A. On March 11, 2008 through April 3, 2008, the Daegu Headquarters under the Plaintiff’s control conducted a video editing process (hereinafter “instant training”) for 18 employees from March 11, 2008 to April 3, 200, and received payment of KRW 1,108,560 on April 21, 201 of the same year by filing an application for the instant training expenses with the Administrator of the Daegu Regional Employment and Labor Agency.

B. On the other hand, the head of Daegu Regional Labor Agency confirmed that B had not participated in the instant training from March 25, 2008 to April 2, 2008, and that it had been dealt with as if it had been present on March 25, 200, March 27, and April 1 of the same year. On June 21, 2011, the head of Daegu Regional Labor Agency (hereinafter referred to as "the 20th anniversary of the Plaintiff's 20th anniversary of the Plaintiff's failure to participate in the training during the period of overseas departure, the 20th anniversary of the Plaintiff's 20th anniversary of the Plaintiff's participation in the training, and the 3th anniversary of the fact that the Plaintiff received training expenses by fraud or other improper means (hereinafter referred to as "the 20th anniversary of the 20th 3th 3th 20th 3th 20th 3th 3th 200 of the Enforcement Rule of the Employment Insurance Act).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 4 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The fact that a trainee B was present without attending the instant training during the period of departure from Korea and included in the person subject to the application for training costs is due to the number of employees in charge of the pertinent duties’ simple process of performing duties, and thus, does not constitute “false or other unlawful means.”

(2) Article 56(2) (hereinafter “Enforcement Decree of the Employment Insurance Act”) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter “Enforcement Decree of the Employment Insurance Act”) is null and void since it exceeds the bounds of delegation under Article 35(1) of the Employment Insurance Act, or is in violation of the principle of excessive prohibition under the Constitution, and thus, the instant disposition based on the instant provision of the Enforcement Decree of the Employment Insurance Act and the instant disposition based on the restriction on payment is all null and void.

(3) In imposing sanctions against the act of illegally receiving training expenses, the fact that the head of Daegu Labor Agency imposed the instant restriction on payment under the Employment Insurance Act, rather than the occupational development law, deviates from or abused the scope of discretion, and the instant disposition based on the said restriction on payment, is also unlawful.

(4) The scope of return under the instant disposition must be limited to those provided or supported in the workplace by fraud or other improper means in question.

(5) The instant revocation disposition should be mitigated pursuant to the proviso of Article 9(3) [Attachment 2] 1-A-1 of the Enforcement Rule of the Vocational Development Act because the amount subsidized as training expenses for vocational skills development conducted by trainees B is merely 61,580 won and its degree of violation is insignificant, and there is no intention or gross negligence. The instant revocation disposition is also excessive disposition based on the recognition that the amount has not been mitigated, and the instant disposition based on the excessive restriction disposition is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

(c) Markets:

(1) Whether an administrative measure is provided with "false or any other fraudulent means" (a) a sanction against a violation of administrative laws is imposed based on the objective fact of violation of administrative laws in order to achieve administrative purposes. Thus, a sanction may be imposed even if a violator has no intention or negligence, barring special circumstances, such as where a failure to perform his/her duties is caused, barring special circumstances, such as where a failure to cause a failure to do so exists. "False or other unlawful means" referred to in Article 35 (1) and (2) of the Employment Insurance Act and Article 56 (1) and (2) of the Enforcement Decree of the same Act means any fraudulent act conducted in order to estimate the eligibility for payment by an unqualified business owner or to decrease the lack of eligibility to receive training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

(B) In light of the above legal principles, comprehensively taking account of the following circumstances that can be acknowledged by the facts acknowledged as above and the written statements and the purport of evidence Nos. 1 through 4 (including paper numbers) in relation to the instant case, it is reasonable to deem that the Plaintiff was entitled to receive the fictitious payment of training expenses No. 61,580 won in relation to B as “any false or other unlawful means, without being entitled to receive them.”

① The Plaintiff, as a principal agent of the instant training, is obligated to finally verify whether a trainee has withdrawn prior to filing an application for subsidies.

② However, it was well known that D, who was in charge of applying for subsidies related to the instant training, was informed by B of the fact that B was unable to participate in the instant training during the period of his departure from Korea.

