2011Guhap2983 Revocation of Restriction on Employment Insurance Fund Support

A Stock Company

The Administrator of the Incheon Northern District Office of Central Employment and Labor;

November 10, 201

December 1, 2011

1. The Defendant’s disposition of restricting support from the Employment Insurance Fund against the Plaintiff on May 2, 2011 (from March 26, 2008 to March 25, 2009) and disposition of returning KRW 15,515,623 as subsidies is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On October 9, 2007, the Plaintiff was recognized as a vocational skills development training course regarding “production machine basic course” (the training place: B university campus and training period: October 11, 2007 and October 24, 2007; hereinafter “instant curriculum”) to the Defendant.

B. On October 11, 2007 and October 24, 2007, the Plaintiff conducted the instant curriculum with 77 employees from among the Plaintiff’s employees, and applied for subsidies for vocational skills development training expenses related to the instant curriculum to the Defendant. On March 25, 2008, the Plaintiff received KRW 6,646,790 as subsidies for the instant curriculum from the Defendant on March 25, 2008. Among them, the Plaintiff’s employees included KRW 80,320 in training expenses for D, who are trainees of the instant curriculum.

C. The Defendant investigated the Plaintiff upon receiving a request from the Board of Audit and Inspection and the Ministry of Employment and Labor for an investigation as to whether the Plaintiff’s illegal departure management, along with the list of trainees who entered or depart from the Republic of Korea during the vocational skills development training period. As a result of the investigation, the Defendant confirmed the fact that D, an employee of the Plaintiff, left the Republic of Korea from October 21, 2007 to October 27, 2007, which is the date of the implementation of the instant curriculum, was treated as having attended on October 24, 2007.

D. Accordingly, on May 2, 2011, the Defendant issued a disposition of this case ordering that the Plaintiff would not pay the subsidies for one year (from March 26, 2008 to March 25, 2009) from the date when the Plaintiff received the said subsidies pursuant to Article 35(1) of the Old Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) and Article 56(2) of the Enforcement Decree of the Old Employment Insurance Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter the same shall apply) on the ground that the Plaintiff constitutes “the case where the Plaintiff received training costs by fraudulent or other illegal means.”

[Reasons for Recognition] Class A, Evidence Nos. 1, 5, Eul Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) unconstitutionality of Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter referred to as “instant Enforcement Decree”).

The enforcement decree of this case provides that an order to return conditions for training expenses paid for one year from the date of fraudulent receipt shall be null and void because it violates the principle of excessive prohibition and infringes on property rights, which is contrary to the purpose of delegation by the old Employment Insurance Act. In addition, the enforcement decree of this case provides that "the restriction of support" and "return of support already provided" beyond the scope of delegation by the mother law only one of the two dispositions "the restriction of support" and "return of support already provided" shall be null and void because they exceed the limit of delegation by the mother law. Therefore, the disposition of this case made by the Defendant by applying the enforcement decree of this case is unlawful.

(2) Non-existence of the grounds for disposition

In light of the fact that the curriculum of this case was managed by the attendance of the students under the responsibility of the B university, and that the Plaintiff trusted the establishment management of the college of this case and applied for the payment of subsidies to D, including training expenses for D, and that D did not report to the Plaintiff, and had the Plaintiff voluntarily signed the establishment of an agent in the attendance book, etc., the Plaintiff cannot be deemed to have received subsidies for vocational skills development training costs by fraud or other improper means. Accordingly, there is no reason for the disposition of this case.

B. Relevant statutes

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

C. Determination

(1) The validity of the Enforcement Decree of this case

The disposition ordering a person who has received, or attempted to receive, vocational skills development training costs, etc. by fraud or other improper means (hereinafter referred to as "unlawful recipients") pursuant to Article 35(1) of the former Employment Insurance Act constitutes a binding act. However, it is a question whether the enforcement decree of this case does not violate the principle of excessive prohibition, which provides that a person who has received, or attempted to receive, vocational skills development training costs, etc. by fraud or other improper means (hereinafter referred to as "unlawful recipients") shall be obliged to pay training costs, etc. for one year, and the refund of, training costs, etc. paid during the payment restriction period is required.

