On March 11, 2008 to April 3 of the same year, 2008, the Daegu Headquarters under the Plaintiff’s control conducted a video editing process (hereinafter “instant training”) for 18 employees, and received payment of KRW 1,108,560 on April 21 of the same year by filing an application for the instant training expenses with the Administrator of the Daegu Regional Employment and Labor Agency.

Meanwhile, on the other hand, the head of Daegu Regional Employment and Labor Agency confirmed that a trainee A left Korea from March 25, 2008 to April 2 of the same year and did not participate in the instant training on March 25, 2008, March 27, and April 1 of the same year, and confirmed that he/she participated as if he/she participated in the training. On June 21, 2011, the head of Daegu Regional Employment and Labor Agency decided that he/she participated in the training course even if the trainee was not present in the training course during the period of departure from Korea, and confirmed that he/she received training expenses by fraud or other improper means (amended by Act No. 9316, Dec. 31, 2008; hereinafter referred to as the “Employment Development and Training Act”) by applying Article 25(1)25(1)2, 300 to the former Workers’ Vocational Skills Development and Training Act (amended by Act No. 9314, Dec. 31, 2008).

○ In accordance with the instant restriction on payment, the Defendant notified the Plaintiff on June 23, 201, and the Plaintiff of the payment restriction period (from April 21, 2008 to April 20, 2009) to return KRW 7,977,480 of the subsidies paid to the Seoul Headquarters affiliated with the Plaintiff during the period of the payment restriction (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2 (including branch numbers in case of additional number), Eul evidence 1 and the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) It is deemed that the trainee A was present without attendance at the instant training during the period of his departure from the Republic of Korea due to the failure of the trainee A to attend the training abroad, and the inclusion in the person subject to the application for training costs is due to the number of rooms in the simple process of business operations conducted by the employee B in charge of the relevant work, and thus, it does not constitute “any false or other unlawful means” as provided by Article 25(1)2 of the Vocational Development Act and Article 35(1) of the former Employment Insurance Act

2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same) (hereinafter referred to as the “Enforcement Decree of the instant case”) on the ground of the instant disposition is unconstitutional or invalid by exceeding the bounds of delegation under Article 35(1) of the former Employment Insurance Act, or by excessively infringing the Plaintiff’s property right.

3) The scope of the disposition of return of the subsidy according to the disposition of restricting the payment of the subsidy in this case should be limited to the scope of the subsidy provided by false or other unlawful means, or to the workplace concerned.

(iv) the deviation and abuse of discretionary power;

In imposing sanctions on the illegal receipt of subsidies, the fact that the Defendant rendered the instant disposition in accordance with the Employment Insurance Act, rather than the Occupational Development Act, is that it deviates from or abused the scope of discretion.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

1) Whether a person has received subsidies by fraud or other improper means or not) The sanctions imposed on a violation of administrative laws are sanctions based on the objective fact of violation of administrative laws in order to achieve administrative purposes, and thus, barring any special circumstance, such as where a failure to perform duties is not caused by an intentional act or negligence, it may be imposed even on the violator, unless there is a justifiable reason not to do so. "False or other unlawful means" under Article 35(1) and (2) of the former Employment Insurance Act and Article 56(1) and (2) of the Enforcement Decree of the same Act means any unlawful act conducted in order to estimate the eligibility for payment by an unqualified business owner or the lack of eligibility to receive training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

B. In light of the above legal principles, comprehensively taking account of the following circumstances, which can be recognized by the health team, the above recognized facts and the purport of the evidence Nos. 2 and 3 as to the instant case, and the purport of the entire pleadings, it is reasonable to deem that the Plaintiff was entitled to receive training costs of A (i.e., KRW 61,586,560 (=1,108,560/18) as being ‘any false or other unlawful means without being entitled to receive training costs.

① The Plaintiff, as a principal agent of the instant training, is obligated to finally verify whether a trainee has withdrawn prior to filing an application for subsidies.

However, it was well known that A was unable to participate in the training during the period of departure from Korea because B, who was in charge of applying for subsidies related to the training of this case, was notified by A that he was unable to participate in the training during the training period.

③ Nevertheless, B was signed by 18 trainees who did not have the signature of some trainees during the process of inspecting the attendance to apply for the instant training expenses to the Administrator of the Daegu Regional Employment and Labor Office, and then applied for training expenses to the Administrator of the Daegu Regional Employment and Labor Office based on the attendance book signed by 18 trainees who were present during the training period.

④ The instant training course is deemed to have completed a training course that is at least 80% of the attendance rate, and is entitled to receive training expenses from the Administrator of the Daegu Regional Employment and Labor Agency. In the case of A, if only the actual attendance date is deemed to have been present, the attendance rate falls short of 80% and is not eligible for training expenses.

(5) As the head of the Daegu Regional Employment and Labor Agency, it is apparent that the Plaintiff would not be paid training expenses to A if he had known in advance that A did not attend the instant training course, and the Plaintiff’s above act would have influenced the decision-making of the head of the Daegu Regional Employment and Labor Agency on the payment of training expenses.

