Revocation, such as an order to return illegally received amount, etc., 2017 oldest 78905

1. A stock company;

2. B stock company:

3. C Stock Company:

4. Daehan:

5. E company.

[Judgment of the court below]

[Defendant-Appellant]

1. The Administrator of the Seoul Regional Employment and Labor Office;

2. The Administrator of the Seoul Southern District Office of Employment and Labor;

January 23, 2019

February 20, 2019

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

The disposition that the Defendants made against the relevant Plaintiffs shall be revoked as shown in the [Attachment] List.

1. Details of the disposition;

A. Both the Plaintiffs (hereinafter referred to as “the Plaintiffs”) are companies engaged in taxi passenger transport business, and the F or G Co., Ltd. (hereinafter referred to as “H” in total) is companies recognized as workers’ workplace skill development training course.

B. The plaintiffs entered into an entrustment contract for workplace skill development training for the "training personnel" column among the plaintiffs' workers belonging to H (hereinafter referred to as the "training" of the plaintiffs, as shown in the attached table (hereinafter referred to as the "mark"). When indicating some of them, each plaintiff entered into an entrustment contract for workplace skill development training for the "training personnel" column. The plaintiffs subsequently received training for the number of trainees stated in the "training personnel" column among the trainees (hereinafter referred to as the "training personnel of this case") as if they meet the criteria for completing the payment of subsidies for remote training (hereinafter referred to as the "standards for completing the training"), and received the same as the "mark subsidy" column.

D. The Defendants limited loans for 360 days pursuant to Article 55(2) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jan. 27, 2016; hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”) and Article 22 [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills Skills of Workers”), and limited loans for 360 days pursuant to Article 5(2) of the same Act, and (2) order the return of the amount equivalent to the subsidies received by the Plaintiffs pursuant to Article 56(3)2 and (5) of the same Act and Article 22-2(1)2 through 3 of the Enforcement Rule of the same Act (hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”).

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) In most cases, the trainees of this case received help from H employees as a result of most difficulties in learning and preparing answers using computers due to the elderly age, and received training in this case normally and met the completion standards, and thus, the Plaintiffs cannot be deemed to have received subsidies by fraud or other improper means (Chapter 1).

2) The instant training course conducted by commissioned education is entirely managed by H. The Plaintiffs believe that the instant trainees undergo normal training and met the completion standards, and there was no other way to verify whether the instant trainees meet the completion standards (section 2). Therefore, the Plaintiffs do not have any cause attributable to the breach of duty (section 2).

3) In light of the aforementioned circumstances and the fact that the Plaintiffs conspired to commit a crime with H or did not participate in such crime, the Plaintiffs were not able to gain any benefit in relation to the grant by paying the full amount of the subsidy from the Human Resources Development Service of Korea as the training fee, and if the trainees of this case failed to complete their normal training and failed to meet the completion standards, the Defendant is also liable for negligence of supervision. In light of the fact that the disadvantages suffered by the Plaintiffs due to each disposition of this case compared to the purpose of the contribution to be achieved (section 3).

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination2

1) Determination as to Section 1: Determination as to whether a ground for disposition exists

A) "False or any other fraudulent means" under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act refers to all active and passive acts that can affect the decision-making on cost support by social norms in order to see as if a person who is not eligible to receive cost support is a person eligible to receive cost support or to conceal the fact that he/she is not eligible, and "expenses" under each of the above provisions refers to expenses incurred by a business owner, etc. who is recognized as a vocational skills development training course and received money from the Minister of Employment and Labor depending on the number of trainees who completed the training (see Supreme Court Decision 20131980, Oct. 30, 2014, etc.).

On the other hand, Article 20(3) of the Vocational Skills Development Act, Article 19(3) of the former Enforcement Decree of the Act on the Development of Workplace Skills (amended by Presidential Decree No. 27393, Jul. 26, 2016); Article 41(4) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 28160, Jun. 27, 2017); Article 60(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Presidential Decree No. 2015-114, Dec. 31, 2015; hereinafter referred to as the "former Support Regulations") provides that "the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the provision on the suspension.

