(영문) 서울행정법원 2014.6.20. 선고 2014구합54004 판결

1. On September 25, 2013, the Defendant revoked a disposition prohibiting new employment for two years from the date of returning and disposing of the amount of KRW 99,074,010 to the Plaintiff.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

On September 25, 2013, the Defendant issued a return order of KRW 99,074,010 to the Plaintiff and the principal of KRW 43,500,000 to the full-time conversion land and the disposition prohibiting new employment for two years from the date of the disposition is revoked.

Reasons

1. Presumed facts and circumstances of the disposition;

A. Status of the parties

The Plaintiff is a corporation that is established on January 3, 2007 and engages in the business of conducting building dogs, architectural production, budget consulting, etc. A professional bank (hereinafter referred to as a "professional bank") is an operating institution that concludes the Agreement on the Entrusted Operation of the internship System with the Defendant and carries out the business of youth employment internship from the Defendant (hereinafter referred to as the "instant business").

B. Details of the instant business

1) Purposes of the project

The instant project supervised by the Ministry of Employment and Labor is based on Articles 25 and 34 of the Framework Act on Employment Policy, Article 25(1) of the Employment Insurance Act, Article 35 of the Enforcement Decree of the same Act, and Article 7 of the Special Act on the Promotion of Youth Employment, and Article 7 of the Special Act on the Promotion of Youth Employment. The instant project is a project designed to provide opportunities for employment to small and medium enterprises having difficulties in job placement at the same time, and to assist a small and medium enterprise with 50% of wages (or 800,000 won per month) during a maximum of six months for employment, and to provide additional support for six months for a fixed amount of 60,000 won per month in the event of transition to future regular employment. The Ministry of Employment and Labor has established and publicly announced each year the Guidelines for the Implementation of the Youth Employment Finding System (hereinafter referred to as the “Guidelines”).

2) Roles of each Party

A) In the event that the Defendant entered into an agreement with an operating institution such as professional banks on the entrusted operation of the internship system with the operating institution, and grants, settle, and revoke the entrusted business expenses and the youth internship subsidy to the operating institution, and a small and medium enterprise that selects unemployed youth as an intern and provides opportunities for training and employment (hereinafter referred to as the “working enterprise”) convert the internship into regular employees, the Defendant shall pay the implementation enterprise a subsidy for full-time conversion to regular employees.

(B) The operating agency shall guide and publicize the instant project to unemployed youth, small and medium enterprises, etc., and shall receive applications from those who wish to participate in the instant project. The operating agency shall verify their eligibility and conclude an agreement with the implementing company to support the internship, and shall pay youth internship support to the implementing company that employs the internship through the intermediation of the operating agency.

c) The implementing enterprise shall enter into an internship arrangement with young people and shall pay wages by employing them.

3) Procedures for paying subsidies, etc.

(a) Youth internship subsidy: If an implementing company employs an intern and then applies for youth internship subsidy to an operating agency, the operating agency shall examine the eligibility and requirement of the applicant and then apply for the granting of youth internship subsidy to the Defendant. If the Defendant notifies the operating agency of the decision to grant youth internship subsidy, the operating agency shall pay the youth internship subsidy to the implementing company within five days from the date the written decision to grant the subsidy is received.

B) A full-time conversion subsidy: A full-time conversion subsidy shall be paid to the Defendant for the last six months from the date of the full-time conversion of an intern employed by the executing company according to the instant project, and if the Defendant directly applies for the full-time conversion subsidy, the Defendant shall confirm the status of maintenance of employment of the executing company and pay the full-time conversion subsidy. The Defendant’s investigation and disposition 1) The Plaintiff participated in the instant project as an implementing company since 2009, and entered into the Agreement on the Professional Bank and Salk Support (hereinafter “instant Convention”), which is an operating agency, and thereafter, employed 37 internships up to

