A. Status of the parties

1) The Plaintiff is operating C, a long-term care institution, at the second floor of the building located in Seo-gu in Gwangju Metropolitan City (hereinafter referred to as “instant medical care center”).

2) Pursuant to Articles 20 and 25 of the Employment Insurance Act and Articles 17(1)3 and 17(2) of the Enforcement Decree of the same Act, the Defendant newly establishes a part-time worker-time worker-time worker-based employment contract (a fixed-term employment contract is concluded and a new part-time worker is not different from the working conditions such as wages and welfare) through the reorganization of a work system, the development of a new part-time worker-time work, etc., and grants subsidies to employers who employ part-time workers (hereinafter referred

B. Receipt of the instant subsidy

The Plaintiff had employed D, E, F, and G (hereinafter referred to as “the instant workers”) from the instant medical care center as a part-time worker who will work at the instant medical care center, and applied for the payment of subsidies for the instant business. Accordingly, according to the instant business, the Defendant paid subsidies to the Plaintiff as stated in the following table (hereinafter referred to as “instant subsidies”).

A person shall be appointed.

C. On January 7, 2016, the instant disposition Defendant ordered the Plaintiff to return KRW 14,084,150 of the instant subsidy to the Plaintiff on the following grounds: (a) additionally collect KRW 42,225,450 corresponding to the three times of the instant subsidy; and (b) issued a disposition that restricts the payment of subsidies for the instant project from January 7, 2016 to January 1, 2017, and June 6, 2017 (hereinafter “instant disposition”).

0 The Plaintiff was provided with the instant subsidy by manipulating documents as if the instant worker had worked on a full-time basis even though he actually worked on a full-time basis.

In other words, the Plaintiff prepared a labor contract with the instant worker and the instant worker to work six hours a day, thirty hours a week, and thirty hours a week at the instant medical center, and submitted it to the Defendant and received the instant subsidies. However, the Plaintiff provided that the instant worker work eight hours a day at the instant medical center and forty hours a week at the instant medical center.

D. The Plaintiff filed an administrative appeal against the instant disposition within the filing period, including the Plaintiff’s claim for administrative appeal. The Central Administrative Appeals Commission dismissed the Plaintiff’s claim on February 7, 2017, and the Plaintiff filed the instant lawsuit on March 31, 2017.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 5, 7, Eul evidence No. 1, and the purport of the whole pleadings

2. The plaintiff's assertion

A. Non-existence of grounds for disposition

The Plaintiff did not receive the instant subsidy by fraud or other improper means.

B. Violation of the principle of trust protection

The Plaintiff believed the Defendant’s guidelines that workers entitled to subsidies under the instant project may engage in excess labor within the extent of not exceeding 12 hours a week, and had the instant workers engage in excess labor for 10 hours a week. Therefore, it violates the principle of trust protection to the Plaintiff who believed the above guidelines.

(c) deviation from and abuse of discretionary authority;

Since the plaintiff's interest infringed on the disposition of this case is greater than the public interest to achieve the disposition of this case, the disposition of this case is unlawful by abusing and abusing discretion.

3. Related statutes;

It shall be as listed in the attached Form.

4. Determination

A. As to the assertion of violation of the non-existence of grounds for disposition and the principle of trust protection

1) Facts of recognition

A) On July 31, 2014, the Defendant stated that contractual work hours are excluded from the payment of subsidies under the instant project if the contractual work hours exceed 12 hours a week in data divided by division while holding a briefing session on the instant project (Evidence A4). Moreover, the manual for the instant project published by the Minister of Employment and Labor in September 2015 states that contractual work hours exceed five hours a week shall be excluded from the payment of subsidies under the instant project (Evidence A5).

B) The Plaintiff filed an application for subsidies pursuant to the instant project with the Defendant (hereinafter “instant application”). The Plaintiff’s application is accompanied by the standard contract for part-time workers with the content that the instant workers agreed to work 6 hours a day and 30 hours a week from the instant medical care center and that the said workers worked 120 hours a month, and the individual wage, etc. that the said workers worked 120 hours a month (Evidence No. 5).

C) On September 30, 2015, the head of the Gwangju Regional Headquarters of the National Health Insurance Corporation notified the Defendant from July 2014 that D, E, and F had worked for 8 hours a day and 40 hours a week from the instant medical care center. On October 14, 2015, the head of Seo-gu Seoul Metropolitan City sent a standard labor contract to the Defendant on September 11, 2014, stating that G among the instant workers would work for 8 hours a day from the Plaintiff and the instant medical care center for 8 hours a week (Evidence 6).

D) From July 24, 2014, the instant workers worked for eight hours a day at the instant medical care center and forty hours a week from July 24, 2014, and submitted a written statement to the Defendant that wages for working hours exceeding thirty hours were paid in the form of allowances (No. 7).