Therefore, if a trainee applied for subsidies and received subsidies on the premise that the trainee was in a normal workplace skill development training and satisfies the standards for completing workplace skill development training in a normal condition even though the trainee failed to meet the standards for completing the training, this would not be practical if the trainee applied for subsidies and received them. Thus, even if the trainee was unaware of the above circumstances, it constitutes "the case where the employer received subsidies by fraud or other improper means" under Articles 55 (2) 1 and 56 (2) and (3) of the Vocational Skills Development Act (see Supreme Court Decision 2013Du1980, supra).

In addition, in an administrative litigation to which the provisions of the Civil Procedure Act apply mutatis mutandis, the burden of proof is, in principle, allocated between the parties in accordance with the general principles of civil procedure, and in the case of an appeal litigation, the defendant who asserts the legality of the disposition has the burden of proof as to the legitimacy of the disposition. However, in a case where there is a reasonable and acceptable proof of response as to the legality of a certain disposition claimed by the defendant, the disposition is justifiable, and the arguments and proof contrary thereto return to the plaintiff, who is the other party (see, e.g., Supreme Court Decision 2015Du391

B) In light of the above facts and the overall purport of the arguments, it is sufficiently recognized that the instant trainees did not undergo the instant training, and even if they failed to meet the completion standards, they applied for the payment of subsidies to the Human Resources Development Service of Korea as if they met the completion standards, and there is no counter-proof, and thus, the Plaintiffs’ assertion on this part is without merit.

① On January 5, 2018, the prosecutor of the Seoul Central District Prosecutor’s Office indicted I and J. K for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and charged I and J. K for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with I and J. K for the following facts: (a) after visiting the place of business of a transportation business entity to create a ID with personal information of trainees; and (b) after making a trainee to conduct a proxy lecture and an acting test with the personal information of trainees; and (c) by making the appearance of trainees meet the standards for completing a remote training course through the method of conducting a proxy lottery, he obtained the total of KRW 1,78,460,90 from the Republic of Korea.

② In the instant case, the Defendants led to the confession of the entire facts charged, and the said court found Defendant I guilty of the facts charged on April 6, 2018 and sentenced Defendant I to four years of imprisonment, Defendant J and K with prison labor for up to one year and six months of suspension of execution and three years of suspension of execution.

③ Of the judgment of the first instance court, Defendant J and K parts were confirmed as they were not appealed by both the Defendants and the prosecutor. Of the judgment of the first instance court, Defendant I appealed to the Seoul High Court on April 11, 2018 (No. 2018Do112), but only asserted unfair sentencing on the grounds of appeal (No. 2018Do112), and the judgment dismissing the appeal was rendered on September 20, 2018, and the Defendant again appealed to the Supreme Court, but the judgment of the first instance court became final and conclusive on November 23, 2019 (No. 2018Do16257).

④ Prior to the filing of the indictment, H’s employees made a statement to the effect that, at the Seoul Western District Office of Employment and Labor and the investigative agency, they visited the company that entrusted workplace skill development training to H with workplace skill development training to create a ID by using the personal information of trainees, and conducted a proxy lecture and an acting test on behalf of trainees, and that only once a number of trainees exceeded the image of proxy lecture and an acting test was carried out so-called interview training to ask questions about a part of the trainees formally, and that some trainees did not have any material, and that they did not receive teaching materials, and that they did not have any testing.

⑤ On June 9, 2015, the above K requested the removal of the system for the prevention of Maternal Report to the “L,” which is the entity in charge of the system for the prevention of Maternal Report, to ensure that even if the same answer sheet was prepared in the name of trainees, it cannot be confirmed in the system for the prevention of Maternal Report.

6. As a result of the analysis of the learning management system for the training of this case, the plaintiffs conducted Jindo learning in the name of a trainee in the name of a large number of trainees at the same IP address at a specific time and at a specific time. At the same time in the same IP address, the details consisting of trainees using the learning management system in the name of several trainees at the same time. The average learning time in the name of plaintiffs B is limited to 19 seconds, 20 seconds, 32 seconds, and the average learning time in the name of plaintiffs B is limited to 267 seconds at 267 seconds. However, in the case of 30 seconds, the average learning time was reached at 4.36% even if the learning time was spent at 30 seconds or less, the case was conducted in the name of a non-regular worker at the computer IP address of the plaintiff C company, and the case was conducted in the name of the trainee at the relevant date. In the case of training for the plaintiff D trainees, the case was conducted only monthly, daily, gold, February, 30007.

