2. The costs of lawsuit shall be borne by the Plaintiff.

A. On March 31, 2015, the Plaintiff submitted an application and a business plan to the head of the Incheon District Office of Local Employment and Labor (hereinafter “instant project”). On April 27, 2015, the head of the Incheon District Office of Local Employment and Labor Agency approved the Plaintiff’s business plan on April 27, 2015. The said business plan submitted by the Plaintiff states that “The number of persons need to be increased to develop the design and enhance online business, 1, 24 hours per week, 24 hours per week, 09:00 to 18:00 from 1,60,000 hours per week, and 1,00,000 wages level.”

B. On May 1, 2015, the Plaintiff newly employed B as a part-time employee on a date-time basis in accordance with the foregoing business plan. The Plaintiff, along with the wage ledger, the labor contract ledger, and the part-time management ledger, applied for employment benefits on a total of seven occasions from June 15, 2015 to May 9, 2016 as follows. The Defendant paid the Plaintiff subsidies of KRW 10,800,000 in total for the same period (hereinafter “instant subsidies”).

A person shall be appointed.

C. On March 31, 2015, the Defendant: (a) made a false plan to prepare and submit a false plan to commute to and from work; and (b) received a total of KRW 10,80,000,00 for support money, on the ground that “The Plaintiff did not work at the workplace for the period of support (from May 1, 2015 to April 30, 2016); (c) provided a false plan to prepare and submit a false plan to and from work for 24 hours a week as if he worked for 3 hours a week; and (d) received a false plan to provide support money; and (e) received a total of KRW 10,80,00; and (e) received subsidies pursuant to Article 35 of the Employment Insurance Act and Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2738, Dec. 12, 201; hereinafter the same).

D. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Central Administrative Appeals Commission on December 19, 2016, but the Central Administrative Appeals Commission dismissed the Plaintiff’s appeal on February 24, 2017. [Grounds for recognition] The Plaintiff did not dispute, Gap’s evidence Nos. 1, 2, Eul’s evidence Nos. 1 through 5, and 26, and the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

On July 6, 2015, the Plaintiff and B notified the Defendant C of the content that “B shall work home due to difficulties from commuting to and from work,” and that “C shall work home for 24 hours a week to and from work for the Plaintiff.” The Plaintiff only provided the Plaintiff with a 24 hours work per week, a subsidy will be paid in accordance with the purport of the system, and it does not provide the Plaintiff with a guidance that the home-based work is excluded from the subsidy, and there is no legal basis that the home-based work is not eligible for the subsidy. The Plaintiff prepared the work-based management book according to C’s instructions, and entered the work-based work hours recorded in the work-based management book in consideration of the work volume and required hours based on the status of home-based work. Moreover, the instant subsidy was paid to B as the full amount, and even some of the Plaintiff was paid, and there was no reason to deny the Plaintiff’s payment of the subsidy or the Plaintiff’s payment of the subsidy. Therefore, the Plaintiff did not have any fraudulent reason.

2) A deviation from or abuse of discretionary power

The Defendant, at the time of the approval of the recipient of the instant subsidy, did not accurately examine the eligibility of the subsidy in order to raise the result of the approval and paid the subsidy, and only by strictly conducting an ex post facto investigation on the illegal receipt, thereby additionally collecting not only the return of the subsidy but also the additional collection twice as much as that of the public interest to achieve the instant disposition. As the Plaintiff’s interest infringed on the instant disposition is much more than that of the public interest to achieve the instant disposition, the instant disposition was deviates from and abused

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) The instant project aims at creating new jobs on a flexible basis through the restructuring of the work system, the development of new jobs, etc., and to create new jobs on a flexible basis by subsidizing part of the labor cost, etc. of workers who work on a flexible basis without setting the period of the employment contract. Here, the term “part-time workers on a flexible basis” refers to workers whose contractual work hours are between 15 and 30 hours a week.

2) Each application form submitted by the Plaintiff to the Defendant stated that “24 hours per week prescribed in B’s prescribed working hours per week” was stated as “not to ask questions for workers’ overtime work.” In addition, the employment contract form (as of April 30, 2015) with B submitted to the Defendant at the time of applying for subsidies was set as “from May 1, 2015,” the employment contract period is not set as “D office (Seoul Seocho-gu, Seocho-gu)”, the working hours are from “9:00 p.m. to 6:00 p.m. (as of 1:00 p.m.: 2:00 p.m.)”, the working hours are set as “3 days per week”, and the work hours are set as “3 hours per week from “8:40 p.m. to 15:0 p.m., and most of the working hours are written as “60 p.m. and working hours per month from “60 p.m.”.

3) On June 30, 2015 and June 30, 2015, C, an employee of the Defendant, visited the Plaintiff’s workplace and B, and did not meet the Plaintiff and B. On July 6, 2015, C re-Visitsed the Plaintiff’s workplace on July 6, 2015. On the business trip log prepared by C, B, who was employed as a person in charge of web design work on May 1, 2015, verified the fact that C works for 24 hours a week from May 1, 2015 to 18:00, and is written as follows: (a) there is no exceptional matter regarding whether the Plaintiff actually works or whether the Plaintiff works for more than 30 hours a week.

