(영문) 부산지방법원 2013.5.31. 선고 2012구합6040 판결

The Defendant’s disposition of additionally collecting KRW 112,792,00 among the disposition of unjust receipt of employment improvement subsidies granted to the Plaintiff on February 24, 2012 shall be revoked.

Reasons

1. Details of the disposition;

A. The plaintiff is a corporation established for the purpose of the former sea facilities and the former theater manufacturing, etc. with the head office of Busan Sho-gu as the main office, and KNT Co., Ltd. (hereinafter referred to as "KNT") is a corporation established for the purpose of the former sea facilities and the former theater manufacturing, etc. from Busan Sho-gu B. The inside director C and KNT representative director D, a representative of the plaintiff, are siblingss.

B. On February 26, 2010, the Plaintiff invested KRW 150,3190,00 in the first floor of the Plaintiff’s head office (hereinafter “instant factory”) in order to receive subsidies for improving the employment environment of small and medium enterprises (hereinafter “subsidies”) pursuant to Article 15(1) of the Employment Insurance Act and Article 15-4(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 2030, Oct. 17, 2007), and obtained approval from the Defendant on April 2, 2010, by submitting a report on improving the employment environment of small and medium enterprises on the second floor of the Plaintiff’s head office (hereinafter “instant factory”).

C. On April 29, 2010, the Plaintiff filed a report on the completion of the employment environment improvement with the content of the above report to the Defendant on April 29, 2010, and received confirmation from the Defendant on May 7, 2010.

D. Accordingly, on September 9, 2010, the Plaintiff initially referred to a subsidy of KRW 57,200,00 in total to the Defendant for KRW 120,976,000 for the cost of improving the employment environment and KRW 7,200,000 for KRW 50,000 for KRW 120,976,000 for the Defendant and six new employees (i.e., KRW 6 X 1,200,00 for the amount of KRW 57,20,000 for the amount of KRW 57,200 for the amount of KRW 6,396,00 for the amount of support for the cost of improving the employment environment of the Plaintiff and KRW 5,333 for the amount of support for the amount of KRW 5,396,00 for the amount of support for the newly appointed employee (=5.33 x 1,200,000).

E. After February 24, 2012, the Defendant: (a) the instant factory was a second factory with the actual case; (b) the Plaintiff reported the acquisition of employment insurance benefits under the Plaintiff’s control to include the increase in the number of employees eligible for subsidies; (c) changed the purpose of use of welfare facilities subject to support after the completion inspection of employment environment; and (d) leased all of the factories, including welfare facilities subject to support after the payment of subsidies, to other companies; and (c) accordingly, the Defendant issued an order to refund subsidies to KRW 56,396,00 pursuant to Article 78(1)1 of the Enforcement Decree of the same Act; and (d) additionally collected subsidies for two times, 112,279,200, and 1200,000 of the amount of subsidies.

F. The Plaintiff appealed and filed an administrative appeal with the Central Administrative Appeals Commission on March 22, 2012, but was subject to the dismissal ruling on October 16, 2012, and the said written ruling was served on the Plaintiff on November 2, 2012.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2.3, 7, 8, 9, Eul evidence Nos. 1, 2, 3, 15 (including a number; hereinafter the same shall apply)

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff newly constructed the instant plant for the Maritime Sea Business, employed six non-regular employees belonging to the KNE as full-time employees, and then dismissed the said business due to no outcome. The Plaintiff and its representative C did not commit an illegal act prior to the instant case. Considering the circumstances that the Plaintiff’s additional collection, other than the return of subsidies, is no longer possible if the employees were to engage in a normal business and the employment environment becomes worse, it is unlawful that the Defendant’s additional collection disposition, other than the return order of subsidies and the restriction of payment of subsidies, exceeds the discretionary authority.

B. Relevant statutes

It is as shown in the attached Form.

1) According to the "tax withholding receipt for wage and salary income prepared on August 31, 2010 after the Plaintiff applied for subsidies to the Defendant, E is written as follows: from April 19, 2010 to July 15, 2010; F is from April 12, 2010 to July 31, 2010; G is from April 15, 2010 to July 31, 2010; H is written as working for the Plaintiff company from April 15, 2010 to July 31, 2010; and H is written as the "tax withholding receipt prepared by the Plaintiff on February 28, 201; and is written as the "tax withholding receipt prepared by the Plaintiff on February 15, 201 to October 12, 201; and is written as the plaintiff company from February 15, 2010 to July 31, 2015;

2) On January 25, 201, the Busan District Office, the Busan District Office, an objection raised from E to the effect that the reason for departure from employment insurance differs from the former place of business and the reason for loss of employment insurance. At the time, E and G entered each case on November 1, 2009 and March 2, 2010, and retired from office due to the suspension of business around July 2010 while they were placed in the instant factory, which was newly established for the Maritime Sea Reclamation Project in the KNT, and D, the representative of the KNT, operated the instant factory.

3) During the period in which E was registered as the employee belonging to the Plaintiff, the document prepared by E in the course of its business is written as K&T, and the factory of this case is written as K-2 factory or K-3 factory, and the "the introduction of the electric sea facility business sector" published by K-3 is written as K-3 factory.