① As a result of the Defendant’s survey conducted on July 6, 2017 on 8 Plaintiffs A trainee, 7 trainees respondeded to the Plaintiff under the name of the trainee. As a result of the survey conducted on June 27, 2017 on 11 Plaintiff B trainee, all of the trainees sent answers to the Defendant’s name of the trainee, and Nonparty C trainee did not directly go to the trainee’s name. As a result of the survey conducted on July 14, 2017 on 7 Plaintiffs C trainee, the said trainee respondeded to the Defendant’s name of the trainee, and the said trainee respondeded to the Defendant’s name of the trainee. As a result, the survey conducted on July 13, 2017 on 11, 2017 on the Plaintiff D trainee’s 11, and the Defendant’s password did not directly go to the Defendant’s vocational training management system under the name of the trainee.

The plaintiff C stated on July 21, 2017 that, without knowing the ID and password of the name, the examination of the name was substituted by H, and that the education officer of the plaintiff C stated that it is difficult for the defendant to provide the education in accordance with the provision of the remote training.

2) Determination as to the second proposal: Whether there is a justifiable reason not to mislead the breach of duty.

A) Sanction against a violation of administrative law is a sanction against the objective fact that is a violation of administrative law to achieve the administrative purpose, and thus, it may be imposed even if there is no intention or negligence on the part of the violator, barring any special circumstance, such as where the violator does not cause any negligence due to his/her duty (see, e.g., Supreme Court Decision 2012Du1297, May 10, 2012). B) In light of the following circumstances that can be acknowledged by comprehensively taking into account the facts of the recognition and the overall purport of the arguments in light of the following circumstances, it cannot be deemed that there exists any justifiable reason that does not cause the plaintiffs to breach of duty. Accordingly, the plaintiffs' assertion in this part is without merit.

(1) Article 4(2) of the Vocational Skills Development Act provides that a business owner shall conduct workplace skill development training for workers, have many workers participate in workplace skill development training, and endeavor to create conditions for workplace skill development training, such as granting leave for workplace skill development to workers or appointing a person in charge of workplace skill development training (including cases of conducting workplace skill development training on commission). The Minister of Employment and Labor stipulates that a business owner who conducts workplace skill development training (including cases of conducting workplace skill development training on commission) may provide subsidies or loans for expenses necessary for the relevant business (Article 20(1)1), and that workplace skill development training for workers shall be conducted by the business owner as the principal agent, and this shall also apply to workplace skill development training conducted by the method of "entrusted training". Accordingly, the Plaintiffs are responsible for self-verification of whether the instant trainees meet the standards for receiving subsidies, prior to applying for subsidies to the Human Resources Development Service

② Since the instant training was conducted on workers belonging to the Plaintiff’s workplace, the Plaintiffs could easily understand the training process by observing the training process or directly checking the workers. The Plaintiffs seem to have known that at least the instant trainees did not undergo training but failed to meet the completion standards.

3) Determination as to the third proposal: Whether the principle of proportionality is violated

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant administrative disposition, by objectively examining the content of the offense as the grounds for the disposition, the public interest to be achieved by the relevant administrative act, and all relevant circumstances. In this case, even if the standards for punitive administrative disposition are stipulated in the Enforcement Rule, it is nothing more than that prescribed in the administrative agency’s internal rules for handling affairs, and thus, it is not effective externally to the public or the court. Thus, the legality of the pertinent disposition is determined not only by the above disposition standards but also by the relevant Acts and subordinate statutes. Thus, the pertinent disposition cannot be immediately deemed legitimate in conformity with the relevant disposition standards. However, unless the above disposition standards do not conform with the Constitution or laws, or if there are reasonable grounds to believe that the application of the said standards is considerably unreasonable in light of the content of the offense as the grounds for disposition and the relevant Acts and subordinate statutes, it shall not be readily determined that the disposition in accordance with such standards has exceeded the scope of discretion or abused discretion (see, etc.

