A. The Plaintiff is operating a Acertified Tax Accountants Office in Seocho-gu Seoul (hereinafter referred to as the “instant office”). Under Article 26(1)1 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2595, Dec. 31, 2014; hereinafter the same) on the ground that the Plaintiff employed B as “a person who has a particular difficulty in finding employment under the ordinary conditions of the labor market” under Article 23 of the former Employment Insurance Act (amended by Act No. 13041, Jan. 2015; hereinafter the same shall apply), the Plaintiff applied for employment promotion for the period of covered employment to the Defendant from October 1, 2013 to March 31, 2014, and received KRW 3,400,000 from the Defendant on April 17, 2017.

B. On November 3, 2014, the Plaintiff filed an application for the second employment promotion subsidy with the Defendant from April 1, 2014 to September 30, 2014. However, as a result of examining whether the Plaintiff’s illegal receipt of the subsidies for employment promotion, the Defendant reported the first degree of marriage B (the Plaintiff’s children) included in the person excluded from the subsidies for employment promotion as a person eligible for support, and confirmed that the Defendant received the subsidies for employment promotion.

D. Accordingly, on January 20, 2015, the Defendant issued an order to return KRW 3,400,000 for the first employment promotion subsidy, an order to additionally collect KRW 6,800,000 equivalent to twice the subsidy for the first employment promotion, and a disposition to refuse to additionally collect KRW 6,80,000 for the second application for the second employment promotion subsidy (hereinafter in order, referred to as “the return order,” “the instant disposition,” “the additional collection disposition,” and “the instant disposition,” collectively, and hereinafter referred to as “each of the instant dispositions”).

E. On April 20, 2015, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission against the instant return order, the instant additional collection and disposition, and the instant rejection disposition, but was dismissed on July 8, 2014. [Grounds for recognition] The Plaintiff did not dispute, the Plaintiff’s written evidence Nos. 3, 4, 37, and 38, as well as the purport of the entire pleadings and arguments.

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

A. Summary of the plaintiff's assertion

Each disposition of this case is illegal and unfair for the following reasons.

1) unconstitutionality of applicable statutes

In particular, the State has a duty to take measures or provide economic support necessary for stabilizing women's employment, and Article 44 (3) 4 of the Enforcement Rule of the Employment Insurance Act provides that the payment of subsidies for promotion of employment shall be prohibited on the ground that a female employee is only a female employee by marriage within the fourth degree of the business owner. This infringes on the freedom of choice of occupation, the right to pursue happiness, the right to equality and the right to live worthy of human dignity. Each of the instant dispositions

2) Non-existence of grounds for disposition

The Plaintiff, due to lack of legal knowledge, applied for employment promotion subsidy to the Defendant without knowing whether the Plaintiff himself/herself and B, a person eligible for support, correspond to the first degree of affinity relationship under the law, and there was no intention to unlawfully receive the employment promotion subsidy from the Defendant. Moreover, since B actually worked in the instant office, it does not constitute a case where the Plaintiff applied for employment promotion subsidy by fraudulent or other unlawful means. Accordingly, each of the instant dispositions did not exist.

(iii) the deviation and abuse of discretionary authority;

The Plaintiff merely did not know the fact that the Plaintiff is a person by marriage in the first degree of law, but did not have any intention or gross negligence to receive employment promotion subsidies from the Defendant, and there was no intention or gross negligence to commit an active act by the Defendant. In addition, considering all these points, each of the dispositions of this case was excessively harsh to the Plaintiff and abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the underlying statute is unconstitutional

Article 23 of the former Employment Insurance Act and Article 26 (1) of the former Enforcement Decree of the Employment Insurance Act provide for a system for granting subsidies for employment promotion to the relevant workers who employ the aged or take other measures necessary for their employment security in order to promote the employment of those who have difficulties in employment under the ordinary conditions of labor market.

However, Article 26(3)1 of the former Enforcement Decree of the Employment Insurance Act provides that an employment promotion subsidy shall not be granted to a person who employs a person who falls under any of the cases prescribed by Ordinance of the Ministry of Employment and Labor, such as short-term employment contract period. The Enforcement Rule of the Employment Insurance Act delegated by the employer stipulates that a business owner shall not be granted an employment promotion subsidy to a person who employs his/her spouse, relative within the fourth degree of relationship, or relative within the fourth degree of relationship. This means that a business owner is excluded from a person eligible for employment promotion when he/she employs a relative, as it differs from the public interest purpose of the employment promotion of the class whose employment is weak for employment. Thus, the legislative purpose of the Employment Insurance Act is legitimate and is within the scope of reasonable legislative discretion.

