201. Revocation of corrective orders, etc.

A Stock Company

The Head of Seoul Regional Employment and Labor Office Seoul Southern Site

October 5, 2011

October 26, 2011

1. The Defendant’s disposition of restricting payment against the Plaintiff on April 1, 201 to May 1, 2009 and the order of returning KRW 1,341,742,510 as a result of the disposition of restricting payment and the order of returning KRW 1,341,742,510, respectively, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and 9/10 by the Defendant, respectively.

The Defendant’s corrective order issued against the Plaintiff on April 1, 201, order for return of KRW 389,010, order for additional collection of KRW 389,010, order for restriction on payment of KRW 1,341,742,510, respectively, and order for suspension of payment and return of KRW 1,341,742,510, based on such disposition, shall be revoked.

1. Details of the disposition;

A. On or around December 2007, the Plaintiff obtained recognition of the special training course for overseas short-term dispatched workers (the method of training: the total of 40 hours from October 10, 2007 to December 14, 2007; hereinafter referred to as the “first training course”) and the common training course for overseas retired passengers (the method of training: the domestic body training and the training period: the period from December 24, 2007 to January 4, 2008; hereinafter referred to as the “instant training course”) and the common training course for overseas retired workers (the method of training: the training: the period from December 24, 2007 to January 208; hereinafter referred to as the “instant training course”).

B. Accordingly, the Plaintiff conducted the first training course for 15 employees belonging to the Plaintiff from December 10, 207 to January 14, 2007, and conducted the second training course for 30 employees belonging to the Plaintiff from December 24, 2007 to January 4, 2008, and requested the Defendant to subsidize training expenses for vocational skills development including each of the training courses (hereinafter referred to as “training expenses”) for 5,627,230 (which were 2,510,530,000,000,0000 won for training expenses for 10 to 20,0000 won for 20,000 won for 20,000 won for 20,000 won for 10,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000.

D. Accordingly, on April 1, 201, the Defendant rendered each of the following dispositions against the Plaintiff (hereinafter “each of the instant dispositions”) on the ground that the Plaintiff was provided with training expenses by means of false or other unlawful management.

A person shall be appointed.

n 'The fifth disposition of this case'

(State 1) The written disposition is indicated in Article 25 of the former Vocational Development Act and Article 90,00 of the former Vocational Development Act.

(State2) It appears that Article 56(1) of the former Enforcement Decree of the Employment Insurance Act appears to be omitted in the written disposition.

(State 3) The Disposition appears to have omitted the entry of the laws and regulations below the former Vocational Development Act.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 4 (including paper numbers), the purport of the whole pleadings

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

A. The plaintiff's assertion

1) The part concerning the first disposition of this case

The Plaintiff, while conducting each of the instant training, has mistakenly dealt with the fact that the trainee B and C did not participate in the actual training. However, it cannot be viewed as a matter related to the content of recognition under Article 24 of the former Vocational Development Act and Article 22(2) of the Enforcement Decree of the Job-Seeking Development Act. Thus, the first disposition of this case based on the premise that the Plaintiff conducted each of the instant training in violation of the contents recognized under the above subparagraphs is unlawful.

2) The disposition Nos. 4 and 5 of this case

The Defendant did not at all specify the time and firearms during the restriction period of the instant restriction on the payment of vocational skills development training costs for one year. This is unlawful as it is in an uneasible state, which is the other party to the disposition, because the content of the instant restriction is unclear.

3) The part concerning dispositions Nos. 2 through 5 of the instant case

Although the Plaintiff received some excessive subsidies for vocational skills development training costs due to occupational negligence that performed the training in the instant case, it cannot be deemed that the aforementioned simple occupational negligence constitutes a “false or other unlawful means” under Article 35(1) of the former Employment Insurance Act, and thus, the disposition 2 through 5 of the instant case based on the premise that the Plaintiff’s above act constitutes a “false or other unlawful means” is unlawful.

4) The fourth and fifth dispositions of this case

Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which provides the basis for the disposition Nos. 4 and 5 of the instant case, provides that the period of restriction on payment for one year shall be mandatorily set and the return order shall be issued with respect to all the subsidies, etc. paid during that period. This is illegal and invalid in violation of the principle of excessive prohibition, as well as the deviation from the limitation of delegation under Article 35(1) of

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) B, who is an employee of the Plaintiff in each of the instant training courses, was employed for five days from December 10, 2007 to December 14, 2007, after signing the attendance at the attendance at the attendance of the Plaintiff on December 12, 2007 as a result of the dispatch to the branch of Israelel on duty and on December 13 to 14, 2007, from among the Dos during which the Plaintiff participated as a trainee at the first training course of this case and was educated as a trainee on December 14, 2007. The Plaintiff also received KRW 167,360 as training expenses from the Defendant on April 3, 2009.

