2. The Administrator of the Seoul Southern District Office of Employment and Labor;

3. The Administrator of the Seoul Regional Employment and Labor Office;

A. The head of the Seoul Regional Employment and Labor Office (hereinafter “Seoul Regional Employment and Labor Office”) issued an order to return the subsidy specified in attached Form 1 (1) as of March 22, 201; and the order to return the subsidy specified in attached Table 2 (2) as of March 23, 201 by the head of the Seoul Regional Employment and Labor Office as of March 23, 201;

B. An order to return subsidies of KRW 6,466,70 as of March 22, 201 by the head of the Seoul Southern District Office of Employment and Labor;

C. The head of the Seoul Northern District Office (Seoul Northern District Office) issued an order to return the subsidy specified in attached Form 1(3) as of March 23, 2011 to the head of the Seoul Northern District Office.

Each cancellation shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

A. The Plaintiff’s branch office, from February 14, 208 to February 26, 2008, for 34 employees, conducted training for a person in charge of consultation on railroad operation (hereinafter “instant training”). On March 17, 2008, the Plaintiff filed an application for the payment of training expenses for the entire training for a person in charge of consultation on railroad operation, including the instant training with the head of the Gyeonggi-do Labor Agency (hereinafter “head of the Gyeonggi-do Office”). On March 21, 2008, the Administrator of the Gyeonggi-si paid 14,364,600 won to the Plaintiff as training expenses. Of the training expenses, the training expenses of this case are 4,93,298 won, and the expenses for the middle trainee B are 145,097 won.

B. On February 15, 2008, the head of Gyeonggi District Administration confirmed that trainees B left Korea from the Republic of Korea to the 26th of the same month and was treated as having attended the instant training on the 14th, 15, 20, and 21st day of the same month although they did not participate in the instant training, and on March 21, 201, he reported that they had completed the instant training and received training expenses by fraud or other improper means, and on the ground that they had received subsidies from the Plaintiff during the 20th day of the previous Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same shall apply), Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply).

D. On July 1, 2011, the head of the Seoul Regional Employment and Labor Office succeeded to part of the duties of the head of the Seoul Regional Employment and Labor Office as the labor office having jurisdiction over Dongdaemun-gu changed from the Seoul Local Employment and Labor Office to the Seoul Local Employment and Labor Office. Accordingly, the order to return the subsidy specified in attached Table 1(2) was the duties of the head of the Seoul Regional Employment and Labor Office.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2 through 5, 12, Eul evidence No. 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The fact that the trainee was present without attending the instant training during the period of departure from the Republic of Korea and included in the person subject to the application for training costs is merely an administrative error due to the failure of the employee at first in charge of the relevant work, and thus does not constitute a false or other unlawful means.

(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 “Enforcement Decree of the instant case”) is deemed null and void by exceeding the bounds of delegation under Article 35(1) of the Employment Insurance Act, or by excessively infringing the Plaintiff’s property rights, thereby violating the Constitution.

(iii)The scope of a disposition of return of the subsidy under a disposition of restriction on payment shall be limited to the person or workplace in which the subsidy was provided by false or other unlawful means.

(4) In imposing sanctions against illegal receipt of subsidies, the Defendants’ act of imposing the instant disposition under the former Employment Insurance Act, which is not the former Workers’ Vocational Ability Development Act, is unlawful as it deviates from the scope of discretion or abused discretion.

(b) Related statutes;

Attached Form 2 is as shown in the relevant Acts and subordinate statutes.

C. Determination

(1) Whether it constitutes a false or fraudulent manner

Article 35 of the former Employment Insurance Act (amended by Presidential Decree No. 2001Du2270, Sept. 5, 2003) provides that “False or other unlawful means, which are the requirements for sanctions prescribed in Article 35 of the former Employment Insurance Act (i.e., an order to return money already received), refers to any unlawful act committed by a business owner who is not entitled to subsidies, incentives, etc. to pretend his qualification or to reduce lack of qualifications, etc., and which may affect the decision-making on the payment of subsidies, incentives, etc. (see Supreme Court Decision 2001Du2270, Sept. 5, 2003). The following circumstances recognized as the whole and the purport of the entire arguments, namely, (i) before applying for subsidies as the subject of the instant training, the Plaintiff failed to verify whether the trainees were present, and (ii) failed to fully ascertain whether the Plaintiff had been present at the training course and applied for subsidies to the Administrator of the Gyeonggi District Office, including the fact that the Plaintiff had not been present at the training course during the short period of 30 days.