③ Nevertheless, D, in the course of inspecting the attendance book to apply for the instant training expenses, found only trainees who did not have the signature of some trainees, and applied for training expenses to the Administrator of the Daegu Regional Employment and Labor Agency based on the attendance book signed by all 18 trainees who had been present during the training period. The instant training course is recognized as having completed training with the attendance rate of at least 80%, and can receive training expenses from the Administrator of the Daegu Regional Employment and Labor Agency. However, in the case of B, if the attendance rate falls short of 80% and only the date of actual attendance, the attendance rate falls short of 80% and is not eligible for training expenses.

6 The Administrator of the Daegu Local Employment and Labor Agency, as seen above, is clear that if he had known in advance that B did not attend the instant training course, he would have not paid training expenses to B, and eventually, it would have influenced the decision-making of the Administrator of the Daegu Local Employment and Labor Agency on the payment of training expenses.

(2) Whether the provision of this case is unlawful

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 the enforcement Decree of this case 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 skills 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, and ultimately to promote the development and improvement of workers’ vocational skills. In addition, the legislative purpose of this case is justifiable in light of the fact that subsidies, etc. are based on the limited public resources 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

However, in light of the various circumstances seen below, the content of the enforcement decree of this case is 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', and thus, is in violation of the delegation purpose of the mother law or the principle of excessive prohibition under the Constitution and is therefore null and void.

(A) The instant provision, separate from the disposition of additional collection under Article 35(2) of the Act, which is a disciplinary measure upon illegal receipt, provides that subsidies, etc. shall be imposed for one year to a person who received subsidies by fraud or other improper means, and if subsidies, etc. are granted during the period of restriction on payment, the order shall be issued to return all those subsidies, regardless of whether they were paid by fraud or other improper means. This is more strong than the provision on the grounds of the aforementioned additional collection disposition, and unlike the provision on the grounds of the aforementioned additional collection disposition, the provision on the provision on the suspension of payment and the order to return subsidies, etc. granted during the period of restriction on payment uniformly without setting detailed standards depending on the content and degree of the offense. Accordingly, the Defendant has no choice but to uniformly impose the aforementioned sanctions against the business owner who is a small amount of money, such as the Plaintiff, and the amount of subsidies, etc. subject to the order of additional collection exceeds the amount of illegal receipt, which may considerably exceed the scope expected to be a sanction against illegal receipt. This may result in the Plaintiff 165850 won (the total amount of the Plaintiff’s.

(B) In addition, the provision 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, which is not the date on which the application was made for the restriction on payment, and thus, the illegal recipient shall return retroactively the subsidy, etc. already received prior to the restriction on payment. However, if the illegal recipient becomes aware of the fact that the payment of the subsidy, etc. would be restricted for one year, it may reduce the loss by flexible implementation of vocational skills development projects during the restriction period, 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 was made or the date on which the application was made, the provision of this case did not comply with the minimum amount of damage caused by the fraudulent recipient by failing to make all efforts to minimize the damage suffered by the illegal recipient, by prescribing the date on which the application was made for the restriction on payment, not the date on payment was made or the date on which the application was made.

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

(D) Meanwhile, even if Article 35(1) of the Employment Insurance Act explicitly does not specify the scope of matters delegated to Presidential Decree, the scope or limit inherent in accordance with the legislative intent or purpose of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Nu6578, Jul. 22, 1997). Considering the fact that various types of violations are likely to be committed, the legislative purpose of the above provision, and the principle of excessive prohibition under the Constitution, it appears that the provision of Article 35(1) of the Employment Insurance Act provides that the subsidy should be reasonably subdivided and regulated according to the degree of seriousness of the above provision, such as the type of unlawful acts, its content, motive, and consequence, and so forth, it would be consistent with the legislative intent of the above provision that allows the competent administrative agency to increase the amount of subsidy for less than 2 years, as of the date of the first revision of the Enforcement Decree of the Employment Insurance Act.

(F) Therefore, even if Article 35(2) of the former Employment Insurance Act, other than Article 35(2) of the former Employment Insurance Act, which can be additionally collected by an illegal recipient as a disciplinary measure, and the legislative purpose of this case can be more efficiently achieved by prescribing the provisions of the Enforcement Decree of this case, the provision of the Enforcement Decree of this case provides for the order to restrict the payment and to return subsidies, etc. paid during the period of restriction on the payment to the illegal recipient for a period of one year, without reasonably subdividing and stipulating the standards according to the type

(3) Sub-decisions

Ultimately, the instant disposition is based on the invalid provision of the Enforcement Decree of the instant case, and thus, should be revoked as it is unlawful without examining the remainder of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judges or the Korean Office

Judges Kim Gung-Un

A person shall be appointed.