The Gu's lawsuit

2. B

[Defendant-Appellee] Plaintiff 1 and 2 others

A. The Plaintiff Company A (hereinafter referred to as the “Plaintiff A”) is a company mainly engaged in gambling, interior decoration, etc., and Plaintiff B is a representative director of Plaintiff A and C, who is a trade name.

B. Although Plaintiff A had already employed Plaintiff D and E on January 9, 2016 and March 3, 2016, he/she participated in the employment success program that allows only the unemployed to participate in the employment promotion support program, and as if he/she was employed on May 9, 2016, he/she was prepared a written employment contract and reported the acquisition of insured status, and instead received the total of KRW 18 million from May 9, 2016 to May 8, 2017.

C. In addition, even though Plaintiff B employed F as a relative within the fourth degree of relationship, he concealed this fact, and applied for employment promotion subsidy on January 12, 2016 and received the total amount of KRW 9 million.

D. Accordingly, on August 1, 2019, the Defendant issued an order to return KRW 18 million to Plaintiff A, an order to additionally collect KRW 36 million from August 1, 2019 to July 31, 2020, an order to return KRW 9 million to Plaintiff B, an order to return KRW 18 million, an additional collection of KRW 18 million, and an order to impose subsidies from August 1, 2019 to April 30, 202 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, entry of Gap1 to 5 evidence, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) procedural defects;

① The Defendant’s prior notice of disposition did not give the Plaintiffs an opportunity to present their opinions by making the instant disposition prior to the lapse of the time limit for submitting their opinions. ② The time limit for submitting their opinions set in the prior notice of disposition was too short so that the Plaintiffs did not have sufficient opportunity to vindicate. ③ Since the Defendant erroneously stated the legal basis for the disposition in the prior notice of disposition and did not have adequate opportunity to defend and vindicate the Plaintiffs, the instant disposition is unlawful in violation of the prior notice of disposition and hearing procedures under Articles 21(1) and (3) and 22(3) of the Administrative Procedures Act.

2) Contents defects

The Plaintiffs did not have any intent to illegally receive the employment promotion subsidy from G because they were forced to receive the employment promotion subsidy from G, and only used them as four premiums and wages of employees with the employment promotion subsidy, and the Plaintiffs did not individually receive the subsidy. The Plaintiffs actually employed D, E, and H with the aim of the employment promotion subsidy, which is consistent with the objective of the employment promotion subsidy. As such, the instant disposition was unlawful against the principle of proportionality, justice, and balance.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the assertion of procedural defect

According to the overall purport of the statements and arguments in the evidence Nos. 8 through 10, ① a prior notice of disposition against the plaintiffs as of August 1, 2019 to the plaintiff B was served on July 30, 2019, ② the legal basis and provisions of the "additional collection, etc. due to the unlawful act, etc." in the prior notice of disposition are stated as "Article 78 of the Employment Insurance Act", but the actual basis provisions are "Article 78 of the Enforcement Rule of the Employment Insurance Act", ③ the plaintiff B applied for employment promotion subsidy to the defendant by deceiving the defendant on August 1, 2019, and did not have any personal care, and the defendant submitted a written opinion to the effect that "the defendant did not have any intention to receive the illegal receipt" as of August 1, 2019, and ④ the fact that the disposition of this case was taken on August 1, 2019.

According to this, the defendant received the plaintiff B's written opinion on August 1, 2019, which was the deadline for submitting the opinion, and issued the disposition in this case on the same day after this date, and thus, it cannot be deemed that the defendant did not give the plaintiffs an opportunity to present their opinions. Although the prior notice of disposition was less than three days from the time when the plaintiff B reached the deadline for submitting the opinion, the plaintiffs only presented a written opinion explaining the reasons for the wrongful receipt, etc. in the situation where all of the facts are recognized, and therefore, it is deemed that sufficient time to present such opinion has occurred. Further, when the defendant notified the prior notice of the disposition, it stated the contents of the disposition as "the return of unjust receipt and additional collection, etc. of the employment safety subsidy" and stated the legal basis as "Article 78 of the Enforcement Rule of the Employment Insurance Act" as "Article 78 of the Employment Insurance Act," and therefore, it cannot be deemed that there was sufficient reason for the plaintiffs to revoke the disposition in this case's appeal procedure.

2) As to the assertion of defect in contents

Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the act of violation and the public interest to be achieved by the act of violation as the ground for the disposition. In this case, even if the criteria for the punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed in the administrative agency’s internal business affairs rules, and it is not effective externally to the public or court. Whether such disposition is legitimate or not shall be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes as well as the above criteria for disposition. Thus, it cannot be said that the pertinent disposition is legitimate merely because it meets the above criteria for disposition. However, unless the above criteria for disposition do not conform with the Constitution or laws, or there are reasonable grounds to believe that the sanction administrative disposition in accordance with the above criteria is considerably unreasonable in light of the content and purport of the relevant Acts and subordinate statutes and the contents and purport of the relevant Acts and subordinate statutes (see, e.g., Supreme Court Decision 2007Du9646.

In light of the above legal principles, the Plaintiff’s assertion that the instant disposition was unlawful, such as the violation of law by deviating from or abusing discretion against the principle of proportionality, is not justified, considering the following circumstances acknowledged as follows, which are acknowledged in light of the purport of the entire argument by each of the above facts as seen earlier: (i) Plaintiff B issued a summary order of KRW 5 million from the Seoul Northern District Court on September 4, 2019 (2019Da8339) to the crime of denying employment promotion support funds; (ii) it is difficult to view that Plaintiff B did not have any intention to receive a subsidy; and even if there were some aspects of active solicitation from household affairs, Plaintiff B actively participated in the act, such as directly applying for employment promotion subsidy under the name of the Plaintiff in the name of the principal or the principal, and thus, there is no room for criticism against the Plaintiffs’ act.

② As can be seen, the Plaintiff’s abuse of the employment promotion support system by unlawful means cannot be deemed to be negligible. The instant disposition was conducted in the need of public interest to prevent the abuse of the employment promotion support system in the future at the same time with disadvantage to the Plaintiffs who committed such unlawful acts, and at the same time, to prevent the abuse of the employment promotion support system in the future. Therefore, the instant disposition may not be deemed significantly unfair in light of the comparison and balancing between the disadvantage

(3) Pursuant to Article 35(1) of the Employment Insurance Act, the Defendant ordered the return of unlawful receipt pursuant to Article 35(1) of the same Act, and issued the instant disposition that additionally collects an amount equivalent to twice the amount of unlawful receipt pursuant to Article 35(2) of the same Act and Article 78(1)1 of the Enforcement Rule of the Employment Insurance Act. There is no reasonable ground to deem that the foregoing standard does not in itself conform to the Constitution or statutes, or that the relevant disciplinary disposition is considerably unreasonable in light of the content of the offense, the grounds for the relevant disposition,

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.

Judges Park Young-chul

Judges Song Jae-chul