B) Comprehensively taking account of the following circumstances revealed through the facts acknowledged as above and the purport of the entire arguments and evidence revealed, each of the dispositions in this case, compared to the public interest intended to be achieved by the plaintiffs, and thus, it cannot be deemed that each of the dispositions in this case is excessively harsh for the plaintiffs. Therefore, the plaintiffs' assertion on this part is without merit. ① Workplace skill development training is implemented with the purpose of promoting and supporting the workplace skill development training through the workers' life, promoting the improvement of the workers' social and economic status, improving the company's productivity, and realizing the ability-oriented society, thereby contributing to the development of society and economy. The act of receiving workplace skill development training subsidies by fraud or other improper means causes the insolvency of the Employment Insurance Fund, and may inflict damages on the policyholders who paid the employment insurance premium in good faith. Accordingly, strict sanctions are needed.

② It is necessary for public interest to promote the employment stability of workers, the enhancement of social and economic status, and the establishment of the Employment Insurance Fund by operating the workplace skill development training support system fairly and transparently, which seems to be important for the Plaintiffs’ disadvantage due to each disposition of this case.

③ Even if the difference between the training fees paid by the Plaintiffs to H and the subsidies paid by the Human Resources Development Service of Korea, as alleged by the Plaintiffs, is not fully returned from H, the Plaintiffs are obligated to conduct workplace skill development training for workers (Article 4(2) of the Vocational Skills Development Act). As such, the Plaintiffs also enjoy benefits by improving workers’ vocational abilities through workplace skill development training conducted, and the Defendant incurred losses equivalent to the difference between the training fees and subsidies not refunded to the Plaintiffs, and it is difficult to assess such difference due to the circumstances that are the grounds for deviation from and abuse of discretionary power.

④ Of the instant dispositions, the part regarding the restriction on subsidies and loans under Article 22 and attached Table 6-2 of the Enforcement Rule of the Vocational Skills Development Act, and the part concerning additional collection are in conformity with the criteria prescribed in Article 22-2(1)2 of the Enforcement Rule of the Vocational Skills Development Act. The aforementioned criteria do not in itself conform with the Constitution or laws, or the result of the application of the said standards is considerably unreasonable in light of the content of the act committed by the Plaintiffs

⑤ The proviso to Article 6-2 of the Enforcement Rule of the Vocational Skills Development Act (Attachment Table 6-2) provides that if there is no intention or gross negligence or if the degree of violation is minor, a disposition of support and restriction on loans may be mitigated within the limit of 1/2 of the standard set by the individual standard. However, as seen earlier, the above provision is not only a discretionary mitigation provision, but also a voluntary reduction provision, and as seen earlier, the plaintiffs had the intent to receive unfair payments. In light of the number of the plaintiffs' illegal receipt or the amount of illegal receipt, it is significant that the violation is serious, so there is no room to apply the above provision to

3. Conclusion

All of the plaintiffs' claims are without merit, and they are dismissed. It is so decided as per Disposition.

Judges Kang Jae-soo

1) Of the instant dispositions, the applicable laws and regulations regarding subsidies granted after July 2016, 2016 among the dispositions in the instant case are in accordance with the order of disposition in the column of disposition in the table.

(1) Article 55 (2) and (2) of the Act on the Development of Workplace Skills of Workers, which was amended by Act No. 13902 on January 27, 2016 and came into force on July 28, 2016, and Article 55 (2)

Article 56 (2) 1, (3) 2 and (5) of the same Act, and the provisions thereof are the Vocational Skills Development Act.

Since it is substantially the same as the set forth in the note, it shall not be indicated separately. The same shall apply hereinafter.

2) The period of sanctions determined in the disposition of restriction on subsidies and loans to the Plaintiffs was all the same as at the date of the closing of the instant argument, but the vocational ability was both limited.

Article 22 [Attachment 6-2] [Attachment 6-2] 1.a.3 of the Enforcement Rule of the Development Act provides that the records of the disposition of restriction on subsidies and loans shall be based on the increase of disadvantages

As can be caused, the decision on the merits of this part of the disposition is rendered as to whether it is legitimate (see, e.g., Supreme Court Decision 2006Du13312, Jan. 11, 2007).

[Reference]

3) The parts relating to each of the instant dispositions in the sequences in the list of crimes committed by the court of first instance (No. 13 evidence, No. 18) are as follows.

No. 103, 138, 160, 189 (A), 106, 188, 214 (B), 105, 209 (C), 125, 171, 210 (D), 110, 165, 207, 227

(E)

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.