2. The Administrator of the Seoul Regional Employment and Labor Office;

(a) a disposition of three months (from November 19, 201 to February 18, 201) restriction on consignment for the entire course of a school B;

(b)a disposition of one year (from 10, 288 to 10, 27, 209) of restriction on the payment of subsidies under the Employment Insurance Fund Support Project;

(c)an additional collection disposition of KRW 1,436,940, exceeding KRW 873,810, shall be revoked.

2. The plaintiff's claim against the defendant Republic of Korea and the remaining claims against the head of the Seoul Northern District Office are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Republic of Korea shall be borne by the Plaintiff, and 1/2 of the part arising between the Plaintiff and the head of the Seoul Northern District Office, and the remainder by the head of the Seoul Northern District Office, respectively.

A. The Plaintiff operated the cosmetic (hereinafter referred to as the “instant training institution”) on September 27, 2007, and entered into an entrustment contract (hereinafter referred to as the “instant entrustment contract”) with the head of the Defendant’s North Korean Site Office on the cosmetic course (the training period from October 1, 2007 to March 31, 2008; the number of trainees increased; hereinafter referred to as “the cosmetic course in this case”); and on March 15, 2008 (the training period: from July 17, 2008 to December 16, 2008; hereinafter referred to as “the cosmetic course”); and

B. According to each entrustment contract of this case (A evidence 3-1-3), Eul (the instant training institution) shall observe the rules on workplace skill development training for the unemployed, etc. (hereinafter referred to as "training rules") and shall guide and supervise them so that trainees do not escape from middle training (Article 1(2)), and where a legitimate training is conducted pursuant to the training regulations of Eul (Article 4(2) and Eul (Article 4(4)), where a training allowance is paid to a person who is not eligible for training allowances due to the verification of unfair attendance of Eul (Article 4(4)), the pertinent amount shall be refunded to Eul (Article 8), and where a trainee violates the training regulations of Eul (Article 9(1)7), the training regulations may be taken pursuant to Article 39 of the training regulations (Article 9(1)1).

C. Article 31(1)5, Article 31(3) of the Training Regulations provides that where a trainee has placed a substitute check by entrusting his/her card to another trainee, etc., the trainee who requested the substitute check and the substitute check shall be excluded from the subject of the training. The training institution provides that the trainee must be informed at the time of registration of the trainee. Article 4-8(2) and (3) of the Vocational Training Card Operation Guidelines (Evidence B) provides that the training institution shall provide that the trainee shall be informed at the time of registration of the trainee, and that the trainee shall be informed in writing when he/she is given notice to the trainee.

D. After implementing each of the instant training courses, the Plaintiff filed an application for KRW 21,035,930 for the instant beauty art design process, and KRW 14,653,110 for the beauty art design process of this case, with the training expenses (hereinafter referred to as “training expenses”).

E. On September 2010, the Board of Audit and Inspection and the Ministry of Employment and Labor conducted an investigation as to whether a trainee who had entry into or departure from the Republic of Korea during the period of vocational skills development training conducted an illegal exit management for the trainees who had entry into or departure from the Republic of Korea during the course of the cosmetic Design Training, and confirmed that a call card was sent to others for 3 days by the method of entrusting another person with the call card even if the trainee C was in a foreign country from September 29, 2008 to October 1, 2008, and that D, the trainee of the cosmetic course of this case, was present for 9 days from December 10, 207 to December 27, 207 by the same method, and 3 days from the same method. C, training expenses for D are 1,436,940 won, and the cost of unjust receipt of the relevant lessons due to such unlawful attendance is 291,270 won.

F. As a result of the foregoing survey, Defendant Republic of Korea indicated the intent to terminate the instant consignment contract on November 19, 2010, and the head of Defendant North Korea issued a disposition on the same day (hereinafter referred to as “instant disposition”) for three months (from November 19, 2010 to February 18, 201) of the restriction on consignment to the entire course of the instant training institution; ② one year (from November 19, 2011 to November 11, 2011, until 18, hereinafter referred to as “instant disposition”); ③ one year (from October 28, 2008 to October 27, 2009) of the restriction on the payment of subsidies under the Employment Insurance Fund (hereinafter referred to as “the instant order”); and ④ the instant order for returning the amount of non-payment and vocational training facilities (hereinafter referred to as “the instant order”); and ④ the instant order for the revocation of designation and additional collection.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 1 to 8, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Each disposition of this case is unlawful for the following reasons.

1) Although the Plaintiff did not thoroughly manage the progress of each of the instant training courses, there was no intention for some trainees to receive subsidies through false physical attendance. In such a case, it cannot be deemed that the Plaintiff received subsidies by fraud or other improper means under Article 16(2)2 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008; hereinafter “Vocational Skills Development Act”), Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same).

