2. The Defendant’s disposition of additionally collecting KRW 64,920,000 against the Plaintiff on January 11, 2010 is revoked.

The court's explanation on this part is as follows: Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, and Article 420 of the Civil Procedure Act, except for the correction of April 2004(a)(4) to April 209.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserts that the instant disposition is unlawful for the following reasons.

1) In determining the amount of illegal receipt by the Defendant, it is unreasonable to determine the amount of illegal receipt based on the entire subsidy, even though the Defendant is required to determine the amount of illegal receipt based on only the subsidy corresponding to the period of overseas business trip, which is not actually closed and has been employed

2) The Plaintiff’s former Enforcement Rule of the Employment Insurance Act (amended by Ordinance No. 338, Feb. 9, 2010; hereinafter referred to as the “Enforcement Rule of this case”) providing that the Plaintiff shall additionally collect five times the amount of the subsidies received in excess of two times based on the frequency of applications where subsidies were illegally received, is unconstitutional in violation of the principle of excessive prohibition, proportionality, and equity by excessively infringing the beneficiary’s property rights. The instant disposition that additionally collects five times the amount of subsidies granted in excess of the previous subsidies while running the field of the Young century, even though the Plaintiff did not unlawfully receive the subsidies in the past and did not relatively exceed the amount of the subsidies received, is unlawful by abusing and abusing discretion.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

1) As to the calculation of the amount of illegal receipt, while the Plaintiff applied for the subsidy for employment maintenance while taking measures for employment maintenance for a certain period for each worker, the Plaintiff cannot specify the amount of additional collection corresponding to the actual period of employment maintenance, as alleged by the Plaintiff, on the ground that he/she did not prove that he/she applied for the subsidy for employment maintenance, but did not allow his/her employee to take paid leave or suspend his/her business for a period other than the period of overseas business trip. Moreover, since the subsidy for employment maintenance is calculated on a monthly basis for each worker (Article 19(1)1 of the Enforcement Rule of the Employment Insurance Act), it is reasonable to deem that the total amount of the subsidy paid by each worker is illegal receipt if the amount of illegal receipt is calculated on a daily basis for a certain month (Article 19(1)1 of the Enforcement Rule of the Employment Insurance Act). In this case, the Defendant calculated the additional collection on the basis

2) As to the unconstitutionality of the Enforcement Rule of the instant case, the Employment Insurance Act allows a person who received subsidies by fraud or other improper means to additionally collect an amount not exceeding five times the amount of illegal receipt from the person who received subsidies by fraud or other improper means to comply with the standards prescribed by Ordinance of the Ministry of Labor. Accordingly, the former Enforcement Rule of the Employment Insurance Act separately determines the amount to be additionally collected according to the frequency of unlawful acts before the detection

Considering the fact that the scope of additional collection in accordance with the delegation form and content of the above Enforcement Rule is separately determined, it is difficult to deem that the content considerably unreasonable and considerably deviates from or lacks rationality from the scope of legislative discretion permissible under the Constitution. Therefore, the Plaintiff’s assertion on this part is groundless.

3) As to deviation from and abuse of discretionary power

A) Criteria for interpreting the instant Enforcement Rule

According to Article 35(2) of the former Employment Insurance Act and Article 78(1)3 of the Enforcement Rule of the instant case, the Minister of Labor may additionally collect double, three, and five times the amount of subsidies for illegal receipt in accordance with the number of times he/she applied for or applied to receive subsidies by fraud or other improper means (hereinafter referred to as “illegal power frequency”) for the last five years prior to the date of detection of fraudulent act, in addition to ordering a person who received subsidies by fraud or other improper means (hereinafter referred to as “illegal power frequency”). However, considering the following circumstances, the subject of “illegal power frequency” is discovered.

Although the pertinent wrongful act is not included in the frequency of unlawful electricity prior to the date of detection even if the number of applications is multiple times, it is reasonable to deem that even in the instant case, it constitutes a sum not exceeding twice the amount of unlawful receipt as stipulated in Article 78(1)1 of the Enforcement Rule of the instant case, since there is no frequency of unlawful electricity.

(1) Each subparagraph of Article 78(1) of the Enforcement Rule of the instant case seems to differently define the amount additionally collected due to an illegal act that is the subject of detection according to the frequency of illegal electricity within a certain period of time. In light of the foregoing, the “number of illegal electricity” means a separate illegal act committed prior to the pertinent illegal act that is the subject of detection.

(2) If it is interpreted that the frequency of fraudulent acts is included in the frequency of illegal power under Article 78(1)1 of the Enforcement Rule of the instant case, the case where there is no frequency of illegal power can not be presented, and therefore, the said provision may not be applied.

(3) Article 78(1) of the Enforcement Rule of the instant case provides that “The number of times for which applications were filed or filed in a false or unlawful manner during the preceding five years prior to the date of detection of the fraudulent act” was amended on February 9, 2010 to the number of times for which the Minister of Labor received or intended to receive payment in a false or unlawful manner during the preceding five years prior to the date of detection of the fraudulent act under Article 338(1) of the Labor Ordinance, which was ordered by the Minister of Labor to restrict payment or return from the Minister of Labor pursuant to Article 35(1) of the Act. This is

B) Whether the discretion is deviates or abused

In light of the legislative intent of the Employment Insurance Act and the above interpretation criteria, the imposition of additional collection on five times the upper limit of the amount additionally collected ought to be limited to cases where the other party has been subjected to several sanctions related to the illegal receipt of subsidies, and thus, the degree of violation is extremely significant. In this case, in light of the following: (a) the Plaintiff did not have been subject to sanctions on the ground of illegal receipt of subsidies prior to the instant disposition; and (b) the amount is relatively large; and (c) the Plaintiff imposed additional collection on the subsidies illegally received by the Plaintiff by applying five times the maximum limit of additional collection, which is the penalty for the degree of violation, is excessively excessive, and thus, the Plaintiff violated the discretionary authority.

4) In a case where the pertinent administrative disposition deviatess from or abused the discretionary authority, the court is bound to revoke the pertinent disposition in entirety, and the court cannot revoke only the part exceeding the reasonable part that the pertinent administrative disposition is deemed reasonable. Although the determination of additional collection and additional collection are left at the Defendant’s discretion, as seen above, the instant disposition is deemed to have exceeded and abused the discretionary authority, and thus, all of the instant disposition should be revoked.

3. Conclusion

Therefore, the judgment of the court of first instance is unfair, and it is so decided as per Disposition by accepting the plaintiff's appeal and cancelling the disposition of this case.

Judges Yang Sung-tae

Judges Yang Dong-hwan

A person shall be appointed.

A person shall be appointed.