[Ground of recognition] Facts without dispute, Gap evidence 4, 5, Eul evidence 5, Eul evidence 5, 6, 7, the purport of the whole pleadings

2) Relevant legal principles

A) The Minister of Employment and Labor shall order a person who has received, or intends to receive, support for employment security and vocational skills development programs by fraud or other improper means, to restrict the payment of subsidies or to return the amount of subsidies received by fraud or other improper means, as prescribed by Presidential Decree, within the extent of one year (Article 35(1) of the Employment Insurance Act). In addition, the Minister of Employment and Labor may additionally collect an amount not exceeding five times the amount of subsidies received by fraud or other improper means in accordance with the guidelines prescribed by Ordinance of the Ministry of Employment and Labor (Article 35(2) of the Employment Insurance Act). Here, “any other improper means” refers to all active acts by which a person who is not eligible to receive subsidies would generally have the eligibility or would have an impact on the decision-making on the payment of subsidies (see Supreme Court Decision 2013Du3610, Aug. 22, 2013).

B) The purpose of the instant project is to give more opportunities to work on a flexible-time basis than the ordinary job and to create more work hours to many people. In the event that the Minister of Employment and Labor allows part-time workers to work in excess of contractual work hours, the implementation of the guidelines that the subsidies for the instant project would not be granted pursuant to the instant project would give more people an opportunity to work on a flexible-time basis by creating a flexible-time work site (Evidence 9) would also be to prevent the payment of subsidies for the instant project only by avoiding the purpose of the instant project (Evidence 9).

If the two sides concluded a flexible-time labor contract, but in fact, concluded a flexible-time labor contract to a worker who has concluded a flexible-time labor contract and had the worker work for the same time as the ordinary worker by continuously engaging in overtime work, it cannot be deemed as a part-time worker eligible for support under the instant project.

3) Determination

In light of the following circumstances revealed through the facts and evidence acknowledged in paragraph (1) above, it is reasonable to view that the Plaintiff received the instant subsidy for the instant workers by submitting false documents to the Defendant, as if the instant workers were employed on a flexible basis and were employed by the instant workers on a short time basis during the short time period. Therefore, the instant workers cannot be deemed as a part-time worker eligible for support for the instant work, and this does not relate to the Defendant’s guide or the Plaintiff’s trust that the instant workers may engage in overtime work within the extent of not exceeding 12 hours per week. Accordingly, the Plaintiff’s assertion on this part is not acceptable.

A) In concluding a labor contract with the instant workers, the Plaintiff drafted a standard labor contract with the purport that the instant workers work for eight hours a day at the instant medical center and forty hours a week at the instant medical center. In fact, the instant workers continued to work for eight hours a day at the instant medical center and forty hours a week at the beginning.

B) Upon filing the instant application, the Plaintiff separately prepared a labor contract stating that the instant worker would work 6 hours a day, 30 hours a week at the instant medical center, and that the instant worker would work 120 hours a month, and submitted it to the Defendant.

C) If the Plaintiff, at the time of the instant application, sold the actual labor contract, wage ledger, etc. to the Defendant, the Defendant would have not paid the instant subsidy to the Plaintiff.

B. As to the assertion of deviation and abuse of discretionary power

1) Relevant legal principles

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 of public interest and the disadvantages that an individual may be seen as an individual by objectively examining the content of the violation, which is the reason for the disposition, and the public interest purpose to achieve through the relevant disposition, as well as various circumstances, etc. (see, e.g., Supreme Court Decision 98Du11779, Apr. 7, 2000). In addition, where a disposition standard is prescribed by Presidential Decree or Ordinance of the Ministries, such disposition standard itself does not conform to the Constitution or laws, or unless there are reasonable grounds to believe that a punitive administrative disposition in accordance with the above disposition standard is considerably unfair in light of the content and purport of the relevant statutes and the content and purport of the relevant statutes (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 207).

2) In the instant case:

In light of the following circumstances revealed by the aforementioned evidence, the Defendant cannot be deemed to have abused or abused discretion and rendered the instant disposition. Accordingly, the Plaintiff’s assertion on this part is rejected.

A) The amount of the instant subsidy that the Plaintiff received by unlawful means is 14,084,150 won.

B) In addition, the Plaintiff prepared and submitted a false labor contract, wage ledger, etc. to receive the instant subsidy, and there is a high possibility of criticism.

C) The instant disposition conforms to the criteria set forth in Article 35(1) and (2) of the Employment Insurance Act, Article 56(2) [Attachment 2] of the former Enforcement Decree of the Employment Insurance Act, and Article 78(1) of the Enforcement Rule of the Employment Insurance Act, and it is difficult to deem that such disposition criteria per se do not conform to the Constitution or laws, or that the instant disposition is significantly unfair.

5. Conclusion

Therefore, the plaintiff's claim is not correct, so it is dismissed. It is so decided as per Disposition.

Judges Park Byung-il

Judge Dok-un

A person shall be appointed.

A person shall be appointed.