which was entered in the employment contract, etc. submitted by the Plaintiff to receive the instant incentive to the Defendant, and did not appear to have been aware of the Plaintiff’s new employment promotion subsidy from March 16, 201.

D. Determination on the assertion of violation of the principle of proportionality

(1) Article 78(1) of the former Enforcement Rule of the Employment Insurance Act provides that the amount additionally collected pursuant to Article 35(2) of the former Employment Insurance Act shall be an amount equivalent to the amount recognized as having been paid by fraud or other improper means out of the amount that has been paid. This is more than private interests infringed by additionally collecting the amount equivalent to the amount of new employment promotion incentives, etc. that is paid by fraud or other improper means to ensure the soundness of the Employment Insurance Finance and the efficient and transparent operation of the support system.

(2) As examined above, in full view of the fact that the Plaintiff received the instant grant by false or other unlawful means, such as submitting a labor contract, etc. stating the date on which the Plaintiff joined the Plaintiff, etc., by false or other unlawful means, it is difficult to view that the instant additional collection disposition, which additionally collected the same amount as the amount of illegal receipt under Article 35(2) of the former Employment Insurance Act, is excessively harsh to the Plaintiff, thereby violating the principle of proportionality, and there is no other evidence to acknowledge the Plaintiff’s assertion. Accordingly, the Plaintiff’s assertion on this part is without merit.

4. Conclusion

Therefore, among the lawsuit of this case, the part seeking the cancellation of the restriction on payment of this case and the order to return the payment of this case is unlawful, and it shall be dismissed as it is without merit. The part seeking the cancellation of the order to return the illegal amount of the plaintiff's remaining claimant and the order to return the payment of this case is unfair with different conclusions. As such, the part concerning the restriction on payment of this case and the order to return the payment of this case among the judgment of the court of first instance concerning the order to return the payment of this case is unfair, and it is dismissed as part of the plaintiff's appeal, and the lawsuit corresponding to the cancellation part is dismissed. The remaining part is with merit