2) Whether the provisions of the Enforcement Decree of the instant case are unconstitutional or invalid

In light of the content, form, system, etc. of Article 35(1) of the former Employment Insurance Act and the Enforcement Decree of this case, the disposition ordering the establishment of the period of restriction on vocational skills development training expenses and the return of subsidies, etc. paid during the period of restriction on subsidies is a binding act. However, it is problematic whether the enforcement decree of this case, which stipulates that the person who received or attempted to receive vocational skills development training expenses, etc. (hereinafter referred to as "unlawful recipients") by fraudulent or other unlawful means according to delegation under Article 35(1) of the former Employment Insurance Act, must be obliged to return subsidies, etc. paid during the period of restriction on payment, is an issue as to whether the enforcement decree of this case is against the principle of prohibition of excessive

A) Whether it exceeds the purport of delegation of the parent law

First, in light of the following circumstances, the provision of the Enforcement Decree of this case is invalid because it goes beyond the purpose of delegation under Article 35(1) of the former Employment Insurance Act, which provides for the restriction on subsidies for vocational skills development training costs and the refund of subsidies, etc. accordingly, the provision of this case goes beyond the purport of delegation under Article 35(1) of the former Employment Insurance Act, which is the mother.

① Even if Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of matters delegated to the Presidential Decree, the scope or limitation of inherent delegation pursuant to the legislative intent, purpose, etc. of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Nu6578, Jul. 22, 1997); and considering the fact that various types of violations are anticipated in light of the nature of various kinds of subsidies granted pursuant to the former Employment Insurance Act; and the form or legislative purpose of the above provision, it is reasonable to deem that the purport of delegation under Article 35(1) of the former Employment Insurance Act is to reasonably subdivide the standards for the restriction of support or the return of subsidies depending on the type, degree, motive, and seriousness of the result thereof, etc. of unlawful acts, or, if so, it is anticipated that the administrative agency under its jurisdiction may increase or decrease the scope of delegation, as seen in the Enforcement Decree of the above provision.

In a lump sum without setting detailed standards, there is a uniform restriction on payment and the return of subsidies, etc. to be paid during the period of restriction on payment for one year, and there is no room for discretion to increase and reduce it, and thus, it would result in a uniform sanctions regardless of the degree of violation or circumstances of the violator.

② In addition, Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010 provides for restrictions on the payment of subsidies, etc. for one-year period to illegal recipients: Provided, That the same shall not apply to cases where three years have passed since the date of receipt of subsidies or incentives, or where fraudulent acts have been discovered as the amount of subsidies received or to be received by fraudulent or other illegal means, which is less than three million won, and Article 56(2) of the Enforcement Decree of the Employment Insurance Act currently in force after the amendment by Presidential Decree No. 22603, Dec. 31, 2010, the Minister of Employment and Labor seems to have reduced the amount of subsidies under paragraph (1) by one-year period from the date of return order or payment restriction under paragraph (1) to a person who received or intends to receive any one of the subsidies under paragraph (1) by fraudulent or other illegal means, taking into account the aforementioned problems as a result of the amendment of the attached Table 1.

B) Whether it violates the principle of excessive prohibition

(A) The principle of excessive prohibition refers to the basic principles or the limit of legislative activities that the State should observe in carrying out legislative activities that limit the fundamental rights of the people, and the legislative purpose of which is to restrict the fundamental rights of the people should be recognized as justifiable in light of the Constitution and the law system (grounded in the purpose), and the method should be effective and appropriate in order to achieve the purpose (grounded in the method). Even if the measures of restricting fundamental rights chosen by the legislative authority are appropriate in order to achieve the legislative purpose, restriction on fundamental rights should be sought to the minimum necessary (minimum degree of damage). The public interest protected in balancing the public interest to be protected by the legislation, which is in violation of the principle of excessive prohibition, is more protected in light of the legislative purpose of the Employment Insurance Act, and the provisions of the Enforcement Decree of the Employment Insurance Act, which, in light of the legislative purpose of this case and the principles of excessive prohibition, cannot be seen as being in violation of the legislative purpose of the Act and the provisions of the Employment Insurance Act, which, in turn, are more appropriate to prevent and improve the payment and suspension of property rights of workers, etc.

(1) Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount of subsidies received by fraudulent or other illegal means within the punitive meaning may be collected. Accordingly, Article 25(4)1 of the Vocational Development Act, Article 22-2 of the Enforcement Decree of the Vocational Development Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); Article 9(1) of the Enforcement Rule of the Vocational Development Act (amended by Ordinance No. 320, Apr. 1, 2009) provides that the amount of subsidies shall be additionally collected based on the number of fraudulent or other illegal means during the past five years. Meanwhile, the provision of the Enforcement Decree of the instant case stipulates that the amount of subsidies shall be returned to an illegal recipient for at least one year, separately from the above disposition of additional collection, regardless of whether the subsidies were paid by fraudulent or other unlawful means, and that the provision of the instant case’s provision provides that the amount of subsidies may be uniformly collected and applied for the same period may be more than that of the instant provision.

③ In addition, the instant enforcement decree also provides for the restriction on payment and the order to return subsidies paid during the period of restriction on payment for one year from the date on which the person received or applied for the payment of subsidies, etc., but does not impose any special restrictions on the period during which the said sanctions may be imposed, resulting in the unstable situation for a long time.

④ As seen earlier, Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; Presidential Decree No. 22603, Dec. 31, 2010); or Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010), which was currently in force, can be seen as a result of reflecting reflective consideration of the foregoing problems under the Enforcement Decree of the Employment Insurance Act.

3) Sub-decisions

Ultimately, the provision of the enforcement decree of this case only deviates from the purpose of delegation of the mother law, and thus is null and void as it violates the principle of excessive prohibition under the Constitution, and as long as the disposition of this case was based on the invalid provision, it shall be deemed unlawful without any need to further examine the remaining arguments of the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges Mobileho

Judges Park Jae-young

approximately 130 times.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.