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

In light of the legislative form, structure, and language of Article 35(1) of the Act and the Enforcement Decree of this case, the disposition ordering the establishment of a period of restriction on payment and the return of subsidies, etc. paid during the period of restriction on payment constitutes a binding act. The enforcement decree of this case is to prevent unlawful acts related to the payment of subsidies, etc. through restriction on payment of subsidies, etc. for one year to illegal recipients, and to ultimately promote the prevention of unemployment, promotion of employment, and development and improvement of workers’ vocational abilities, and its legislative purpose is justifiable in light of the fact that subsidies, etc. are based on the limited public financial resources of the Employment Insurance Fund under the Employment Insurance Act. In addition, it appears that fraudulent acts related to the payment of subsidies, etc. are to be reduced through the punitive sanctions prescribed in the Enforcement Decree of this case, and accordingly, the Employment Insurance Fund is deemed to be more effective. Thus, the enforcement decree of this case can be deemed as a means suitable for achieving its legislative purpose.

However, in light of the various circumstances seen below, the content of the enforcement decree of this case is a provision that excessively infringes on the property rights of the remaining illegal recipients who lack the requirement of ‘minimum degree of damage' or ‘a balance of legal interests', and thus, is in violation of the delegation purpose of the mother law or the principle of excessive prohibition under the Constitution and is therefore null and void.

(A) The instant provision, separate from the disposition of additional collection under Article 35(2) of the Act, which is a disciplinary measure following the illegal receipt of subsidies, provides that subsidies, etc. shall be imposed for one year to a person who received subsidies by fraud or other improper means, and if subsidies, etc. are granted during the period of restriction on payment, the order to return all those subsidies, regardless of whether they were paid by fraud or other improper means. This is more strong than the provision on the grounds of the aforementioned additional collection disposition, and unlike the provision on the grounds of the aforementioned additional collection disposition, the aforementioned provision on the suspension of payment and the order to return subsidies, etc. granted during the period of restriction on payment uniformly without setting detailed standards depending on the content and degree of the offense. Accordingly, the Defendants, like the Plaintiff, have no choice but to uniformly impose the aforementioned sanctions against a business owner who is extremely small amount of money, which is subject to the order of additional collection. This considerably exceeds the scope that can be expected as sanctions against the illegal receipt of subsidies, which would result in the Plaintiff’s failure to return the total amount of subsidies, 30.586.

(B) 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, if the illegal recipient becomes aware of the fact that the payment of the subsidy, etc. would be restricted for one year, it may be flexibly conducted during the restriction on payment period and may reduce the loss, and it cannot be deemed unfair to operate workplace skill development business. Therefore, even if the provision of the Enforcement Decree of this case provides for the restriction on payment as a continuous act, it did not comply with the principle of "minimum damage suffered by the illegal recipient by failing to meet all efforts to minimize the damage suffered by the illegal recipient by prescribing the date of receipt or application for the restriction on payment as the date of application for the subsidy not the date of the restriction on payment or the date of application for the subsidy, etc.

(C) 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, thereby creating a problem that the status of an illegal

(D) Meanwhile, even if Article 35(1) of the Act explicitly does not specify the scope of delegation to Presidential Decree, 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); and considering the nature of various types of subsidy granted under the Act, various types of violations may be anticipated; the legislative purpose of the above provision; and the principle of excessive prohibition under the Constitution, etc., the purport of delegation under Article 35(1) of the Act is to reasonably subdivide the standard of delegation according to the type, degree, motive, and consequence of the violation; or, if so, to provide that the competent administrative agency may increase or decrease the scope of delegation within a certain scope, regardless of the legislative intent of the above provision, it conforms with the legislative intent of the provision, such as imposing a uniform restriction on payment to the person under its jurisdiction within one-year period of delegation.

(E) Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010 provides for a restriction on the payment of subsidies for one year to illegal recipients: Provided, That the Minister of Employment and Labor has limited the restriction on the payment for one year in cases where three years have passed since the date of receipt of subsidies or incentives or where the amount received or intended to receive subsidies by fraud or other improper means is less than three million won and where fraudulent acts have been discovered for the first time, 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 seems to be a result of the amendment of the Enforcement Decree of the Employment Insurance Act, taking into account the problems of the order of return or restriction on payment under paragraph (1) as a result of the amendment of the same Table, the said restriction on the payment for one-year period may be considered as one-year period.

(F) Therefore, in addition to Article 35(2) of the Act that can additionally collect and impose disciplinary sanctions against illegal recipients, the legislative purpose of this case can be more efficiently achieved by prescribing the provisions of the Enforcement Decree of this case in duplicate, but the provision of the Enforcement Decree of this case provides for the suspension of payment for one year and the order for return of subsidies, etc. paid during the suspension period of payment to the illegal recipients without reasonably subdividing the standards according to the type of the unlawful act committed by the illegal recipients as well as the provision of the Enforcement Decree of this case.

(3) Sub-decisions

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

3. Conclusion

The plaintiff's claim is justified, and the costs of lawsuit are assessed against the losing party.

Judges Yoon Young-man

Judges Choi Young-hoon

A person shall be appointed.

A person shall be appointed.