2) As to failure to perform the call-up management, there was no intention of the instant training institution, and the degree of violation is minor. If the said training institution is subject to a sanction leading to the closure of its business due to a disposition of restrictions on commission, etc., a huge economic loss would occur, as well as the suspension of vocational development training of many trainees, etc., and thus, each of the instant dispositions is unlawful as it is against the law, because it was excessively harsh and excessively harsh, and thus, it is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether there exist grounds under Article 16(2)2 and 3 of the Vocational Skills Development Act

Sanction against violation of administrative laws is a sanction against the objective fact of violation of administrative laws and regulations in order to achieve administrative purposes. Inasmuch as sanctions are imposed upon the violator, there is no intentional or negligent act on the part of the violator, barring any special circumstance, such as where the violator does not cause any negligence due to his/her duty, etc. (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). Inasmuch as sanctions under the former Employment Insurance Act and Vocational Skills Development Act, applicable to each of the dispositions of this case, are “any fraudulent or other unlawful means” means any unlawful act conducted in order to conceal the eligibility for payment by an unqualified business owner or the lack of eligibility to receive training costs (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In light of the above legal principles, the following circumstances can be found to show the background of the above disposition and the purport of the entire evidence revealed earlier, namely, ① training regulations and vocational training card, and the consignment contract for the training courses of this case are important and essential matters in the vocational ability development training process, ② the electronic presence check can be easily conducted in the case of the computer presence check using the card, so the supervisor should pay more attention to this point. In the case of the training courses of this case, it is insufficient to manage the attendance process to the extent that the attendance could have been conducted over 15 days for the two trainees. ③ The beauty art process of this case is 14 persons, and the beauty design of this case had been conducted for more than 21 days consecutively, and the plaintiff did not have an obligation to manage the training program of this case, despite the fact that the training instructor was not absent for 3 days to 2 days or 12 days consecutively, and if the plaintiff did not have an obligation to manage the training program of this case, it should not be seen that the training trainee was not lawfully absent.

2) Whether there exist grounds for disposition

A) According to Article 16 (3) of the Act on the Development of Vocational Skills and Measures, the State or the Minister of Labor may choose not to recognize the entrustment of workplace skill development training for a person whose entrustment contract is terminated under paragraph (2) of the same Article within the scope of five years from the date of termination. However, in the case of breach of contract, there are no particular exceptions, while in the case of Article 16 (2) 2 of the same Act and Article 13-2 of the Enforcement Decree of the same Act, a person whose entrustment contract is terminated due to "in a case where he received training costs or intended to receive them by fraudulent or other illegal means" is less than one million won as prescribed by the Presidential Decree, he shall be excluded

The instant disposition was made by mistakeing that the amount of training expenses paid by fraud or other improper means is less than KRW 291,270 and is less than KRW 1,000,000, and thus excluded from the subject of restrictions on entrustment contracts for the following reasons, and thus, is unlawful.

(1) Although training costs that the Plaintiff received by filing a different claim from the fact that the training was conducted for the period of two trainees, are deemed to constitute training costs paid as “a false or other unlawful means.” However, aside from the fact that the Plaintiff continued to conduct training without expulsion of a trainee, and received training costs related thereto, it seems to be harsh to impose additional collection for the training costs paid by false or other unlawful means as well as additional collection for the portion of the training that was actually conducted.

(2) Therefore, it is reasonable to view that the calculation standards for training costs paid by false or other unlawful means include only training expenses paid for the number of days of absence for two trainees, and that the training is not included in training expenses paid for the period during which two trainees are absent without expulsion from the contract for entrustment. However, since there is no dispute between the parties as to the fact that the total amount paid for training expenses during the period of absence for two trainees is 291,270, the training expenses paid by the Plaintiff by false or other unlawful means shall be limited to 291,270 won.

B) As seen earlier, the instant disposition constituted workplace skill development training conducted in violation of the instant disposition consignment agreement. As such, there exist grounds for the instant disposition.

C) According to Article 35(1) of the Employment Insurance Act, the Minister of Labor may order a person who has received or intends to receive support for employment security and vocational skills development projects by fraud or other improper means to restrict the support or return the support already provided, as prescribed by Presidential Decree. Here, the term “person who has received support for employment security and vocational skills development projects” refers to a business owner, local government, or non-profit corporation or organization prescribed by Presidential Decree, which conducts employment security and vocational skills development projects as stipulated in Chapter III of the former Employment Insurance Act, and there is no room for a training institution to be entrusted by the State or local government, such as the instant training institution. Thus, the instant disposition made to the Plaintiff who is not eligible for support under the former Employment Insurance Act is unlawful.

