(영문) 서울행정법원 2018.11.21. 선고 2017구단79199 판결

The Defendant’s disposition of restricting the payment of job-seeking benefits against the Plaintiff on July 24, 2017, and the order of returning KRW 9,632,00, and additional collection of KRW 1,204,00 shall be revoked.

Reasons

1. Details of the disposition;

A. On February 14, 2015, the Plaintiff retired from employment with B, and the Defendant recognized eligibility for job-seeking benefits to the Plaintiff on April 17, 2015 pursuant to Article 43 of the Employment Insurance Act (hereinafter referred to as the “Act”), and around that time, recognized that the Plaintiff constituted a person who could report reemployment on the Internet pursuant to Article 44(2)3 of the Act and Article 65 subparag. 9 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27738, Dec. 30, 2016; hereinafter referred to as the “Enforcement Decree”).

B. After that, the Plaintiff reported to the Defendant that he had made efforts to re-employment via the Internet (hereinafter referred to as “re-employment report”) and received job-seeking benefits of KRW 9,976,00 in total from the Defendant after receiving unemployment recognition (hereinafter referred to as “re-employment report”) as shown below, and received job-seeking benefits of KRW 9,976,00 in total.

A person shall be appointed.

C. However, the report of the second and third re-employment was made by a child in Korea, who had been staying in a foreign country, through the Internet through the Plaintiff’s authorized certificate.

D. As a result of subsequent investigation following the notice of the Board of Audit and Inspection, the Defendant found that the Plaintiff’s receipt of job-seeking benefits based on his/her efforts to re-employment report constitutes a case where job-seeking benefits have been received on July 24, 2017 as “any false or other unlawful means” under Article 61(1) of the Act, and ordered the Plaintiff to pay job-seeking benefits pursuant to the main sentence of Article 61(1) of the Act, and to return KRW 9,632,00 pursuant to the former part of Article 62(1) of the Act, and ordered the Plaintiff to additionally collect KRW 1,204,000 pursuant to the latter part of Article 62(1) of the Act (hereinafter collectively referred to as “instant disposition”). The Plaintiff appealed against the request for reexamination, but dismissed the request for reexamination on July 28, 2017.

[Ground of recognition] The fact that there has been no dispute, Gap's 1 through 5, Eul's 1, 3, 10, 12 (including branch numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Although the Plaintiff had his/her child staying abroad report his/her efforts to re-employment in the name of the Plaintiff via the Internet using the Plaintiff’s authorized certificate, the Plaintiff endeavored to re-employment even during the period subject to the recognition of unemployment, and thus, it cannot be deemed that the Plaintiff’s receiving job-seeking benefits from the second and third job-seeking benefits pursuant to the above declaration constitutes a case where the Plaintiff received job-seeking benefits from the 2 and third job-seeking benefits based on the 2 and third job-seeking benefits under Article 61(1) of the Act.

2) Even if the grounds for the instant disposition exist, the instant return order, etc. is in violation of the principle of proportionality because the Plaintiff’s personal disadvantage is too large compared to the public interest to be achieved by it.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Whether there exist grounds for the instant disposition

Job-seeking benefits are classified into job-seeking benefits and employment promotion allowances (Article 37 of the Act); job-seeking benefits are paid for days when an eligible recipient was recognized as unemployed by the head of an employment security office (Article 44(1)); and the main text of Article 44(2) of the Act stipulates that an eligible recipient who intends to obtain recognition of unemployment should attend the unemployment recognition date designated by the head of the employment security office and report his/her efforts for reemployment; and Article 44(3) of the Act provides, “Notwithstanding paragraph (2) of the Act, an eligible recipient may obtain recognition of unemployment by submitting a certificate stating the reasons for failure to attend the employment security office if the eligible recipient falls under any of the following subparagraphs, and the applicant could not appear at the employment security office for less than seven consecutive days due to illness or injury (Article 1); where the eligible recipient could not attend the employment security office due to interview with the job offerers following the employment security office for job-seeking training (Article 44(2) of the Act); where the eligible recipient could not directly appear at the employment security office to prevent job-seeking benefits (Article 4).