B) From December 24, 2007 to January 4, 2008, Cdo, an employee of the Plaintiff, was signed at the attendance at the attendance at the attendance of the Plaintiff on December 31, 2007 (the Plaintiff was unable to normally attend the attendance of the Plaintiff on December 25, 2007, from January 29, 2007 to January 4, 2008) and was provided with subsidies from Defendant C on May 26, 2009, by treating C as if it had attended the training for seven days during the instant training period as if it had been conducted for seven days during the instant training period.

C) However, each of the instant training courses is recognized as having completed training that would be at least 80% of the attendance rate and is entitled to subsidies for training costs from the Defendant. In the case of B and C, if only the date on which the actual attendance was held, the attendance rate does not exceed 80%, and thus, it does not constitute an object of subsidies for training

D) Meanwhile, the above B and C prepared and submitted a confirmation document during the instant investigation process, and the specific details are as follows.

(1) A written confirmation of facts set forth in B (No. 5-2)

I would like to confirm the departure from the Republic of Korea on December 12, 2007 after consultation with the relevant departments, considering the schedule of the transfer of duties with the full-time officer, even though I worked for the special process established from October to December 14, 2007 upon receiving an order to dispatch the support for the work of TLV branch offices.

(2) Written Confirmation of Facts C (Evidence A No. 6-2)

I have received education after returning to the Republic of Korea in November of the same year for the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the support of the family.

2) Details of Disposition Nos. 4 and 5 of the instant case

A) In accordance with Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, the Defendant stated that the Plaintiff was subject to the disposition of this case, and stated that the disposition of this case was “1,341,742,510 won for one year’s payment restriction and subsidies granted for 1,341,742, and 56(2) of the former Enforcement Decree of the Employment Insurance Act, the Defendant separately prepared a detailed calculation sheet of the

B) However, in the instant case, according to Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, the period of restriction on payment shall be from April 3, 2008 (the first illegal receipt date) to May 1, 2009 (the last day of May 2, 2008, which is the date of the last illegal receipt, to the end of the one-year restriction period from May 2, 2008). However, the Defendant already imposed a restriction on payment to the Plaintiff for one-year period from November 28, 2007 to November 27, 2008, on the calculation sheet of the above refund order.

Exclusion from the recovered period (from April 3, 2008 to November 27, 2008), each training course conducted by the plaintiff during the period from November 28, 2008 to May 1, 2009 is divided by date and calculated the total amount subject to refund (1,341,742,510 won) by calculating the training expenses subsidized by the defendant.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 11, Eul evidence 1 to 4 (including provisional number), the purport of the whole pleadings

D. Determination

1) As to the first argument

A) Article 24(1) of the former Vocational Development Act provides that "a person who intends to obtain support or to have a trainee shall obtain recognition for the workplace skill development training course" and Article 22(2) of the former Enforcement Decree of the Vocational Development Act provides that "the name and location of the facility or institution, the name of the authorized person (in the case of a corporation, the name of the corporation and the name of its representative) shall be recognized pursuant to Article 24(1) of the former Vocational Development Act, the name of the training course, the training content, the training period, the training period, the training method and the training place (2) and the date of recognition (3). In addition, Article 25(1) of the former Vocational Development Act provides that "where a person conducts workplace skill development training in violation of the provisions of Article 24 and the matters recognized pursuant to the provisions of Article 24(3), he/she may order correction or revoke the recognition of the training course at his/her discretion, or where he/she alters the detailed criteria for an order of correction and recognition pursuant to the delegation under Article 24(5) of the former Operation Act.

B) Regarding the instant case, the following circumstances are considered comprehensively considering the facts acknowledged by the above relevant laws and regulations and the purport of the entire arguments, i.e., (i) the Plaintiff conducted the instant training course with the recognition required by the above relevant laws and regulations; (ii) the training implementation plan submitted by the Plaintiff to the Defendant to obtain such recognition is deemed to have completed training at least 80% of the total number of training days; and (iii) so long as the attendance rate constitutes the premise for subsidization of training expenses as above, it is very important and essential to manage the attendance rate in each of the instant training courses. Accordingly, if the attendance rate is deemed to constitute the premise for subsidization of training expenses, it seems that the Plaintiff’s failure to perform training is not included in the “standard for occupational ability development training” under Article 2(2) of the former Enforcement Decree of the Act on the Development of Vocational Skills, and thus, the Plaintiff’s failure to obtain recognition of the content of the training course is not recognized as having been recognized as having violated the above separate training period under Article 22(1) of the former Enforcement Decree on the Training.

