(영문) 울산지방법원 2019.12.12. 선고 2018구합5233 판결

1. On January 22, 2018, the Defendant’s disposition of returning KRW 134,313,260 to the Plaintiff and disposition of returning KRW 268,626,520 to the amount additionally collected shall be revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff is a non-profit organization established around February 14, 2006 for the purpose of promoting the regional economy and developing the local community, and exchanging information among its members and promoting friendship.

B. On December 9, 2014, the creative branch office of the Busan Regional Employment and Labor Office, an agency under the Ministry of Employment and Labor, publicly announced the recruitment of “B Support Project (hereinafter referred to as the “Support Project”)” (hereinafter referred to as the “Support Project”).

If a basic local government within the Gyeongnam-do is a consortium representative body, a local employment-related non-profit organization is a project implementer, and a project suitable for local characteristics is discovered and proposed for the purpose of job creation, promotion of employment, development of abilities, etc. of local residents, after deliberation by the 'B Support Project Selection Committee established in the above Changwon-do Office (hereinafter referred to as the 'Selection Committee'), the competent Labour Office concludes an agreement between the basic local government and the project execution organization to support job creation related to the project implementation, and the competent Labour Office pays 90% of the total project cost as the State subsidy once to the basic local government, which is the consortium representative body of the selected project. After adding 10% of the total project cost as the response fund of the local government, the basic local government is a project that implements the budget by dividing it over two occasions in consideration of the project implementation performance, etc.

C. The Plaintiff proposed D’s project (hereinafter referred to as “instant educational project”) by organizing C/C and C/C consortium (the representative body of C/C, and the Plaintiff’s project execution body) in the instant support project.

At that time, E submitted 40 copies of the survey, and 50 copies of the work agreement, while submitting the project proposal, and 17 copies of the survey and 12 of the work agreement were prepared by the Plaintiff’s employees.

D. Around January 22, 2015, the Review Committee reviewed the project proposal submitted by the Plaintiff and its accompanying documents, and then selected the instant educational project as a subsidy support project.

E. Around February 4, 2015, the Plaintiff entered into an agreement on the instant support project with Defendant and C. From March 2015 to June 2015, the Plaintiff received subsidies of KRW 134,660,840 in relation to the instant educational project. Article 10(4) of the instant support agreement provides that “C and the Plaintiff shall not notify the State of the refund and restitution of the subsidies in a false or other unlawful manner.” If the Plaintiff wishes to receive, or intends to receive, the subsidies, the unpaid amount of the subsidies or the subsidies it intends to receive, pursuant to Article 35 of the Employment Insurance Act and Article 56 of the Enforcement Decree of the same Act, the Defendant shall not order the return of the subsidies already received, and the amount of the subsidies not exceeding five times the amount of the subsidies may be additionally collected within the scope of one year from the date the refund order or restriction order is issued. However, each of the subsidies may be limited to the amount to be additionally collected within the scope of one year from the date the refund order or restriction order is given.”

F. On August 28, 2017, the Defendant issued a disposition to recover from the Plaintiff the amount of KRW 347,580, and the amount additionally collected KRW 695,160, which the Plaintiff illegally received subsidies, on the ground that “the Plaintiff did not have participated in the instant educational project, and prepared and reported a false report on the result of the settlement of accounts,” on the grounds that the Plaintiff did not participate in the training.

G. On August 1, 2017, the Defendant requested the head of Yangsan Police Station to investigate the Plaintiff’s illegal receipt of subsidies related to the instant support project, as the Plaintiff’s additional misconduct is suspected.

H. On October 30, 2017, the chief of the Yangsan Police Station notified the Defendant of the result of the instant case processing pursuant to the above request for investigation and attached the list of crimes and criminal facts. The criminal facts include the content that G (the Plaintiff’s chairperson at the time of the implementation of the instant educational project) and H (the head of the Plaintiff’s secretariat at the time of the implementation of the instant educational project in collusion with E employees in charge of the instant educational project and submitted a false survey, work agreement, etc. to the instant support project by submitting a false report in collusion with E employees in charge of the instant educational project, which was designated as a person eligible

I. On January 22, 2018, the Defendant issued an order to return to the Defendant KRW 268,626,520, subtracting the already disposed KRW 695,160,00, out of KRW 134,660,260, which was the subsidy of KRW 347,580, which was already disposed of by the Plaintiff, and the additionally collected amount of KRW 269,321,680, which was already disposed of by the Plaintiff, on the ground that the Plaintiff submitted a false document (a written survey, business agreement) to the Plaintiff while supporting the instant educational business (hereinafter “instant disposition”). The Defendant stated in the instant disposition as the legal basis and content of the subsidy management Act, Article 30, Article 31, Article 35 of the Employment Insurance Act, Article 56 of the Enforcement Decree of the Employment Insurance Act, Article 78, Article 78, Section 4-1, and Article 10 of the Enforcement Rule of the Support Project Act.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) The Plaintiff entrusted the instant educational project related to the instant educational project to an expert, and disbursed the full amount of the subsidy received in connection with the instant educational project, and the Plaintiff did not use the subsidy received in accordance with the instant educational project for purposes other than the instant educational project. Furthermore, at the time of the instant educational project, a verdict of innocence (Ulsan District Court 2018 Manhap89) was rendered on suspicion of violating the Act on Fraud and Subsidy Management for the Plaintiff’s Chairperson, the Secretary General, G, and H, and H, who were the Plaintiff’s Chairperson, at the time of the instant educational project’s implementation. Accordingly, it cannot be recognized that the instant disposition constitutes a violation.

