2. The costs of appeal shall be borne by each party.

The Defendant’s disposition to refund KRW 19,776,00 for the reduction of working hours of small and medium enterprises in the second quarter of 2010 and 19,776,000, which was granted to the Plaintiff on January 20, 2012, and the disposition to additionally collect KRW 39,552,000, and the disposition to restrict the payment of employment security subsidies from January 19, 2012 to January 18, 2013 is revoked.

2. Purport of appeal

In the judgment of the court of first instance, the part against the plaintiff in the judgment of the court of first instance shall be revoked, and each disposition to restrict the payment of employment security subsidies from January 19, 2012 to January 18, 2013, among the dispositions to refund KRW 19,776,00 for the reduction of working hours of small and medium enterprises in the second quarter of 2010 and the additional collection of KRW 39,52,000, the first instance court's decision is revoked.

Defendant: The part against Defendant among the judgment of the first instance court is revoked, and all of the Plaintiff’s claims corresponding to the above revocation are dismissed.

This court's reasoning is as follows, with the exception that the part below "(4) theory" among the reasons for the judgment of the court of first instance (from 12th to 13th class 19th class) is used or added as follows. Thus, this court's reasoning of the judgment of the court of first instance is identical to the entry of the reasons for the judgment of the court of first instance. Thus, it shall be accepted as it is in accordance with Article 8

2. Parts used or added;

4) Whether a disposition restricting payment of employment security subsidies is legitimate

A) Summary of the Plaintiff’s assertion

Since Article 35(1) of the former Employment Insurance Act, which served as the basis of the instant restriction on payment of employment security subsidy, is unconstitutional by the Constitutional Court, the instant disposition to restrict payment of employment security subsidy is unlawful.

B) Determination

(1) Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008) provides that "(i) The Minister of Labor may order a person who has received, or intends to receive, support for employment security and vocational skills development programs under the provisions of this Chapter by fraud or other improper means, to restrict such support or to return already provided support, as prescribed by Presidential Decree."

Then, the above provision was amended by Act No. 9315 on December 31, 2008, and "(1) The Minister of Labor may order a person who has received, or intends to receive, support for employment security and vocational skills development projects under the provisions of this Chapter by fraud or other improper means, to restrict such support or to return the amount received by false or other unlawful means, as prescribed by Presidential Decree. (2) The Minister of Labor may additionally collect an amount not exceeding five times the amount received in accordance with the guidelines prescribed by Ordinance of the Ministry of Labor, in addition, in addition to the order to return pursuant to paragraph (1).

(2) On August 8, 2013, Article 35 (1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008), the Constitutional Court decided that "a restriction on support" should be imposed separately from "return of the subsidy which was not provided for the purpose of sanction against the unfair recipient". However, without providing for basic matters concerning the scope or period of restriction on support, it is possible for administrative agencies to enforce the comprehensive delegation doctrine because it is delegated to Presidential Decree comprehensively without providing for basic matters concerning the scope or period of restriction on support (see, e.g., Constitutional Court Order 2011Hun-Ba390, Aug. 29, 2013).

(3) The effect of the decision of unconstitutionality is applied to Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008). The above provision was amended on December 31, 2008. Since the above provision is based on the amended Act, the disposition of restricting the payment of employment security subsidies in this case is based on the amended Act, the effect of the decision of unconstitutionality as a matter of course does not affect the disposition of restricting the payment of employment security subsidies in this case

Therefore, the restriction on the payment of employment security subsidy in this case does not constitute a justifiable illegal disposition based on the unconstitutional and invalid law.

However, Article 35(1) of the Employment Insurance Act as amended on December 31, 2008 also has appearance that the basic matters concerning the scope and period of restriction are still delegated to the Presidential Decree, without providing for the basic matters as well as the scope and period of restriction, and therefore, it may be problematic whether the instant restriction on payment of employment security subsidy violates the principle of prohibition of comprehensive delegation, and is illegal disposition based on the invalid law. Thus, this part is examined.

(4) In interpreting and applying a certain Act, the court should make a constitutional interpretation. If the concept of a certain Act can be interpreted in light of theme of the language or the relationship with other provisions, it should choose an interpretation consistent with the Constitution for the formation of a unified legal order. It is the general legal theory of statutory interpretation that excludes the interpretation that will result in an unlawful consequence from the interpretation, and to examine the constitutional and positive aspect.

