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

A. From May 6, 2008 to May 9, 2008, the Plaintiff had two and three other parties participate in the “specialized course for supervision (C-1) established by C Association as a business owner’s vocational skills development training course. After the completion of the above training course, the Plaintiff requested the Defendant to subsidize training expenses and received subsidies of KRW 463,440 from the Defendant.

B. Meanwhile, the aforementioned subsidies included KRW 115,860 of the training costs of B, but B was a representative director of the Plaintiff at the time, and was unable to participate in the above training course on May 8, 2008 and May 9 of the same month. The Defendant was notified by the Gangwon-gu branch office of Seoul Regional Employment and Labor Agency of the fact that B did not participate in the above training course for two days, but was treated as having participated in all of the period. On July 14, 2011, the Defendant returned the subsidies to the Plaintiff on the ground that the Plaintiff was wrongfully subsidized training costs (amended by Act No. 9315 of Dec. 31, 2008; hereinafter the same shall apply), based on Article 35(1) of the former Employment Insurance Act (amended by Presidential Decree No. 20799 of Jun. 5, 2008), Article 56(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20799 of Jun. 25, 2008). 2097.

[Ground of recognition] Facts without dispute, entry of Eul's evidence Nos. 1 to 4, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis of the instant disposition, is null and void as a provision that excessively infringes on the property rights of an illegal recipient by exceeding the delegation scope under Article 35(1) of the former Employment Insurance Act, the mother corporation, or contrary to the principle of excessive prohibition under the Constitution, etc.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Article 35(1) of the former Employment Insurance Act provides that a person who has received, or attempted to receive, subsidies for employment security and occupational ability development programs by fraud or other improper means (hereinafter referred to as "illegal recipients") may restrict such subsidies or order the return of already provided subsidies, as prescribed by Presidential Decree, and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter referred to as "Enforcement Decree of this case") which is delegated by the former Enforcement Decree of the Employment Insurance Act provides that the person who received, or attempted to receive, such subsidies shall be obligated to receive the illegal recipients, and the payment of the subsidies shall be limited to one year from the date of such fraudulent receipt or application, and the return of the subsidies during the restriction

2) The instant provision aims to prevent unlawful acts relating to the payment of subsidies and ultimately to promote the development and improvement of workers’ vocational abilities through the restriction on the payment of subsidies for one year to the illegal recipient and the order to return subsidies granted during the restriction period. Considering that the payment of subsidies under the former Employment Insurance Act is achieved by the limited public resources called the Employment Insurance Fund, the legislative purpose itself is justifiable. Furthermore, the foregoing punitive measure is deemed to reduce improper acts related to the payment of subsidies and thereby, it is deemed that the employment insurance fund will become more solid. As such, it can be seen as a means suitable for accomplishing the above legislative purpose.

3) However, considering the following circumstances in terms of the minimum degree of damage related to the achievement of the legislative purpose or the balance of legal interests, the enforcement decree of this case is not only a provision that excessively infringes on the property rights of the illegal recipient, but also a provision that deviates from the purport of delegation of the parent law, but also violates the principle of excessive prohibition under the Constitution.

A) The provision of the Enforcement Decree of the instant case, without considering the contents and degree of the act of improper receipt, requires the uniform order to return the full amount of subsidies provided during the period of restriction on payment to the same person without considering the contents and degree of the act of improper receipt, does not have to impose sanctions pursuant to the provision of the Enforcement Decree of the instant case without exception on the full amount of subsidies for one year clearly exceeding the amount of fraudulent receipt even though the amount of fraudulent receipt per se is extremely small or relatively small or less than the total amount of subsidies ordinarily provided for one year according to the Employment Insurance Act. In light of the legislative purpose of the instant provision, even if the above provision of the Enforcement Decree, it can be deemed that there was an unreasonable result by clearly exceeding the scope of sanctions ordinarily foreseeable for the above fraudulent receipt (in the case of the Plaintiff, the amount of improper receipt was KRW 115,860, which would have been ordered to be returned to the Plaintiff’s order, and the provision of the instant case may not be deemed to have been unlawful since the date of application for restriction on payment to the employer or one day after the date of application for restriction on payment.

C) Furthermore, the instant enforcement decree clause provides for an illegal receipt date or one year from the date of the application, a mandatory return order with respect to subsidies already paid during the restriction period and the restriction period, but does not impose any special restrictions on the said sanctions, thereby creating a problem that the status of an illegal recipient becomes unstable for a long time.

D) Meanwhile, even though Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of matters delegated to the Presidential Decree, in consideration of the principle of excessive prohibition under the Constitution, in light of the nature of various subsidies granted under the former Employment Insurance Act, which is anticipated to show various types and attitudes, and the legislative intent of the above provision to prevent such fraudulent act, it shall be deemed that Article 35(1) of the former Employment Insurance Act is a provision with the inherent scope and limit of the delegation. The purport of delegation is to reasonably subdivide and delegate the standards for sanctions such as restriction on payment, or if it is not prescribed, it should be deemed that an administrative agency delegates the provision so that the relevant sanctions may be aggravated and mitigated by taking into account the aforementioned overall circumstances.

Nevertheless, the enforcement decree of this case, which received delegation of the above provision, stipulates the detailed criteria for the sanction in accordance with the contents and degree of fraudulent act, is uniformly compelling the suspension of payment for one year and the return order based thereon, and does not give any room for discretion to increase and reduce it. This is contrary to the purport of delegation of the mother law as above.

E) Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; Presidential Decree No. 22026) provides for the restriction on payment for one year to illegal recipients: “However, in cases where three years have elapsed since the date of receipt of subsidies or incentives or where three million won have elapsed from the date of receipt of such subsidies or incentives, or where fraudulent acts have been discovered for the first time as of the amount less than three million won, the restriction on payment for one year shall not apply; and Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) currently in force

With respect to a person who has received, or attempted to receive, any of the subsidies under paragraph (1) by fraud or other improper means, the Minister of Employment and Labor shall restrict the payment of any of the subsidies under paragraph (1) which is newly provided within the scope of one year from the date on which the order to return or restriction on payment is imposed under paragraph (1) for a period specified in attached Table 1: Provided, That the said subsidy may be reduced by up to 1/3 of the period for restriction on payment in consideration of the degree, motive, result, etc. of such improper means, which seems to result from reflective consideration of the above problems in the Enforcement Decree of this case.

3) Therefore, the instant disposition was rendered based on the provision of the Enforcement Decree of the instant case, which was null and void as seen earlier.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

Judges Yellow Jae-ho

Judges Kim Gin-han

The decision was also made.

A person shall be appointed.

A person shall be appointed.