On the other hand, Article 44(2)3 of the Act provides that "the method of recognition of unemployment for an eligible recipient prescribed by Presidential Decree shall be in accordance with the standards prescribed by Ordinance of the Ministry of Employment and Labor." Article 65(9) of the Enforcement Decree of the Act provides that "any eligible recipient who is recognized by the head of an employment security office to be capable of reporting reemployment activities and income generated directly through the Internet," and Article 89(6) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 176, Dec. 30, 2016; hereinafter referred to as the "Enforcement Rule") provides that "the eligible recipient who intends to obtain unemployment recognition through the Internet under Article 65 subparagraph 9 of the Decree shall report directly and indirectly on the Internet through the date designated by the head of the employment security office on which he/she files an application for an authorized certificate so that the eligible recipient may directly and indirectly report on reemployment activities and income generated through the Internet," and the purport of the above provision is "in principle, directly and indirectly endeavored through the unemployment recognition system."

In light of the above legal principles, the Plaintiff’s act of having his children staying abroad report their efforts to re-employment in the name of the Plaintiff via the Internet using the Plaintiff’s authorized certificate, and receiving job-seeking benefits from the Defendant 2 and 3 is against Article 44(2)3 of the Act, Article 65 subparag. 9 of the Enforcement Decree, and Article 89(6) of the Enforcement Rule, and thus receiving unemployment benefits by referring to “a gring or other unlawful means” under Article 61(1) of the Act. Therefore, the Plaintiff’s assertion that there is no ground for the instant disposition is without merit.

2) Whether the instant return order, etc. violates the principle of proportionality

Whether a punitive administrative disposition deviates from or abused the scope of discretionary power under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the offense committed as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances. In such cases, even if the criteria for a punitive administrative disposition are prescribed in the Enforcement Rule, it is nothing more than that prescribed in the internal rules for handling affairs of an administrative agency, and thus, it is not effective externally to the public or the court. Thus, whether the disposition is legitimate

The determination shall be based on the standard of disposition, and even though the standard of disposition does not immediately conform with the Constitution or laws itself or its application does not have reasonable grounds to believe that the standard is considerably unreasonable in light of the content of the act of violation and the purport of the relevant statutes, which is the grounds for disposition, and the content of the relevant laws and regulations, it shall not be readily determined that the standard of disposition deviates from the scope of discretion or abused discretion (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 2007).

With respect to this case, the head of an employment security office may order a person who has received job-seeking benefits by fraud or other improper means (hereinafter referred to as "unlawful recipient") to return all or part of the "job-seeking benefits" (former part), and in addition, he/she may collect an amount not exceeding the amount equivalent to the "job-seeking benefits paid by fraud or other improper means" (former part) in accordance with the standards prescribed by Ordinance of the Ministry of Employment and Labor. Article 104 of the Enforcement Rule provides for the scope of an order to return to an illegal recipient, Article 105 of the Enforcement Rule provides for the scope of additional collection against an illegal recipient. Article 62 (1) of the Act and the latter part of the Enforcement Rule provides for the scope of additional collection against an illegal recipient. Since each of the above Enforcement Rule provides for the internal guidelines for handling the order to return and additional collection under the former part of Article 62 (1) of the Act and the latter part of the same Act, it is determined whether the order to return in this case constitutes a deviation from discretion

First, with respect to whether the criteria prescribed in each of the above Enforcement Rules are inconsistent with the Constitution or laws, the above provisions vary the scope of return of job-seeking benefits and additional collection due to unlawful acts depending on the type of unlawful acts, voluntary declaration, and the living standards of those who committed unlawful acts within the scope prescribed in the former and latter parts of Article 62(1) of the Act. As such, the criteria prescribed in each of the above provisions do not by itself violate the Constitution or laws.