4) Employees F in charge of the Defendant’s employees are in accordance with a plan for occasional inspections of illegal receipt of part-time employment subsidies.

On October 21, 2016, the Plaintiff visited the Plaintiff’s workplace, and at the time, B visited most of the Plaintiff’s workplace, visited the Plaintiff 1-2 times a month or 2-time office, and the record book was prepared by the Plaintiff at his own discretion, and requested a statement of the same content.

5) On November 18, 2016, B appeared at the Defendant’s illegal demand and supply investigation division, and appeared at the first or second meetings on May 30, 2016, B, in addition to the attendance at the workplace from May 30, 2016, B performed home-based work and work under the direction of work by e-mail through her husband’s division, who was the husband. They mainly performed the work from 10:0 p.m. to 3:00 p.m. daily, and the Plaintiff was working mainly at the night and at new walls. The Plaintiff was aware of the need to record his commuting, and the Plaintiff was aware of his commuting as this investigation. And B stated that “from 9:0 p.m. to 6:0 p.m., from 6:0 p.m., the Plaintiff was present at this court and stated that “from 3:00 p.m., working hours are not well memory,” and that the Plaintiff did not know that the Plaintiff was working on the day of work.

6) The Plaintiff did not prepare a separate service management system, such as the commuting management system or the work management system for home-based work of B.

[Ground of recognition] Facts without dispute, Eul's entry in the evidence of Nos. 5, 6, 8, 10, 11, 14, 16, and 20, witness B's testimony, and the purport of the whole pleadings

D. Determination

(i) the existence of the reasons for the measure

A) Sanction against violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws and regulations to achieve administrative purposes, and thus, it may be imposed even if the violator has no intention or negligence, barring any special circumstance, such as where there is a justifiable reason not to cause any negligence on the part of the violation, and “any false or other unlawful means,” which can be subject to a sanction for return order and additional collection under Article 35 of the Employment Insurance Act, means any unlawful act conducted by an unqualified business owner in order to conceal the eligibility to receive payment or to conceal the lack of eligibility to receive payment (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

