A. On March 11, 2008 and April 3, 2008, the Plaintiff’s headquarters conducted a video editing process (hereinafter “instant training”) for 18 employees from March 11, 2008 to April 3, 200, and received payment of KRW 1,108,560 on April 21, 200 for the instant training expenses.

B. On the other hand, the head of Daegu Regional Employment Service confirmed that the trainee B left the Republic of Korea during the instant training course from March 25, 2008 to April 2, 2008 and that the trainee was handled as if he was present at the training on March 29, 2008, and that on April 21, 201, the head of the Daegu Regional Employment Service rendered a disposition of restricting the payment to the Plaintiff under Article 208(c) of the former Workers’ Vocational Ability Development Act (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same shall apply) for the period from 200 to 200.15 of the former Workers’ Vocational Ability Development Act (amended by Act No. 9315, Apr. 21, 201; hereinafter the same shall apply).

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Eul evidence 1, Eul evidence 2, Eul evidence 2, the purport of the 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 true that the training courses in the instant case are included in the person subject to the application for training fees because the trainee B was not present during the period of his departure from Korea. However, this is due to the number of employees D who are 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 former Vocational Skills 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 “Enforcement Decree of the instant case”) (hereinafter “instant provision”) 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 rights. 3) The scope of the instant provision on the restriction of payment should be limited to the scope of the instant provision on the restriction of payment, or to the relevant workplace.

4) In imposing sanctions against illegal receipt of subsidies, the Defendant’s instant disposition under the Employment Insurance Act, other than the Vocational Skills Development Act, deviates from or abused the scope of discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the first argument

A) Sanction against violation of administrative laws is a sanction against the objective fact of violation of administrative laws in order to achieve administrative purposes, and thus, it may be imposed even if the violator has no intention or negligence, barring any special circumstances such as there is a justifiable reason not to cause any negligence on the part of the violation. The term "any false or other unlawful means" which can be subject to sanctions under the former Employment Insurance Act and the former Workers’ Vocational Skills Development Act, which apply to each of the dispositions in this case, means all the active and passive acts that may affect the decision-making on the payment of training costs, which are conducted in order to conceal the eligibility for payment to the unqualified business owner or the lack of eligibility for payment (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

B) In the instant case, we examine the following circumstances: Gap evidence 6, Gap evidence 7, Eul evidence 1, and Eul evidence 4 (including Serial number), which can be acknowledged by considering the overall purport of the pleadings, i.e., ① the Plaintiff is obligated to finally verify whether the trainees were present before applying for the instant training. ② D, who was in charge of applying for the instant training, was informed by Eul that he was unable to attend the said training during the instant training period. Thus, Eul was unaware of the fact that he was unable to attend the training for the above period of departure from Korea, ③ It is reasonable to find that the Plaintiff did not sign part of the trainees during the instant training period for the purpose of applying for the instant training expenses, and that the Plaintiff did not attend the training course for the 18th new local office for the 18th new local office for the instant training period, based on the fact that the Plaintiff did not attend the training course for the 6th new local office for the 8th new local office for the instant training period.

2) Judgment on the second argument

A) 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, a disposition ordering the establishment of the period of restriction on vocational skills development training costs and the return of subsidies, etc. paid during the period of restriction on subsidies shall be deemed to constitute 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 costs, etc. by false or other unlawful means pursuant to delegation under Article 35(1) of the former Employment Insurance Act (hereinafter referred to as "unlawful recipients") shall be obliged to return subsidies, etc. paid during the period of restriction on payment, without paying subsidies, for one year, is not contrary to the purport of delegation by the mother law

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 Employment Insurance Act.

(1) Even if Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of delegation to the Presidential Decree, it is reasonable to view that the scope or limitation of inherent delegation by 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). Considering the fact that various types of violations are anticipated in light of the nature of various kinds of subsidy granted under the former Employment Insurance Act, and the form or legislative purpose of the above provision, the purport of delegation under Article 35(1) of the former Employment Insurance Act is to ensure that the provision can be reasonably subdivided and defined in accordance with the type of misconduct, its degree, motive, and gravity of the outcome thereof, and if it is difficult to do so, it is reasonable to view that the provision can be uniformly mitigated and mitigated within a certain scope, regardless of the content or degree of delegation of the above provision.