Next, this case’s return order, etc. falls under cases where social norms are significantly unfair in light of the Plaintiff’s content of the violation and the purport of the relevant statutes. Article 104 of the Enforcement Rule provides that the return of all job-seeking benefits received by the illegal recipient shall be ordered unless the grounds prescribed in subparagraph 2 or 3 of the same Article (hereinafter “the grounds for exception”) are met. In applying the above provision as it is, barring special grounds, the order is issued to the illegal recipient for the larger amount of job-seeking benefits received after the illegal receipt of benefits, and there are no particular restrictions on the upper limit, and there seems to be a need for careful caution in applying the above provision in a specific case. From this point of view, it is difficult to evaluate that the instant return order, etc. has reached the extent of “seriously unfair practices” in light of the Plaintiff’s content of the violation and the purport of the relevant statutes. Accordingly, it cannot be deemed that the instant return order, etc. does not constitute a deviation or abuse of discretionary authority, and the instant disposition is lawful.

(1) At the time of reporting the 2 and 3 re-employment, the Plaintiff was aware of, or was at least aware of, the fact that he had to report re-employment by using an authorized certificate. In other words, on the day of the first unemployment recognition, the Defendant informed the Plaintiff on the day of the first unemployment recognition that he must have to report re-employment with an authorized certificate. At that time, the following phrases are written as follows: (a) the eligibility certificate for employment insurance issued by the Defendant to the Plaintiff and the unemployment benefits notice,

Even if the Internet unemployment benefits is designated, I must prepare and transmit an application for recognition of unemployment with their authorized certificates at their employment insurance homepage.

It is impossible to transmit an application for unemployment recognition in a foreign country, and it is difficult to confirm whether the applicant is unemployed or job seeking, in principle, to obtain the recognition of unemployment. The preparation and transmission of the Internet unemployment recognition will be carried out directly by the person himself/herself.

(2) Considering the purport of Article 89(6) of the Enforcement Rule as seen earlier, it is necessary to strictly observe the procedure prescribed in the above provision in reporting reemployment through the Internet. However, considering that the Plaintiff violated the above procedure twice the total number of reported reports nine times, and the Defendant’s act of receiving job-seeking benefits was not easy to detect daily information (in this case, the Plaintiff’s receipt of job-seeking benefits Nos. 2 and 3 by unlawful means and the fact that the fraudulent receipt was revealed only after the lapse of two years from the date of the fraudulent receipt) and that it was not easy for the Defendant to detect the illegal receipt of job-seeking benefits (in this case, there was a need to strictly cope with the discovered illegal receipt

(3) The instant return order, etc. is more favorable to the Plaintiff than the standard prescribed in each of the above provisions. In other words, Article 104 of the Enforcement Rule provides that “all of the job-seeking benefits paid” shall be ordered to be returned to the Plaintiff unless the Plaintiff does not constitute an exception (Article 105(1) of the Enforcement Rule provides that “all of the job-seeking benefits paid” or “job-seeking benefits paid by fraud or other improper means, and all of the job-seeking benefits paid at the time of payment thereafter,” etc.) and does not appear to have any exceptional reason. The Defendant issued an order to only refund KRW 9,632,000, which is the total amount of the job-seeking benefits paid to the Plaintiff (Article 105(1) of the Enforcement Rule, less the amount of the job-seeking benefits paid to the Plaintiff from KRW 9,976,00,000 (Article 105(1)1 to 9,000,000,000 won).

(4) Although it is difficult to view that the amount imposed by the Defendant on the Plaintiff through the instant return order, etc. is less than the amount imposed by the Plaintiff, the Plaintiff appears to have obtained a relatively long-term earned income from C Co., Ltd from 2003 to 2008, and from 2010 to 2015, each of the Defendant’s work in B Co.

(5) In order to achieve the legislative purpose of the Employment Insurance Act that seeks to promote the stability of workers’ lives and job-seeking activities by providing necessary benefits during their unemployment, there is a need for public interest that the job-seeking benefits should be executed transparently and appropriately. This seems to be very important for the Plaintiff to be disadvantaged due to the instant return order, etc.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.