Therefore, Article 44(3)4 of the Enforcement Rule of the Employment Insurance Act cannot be deemed as unconstitutional because it is difficult to see that the freedom of occupation, the right to pursue happiness, the right to equality, etc. is violated. Therefore, the Plaintiff’

2) Whether there exist grounds for the disposition

A) Sanction against a violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws to achieve administrative purposes, and thus, a sanction may be imposed even if the violator has no intention or negligence, barring any special circumstance, such as where the violator has a justifiable reason not to cause any negligence (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). “False or other unlawful means” means any and all unlawful acts conducted by an unqualified business owner to conceal the eligibility for payment or lack of eligibility for payment of subsidies for promotion of employment, which may affect the decision-making on the payment of subsidies for promotion of employment (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

B) In full view of the following circumstances that can be seen as having been paid subsidies for promotion of employment by fraud or other improper means, and it is difficult to deem that there was a justifiable reason that the Plaintiff did not err by failing to perform his/her duties, on the grounds that the following circumstances were revealed, such as the developments leading up to the above disposition, the evidence mentioned above, and the evidence indicated in the evidence Nos. 1 through 3, and the evidence No. 6.

As seen earlier, the grounds for each disposition of this case exist, and the Plaintiff’s assertion is without merit. (1) The pertinent provisions of the former Enforcement Decree of the Employment Insurance Act and the Enforcement Rule of the Employment Insurance Act stipulate that no subsidies for promotion of employment shall be granted if the employer employs workers corresponding to the spouse, relative by blood within the fourth degree, or relative by blood within the fourth degree, and also stipulate that the employee is excluded from those eligible for support for promotion of employment if the employee is his spouse, relative by blood within the fourth degree, or relative by blood within the fourth degree. Therefore, even though the Plaintiff knew or could have known of the above facts, the Plaintiff applied for support for promotion of employment to the Defendant, including the first degree of relative by marriage, for support for promotion of employment, “new employment is a relative by marriage within the fourth degree with the business owner (including the spouse of the business owner),” and therefore, the Plaintiff’s act constitutes a case where the relationship by marriage is concealed by putting a mark on the items “no by marriage,” which is called “no by fraud or other unlawful means.”

As to this, the Plaintiff asserts to the effect that there was a justifiable reason that the Plaintiff could not cause the Plaintiff’s neglect of duty, since the Plaintiff did not specifically investigate and inquire the Plaintiff as to whether the Plaintiff himself/herself and B, a person eligible for support, were relatives and relatives within the fourth degree of relationship with the Plaintiff when applying for the subsidies for promotion of employment. However, as seen earlier, the Plaintiff submitted documents to the Defendant that there is no relationship of relatives and relatives within the fourth degree of relationship between the Plaintiff and B, a business owner, when applying for the subsidies for promotion of employment under the relevant statutes, it is difficult to view that the competent administrative agency has a substantial right to examine whether the Plaintiff and his/her spouse, relatives and relatives within the fourth degree of relationship with the employer when applying for the subsidies for promotion of employment under the relevant statutes. Thus, barring any special circumstance, the Defendant cannot be deemed to have a duty to examine the authenticity of the content of the documents submitted to the Defendant based on the documents, etc. submitted by the Plaintiff. Rather, it is reasonable to deem that the Defendant as his/her wife, his/her wife, as his/her wife, was obligated to verify the Defendant’s payment of this case’s unjust decision.

(2) In addition, comprehensively taking account of the Plaintiff’s current health card B, No. 12, No. 13, and No. 14, as to whether the Plaintiff was working at the Plaintiff’s workplace, and the overall purport of the Plaintiff’s evidence B, No. 14, and No. 2, as to whether the Plaintiff was working at the Plaintiff’s office, it is reasonable to conclude that the Plaintiff was not present at the Plaintiff’s office for the first time on April 15, 2014, and that the Plaintiff was not present at the Plaintiff’s office for the first time on which the Plaintiff’s business trip was investigated by the Defendant, and that the Plaintiff was not present at the Plaintiff’s office for the first time during the period of 30 days (from February 3, 2014 to September 18, 2014) and that the Plaintiff was not present at the Plaintiff’s office for the first time on which he was present at the Plaintiff’s 1, 2014.

3) Whether the discretion is deviates or abused or not

The following circumstances revealed by the statement of facts, relevant Acts and subordinate statutes, and evidence No. 1, i.e., (i) the Plaintiff received a considerable amount of subsidies for promotion of employment by fraudulent or other illegal means; (ii) the subsidies for promotion of employment was prepared for the promotion of employment of those who have particular difficulty in finding employment under the ordinary conditions of the labor market; and (iii) for the transparent and appropriate operation of the subsidies for promotion of employment, the payment of subsidies for promotion of employment should be strictly controlled and managed; (iv) such public interest cannot be said to be less than the Plaintiff’s private interest that is limited due to each of the dispositions of this case; and (iii) the amount of fraudulent receipt or additional collection ordered by the Defendant to return was conducted in accordance with the disposition standards stipulated in the relevant Acts and subordinate statutes. In light of the above circumstances, it is difficult to deem that the above disposition standards do not conform with the Constitution or laws, or that the pertinent return order or additional collection disposition is considerably unfair. Accordingly, the Plaintiff’s assertion on this part of this case is without merit.

D. Sub-committee

Each disposition of this case is not illegal or unjust.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Gung-Un

Judges Kim Gin-won

A person shall be appointed.