2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 1/20 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

A. On April 208, the Plaintiff obtained recognition of the vocational ability development training course (A), from April 21, 2008 to April 25, 2008, and from 35 hours in total (hereinafter “instant training course”).

B. On September 23, 2008, the Plaintiff filed an application with the Defendant for subsidies for vocational skills development training expenses (hereinafter “training expenses”) from the Defendant according to the details of the completion of the instant training course by the employees notified by B, and received a total of KRW 3,141,040 from the Defendant, and among them, KRW 108,510 was included in C’s training expenses. Around August 2010, the Defendant conducted an investigation upon request from the Board of Audit and Inspection of Korea and the Ministry of Employment and Labor as to whether a trainee staying abroad during the training period for vocational skills development, and confirmed that C, who was a trainee of the instant training course, was present at the instant training course despite having been staying abroad for both days on April 21, 2008 and April 22, 2008.

D. Accordingly, on September 23, 201, the Defendant rendered each of the dispositions in the following table (hereinafter collectively referred to as “each of the dispositions in this case”) against the Plaintiff on the ground that the Plaintiff was provided with training expenses by means of false or other unlawful management.

A person shall be appointed.

A person shall be appointed.

【Ground of recognition】 The fact that there is no dispute, Gap's 1 through 4, Eul's 1 through 6, the purport of the whole pleadings and arguments

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

A. The plaintiff's assertion

1) The absence of the grounds for disposition (related to each disposition of this case) was not done within the company of the plaintiff, but conducted the whole process from the entrusted educational institution B to the attendance, education, evaluation, and completion of education, and issued a certificate of completion of education that C had completed the education. Therefore, it is impossible for the plaintiff as a trainee to confirm or understand the non-existence of the training course. The plaintiff applied for the support of C's training expenses without recognizing the non-existence of the details of completion of education issued by B, and the plaintiff applied for the support of C's training expenses without reliance on only the details of completion of education issued by B, it is merely a simple error that occurred in the course of performing his/her duties, and it cannot be deemed as a "false or other unlawful means" under Article 35 (1) of the former Employment Insurance Act. Thus, each disposition of this case based on the premise that the above act of the plaintiff falls under "false or other unlawful means"

2) The enforcement decree of this case, which is the basis of the disposition of this case, provides that the invalidation of the provision of this case, which is the basis of the disposition of this case (related to the third disposition of this case), shall be mandatory to set the period of restriction on payment for one year and shall order the return of all subsidies, etc. paid during that period, without any condition. This goes beyond the limit of delegation under Article 35(1) of the former Employment Insurance Act, which is the mother corporation, and is null and void as it goes against the principle of excessive prohibition under the Constitution. Thus,

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) Despite the fact that C, an employee of C, was staying in a foreign country for the purpose of participating in a bid conducted from April 17, 2008 to April 22, 2008, the Plaintiff was treated as having been present for five days from April 21, 2008 to April 25, 2008 during the instant training period conducted for five days from April 21, 2008 and April 22, 2008, and was subsidized from the Defendant for KRW 108,510 as training expenses for C on September 23, 2008.

2) The instant training course is recognized as having completed a training course that would be at least 80% of the attendance rate and can be subsidized from the Defendant. In the case of C, if the training course was conducted as having attended only 20,000 days during the training period for a total of 5 days, the attendance rate does not exceed 80% and does not meet the requirements for completing the training, and thus, it is not eligible for subsidies for training costs.

[Reasons for Recognition] The evidence and the purport of the whole pleading

D. Determination

1) Whether it constitutes a false or other unlawful manner

A) Sanction against violation of administrative regulations is a sanction against the objective fact that is a violation of administrative regulations to achieve administrative purposes, and thus, it may be imposed even if the violator has no intention or negligence, barring any special circumstance, such as where there is a justifiable reason not to cause any negligence on the part of the violator, and “any false or other unlawful means,” which can be subject to a sanction for return order and additional collection under Article 35 of the former Employment Insurance Act, includes all active and passive acts that can affect the decision-making on the payment of subsidies, etc., by means of any unlawful act conducted by an unqualified business owner in order to conceal the eligibility for payment or the lack of eligibility for payment (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

B) In light of the above legal principles, the following circumstances are comprehensively taken into account as to the instant training course: (i) insofar as the attendance rate becomes the prerequisite for the subsidization of training expenses; (ii) it appears to be very important and essential matters in the instant training course; (iii) it is difficult to justify the Plaintiff’s failure to perform his/her duty of care to ascertain the status of departure from the overseas business trip and to ascertain the status of departure; and (iv) in the case of C, who was a trainee of the instant training course, he/she could not meet the requirements for completion of the training course due to his/her occupational trip during the training period; and (v) the Plaintiff was paid the Defendant with full care, even if he/she could have been aware of such circumstances, and thus, he/she could not be justified by applying for the subsidization of training expenses to C; and therefore, (v) it appears that the Plaintiff’s act of conducting the instant training constitutes “an unlawful or unjust management of training expenses” under Article 15(1)5 of the former Employment Insurance Act. Therefore, it is reasonable to deem that the Plaintiff’s act of this case constitutes “an unlawful management of training expenses.”

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

A) In light of the contents, form, system, etc. of Article 35(1) of the former Employment Insurance Act and the Enforcement Decree of this case, an order to set the period of restriction on vocational skills development training costs and to return subsidies, etc. paid during the period of restriction on subsidies shall be deemed to constitute a binding act. However, this paper examines whether the enforcement Decree of this case, which stipulates that a person who received or attempted to receive vocational skills development training costs, etc. by fraudulent or other unlawful means (hereinafter referred to as "unlawful recipients") shall be obliged to pay subsidies, etc. for one year, and shall be ordered to return subsidies, etc. paid during the period of restriction on payment, does not violate the purpose of delegation by the mother law or the principle of excessive prohibition under the Constitution.