D) The instant disposition (4)

(1) According to the main sentence of Article 16 (5) of the Vocational Skills Development Act, the State or the Minister of Labor may order the person whose commission contract is terminated pursuant to paragraph (2) of the same Article to return all or part of the amount already paid or subsidized. In this case, the amount ordered to be returned shall be deemed to be a violation that constitutes the grounds for termination of the commission contract. Thus, in this case, the court may order the person who requested the substitute attendance to return all or part of the amount paid as training expenses with respect to the trainee who requested the substitute attendance as well as the training trainee who paid the substitute attendance. Thus, there are the above reasons.

However, in this case, the head of the defendant North Korea District Office issued a refund disposition within the limit of KRW 1,436,940 equivalent to training expenses for two trainees who committed the above violation. ① It is necessary to impose effective sanctions against the violation of the workplace skill development training entrustment contract, ② It is stipulated that a person whose entrustment contract is terminated under the former part of Article 16(5) of the Workplace Skill Development Act may order the refund of all or part of the amount already paid or subsidized, and the latter part does not provide that only "the amount already paid or subsidized by fraudulent or other unlawful means," unlike the additional collection disposition in the latter part, may be collected. In light of the above, even if all circumstances asserted by the plaintiff are considered, it is difficult to recognize that the part of the return order in this case is a deviation or abuse of discretionary power.

(2) Meanwhile, in full view of the provisions of the latter part of Article 16(5) of the Vocational Skills Development Act, Article 13-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009; hereinafter the same shall apply), and Article 6(1)1(c) and 2 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 320, Apr. 1, 2009; hereinafter the same shall apply), where the amount already received by the Plaintiff by fraud or other improper means is less than one million won, the Minister of Labor may additionally collect an amount equivalent to five times the amount (where the amount already received by the Plaintiff in accordance with the standards prescribed by Ordinance of the Ministry of Labor is less than one million won, it shall be three times the amount of training fees (where there is no number of times requesting the denial of training fees within five years before the date of detection).

However, in making a disposition for additional collection, unlike an order to refund training fees, it is necessary to pay training fees as "any false or other unlawful means". As seen earlier, in this case, it is reasonable to view that the calculation standards for training fees paid by false or other unlawful means include only training expenses paid to the number of days of absence of trainees, and that the Plaintiff’s implementation of workplace skill development training without expulsion from trainees in violation of the entrustment contract for workplace skill development training and the training expenses paid to him/her are not included. Thus, the disposition for additional collection corresponding to the training expenses during the period of two absence of trainees is justifiable, but the disposition for additional collection in excess thereof is unlawful.

Furthermore, the facts that training expenses for the period of absence for two trainees who were paid by false or other unlawful means are as seen above. In such a case, there is no dispute between the parties that the amount of KRW 873,810 equivalent to three times the amount received pursuant to the foregoing relevant provisions and Article 6(1)1 (a) of the Enforcement Rule is calculated as additional collection, and thus, the additional collection disposition among the instant disposition is lawful within the scope of KRW 873,810, and the excess portion should be revoked as unlawful.

E) According to Article 31(1)3 and Article 29 subparag. 9 of the Act on the Development of Vocational Skills, where a designated occupational training establishment is subject to restrictions on entrustment pursuant to Article 16 of the same Act, the revocation of designation may be ordered. As seen earlier, the instant training institution is subject to restrictions on the entrustment of each of the instant training courses for one year according to the instant disposition. Thus, the instant disposition 5 is recognized as the grounds for disposition.

3) Whether the discretionary authority is deviates or abused

(5) In this case, since the disposition is conducted through limited public resources, such as the State budget and the Employment Insurance Fund under the Employment Insurance Act with respect to whether it deviates from and abused discretionary power, the management of withdrawal for trainees should be thoroughly conducted in order to achieve its purpose and prevent unfair training costs. Thus, in accordance with Article 6(3) of the Enforcement Rule of the Vocational Skills Development Act, the "individual Standards" in Article 6(3) of the Enforcement Rule of the Act on the Promotion of Vocational Skills Development (attached Table 1), which provides for the general standards of administrative disposition, should be applied to the case where workplace skill development training is conducted in violation of the outsourcing contract and the entrusted contract is conducted in a false or other unlawful manner, and it is difficult to say that the contract is concluded and the entrusted contract is made for one-year entrustment restriction on the training course, and that it is difficult to say that the above act of revocation of designation is inappropriate for the plaintiff to the extent that it is not subject to the above 2-day entrustment contract or the entrusted one-year entrustment restriction on the training course.