2) The Defendant conducted a fact-finding survey on July 2013 with respect to the Plaintiff, and formed appearance such as the payment of the agreed wage of 1.5 million won to the Plaintiff for the said 30 internships, and found the fact that the Plaintiff received the subsidy of 7.5 million won per capita from the professional bank while returning 1.5 million won to the road, and based on Articles 30 and 31 of the Subsidy Management Act (hereinafter referred to as the “Subsidy Management Act”), the instant guide, and the instant agreement, as to the Plaintiff on the basis of the foregoing 30 internships, the Defendant issued a new disposition order to return the subsidy of 1.5 million won for 1.5 million won for 1.5 million won for 1.5 million won for 43 million won for 1.5 million won for 1.5 million won for 30 million won for 1.5 million won for 2 years for 2 years for 2 years for 2 years for 2 years for 2 years for 2 years for 2 years for 2 years for 'the instant order to return the new employment subsidy.

【Ground for recognition】 The fact that there has been no dispute, Gap evidence 1, Eul evidence 2-1 through 3, Gap evidence 3, 4, Eul evidence 1 through 3, and the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Articles 30 and 31 of the Subsidy Management Act provide that the head of a central government agency may revoke the decision to grant subsidies to a subsidy program operator and order the return of subsidies. The subsidy program operator under the Subsidy Management Act regarding the instant project is a professional bank, which is an operating institution, and the Plaintiff is merely a subsidy recipient, and thus, the instant disposition was made against a person who is not subject to the disposition

2) In addition, even if there was an error in the receipt of the subsidy for youth conversion, even though it was lawfully received in compliance with the relevant provisions regarding the subsidy for youth conversion, the defect in the receipt of the subsidy for youth conversion should also be returned together with the subsidy for youth conversion to regular workers. The instant disposition was made without any ground and is unlawful.

3) The instant disposition 3 was conducted in accordance with the instant guidelines. The instant guidelines merely do not serve as the basis for administrative dispositions, and thus, are unlawful as they are not based on the law.

4) In light of the fact that the youth internship subsidy that the Plaintiff Company received excessively is merely KRW 11,863,250, and KRW 6,507,870 among them was re-paid to the employees, the instant disposition is excessively excessive and excessively in violation of the principle of proportionality. Accordingly, the instant disposition is unlawful as it is against the law that deviates from and abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant disposition 1 was lawful

A) The term "subsidies" as referred to in the Subsidy Management Act means the installment payments (Article 2 subparagraph 1 of the Subsidy Management Act) that the State grants without receiving any reasonable benefit in order to create or provide financial assistance to affairs or projects conducted by any person other than the State, and the term "subsidized projects" means affairs or projects (Article 2 subparagraph 2 of the Subsidy Management Act), the term "subsidized project operator" means a person who operates a subsidized project (Article 2 subparagraph 3), and the term "subsidized project recipient" means a person who receives a subsidy from a subsidized project operator (Article 2 subparagraph 8 of the Subsidy Management Act).

Meanwhile, Article 25 (1) of the Employment Insurance Act provides that "the Minister of Employment and Labor may directly carry out or lend any of the following projects to promote employment security and employment of the insured, etc.," and subparagraph 3 of Article 25 provides that "other projects to promote employment security and employment of the insured, as prescribed by Presidential Decree," and Article 35 of the Enforcement Decree of the Employment Insurance Act provides that "projects to promote employment security and employment of the insured, etc., as prescribed by Presidential Decree" are listed in subparagraph 2, and Article 36 (1) of the Enforcement Decree of the Employment Insurance Act provides that "the Minister of Employment and Labor may subsidize expenses incurred by the following persons pursuant to Article 25 of the Act and Article 35 (2) of this Decree within budgetary limits." Accordingly, Article 36 (1) of the Enforcement Decree of the Employment Insurance Act provides that "the Minister of Employment and Labor recognizes the ability to carry out the project in this case and the grounds for the implementation of the subsidy in this case and the payment thereof are Article 25 (1) 3 and 36 (1) of the Enforcement Decree of the Employment Insurance Act.

