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

Preliminary claim on the disposition of a subsidy return order: The part of KRW 194,559,032 out of the disposition of a subsidy return order issued by the Defendant against the Plaintiff on July 19, 201 shall be revoked.

A. On March 13, 2008, the Plaintiff obtained recognition of vocational skills development training courses for the employees of the above Jeonju Factory from the head of the Jeonju District Office of the Gwangju District Employment and Labor Agency (hereinafter referred to as the "head of the Jeonju District Office") having jurisdiction over the location of the Plaintiff Jeonju Factory (the training place for the Plaintiff Jeonju Factory: the head of the District Office of Education and the training period for the Plaintiff Jeonju Factory: from March 31, 2008 to April 4 of the same year; hereinafter referred to as the "the training course of this case").

B. From March 31, 2008 to April 4, 2008, the Plaintiff conducted the instant training course against its employees. On May 26, 2008, the Plaintiff applied for subsidies for vocational skills development training expenses including the instant training course to the head of the Jeonju District Office on June 18, 2008. Meanwhile, the Plaintiff’s employees included KRW 174,280 in training expenses for B, who is the trainee of the instant training course. However, from March 27, 2008 to April 8, 2008, the Plaintiff did not fully participate in the instant training course. The head of the Jeonju District Office confirmed the location of the Plaintiff’s head office overseas from the Board of Audit and Inspection and the Ministry of Employment and Labor to the date of the instant training, and did not request the Defendant to participate in the training course during the period from March 28, 2008.

D. Accordingly, the Defendant issued the following dispositions on July 19, 201 based on Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same) and Article 56(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter the same) on the ground that the Plaintiff was unlawfully subsidized training costs by having been incurred by having the Plaintiff in attendance at the instant training course.

○ A disposition restricting the payment of subsidies for one year from June 18, 2008 to June 17, 2009 (hereinafter referred to as "a disposition restricting the payment of subsidies")

○ A disposition ordering return of KRW 224,432,450 ( KRW 29,873,418 on June 15, 2009 + KRW 194,559,032 on November 14, 2009) received by the Plaintiff from the Defendant during the period of restriction on payment (hereinafter referred to as “disposition 2”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 8, Eul evidence No. 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Claim that the extinctive prescription has expired (claim regarding Disposition 2)

According to Article 107(2) of the former Employment Insurance Act, the right to receive the subsidy expires if it is not exercised for three years. The extinctive prescription of the Defendant’s right to receive the subsidy granted from the Plaintiff during the period of restriction on payment should be calculated from June 19, 2008, the following day after the Plaintiff received the subsidy for training expenses for B. Thus, the second disposition made after the lapse of three years is unlawful.

2) The non-existence of the grounds for the disposition (as to the No. 1 and 2 disposition)

Whether the Plaintiff’s act of receiving subsidies for training costs against B constitutes “false or other unlawful means” under Article 35(1) of the former Employment Insurance Act ought to be strictly determined by taking account of the Plaintiff’s mistake and the degree of sanctions accordingly. However, although the Plaintiff made efforts to accurately and accurately manage the progress of the training by having trainees participating in the training courses of this case sign their own presence book, it is merely a fact that the Plaintiff was aware that all trainees initially reported should be included in the subject of the claim for training costs, and thus, he/she cannot be deemed to have received subsidies for training costs by reliance on the statement of the attendance book and claiming the payment of training costs. Accordingly, both the first and second dispositions made on different premise are unlawful.

3) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act asserts that Article 56(2) of the former Enforcement Decree of the Employment Insurance Act is unconstitutional (see Article 56(2) of the former Enforcement Decree of the Employment Insurance Act) is invalid as a provision that excessively infringes on the property rights of an illegal recipient either exceeding the delegation scope under Article 35(1) of the former Employment Insurance Act, or contrary to the principle of excessive prohibition under the Constitution, etc.

