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

A. On June 29, 2007, the Plaintiff was recognized as the vocational skills development training course for the purpose of training the part-time job-to-day workers in the store, and for the conversion cost (B) vocational training as the training content for ethics management, personnel regulations, and prevention of sexual harassment (hereinafter “instant training course”). On February 27, 2008, the Plaintiff conducted self-training for 53 prospective trainees from February 27, 2008 to March 3 of the same year, and received KRW 2,451,129 on April 14, 2008, by applying for vocational skills development training expenses for 43 trainees who completed the training.

B. On August 27, 2010, the Board of Audit and Inspection requested the Ministry of Employment and Labor to secure a list of trainees who enter and depart from the Republic of Korea during the period of vocational skills development training and workers’ self-development training, and to conduct an investigation on the withdrawal management of trainees while notifying the Ministry of Employment and Labor. Accordingly, the Defendant conducted an investigation on the withdrawal management of trainees on February 25, 2008, and conducted an inspection again on February 27 and 28 of the same month, as if they were present at the instant training course on the 20th day of the same month. On April 14, 2011, the Defendant issued an order to return training fees for 20 years from the date of the Plaintiff’s participation in the training, 205 of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 20516, Dec. 31, 2008; Presidential Decree No. 2501, Apr. 16, 2011).

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

The enforcement decree of this case does not limit the payment of subsidies for a certain period retrospectively from the date of disposition so that the restriction on support may be made for a certain period from the date of disposition to the future, but it also limits the payment of subsidies for a certain period of time retroactively from the date of illegal receipt of subsidies, and refunds of all subsidies, etc. paid during the restriction period. This is unconstitutional, invalid, or contrary to the purport of delegation under Article 35(1) of the Employment Insurance Act as a superior

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

In light of the form, structure, and language of the provision of Article 35(1) of the Employment Insurance 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 purpose of this case’s enforcement decree is to prevent unlawful acts in relation to the payment of subsidies, etc., and ultimately to promote prevention of unemployment, promotion of employment, and development and improvement of workers’ vocational ability through the restriction on payment of subsidies, etc. for one year to illegal recipients, and the order to return subsidies, etc. granted during the restriction period. Therefore, its legislative purpose is justifiable in light of the fact that the subsidies, etc. are based on the limited public financing of employment insurance fund under the Employment Insurance Act, which is the employment insurance fund under the Employment Insurance Act. Furthermore, it appears that the act related to the payment of subsidies, etc. will be reduced through the punitive sanctions under the Enforcement Decree of this case’s Act, and accordingly, the employment insurance fund will be deemed as a means suitable for accomplishing its legislative purpose. However, the content of the instant enforcement decree cannot be deemed as a violation of excessive prohibition of property rights.

(A) Article 35 of the Employment Insurance Act, which is a punitive sanction against illegal receipt and demand

In addition to the additional collection disposition under paragraph (2), the provision that the person who received subsidies by fraud or other improper means shall be obliged to restrict the provision of subsidies, etc. for one year, and if subsidies, etc. were paid during the period of restriction on payment, such subsidies, etc. shall be returned to all regardless of whether they were paid by fraud or other improper means, this provision has the nature of a punitive punishment much more than the provision on the grounds of the above additional imposition disposition, and unlike the provision on the grounds of the above additional imposition, the provision on the return of subsidies, etc. for one year and one year, uniformly without setting detailed standards depending on the content and degree of the violation. Therefore, the defendants have no choice but to uniformly impose the aforementioned sanctions against the business owner who is extremely small amount of money received, as the plaintiff, and the amount of the subsidies, etc. subject to the order to return exceeds the amount of illegal payment, which is considerably larger than the amount of money received, which may be expected by the illegal recipient as a sanction on the illegal payment. This may result in an excessive violation compared with the content and degree of the violation.

(In the case of the plaintiff, the amount of the illegal receipt is 57,00 won in total, and the total amount of the training expenses ordered to be refunded in the disposition of this case is about KRW 139,885,620 in total, and about KRW 2,500 in total.

(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, rather than the date on which the application for the payment was made. Thus, if an illegal recipient becomes aware of the fact that the payment of subsidies would be restricted for one year, he may flexibly conduct vocational skills development projects during the restriction period and reduce the loss, and it cannot be deemed unfair to operate workplace skill development projects as such. Thus, even if the provision of the Enforcement Decree of this case provides that the date of commencement of the restriction on payment as the continuous act of the payment was set as the date on which the application for the payment was made, the provision of this case did not comply with the principle of "minimum damage suffered by the illegal recipient". In addition, the provision of the Enforcement Decree of this case provides that the date on which the application for the restriction on payment was made shall not be the date on which the application was made, or the date on which the application was made for the payment was made, for a long period of time.

(C) In addition, the instant enforcement decree also provides for a mandatory payment restriction and an order to return subsidies, etc. paid within one year from the date on which the person received or applied for the payment of subsidies, etc., but 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 recipient becomes unstable for a long

(D) Meanwhile, even if Article 35(1) of the Employment Insurance Act explicitly does not specify the scope of delegation to the Presidential Decree, the scope or limitation of inherent delegation by the legislative intent or 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 fact that various types of violations are likely to occur in light of the nature of various grants granted under the Employment Insurance Act; legislative purpose of the above provision; and the principle of excessive prohibition under the Constitution, the purport of delegation of the above provision is to reasonably subdivide and define the standards depending on the severity of unlawful act type, its degree, contents, motive, and consequence, etc.; or, if so, it is consistent with the legislative purpose of the above delegation provision, to allow the competent administrative agency to increase or reduce the scope of delegation within a certain scope; however, it is also consistent with the legislative purpose of the above delegation provision, which does not allow the reduction of the provision to be granted for one-year restriction period.

(E) Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Aug. 2010; Presidential Decree No. 22026) provides for restrictions on the payment of subsidies, etc. for one year to illegal recipients. In cases where three years have passed since the date of receipt of the subsidy, or where the amount received or intended to receive by fraudulent or other illegal means is less than three million won and where fraudulent acts have been discovered for the first time, the restriction on the payment for one year shall not apply. Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 12, 2010; Presidential Decree No. 22603) provides that “The Minister of Employment and Labor may take into account the legislative motive for the payment of the subsidy, as a result of any of the subsidies newly provided for in paragraph (1) within the scope of one year from the date of return order or payment restriction under paragraph (1).”

(F) Therefore, in addition to Article 35(2) of the Employment Insurance Act, which can additionally collect and impose disciplinary sanctions against illegal recipients, the legislative purpose of this case can be more efficiently achieved by prescribing the same under the provision of the Enforcement Decree of this case, even if the provision of this case provides for the suspension of payment and the order to return subsidies, etc. paid during the suspension period of payment to the illegal recipients for a period of one year, without reasonably subdividing and stipulating the standard according to the type of the illegal recipients’ act, would excessively infringe the property rights of the illegal recipients

(G) Therefore, the instant disposition based on the instant enforcement decree provisions ought to be revoked as it is unlawful.

3. Conclusion

The plaintiff's claim shall be accepted, and the costs of lawsuit shall be borne by the losing defendant.

Judge Han Han-han

Judges Lee Jae-soo

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.