2) Even if some of the documents attached to the instant proposal for the instant educational project are false, it is merely a part of the documents submitted while supporting the instant educational project, and thus ordering the Plaintiff to return the full amount of subsidies and the additional collection calculated on the basis of the full amount of subsidies paid by the Defendant, exceeds the bounds of discretionary authority.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination as to the legitimacy of the instant disposition

According to Article 35(1) and (2) of the Employment Insurance Act, the Minister of Employment and Labor may restrict the payment of subsidies to a person who has received subsidies by fraud or other improper means, as prescribed by Presidential Decree, and order him/her to return the amount of subsidies received by fraud or other improper means. In addition, a return order may be additionally collected an amount not exceeding five times the amount of subsidies received by fraud or other improper means. In such cases, "any other fraudulent means" means any and all fraudulent acts conducted by an unqualified business owner in order to conceal the eligibility to receive subsidies or to conceal the lack of eligibility to receive subsidies, which may affect the decision-making on the payment of subsidies (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In full view of the following facts and circumstances that can be acknowledged in addition to the purport of the entire arguments on this case, the Plaintiff cannot be deemed to have received subsidies in relation to this case’s assistance project by “any false or other unlawful means.” Therefore, the instant disposition was unlawful on the premise that the Plaintiff received subsidies in relation to this case’s assistance project by “any false or other unlawful means.”

(1) If the Plaintiff appears to have received subsidies by ‘false or other unlawful means’, first of all, the Plaintiff’s submission of a survey document and business agreement ought to fall under the “business owner who is not entitled to receive subsidies under the instant aid program” in general without the Plaintiff’s submission of the survey document and business agreement. Moreover, in an appeal litigation, the Defendant who asserts the legality of the disposition has the burden of proving the legitimacy of the disposition, and there is reasonable proof as to the legality of the disposition (see, e.g., Supreme Court Decision 2015Du42817, Oct. 27, 2016). Therefore, in order to establish the legality of the disposition of the instant case, the Defendant must prove that the Defendant constitutes “business owner who is not entitled to subsidies under the instant aid program” in general without the survey document and business agreement submitted by the Plaintiff.

In this regard, we examine whether the Plaintiff falls under the “business owner who is not entitled to receive subsidies under the instant assistance program” in general, and the documents to be submitted by the applicant when supporting the instant assistance program include a project proposal, a project proposal, a project plan, a budget management plan, an internal agreement and a project participation agreement including the responsibility and role of the local government and the consortium participating institution, and an internal agreement and a project participation agreement that can confirm the substance of the participating organization in the case of the consortium participating institution. The written questionnaire and the business agreement that the Plaintiff’s employee forged and submitted include the necessary education and the content that the human resources trained through the education will be supported by the agreed enterprise. However, the forged questionnaire and the business agreement appear to be a document to confirm or support the contents of the project proposal in this case. It is difficult to conclude that the Plaintiff was not entitled to receive subsidies under the instant agreement without any forgery of the above education agreement and the survey document submitted by the Plaintiff.

② The criteria for the examination of the selection of the instant support project are composed of response points (30 points), capacity to implement the project, partnership (30 points), project strategies (20 points), expected effects (20 points), additional points (20 points), and additional points (20 points), excluding one highest point and one lowest point respectively, from among the evaluation points of eight members of the Examination and Selection Committee, and they are selected within budgetary limits after determining the order of priority. They are excluded from the selection where the average of less than 60 points. The instant educational project was selected as a subsidy support project with an average of 22 points, capacity to implement the project, partnership average of 20 points, 12.6 points, average of 12.6 points, project strategy average of 12.6 points, additional points average of 71.6 points, average of 5 points, and average of 71.6 points. However, there was no objective data that can be evaluated as being much reflected in the above evaluation points, and there was no objective data submitted by the Selection Committee’s examination committee members, among the survey reports submitted.

③ Although the Plaintiff’s employee could have the purpose of suggesting the eligibility to receive subsidies under the instant aid program when forging a business agreement and a survey document, the Plaintiff’s employee cannot be deemed to have received subsidies by referring to “a false or unjust method solely on the basis of the Plaintiff’s submission of a forged business agreement and a survey document,” as seen earlier, insofar as it is difficult to deem that the Plaintiff falls under “a business owner who is not eligible to receive subsidies under the instant aid program” generally.

④ In the first instance judgment (Ulsan District Court 2018Dahap89) in a criminal case against G and H, which was the president or secretary of the Plaintiff at the time of the implementation of the instant educational project, the court determined that “G and H conspireds to prepare a part of the work agreement and submit it to G and H to the proposal of the instant educational project, thereby deceiving the members of the Selection Committee for the examination, and it is difficult to view that H, in collusion, received subsidies under the instant educational project by selecting the educational project as the subsidy support project, by means of false application or other unlawful means.”

3. Conclusion

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