4) Claim on the scope of return of the subsidy (claim on the conjunctive claim related to Disposition 2)

Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act provides that "the subsidy granted during the period of restriction on payment" shall be limited to the subsidy actually paid within the period of restriction on payment as well as the right to claim the payment during the period of restriction on payment. Therefore, the part of the order of return for the subsidy amounting to KRW 194,559,032, which is the expiration date of restriction on payment as stipulated in the first disposition among the second disposition, is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Whether the extinctive prescription has expired

According to Article 35(1) of the former Employment Insurance Act and Article 56(2) of the Enforcement Decree of the same Act, with respect to a person who has received training expenses by fraud or other improper means, a disposition of restriction on payment and an order of refund of training expenses subsidized during the period of restriction on payment may be issued. Such an order of restriction on payment and an order of refund may be issued in addition to a separate disposition of restriction on payment, but may be issued separately after the order of restriction on payment is issued. In particular, the order of refund of training expenses subsidized during the period of restriction on payment may be issued at any time, regardless of whether training expenses were paid during the period of restriction on payment, but the order of refund of training expenses subsidized during the period of restriction on payment can only be issued after the actual payment of training expenses was paid. As such, the right to claim the refund of training expenses paid during the period of restriction on payment can be exercised from the date following the payment of the training expenses paid to him/her as soon as possible, the extinctive prescription under Article 107(

Therefore, this part of the Plaintiff’s assertion on the premise that the Defendant may exercise the right to claim the refund of training expenses paid during the period of restriction on payment from June 19, 2008, when the Plaintiff received training expenses by false or other unlawful means, from June 19, 2008.

2) Whether a person received subsidies by fraud or other improper means

"False or any other fraudulent means" under Article 35(1) of the former Employment Insurance Act and Article 35(2) of the Enforcement Decree of the same Act refers to any and all fraudulent acts committed in order to conceal the eligibility of a business owner who is not generally entitled to receive or is not entitled to receive training costs, which may affect the decision-making on the payment of vocational skills development training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

As seen earlier, although B did not participate at all in the instant training course, the Plaintiff applied for the subsidization of training expenses for B as if B did not participate in the training course, and received the subsidization from the Defendant. If the Defendant knew of such fact, it is reasonable to deem that the Plaintiff’s above act had influenced the Defendant’s decision on the payment of the subsidization as a fraudulent act committed by the business owner who is not entitled to the subsidization related to B by pretending to be eligible for the subsidization. Furthermore, as long as B was unable to participate in the instant training course during the period of the instant training course, it is difficult to view that the Plaintiff was unaware of such failure, and there is no evidence to support that the Plaintiff applied for and received the subsidization of training expenses for B due to the mere error of business by the employee in charge of the instant training course, as alleged otherwise by the Plaintiff.

Therefore, it is reasonable to view that the Plaintiff received training expenses from the Defendant for B by false or other unlawful means, and therefore, this part of the Plaintiff’s assertion cannot be accepted.

3) Whether Article 56(2) of the former Enforcement Decree of the Employment Insurance Act is unconstitutional

A) Article 35(1) of the former Employment Insurance Act provides that a person who has received, or attempted to receive, subsidies for employment security and vocational skills development programs by fraud or other improper means (hereinafter referred to as "illegal recipients") may restrict such subsidies or order the return of the subsidies already provided, as prescribed by Presidential Decree. Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter referred to as "Enforcement Decree of this case") provides that a person who has received, or attempted to receive, subsidies for employment security and vocational skills development programs shall be obliged to make the illegal recipients mandatory, and the payment of the subsidies shall be limited to one year from the date of such fraudulent receipt or application, and the return of the subsidies paid during the restriction period shall

B) The instant provision aims to prevent fraudulent acts related to the payment of subsidies and ultimately to promote the development and improvement of workers’ vocational abilities through the restriction on the payment of subsidies for one year to the illegal recipient and the order to return subsidies during the restriction period. Considering that the payment of subsidies under the former Employment Insurance Act is made by the limited public source of the Employment Insurance Fund, the legislative purpose itself is justifiable, and such disciplinary disposition is deemed to reduce fraudulent acts related to the payment of subsidies and thereby, to be more soundified in the Employment Insurance Fund. Therefore, it can be seen as a means suitable for the achievement of the above legislative purpose.

C) However, considering the following circumstances from the point of view of the ‘minimum degree of damage' or ‘a balance of legal interests' in relation to the achievement of the legislative purpose, the enforcement decree of this case is a provision that excessively infringes on the property rights of an illegal recipient, and thus, it is invalid because the enforcement decree of this case not only goes beyond the purpose of delegation of the parent law, but also goes against the principle of excessive prohibition under the Constitution.