B) The project of this case was implemented with the aim of resolving youth's employment difficulties and difficulties in the job placement of small and medium enterprises. In full view of the purpose of the project, the procedures for granting subsidies as mentioned above, projects eligible for support under the Subsidy Management Act, etc., it is reasonable to view the project of this case as a professional bank, which is an operating institution to examine them upon application from youth and small and medium enterprises, and provide subsidies to eligible persons. Accordingly, the Plaintiff, a implementing company, constitutes a subsidy recipient under the Subsidy Management Act, which is a subsidy recipient.

C) However, Articles 30 and 31 of the Subsidy Management Act stipulate the State’s revocation of the decision to grant subsidies to a subsidized business entity and the order to return subsidies to a subsidized business entity under Article 33-2, and do not stipulate that the State may directly order the recipient of subsidies to return the subsidies. Therefore, a professional bank, an operating institution, as a subsidized business entity, requests the Plaintiff to return the youth internship subsidy in accordance with the instant agreement, or the Defendant orders the professional bank to return the youth internship subsidy in accordance with the Subsidy Management Act or the entrusted operation agreement, etc., separate from the fact that the Defendant orders the professional bank to return the youth internship subsidy, the Act on the Subsidy Management cannot be deemed as the basis that the Defendant directly orders the Plaintiff, a subsidy recipient, to return the internship subsidy.

D) The Defendant asserted that the instant one disposition is lawful on the ground that the instant agreement entered into with the Plaintiff and professional banks provided that “B (the Plaintiff) shall return the subsidy illegally received in violation of the instant guidelines and this agreement at the request of local government offices (the Defendant) or “A”. However, the instant agreement between the Plaintiff and the professional banks is not a legally binding law, and thus, it cannot be the grounds for administrative agencies’ disposition.

E) Therefore, the instant disposition was made without any ground-based statute and is unlawful.

2) As seen earlier, as seen earlier, the Plaintiff applied for the full-time conversion subsidy directly to the Defendant, and the Defendant examined the subsidy and paid it to the Plaintiff. As such, the Defendant directly performs its affairs or business without being entrusted to a professional bank, unlike the subsidy for youth internship.

Therefore, there is no room for the application of the Subsidy Management Act to the return of the subsidy for regular conversion. Moreover, this case’s agreement is not an external binding legal order, and thus it cannot be the basis for the disposition.

B) However, a disposition agency which has conducted an administrative act may cancel it on its own, even without a separate legal basis, even if there is a defect in the act. However, when the disposition agency which has conducted the administrative act, it may cancel it, even if there is no other legal basis. However, it may cancel it only when comparing and comparing the necessity of the public interest to cancel it with the disadvantage of the parties, such as the protection of trust and the infringement of stability in legal life, etc., and only when the need for public interest is strong enough to justify the disadvantage of the parties. However, if the defect in the administrative disposition was due to the party's act of application through concealment or other fraudulent methods, the party could have known that the benefit from the disposition was illegally acquired. Thus, it is not possible to invoke the trust interest in the disposition, and even if the administrative agency did not consider it (Supreme Court Decision 2008Du8628, Nov. 13, 2008). Therefore, even if there is no ground for the Act of this case’s 2 disposition, the Defendant may cancel the order to return of the subsidy for regular administrative disposition.

C) Article 25(2) of the Employment Insurance Act delegates matters necessary for the implementation of the instant business and subsidization and lending of expenses to the Presidential Decree. Article 36(2) of the Enforcement Decree of the Employment Insurance Act provides that “The Minister of Employment and Labor intends to provide support pursuant to paragraph (1) shall publicly notify the type of the instant business, the scope and level of the insured, etc. subject to the support, and the method of application, etc. Accordingly, the Minister of Employment and Labor (the Minister of Labor as at 2009) has publicly announced the instant guidelines that include the requirements, contents, and scope of the support every year. Therefore, the external binding force is to determine whether the Plaintiff violated the instant guidelines or not, in itself, satisfies the requirements for the supply and demand of the full-time conversion subsidy in accordance with the instant guidelines, and the instant guidelines should be divided into the concept of “the person who acquires the work, etc. for the full-time internship period after entering into the instant employment contract with the executing company, and the concept and the term “the executing company should be divided into one of the instant guidelines for the full-time employees.”