4) On September 28, 2011, the Defendant imposed an administrative fine of KRW 160,000 on the Plaintiff, and an administrative fine of KRW 80,000 on the Plaintiff on September 28, 201, on the ground that the Defendant violated Article 15 of the Employment Insurance Act due to false reporting on the acquisition or loss of insured status of E, and the said administrative fine was paid on November 21, 201.

5) Meanwhile, on May 2010, the Plaintiff obtained on-site verification as to whether to improve the employment environment from the Defendant, and then used the first floor of the instant factory as the office, the second floor education room as the laboratory, and the library as the conference room.

6) In addition, after disposing of machinery installed in the instant factory around October 2010, the Plaintiff leased to K on November 8, 2010, with a term of lease of KRW 165.2 square meters from November 16, 2010 to November 16, 2012, a lease deposit of KRW 30 million, and a monthly rent of KRW 2 million.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 4, 5, 6, Eul evidence Nos. 4 through 14, 16 through 21, and images

D. Determination

1) Article 20 of the Employment Insurance Act provides that "the Minister of Employment and Labor may provide necessary assistance to a business owner who has extended an opportunity for employment due to the improvement of the employment environment, change of the working environment, etc., as prescribed by Presidential Decree"; Article 35 (1) of the same Act provides that "the Minister of Employment and Labor may order a person who has received or intends to receive assistance from employment security and vocational skills development programs under this Chapter by fraud or other improper means, to restrict the amount of assistance or to return the amount of assistance received by fraudulent or other improper means, as prescribed by Presidential Decree"; Article 20 (2) of the same Act provides that "the Minister of Employment and Labor may additionally order the return of the amount received by the person who has received or has received the following subsidies or incentives by fraudulent or other improper means, and Article 56 (1) of the Enforcement Decree of the same Act provides that "the Minister of Employment and Labor may collect the amount not exceeding five times the amount received by the person who has received or has received the subsidies or incentives from the person who has received or has received them by fraudulent or other unlawful means."

In addition, Article 3(1) [Attachment 1] of the Regulations on the Payment of Subsidies for the Improvement of Employment Environment for Small and Medium Enterprises (Notice of Ministry of Employment and Labor No. 2010-13, Aug. 23, 2010) under delegation by Article 15(2) of the Enforcement Decree of the above Act provides for "facilities eligible for subsidies, such as bathing facilities, reading rooms, physical training facilities, educational facilities, etc.," and Article 7(1) of the Enforcement Decree provides for "facilities eligible for subsidies, such as cultural, sports, and convenience facilities," and Article 7(1)1 provides that "the business owner shall make an investment of at least ten million won in accordance with the approved improvement plan," and subparagraph 2 provides that "the average number of workers of the month in which the date of completing employment improvement falls and the second month after the date of submitting the improvement plan shall not exceed the monthly average number of workers of the immediately preceding three months in the month to which the date of submitting the improvement plan belongs," and "the business owner shall not use the facilities eligible for improvement subsidy from 3."

위 규정들에 의하면, 지원금은 사업주가 시설 · 설비투자를 실시하고, 그로 인해 고용을 증대시킨 경우 지급하는 것으로서 기업의 인력확보 및 고용증대를 유도하기 위한 제도인바, 그 요건은 1,000만 원 이상의 복지시설 투자, 근로자수의 증가, 신청일 후 6개월 내 근로자의 이직 금지라고 할 것이고, 지원대상 복지시설의 용도변경은 사전 신고 후 이루어져야 할 것인데, 앞서 본 바와 같이 원고가 피고로부터 고용환경개선 여부에 대한 확인을 받은 직후 신고를 하지 않고 지원대상 복지시실을 사무실, 회의실 등으로 용도를 변경한 뒤 이러한 사실을 숨긴 채 피고에게 지원금을 신청하고, 실제 케이엔티 소속 근로자인 E과 G을 자신의 근로자로 신고함으로써 지원금을 지급받았을 뿐만 아니라, 피고로부터 지원금을 지급받은 떄로부터 불과 두 달이 지나기도 전에 이 사건 공장을 제3자에게 임대한 것은 고용보험법 제35조가 정한 '거짓이나 그 밖의 부정한 방법으로 고용안정 · 작업능려개발사업의 지원을 받은 행위'에 해당한다고 할 것이고, 그러한 행위를 한 원고는 고용보험법이 정한 지원금의 지급제한, 환수명령, 추가징수처분의 대상이라고 할 것이다.

2) Furthermore, according to the facts found earlier, it seems that the Defendant’s additional collection of the amount equivalent to twice the subsidies to the Plaintiff in addition to the refund and collection of the subsidies and the restriction on the payment of the subsidies in the future, the Plaintiff was deemed to have leased the instant factory immediately after receiving the Defendant’s subsidies by temporarily improving the employment environment even though the Plaintiff did not intend to additionally employ employees by improving the employment environment of the instant factory from the beginning, and immediately after having employed the employees, even if he did not additionally employ the employees. The Plaintiff’s above application and receipt of the subsidies are contrary to the purport of the Employment Insurance Act, and thus are against the purpose of the Employment Insurance Act, and thus, it is unreasonable to deem that there was no unlawful act by the Plaintiff or its representative prior to the instant case, or that the size of the Plaintiff

Considering the circumstances, it cannot be deemed that the Defendant’s additional collection disposition under Article 78(1)1 of the Enforcement Rule of the Employment Insurance Act deviates from and abused discretion. Thus, the Defendant’s assertion on the opposite premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.