3. Determination on the claim against Defendant Republic of Korea

A. Determination on Defendant Republic of Korea’s defense prior to the merits

Defendant Republic of Korea has already filed a lawsuit against the Administrator of Defendant North Korea on revocation of each of the instant dispositions. As such, Defendant Republic of Korea has asserted that the lawsuit against Defendant Republic of Korea seeking confirmation of invalidity of the declaration of intention to terminate the contract is unlawful.

On the other hand, the head of Defendant North Korea Site Development Agency and the head of Defendant North Korea District Office concluded the instant entrustment contract with the Plaintiff based on Article 16 of the same Act and Article 13 and training regulations of the Enforcement Decree thereof. The main content of the contract is that the Plaintiff, a training institution, conducted lawful training under the contract, has a screening of the contract that is formed by the agreement between the Plaintiff and the country with the opposite direction when the Plaintiff paid training fees. However, in the case where the Plaintiff, a training institution, imposes certain obligations on the training institution in the nature of the public interest of the contract or violates the entrustment contract, it does not seem that the head of Defendant North Korea Site Development Agency, in superior status, did not perform administrative authority, etc. to the Plaintiff.

Ultimately, the expression of intent to terminate the instant consignment contract made by the Administrator of the North Korean Site Office is merely a party to the instant consignment contract in the position of the competent administrative agency of the State and expressed his/her intent to terminate the instant consignment contract based on the grounds for termination stipulated in law and the contract, and cannot be deemed as unilaterally resolving the contractual relationship based on the inherent status of the administrative agency. Thus, it does not constitute an administrative disposition (see, e.g., Supreme Court Decision 95Nu10617, May 31, 1996).

Therefore, the instant consignment contract is a contract under public law and its party is the Republic of Korea. Thus, the Plaintiff’s lawsuit seeking confirmation of invalidation of termination of the contract against the Defendant Republic of Korea is lawful, and the said defense is without merit.

B. The plaintiff's assertion

Since the training under each of the instant consignment contracts has been completed in 2008 due to the expiration of the contract term, the expression of intent to terminate the contract made by the Defendant Republic of Korea should be deemed null and void.

C. Determination

1) According to the provisions of Article 16(2)2 and 3 of the Vocational Skills Development Act, the State may terminate the entrustment and contract in cases where a person entrusted with vocational ability development training receives or intends to receive training costs by fraudulent or other illegal means, or where a person conducted vocational ability development training in violation of the entrustment agreement. As seen earlier, all of the cases where the Plaintiff falls under the above cases. Therefore, as long as the grounds for termination of the entrustment contract under the Vocational Skills Development Act arise, the declaration of the termination of the entrustment contract of this case by the Defendant Republic of Korea is justifiable, and accordingly, the entrustment contract of this case is legally terminated.

2) Generally, the termination of a contract refers to a unilateral declaration of intent to extinguish the contract continuously in the future in the relationship of claims, and is distinguishable from the rescission that retroactively terminates the contract’s effect. In other words, the legal relationship based on the contract is completely effective before the termination takes effect and the payment already made is not returned. In this respect, it is distinguishable from the cancellation that the obligation of restitution takes effect.

However, according to Article 16 (1) of the Vocational Skills Development Act, when the entrustment contract of this case is terminated, the whole or part of the amount already paid may be ordered to be returned, and the legal effect accompanying the termination of the contract may be additionally collected from the person whose entrustment contract is terminated by fraud or other improper means, such as providing that a certain amount of money may be collected from the person who has been paid or subsidized in a fraudulent or other unlawful manner, is not limited to toward the future. In addition, even though there is a need to receive a refund and a certain sanction, if it is impossible to terminate the contract on the ground that the contract has expired, the return or additional collection based on the premise of the termination cannot be made if it is impossible to cancel the contract on the ground that the contract has expired. Therefore, unlike the termination of the contract of this case under the Civil Act under the Civil Act, the legal effect such as the retroactive extinction of the entrustment contract may occur within the scope related to the cause of the termination, and it is reasonable to deem that the contract can be exercised after the expiration of the contract (i.e., the plaintiff's assertion that the above legal effect should be completely different from the cancellation of the contract.

3) Ultimately, the Plaintiff’s claim against the Defendant Republic of Korea premised on the invalidity of the declaration of intention to terminate the contract of this case is without merit.

3. Conclusion

Thus, among the plaintiff's claims against the Administrator of the North Korean Site, the case ①, ③ disposition, and this case

④ A claim for revocation of a disposition for additional collection as to the part exceeding KRW 873,810, among dispositions, shall be accepted for reasonable grounds (including the Plaintiff’s claim for revocation of the meaning of declaring the invalidation of the disposition). The Plaintiff’s claim against the Republic of Korea and the remainder of the claim against the Administrator of the North Korean Site Office are dismissed for lack of good cause. It is so decided as per Disposition.

Judges Jeong Jae-hee

Judges Yang Jae-chul

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.