Therefore, in full view of the following circumstances recognized by the purpose of the Health Team, the Employment Insurance Act and the Workers’ Vocational Skills Development Act, the amendment process of each Act as seen earlier, and the purport of the decision of unconstitutionality, etc., where interpreting harmoniously Article 35(1) and (3) of the former Employment Insurance Act as amended on December 31, 2008, the basic matters concerning the scope or period of restrictions on support provided for the purpose of sanction against unfair recipients of subsidies for employment security cannot be deemed as comprehensively delegated to the Presidential Decree without providing for in the Act. Therefore, the Plaintiff’s assertion in this part is without merit

① From December 31, 2008, Article 16(4), Article 25(3) of the Workers’ Vocational Skills Development Act provides for the restriction on subsidization of training expenses, etc., return order, and additional collection under Articles 16(5), and 25(4) of the same Act, but Article 35(2) of the Employment Insurance Act prior to the amendment on December 31, 2008 provided that Article 16(5)1 and Article 25(4)1 of the Workers’ Vocational Skills Development Act shall apply mutatis mutandis only to the additional collection for those who received subsidies by unlawful means, and Article 16(5) and 25(4) of the same Act appears to apply mutatis mutandis to the return order and additional collection under Articles 16(5) and 25(4) of the same Act, which were amended on December 31, 2008, based on Article 16(2) of the same Act, Article 16(5) and 25(2)6(3)1) of the Workers’ Vocational Skills Development Act.

Therefore, the restriction on the support of vocational skills development training expenses for those who received support for vocational skills development projects pursuant to Article 35(1) and (3) of the Employment Insurance Act as amended on December 31, 2008 is applied mutatis mutandis under Articles 16(4) and 25(3) of the Workers’ Vocational Skills Development Act, and the restriction on the scope and period of support is governed by the Act that makes it possible to limit the scope of support to the extent of three years, and the unconstitutional elements in the decision of unconstitutionality were resolved.

(2) The purpose of the Employment Insurance Act is to promote employment and develop and improve workers’ vocational skills through the enforcement of employment insurance (Article 1). The Minister of Employment and Labor grants employment security subsidies, etc. to employers who expand employment opportunities (Article 20), and provides workplace skill development training expenses, etc. (Articles 27 and 29). As seen above, employment security subsidies, workplace skill development training expenses, etc. provided to employers, etc. under the Employment Insurance Act are all paid under the Employment Insurance Act and are the same nature as the promotion of employment and the development of workers’ vocational skills. Accordingly, Article 35(1) and (2) of the Employment Insurance Act regulates the return of employment security subsidies or workplace skill development training expenses, etc. provided by illegal means, additional collection and restriction on subsidies. As such, the restriction on payment of employment security subsidies shall also be construed as an order to restrict any person who has received employment security subsidies pursuant to Article 35(1) and (3) of the Employment Insurance Act and Article 16(4) and 25(3) of the Workers’ Vocational Skills Development Act, as prescribed by Presidential Decree.

③ The purpose of Article 35(1) through (3) of the Employment Insurance Act is to prevent business owners from receiving subsidies for employment security or vocational skills development training expenses, etc. by improper means. In light of the same nature as seen earlier such as subsidies for employment security and vocational skills development training expenses, the instant subsidies for employment security may also be easily predicted by anyone who is subject to restrictions within the scope of three years stipulated in Articles 16(4) and 25(3) of the Workers’ Vocational Skills Development Act, as well as vocational skills development training expenses.

3. Conclusion

Therefore, the order of return and the disposition of additional collection corresponding to the remaining amount, excluding the amount that can be ordered to return and the amount that can be collected additionally as stated in the second quarter of attached Table 1, 2010 among the disposition that the Defendant paid to the Plaintiff on January 20, 2012 to the Plaintiff on the second quarter of 2010 and the refund of KRW 19,776,000 for the reduction of working hours of small and medium enterprises in the second quarter of 2011, and the additional collection of KRW 39,52,00 for the second quarter of 2010, must be revoked. Thus, the Plaintiff’s claim is justified within the above recognition scope, and the remainder of the claim shall be dismissed as without any justifiable reason. Accordingly, the judgment of the court of first instance is dismissed as it is so decided as per Disposition.

Judges, Appointment and Civility

Judges Cho Jong-sung