(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, and where fraudulent acts have been discovered as the amount of less than three million won for the first time, the restriction on the payment for one-year period shall not apply to those who received or attempted to receive subsidies under paragraph (1) by fraud or other improper means, and Article 56(2) of the Enforcement Decree of the Employment Insurance Act currently being implemented 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 restriction under paragraph (1) to the extent that it constitutes a result of the amendment of the Act.

(3) Therefore, the instant provision is unlawful as it deviates from the purport of delegation under Article 35(1) of the former Employment Insurance Act, a mother corporation.

C) Next, examining whether the provision of this case violates the principle of excessive prohibition, the legislative purpose of this case is justifiable in light of the fact that the provision of this case is aimed at preventing unlawful acts related to the payment of subsidies, etc. through restriction on payment of subsidies, etc. for one year to illegal recipients and orders to return subsidies, etc. paid during the restriction period, and ultimately preventing unemployment, promoting employment, and promoting the development and improvement of workers’ vocational abilities, and that subsidies, etc. are performed with limited public resources, which are employment insurance fund under the Employment Insurance Act. Furthermore, it appears that fraudulent acts related to the payment of subsidies, etc. will be reduced through punitive sanctions under the Enforcement Decree of this case, and accordingly, the employment insurance fund will be more solided. Accordingly, the provision of this case can be deemed as a means suitable for the achievement of the legislative purpose. However, in light of the various circumstances seen below, the content of the provision of this case violates the principle of excessive prohibition as excessive infringement of property rights of the remaining illegal recipients who lack the requirements of "minimum damage" or "legal interests."

(1) Article 35(2) of the former Employment Insurance Act provides that an amount not exceeding an amount equivalent to the amount received by false or other unlawful means may be collected within a punitive meaning. Accordingly, Article 25(4)1 of the former Vocational Skills Development Act, Article 22-2 of the former Enforcement Decree of the Vocational Skills Development Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); Article 9(1) of the former Enforcement Rule of the Vocational Skills Development Act (amended by Ordinance of the Ministry of Labor No. 320, Apr. 1, 2009) provides that the amount to be additionally collected based on the number of fraudulent or other unlawful means applied for expenses for the past five years, separately from the aforesaid additional collection disposition, should be imposed on the illegal recipient for one year, and that the amount should be uniformly refunded to the Plaintiff regardless of whether the subsidies were paid during the restriction period or by other unlawful means. Therefore, even if the amount of subsidies is considerably more than that of the instant disposition subject to additional collection, it is more than that of the penalty provision.

(2) In addition, the provision of the Enforcement Decree of this case provides that the initial date of the restriction on payment shall not be the date on which the application for the payment was received or made, which is not the date on which the application was made for the restriction on payment, and thus, the illegal recipient shall return retroactively the subsidy, etc. already received prior to the restriction on payment. However, the situation that the illegal recipient would be restricted from the payment of the subsidy, etc. for one year is aware of in advance. In addition, it is difficult to deem that the vocational ability development project could be flexibly conducted during the restriction period, and that the operation of vocational ability development project is unfair. Therefore, even if the provision of the Enforcement Decree of this case provides for the restriction on payment, it cannot be deemed that the ‘minimum amount of damage' principle can be minimized by prescribing the date on which the application was made by receiving the subsidy, etc.

(3) In addition, the instant enforcement decree also provides for a mandatory payment restriction and an order to return subsidies, etc. 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 it does not impose any special restrictions on the period during which the said sanctions may be imposed, resulting in a problem that the status of an

(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) 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 deemed as a result of reflecting the content and degree of the violation and the return of subsidies, etc. accordingly.

D) Therefore, 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. Therefore, this part of the Plaintiff’s assertion is justified.

3) Sub-determination

Therefore, the instant disposition is unlawful as it is based on the invalid provision of the Enforcement Decree of the instant case, and thus, it should be revoked without examining the remainder of the Plaintiff’s claims.

3. Conclusion

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

Judges Lee Sung-sung

Judges Kim Jin-hee

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.