나) 이 사건에 관하여 살피건대, 앞의 1. 및 위 다.에서 인정한 사실에 증인 C의 증언과 변론 전체의 취지를 더하여 알 수 있는 다음의 사정들, 즉 ① 이 사건 사업이 지원하려는 시간선택제 근로자는 단시간 근로자, 즉 1주 동안의 소정 근로시간이 그 사업장에서 같은 종류의 업무에 종사하는 통상 근로자의 1주 동안의 소정근로시간에 비하여 짧은 근로자(근로기준법 제2조 제1항 제8호)일 뿐만 아니라, 여기에서 더 나아가 통상 근로자의 소정근로시간 중 일부를 선택하여 근로할 수 있도록 하는 것으로서 이를 통하여 보다 다양하고 많은 근로기회가 창출될 수 있도록 하는 취지인바, 그 지원 요건에 시간선택제 근로자의 근로시간이 주 15시간 이상 30시간 이하로 제한되어 있는 이상, 근로시간을 전혀 확인할 수 없는 근로자의 경우는 이에 해당하지 않는다고 할 것인 점, ② 그런데 원고는 실제로는 B가 재택근무를 하도록 계약을 체결하고, 근태 관리를 전혀 하지 않았음에도, 이 사건 지원금의 지급을 신청하면서 적극적으로 신청서에 B가 주 3회 사업장에 출근하여 24시간을 근무한 것처럼 허위의 표시를 하였고, 그와 같이 근로한 것처럼 가장하기 위하여 근무장소를 '사무실'로, 근로시간을 '주 3회, 24시간'으로 기재한 근로계약서와 이에 부합되는 내용의 근태관리부를 임의로 작성하여 피고에게 제출한 점, ③ 한편, 원고는 위 근태관리부가 실제로 이루어진 재택근무량과 업무수행도, 주야간 및 주말 근무량 등을 감안하여 작성된 것이라고 주장하나, 원고가 B의 재택근무를 위한 출퇴근 관리 시스템이나 업무관리 시스템 등 별도의 복무관 리시스템을 마련한 바가 없음은 앞서 본 바와 같고, B가 다른 방식으로라도 원고에게 근로시간을 보고하였다고 보이지도 아니하며, 원고가 어떠한 방식으로 B의 근로시간을 산정하였는지에 관한 객관적인 근거는 전혀 제출하지 못하고 있는 점, ④ 오히려 원고의 주장 및 B의 진술에 의하더라도, B는 일정한 근로시간 없이 재택근무를 하며 사용자로부터 별도의 복무관리도 적용받지 않고 자신의 컴퓨터를 사용하여 업무를 수행하고 일의 완성도를 기준으로 그에 대한 대가를 지급받았다는 것인바, 이는 근로기준법상 근로자로서 근로를 제공한 것이라기보다는 오히려 도급관계에 기한 노무의 제공으로 볼 여지도 있는 점, ⑤) 원고는 피고의 담당 직원 C가 B의 재택근무사실을 알고서도 지원대상이 된다고 안내하였다는 취지로 주장하나, 원고는 소외 B를 고용한 2015, 5. 1.경, 그리고 최초로 지원금을 신청한 2015. 6. 15.경 이전에 피고에게 근로자가 재택 근무를 할 경우 지원금 수급이 가능한지 여부에 관하여 문의한 바가 없고, C는 이 법정에 증인으로 출석하여 '원고와 B로부터 B가 재택근무를 한다는 내용을 듣지 못했고, 재택근무도 적정하다고 안내한 사실한 사실이 없다'고 증언하였으며, C가 2015. 7. 6. 작성한 출장복명서나 당시 원고, B가 작성·제출한 확인서에도 재택근무에 관하여는 전혀 언급이 없는데다가, 담당 공무원으로서 지원대상 적정 여부 점검을 위해 2015. 7. 6. 원고의 사업장에 방문하여 처음으로 원고를 대면하였던 C가 이 사건 사업 지원금에 관한 지급 요건이나 제출 서류에 대한 일반적인 안내를 하는 차원을 넘어 원고가 주장하는 바와 같이 지원요건을 미비한 것을 알고도 '향후 점검을 나오지 않으니 근태관리 부만 주 24시간에 맞게 작성하면 지원금을 받을 수 있다.'거나 그 밖에 지원금 지급 요건에 충족되는 것처럼 사실과 다른 허위의 서류를 제출하도록 설명 내지 종용을 할 만한 합리적인 이유도 찾기 어려운바, 오히려 원고가 근로계약서와 근태관리부를 허위로 작성하면서까지 B가 주 3회 사무실에 출근하여 주 24시간을 근무한 것처럼 가장하였던 것에 비추어 보면, 원고는 B의 근로형태가 지원대상이 되지 않는다는 사실을 인식하고 있었던 것으로 보이고, 이와 다른 B의 일부 증언은 신빙하기 어려운 점, ⑥ 만약 원고가 사실대로 작성된 근로계약서 등을 제출하였더라면 피고로서는 원고가 지원금 신청을 할 당시 위와 같은 사실을 알고 지원금 지급 여부에 관하여 검토할 수 있었을 것인데, 원고가 허위의 서류를 제출함으로써 이 사건 지원금 지급 후 현장점검을 통해서야 이 사건 지원금의 지급에 문제가 있다는 사실을 알게 되었던 점 등을 종합하여, 보면, 원고가 거짓이나 그 밖에 부정한 방법으로 이 사건 지원금을 지급받았다고 봄이 타당하다. 이를 다투는 원고의 주장은 이유 없다.

2) Whether the discretion is deviates or abused

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement of public interest and the disadvantages that an individual may be seen as an infringement by objectively examining the content of the act of violation, which is the reason for the disposition, and the public interest to be achieved through the relevant disposition, as well as the circumstances in line with such disposition (see, e.g., Supreme Court Decision 98Du11779, Apr. 7, 200). In addition, where the disposition standards are prescribed by Presidential Decree or Ordinance of the Ministry, the disposition standards per se should not conform to the Constitution or laws, or should not be determined that the disposition is an abuse of discretion, unless there are reasonable grounds to recognize that the sanction administrative disposition is considerably unreasonable in light of the content of the act of violation and the content and purport of the relevant statutes (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 207).

B) The following circumstances are revealed by adding up the purport of the entire arguments to the facts acknowledged in the above 1.1. and c., ① the amount of the subsidy received by the Plaintiff by unlawful means, 10,800,000 won, and the Plaintiff was paid the subsidy by deceiving the Defendant by active misconduct, such as creating a false labor contract and work-management division in order to receive the subsidy of this case. ② The business of this case aims to create jobs on a part-time basis through the employer’s restructuring of the work system or the development of a new part-time work system. The substance of this case’s work is to create jobs on a part-time basis by using the subsidy system of this case’s business, such as creating work-based jobs on a part-time basis, even though there is a need to strictly punish it, and the disposition of this case 3 does not clearly deviate from the employment insurance law and Article 56(2) [Attachment Table 2] of the former Enforcement Decree of the Employment Insurance Act or the disposition of this case’s discretionary authority.

3) Sub-committee

The disposition of this case is legitimate (On the other hand, the defendant does not have the ability to work in the same workplace within three months prior to the employment of the business owner for the purpose of being supported (except in the case of daily employed workers) and that B has the ability to work at the plaintiff's workplace in the form of non-commercial work, and does not fall under the requirements for work-time-time-time-time-time-time-time-time-time-time-time-time-time-time-time-time-time-related-related-related-related-related-related-related-related-related-related-related-related workers

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

A person shall be appointed.

A person shall be appointed.