However, the fact that the Plaintiff falsely reported that he paid a wage higher than the wage actually paid to an intern participant in violation of the instant agreement and the instant guidelines, and that the Plaintiff received excessive subsidies for youth internship is as seen earlier. Accordingly, the Plaintiff, despite the fact that it was excluded from the eligibility for payment of the regular conversion subsidy, applied for the full-time conversion subsidy to the Defendant without concealing it, and the Defendant applied for the full-time conversion subsidy to the Defendant on the ground that the payment was defective, the Defendant may cancel the payment of the full-time conversion subsidy and order

E) Therefore, the instant disposition 2 is lawful.

3) The instant disposition 3 constitutes an indive administrative act that imposes restrictions on the legal status of the Plaintiff, such as the Plaintiff’s failure to receive all subsidies related to internships for the two years following the instant disposition, etc., and thus, the instant disposition is subject to strict application of the principle of statutory reservation in order for the Defendant to conduct such indive administrative act in accordance with the principle of statutory administration or the principle of legality of administrative law.

However, Article 25(2) of the Employment Insurance Act only delegates matters concerning the type, content, scope of insured workers, etc. subject to the Employment Insurance Act, the content, level, and method of application, etc. of the pertinent business to the Minister of Employment and Labor, and does not delegate matters concerning sanctions following illegal receipt. Accordingly, the instant guidelines provide for sanctions without any delegation from the upper statutes, and thus, the legality of disposition cannot be asserted.

B) The Defendant asserts that, under Article 18(1) of the Subsidy Management Act, a condition may be attached when granting a subsidy. The instant disposition constitutes a condition attached when granting a subsidy, and thus, the Plaintiff is obligated to accept it.

According to the statements in Gap evidence Nos. 3 and Eul evidence Nos. 3, 2013, it is recognized that "in the event the implementing company applied for a internship or received a subsidy by false or other unlawful means, it is prohibited from hiring an intern for two years from the date of the defendant's disposition of return or restriction on payment, no subsidy for an intern employed during the prohibition period shall be paid, and the subsidy already paid shall be returned and returned."

However, since a youth intern subsidy paid pursuant to the instant guidelines is not paid by the Defendant to the Plaintiff, but paid by a professional bank, an operating institution, the Defendant cannot add the conditions to the Plaintiff. As seen earlier, the Subsidy Management Act does not apply to the payment of the subsidy for full-time conversion. As such, the Defendant cannot assert the Subsidy Management Act as the ground for the instant disposition 3. Moreover, the conditions of the administrative act as the father of the administrative act depend on objective uncertain facts as to the occurrence of the effectiveness of the administrative act and the extinction thereof in the future, which are attached to the main administrative act. However, the instant disposition is a new administrative disposition, separate from the occurrence of the validity of the payment of the subsidy according to the instant business, and thus, does not constitute a classical condition.

C) Ultimately, the instant disposition 3 is unlawful, which was made without any legal basis, despite the fact that it was an infringed disposition.

4) Whether the discretion is deviates or abused or abused

Considering the fact that the State’s subsidies are paid as the national tax, so it is necessary to strictly manage so that they can be used in accordance with the purpose and purpose of the national tax, the Plaintiff’s intentional reporting of excessive amount of the paid-in wage to the intern, and the illegality and criticism of the act of receiving a partial refund of the amount of the paid-in wage, etc., and the subsidies paid to the Plaintiff is unilaterally provided without consideration, so it is not harsh to deem that it would be returned to the Plaintiff who failed to meet the requirements, and that there is no ground to reduce the amount of the subsidies that can be recovered under the statutes, even if considering the circumstances asserted by the Plaintiff, the instant disposition cannot be deemed to constitute deviation and abuse

3. Conclusion

Therefore, the plaintiff's claim is accepted on some grounds within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.