(1) The instant provision, without considering the content and degree of the act of improper receipt, requires a uniform order to return all subsidies provided during the period of restriction on payment, along with the restriction on payment for one year; however, even if the amount of improper receipt per se is extremely small or less than the total amount of subsidies ordinarily provided for one year under the Employment Insurance Act, and even if the amount of subsidies does not exceed the total amount of subsidies ordinarily paid for one year under the Employment Insurance Act, a sanction under the Enforcement Decree of the instant case without exception is bound to be imposed pursuant to the provision of the instant case. In light of the legislative purpose of the instant provision, even when considering the legislative purpose of the instant provision, it may result in an excessive harsh result by significantly exceeding the scope of the generally foreseeable sanction for the said improper receipt (in the case of the Plaintiff, the amount of the illegal receipt is KRW 174,280, and the amount of the subsidies that was ordered to be returned to the second disposition is about KRW 1,288, the amount of the subsidies received to be returned to the Plaintiff as the total amount of KRW 1,2581,584,2506.7.7.28

(2) In addition, since the provision of this case stipulates the initial date of the restriction on payment as the date of illegal receipt or the date of application, the non-beneficiary shall return retroactively the amount already received from the date of the restriction on payment to the date of the application. However, if the non-beneficiary knew in advance that the payment of the subsidy would be restricted for one year from the initial date of the restriction on payment, he could be able to reduce the amount of the order of return by flexibly implementing the training course during the restriction on payment period, and it cannot be deemed unfair to operate such training course. Accordingly, even if the provision of this case provides for the restriction on payment as a continuous act, the initial date of the restriction on payment may be deemed to have complied with the principle of "minimum damage suffered by the non-beneficiary while attaining the purpose of preventing fraudulent acts by prescribing the initial date of the restriction on payment, not the date of the restriction on payment, or the date of application for the restriction on payment, which may affect the development of vocational abilities for a business for a large number of workers.

(3) Furthermore, the instant enforcement decree provisions stipulate an illegal receipt date or a mandatory return order with respect to subsidies already paid during the period of one year from the date of such application, but do 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 time.

(4) Meanwhile, even though Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of the matters delegated to the Presidential Decree, in consideration of the principle of excessive prohibition under the Constitution, in light of the nature of various subsidies granted under the former Employment Insurance Act, which is anticipated to show various types and attitudes, and the legislative intent of the above provision to prevent such fraudulent act, it is a provision with the inherent scope and limitation of the delegation. Article 35(1) of the former Employment Insurance Act is a provision with the inherent scope and limitation of the delegation. The purport of delegation is to reasonably subdivide and delegate the standards for restrictive measures, such as restriction on payment, depending on the type, content, motive, degree, and consequence of fraudulent act, or if it is not prescribed, it shall be deemed that an administrative agency delegates the provision so that the administrative agency may increase and reduce the restrictive measures by taking into account the aforementioned overall circumstances. Nevertheless, the enforcement decree of this case, which received delegation of the above provision, is merely compelling the payment restriction and return order for one year, depending on the content and degree, etc. of illegal act, and it does not violate the purport of delegation.

(5) Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; Presidential Decree No. 22026); however, Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026) provides that “if three years have elapsed from the date of receiving subsidies or incentives, or if the amount of money received or intended to receive is less than three million won and a fraudulent act was discovered for the first time, the restriction on payment for one year shall not apply.” Article 35(1) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010

With respect to a person who has received, or attempted to receive, any of the subsidies under paragraph (1) by fraud or other improper means, the Minister of Employment and Labor shall restrict the payment of any of the subsidies under paragraph (1) which is newly provided within the scope of one year from the date on which the order to return or restriction on the payment is issued under paragraph (1) for a period specified in attached Table 1: Provided, That the said subsidy may be reduced by up to 1/3 of the restriction period considering the degree, motive, result, etc. of such improper means, which seems to result from reflective consideration of the above problems in the Enforcement Decree of this case.

C) Therefore, the first and second dispositions based on the provisions of the Enforcement Decree of the instant case, which are null and void due to a violation of the purport of delegation by the mother law and the principle of excessive prohibition under the Constitution, should be revoked (no further determination is made as to the Plaintiff’s assertion that the second disposition exceeds the scope of return under Article 56(2) of the former Enforcement Decree of the Employment Insurance Act and is unlawful

3. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

Judges Yellow Jae-ho

Judges Kim Gin-han

A person shall be appointed.

A person shall be appointed.