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

A. On September 11, 2008, the Plaintiff was paid KRW 1,067,808 by the Defendant on September 22, 2008, for the first training period from March 8, 2008 to April 29 of the same month, and the second project management process from April 5, 2008 to April 26 of the same month.

B. The Defendant was requested by the Board of Audit and Inspection to investigate the Plaintiff during the period of vocational skills development training, and investigated the Plaintiff during which the Plaintiff’s employee participated in the overseas business trip during the training period, but confirmed that the Plaintiff was present on the date of the instant training course. On September 7, 2011, the Defendant issued the following administrative dispositions against the Plaintiff on the ground of the non-payment of training costs (hereinafter “instant Disposition 4”).

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1, 2, 3 (including each number), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The provision that limits the payment of training expenses for one year from the date of illegal receipt under Article 35 (1) of the former Employment Insurance Act and orders the refund of conditions for the already paid training expenses is not only limited to delegation under Article 35 (1) of the former Employment Insurance Act, a mother corporation, but also illegal and invalid against the principle of excessive prohibition, and the disposition of this case based thereon is also unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The disposition ordering the establishment of the period of restriction on payment under the provisions of the Enforcement Decree of the instant case and the return of subsidies, etc. paid during the period of restriction on payment is an act of binding force. However, it is a matter of question whether the enforcement decree of the instant case, which stipulates that the person who received or attempted to receive subsidies, etc. by false or other unlawful means (hereinafter referred to as “unlawful recipients”) pursuant to the delegation under Article 35(1) of the former Employment Insurance Act shall be obliged to return the entire amount of subsidies, etc. granted during the period of restriction on payment, is in violation of the purport of the mother law or the principle of prohibition against excessive restriction under

(2) In light of the fact that workplace skill development training is conducted with limited public resources, such as employment insurance fund under the Employment Insurance Act, etc., the legislative purpose of the instant provision is to prevent fraudulent acts related to the payment of training expenses, etc. and ultimately to promote the development and improvement of workplace skill of workers through the restriction on the payment of subsidies for one-year period for illegal recipients and orders to return subsidies paid within the restriction period for the payment of training expenses, and that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Enforcement Decree of the instant case, the legislative purpose of the instant provision is justifiable. In addition, it appears that improper acts related to the payment of training expenses, etc. are to be reduced through disciplinary sanctions under the Enforcement Decree of the instant case’

However, as seen below, the instant provision is in violation of the Constitution as 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.” Therefore, the instant disposition based on the provision of the Enforcement Decree of the instant case, which is null and void in violation of the Constitution, is unlawful.

Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount of subsidies already paid by fraud or other improper means may be collected as punitive sanctions. Meanwhile, the instant provision provides that, apart from the aforementioned additional collection restriction period, subsidies, etc. shall be limited to one year, regardless of whether those subsidies were paid by fraud or other improper means, if those subsidies, etc. were paid during the restriction period, they shall be returned to all regardless of whether those subsidies were paid. Unlike the aforementioned provision on the grounds of additional collection restriction, the provision on the Enforcement Decree of the instant provision provides that, unlike the aforementioned provision on the grounds of additional collection restriction, the provision on the payment of subsidies, etc., which is far more strong than the provision on the grounds of the aforementioned additional collection restriction period, may be uniformly provided for the suspension of payments for one year and the order for return of subsidies, etc., which were paid during the restriction period for the payment period to the small amount of subsidies, which is extremely small amount of such subsidies as the Plaintiff, may not be readily denied or even if those subsidies were paid to the Plaintiff during the restriction period exceeding 20 years.

In addition, the enforcement decree of this case also provides that the payment restriction and the return order of the subsidy paid during the payment restriction period shall be mandatory for one year from the date on which the person received the subsidy, etc. or applied for the payment, but there is a problem that the status of the illegal recipient is unstable for a long time due to the lack of special restrictions within the time limit for the above

Meanwhile, even if Article 35(1) of the former 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 purport or purpose, etc. of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Du6578, Jul. 22, 1997). Considering the fact that various types of violations are likely to occur due to the nature of various subsidies granted under the former Employment Insurance Act, and the legislative purpose of the above provision, the principle of excessive prohibition under the Constitution, etc., the purport of delegation under Article 35(1) of the former Employment Insurance Act is to ensure that the competent administrative agency can increase the scope of delegation within a certain scope, increase the scope of delegation, and reduce the scope of delegation by taking into account the above matters into account, and to ensure that the provision does not conform with the legislative purport of the above provision, such as imposing a uniform reduction of delegation period, regardless of the legislative intent or the aforementioned provision.

Article 56 (2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides for restrictions on the payment of subsidies for one year to illegal recipients: Provided, That the same shall not apply to cases where three years have passed since the date of receipt of subsidies or incentives or where the amount of subsidies received or to be received 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 payment for one year shall not apply. Article 56 (1) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) provides that "a return of subsidies already received by fraudulent or other illegal means shall be ordered for the period of one year", and Article 56 (2) of the Enforcement Decree of the Employment Insurance Act provides that "the Minister of Employment and Labor may order a person who has received or attempted to receive any of the subsidies under paragraph (1) by means of fraudulent or other illegal means, to the extent of one year limit."

Therefore, in addition to Article 35(2) of the former Employment Insurance 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 order to restrict the payment for one year and order to return the total amount of subsidies, etc. paid during the period of restriction on the payment to the illegal recipients, without reasonably subdividing the standards according to the type of the illegal recipients’ acts in violation of the Enforcement Decree of this case.

○ Ultimately, the instant disposition based on the provision of the Enforcement Decree of the instant case, which is null and void because it violates the principle of proportionality and the purport of delegation of the mother law, is unlawful.

3. Conclusion

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

Judges Jeon Soo-tae

Judges Park Jong-dae

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.