B) First, we examine whether the enforcement decree of this case has determined the restriction on subsidization of vocational skills development training costs and the refund of subsidies, etc. accordingly beyond the purport of delegation under Article 35(1) of the former Employment Insurance Act.

Even if Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of matters delegated to Presidential Decree, the scope or limitation of inherent delegation in accordance with the legislative intent or purpose, etc. of the above provision may be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Du6578, Jul. 22, 1997); and the former Employment Insurance Act.

Considering the fact that various types of violations are expected in light of the nature of various kinds of subsidies, etc. and the form of the above provision or legislative purpose, the purport of delegation under Article 35(1) of the former Employment Insurance Act seems to have been delegated to the competent administrative agency to reasonably subdivide and regulate the standards for the restriction of support or the return of subsidies, etc. according to the type of misconduct and the degree of violation, details, motive, seriousness of the result thereof, etc. However, the enforcement decree of this case upon delegation of the above provision is compelling the pertinent administrative agency to uniformly order the return of subsidies, etc. granted for one year, without setting detailed standards according to the content and degree of the violation as seen earlier, and there is no room for the increase and decrease of the amount of discretion, and thus, it would result in a conclusion that a lump sum sanction disposition is inevitable regardless of the degree of violation or circumstances.

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 Article 56 (1) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026) provides for restrictions on the payment of subsidies, etc., if three years have passed from the date of receipt of subsidies or incentives, or the amount of subsidies received or to be received by fraudulent or other illegal means is less than three million won, and where fraudulent acts have been discovered for the first time, the restriction on the payment for one-year period shall not apply." However, Article 56 (2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) provides for restrictions on the payment of subsidies to those who receive or intend to receive one of the subsidies under paragraph (1) by fraud or other improper means.

Therefore, the enforcement decree of this case is unlawful as it deviates from the purport of delegation under Article 35(1) of the former Employment Insurance Act.

C) Next, we examine whether the instant enforcement decree provisions violate the principle of excessive prohibition.

The purpose of the enforcement decree of this case is to prevent fraudulent acts related to the payment of subsidies, etc., to prevent unemployment, to promote employment, and to develop and improve the vocational ability of workers through the restriction on payment of subsidies, etc. for one year to illegal recipients and the order to return subsidies, etc. during the restriction period, and ultimately, to promote the development and improvement of vocational ability of workers. In addition, the legislative purpose of this case is justifiable in light of the fact that subsidies, etc. are carried out through the limited public resources of the Employment Insurance Fund under the Employment Insurance Act, which is the Employment Insurance Fund under the Enforcement Decree of this case. Furthermore, it appears that fraudulent acts related to the payment of subsidies, etc. are to be reduced through the punitive sanctions prescribed under the Enforcement Decree of this case, and accordingly, the Employment Insurance Fund will be more solidified. Accordingly, the enforcement decree of this case can be deemed as a means suitable for the achievement of its legislative purpose. However, in light of the various circumstances seen below, the content of the enforcement decree of this case is a provision

Article 35(2) of the former Employment Insurance Act provides that, in addition to ordering the return of subsidies, etc. already paid pursuant to paragraph (1), an amount not exceeding the amount corresponding to the amount received by false or other unlawful means within the punitive meaning, and accordingly, Article 25(4)1 of the former Vocational Development Act, Article 22-2 of the former Enforcement Decree of the Vocational Development Act, and Article 9(1) of the former Enforcement Rule of the same Act stipulate that the amount to be additionally collected based on the number of times the Plaintiff applied for subsidies by false or other unlawful means during the past five years shall be limited to one year from the aforesaid additional collection disposition. Meanwhile, the provision of the Enforcement Decree of the same case provides that the amount of subsidies shall be returned to the illegal recipient for 1 year, regardless of whether the subsidies were paid during the period of restriction on payment, and that the amount of subsidies that the Plaintiff would be subject to additional collection would have been subject to an excessive reduction of the amount of subsidies by 10 years prior to the date of application for the above additional collection disposition. This provision provides that the Plaintiff may not be subject to the aforementioned additional provision.

○ The enforcement decree of the instant case provides for the restriction on payment and the order to return subsidies, etc. paid during the period of restriction on payment for one year from the date of receiving the subsidies, etc. or applying for the payment, but does not impose any special restrictions on the period during which the said sanctions may be imposed, thereby creating a problem that the status of the illegal recipient becomes unstable

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; Presidential Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) was amended so that the provision of Article 56(2) of the Enforcement Decree of the Employment Insurance Act, taking into account the content, degree, etc. of the violation, and subsequent subsidy can be returned,

D) Therefore, since the disposition of this case based on the provision of the Enforcement Decree of this case which is null and void because it violates the purport of delegation of the mother law or violates the principle of excessive prohibition under the Constitution is unlawful, this part of the Plaintiff’s assertion is with merit.

E. Sub-committee

Therefore, the disposition Nos. 1 and 2 of this case ordering the return of KRW 108,510 and additional collection of the amount equivalent thereto received by the Plaintiff by fraud or other improper means is lawful. Thus, the Plaintiff’s claim on this part is without merit, and the disposition No. 3 of this case based on the invalid provision of the Enforcement Decree of this case is unlawful and therefore, the Plaintiff’s claim on this part is justified.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-soo

Judges Kim Gin-hee

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.