However, in light of the fact that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, etc., the legislative purpose of this case is to prevent misconduct in relation to the payment of training expenses, etc., and ultimately, to promote the development and improvement of workplace skill of workers by restricting the payment of training expenses, etc. for one year for illegal recipients and issuing an order to refund subsidies paid within the payment restriction period, and that workplace skill development training is conducted through limited public resources, such as the Employment Insurance Fund under the Enforcement Decree of this case, the legislative purpose of this case itself is justifiable. In addition, since it appears that misconduct in relation to the payment of training expenses, etc. is to be reduced through disciplinary sanctions under the Enforcement Decree of this case

However, as seen below, the instant provision is in violation of the Constitution as 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.” Therefore, the instant disposition based on the provision of the Enforcement Decree of the instant case, which is null and void in violation of the Constitution, is unlawful.

① Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount that was received by fraud or other improper means may be collected within a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008) and Article 9(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 320, Apr. 1, 2009) provides that the amount to be additionally collected shall be calculated based on the number of times applied for expenses during the past five years in the same manner. Meanwhile, Article 35(5) of the Enforcement Rule of the same Act provides that the amount of subsidies paid within the above restriction period shall be limited to one year for the illegal recipient, separately from the above additional collection, and that the amount of subsidies paid within the above restriction period shall be determined uniformly to be refunded to the Plaintiff in light of the content and degree of the additional collection, as well as the amount of subsidies paid for 20 years.

(2) In addition, since the provision of the Enforcement Decree of this case specifies the initial date of the restriction on payment as "the date on which the application for payment was made" rather than the date on which the payment was made, the illegal recipient shall return retroactively the amount already received prior to the date on which the restriction on payment was made. However, if the illegal recipient becomes aware of the fact that the payment of training expenses, etc. for one year would be restricted, he could reduce the amount of the order to return by flexibly implementing the training course during the restriction period, and it would not be unreasonable to operate the training course. Ultimately, even if the provision of the Enforcement Decree of this case stipulates the restriction on payment as binding act, the initial date is set as the date on which the payment was made or the date on which the payment was applied for training expenses, etc., may reduce the damage suffered by the illegal recipient by providing for a different date,

③ In addition, Article 1 of the Enforcement Decree of the instant case provides for a "training expense or an order to return subsidies already paid during the period of one year from the date of receiving training expense or applying for payment, but does not impose any special restrictions on the period during which the said sanctions may be imposed, resulting in a problem that the status of an illegal recipient is unstable for a long time.

④ Therefore, even if the legislative purpose of the instant provision, which is a disciplinary measure in addition to the additional collection, can be more efficiently achieved by prescribing the provision of the Enforcement Decree of the instant case, which is a disciplinary measure against an illegal recipient, the provision of the instant provision was mandatory without setting detailed standards depending on the form of the unlawful recipient’s violation, which infringes upon the property right of the illegal recipient by excessively restricting the payment period for one year and the order of return of the subsidies paid during the restriction period (see Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010; however, Article 56(1) of the Enforcement Decree of the Employment Insurance Act provides for one-year restriction on payment to the illegal recipient; however, the provision provides that “where three years have elapsed from the date of receipt of the subsidy or the subsidy, and where fraudulent act is discovered, the provision of the instant provision does not apply to one-year restriction on payment for one-year period from the date of receipt of the subsidy or the subsidy under Article 15(1).

(2) Sub-committee

Therefore, the instant disposition is unlawful without the need to further determine the Plaintiff’s assertion that there is no ground for the disposition.

3. Conclusion

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

The presiding judge shall be the highest judge.

Judge Choi Gyeong-hoon

Judges Kim Gin-dong

A person shall be appointed.

A person shall be appointed.