2) As to the second argument

In light of the above facts, the following circumstances, i.e., the period of restriction on payment (one year) and period (one year for vocational skills development training costs to a person who has received, or attempted to receive, vocational skills development training costs by false or other unlawful means) under Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which are recognized as being comprehensively based on the evidence and the purport of the entire pleadings as seen earlier. However, the instant disposition only states “1,341,742,510 won of subsidies granted for one year” and “1,341,510 won of subsidies granted,” but the statement of order calculation attached to the written order of return is clearly stated in the statement of order of disposition. As such, it appears that the Plaintiff could have sufficiently predicted the time and completion period of restriction on payment as well as the written order of return. ② Article 23(1) of the Administrative Procedures Act provides that the parties concerned may be excluded from the arbitrary decision of an administrative agency, and thus, the overall basis and reason for the instant disposition cannot be seen as unlawful until the Plaintiff’s appeal procedure and the instant disposition were unlawful.

3) As to the third argument

A) Sanction against a violation of administrative regulations is a sanction against the objective fact that is a violation of administrative regulations to achieve administrative purposes, and thus, there is no intention or negligence on the part of the violator, barring any special circumstance, such as where the violation is not attributable to the duty of the violator. It may be imposed even if there is a justifiable reason not to do so. The phrase “any false or other unlawful means,” which can be subject to an order for return and a sanction for additional collection under Article 35 of the former Employment Insurance Act, includes all active and passive acts, which may affect the decision-making on the payment of subsidies, etc., by means of any unlawful act, to conceal the eligibility for payment by an unqualified business owner or the non-qualified business owner (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

B) In light of the above legal principles, the following circumstances are comprehensively taken into account: ① each of the instant training courses was conducted by the Plaintiff on its own with subsidies from the Defendant; so long as the attendance rate becomes the premise for training expenses, it appears to be very important and essential for each of the instant training courses; ② However, in the instant training course, the Plaintiff was dispatched to a foreign country during the course of training, which would naturally have been well aware of such circumstances, even if it appears that the Plaintiff would continue to attend the training after being dispatched abroad (BB) on the ground that the Plaintiff did not intentionally leave the training after consultation with the pertinent departments on the acquisition schedule of the Plaintiff’s full-time officer, among the instant training courses, even if the Plaintiff did not attend the training, it appears that the Plaintiff did not appear to have been aware of the fact that the Plaintiff did not have been absent from the training course for 10% of the total number of days during which the Plaintiff had been absent from the training period for 20% of the total number of days during which the Plaintiff had been absent from the training period.

4) On the fourth argument

A) In light of the content, form, system, etc. of the provision of Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree provision of this case”), a disposition ordering the establishment of the period of restriction on subsidies for vocational skills development training expenses and the return of subsidies, etc. paid during the period of restriction on subsidies constitutes a binding act. However, it is problematic whether the enforcement decree of this case, which provides that the person who received or attempted to receive vocational skills development training expenses, etc. by false or other unlawful means (hereinafter “unlawful recipients”) according to delegation under Article 35(1) of the former Employment Insurance Act, shall be obliged to pay subsidies, etc. for one year for which subsidies are paid during the restriction period, is not contrary to the purport of delegation of the mother law or the constitutional principle of prohibition of excessive restriction

B) First, we examine whether the enforcement decree of this case has determined the restriction on subsidization of vocational skills development training costs and the refund of subsidies, etc. accordingly beyond the purport of delegation under Article 35(1) of the former Employment Insurance Act.

Even if Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of matters delegated to Presidential Decree, the scope or limitation of inherent delegation in accordance with the legislative intent or purpose, etc. of the above provision may be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu405, Apr. 9, 196; 96Nu6578, Jul. 22, 1997); and the former Employment Insurance Act.

Considering the fact that various types of violations are expected in light of the nature of various kinds of subsidies, etc. and the form of the above provision or legislative purpose, it is reasonable to view that the purpose of delegation under Article 35(1) of the former Employment Insurance Act is to reasonably subdivide and regulate the standards for the restriction of support or the return of subsidies, etc. according to the type of fraudulent act, its degree of violation, its details, motive, seriousness of the result, etc., or to provide for the competent administrative agency to increase or reduce it within a certain scope if it is not so. However, as seen earlier, the enforcement decree of this case upon delegation of the above provision is compelling to order the return of subsidies, etc. to be granted for one year in a lump sum without setting detailed standards according to the content and degree of the violation, and there is no room for the discretionary discretion to increase or reduce it, and thus, it would result in a conclusion that uniform sanctions are to be imposed, regardless of the degree of violation or circumstances

In addition, Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides for restrictions on the payment of subsidies, etc. for one year to illegal recipients: Provided, That the same shall not apply to cases where three years have passed since the date of receipt of subsidies or incentives, or where fraudulent acts have been discovered for less than three million won as the amount of subsidies received or to be received by fraudulent or other illegal means, and Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) provides for restrictions on the payment of subsidies, etc. for a period of less than one year, the Minister of Employment and Labor seems to have provided for in Article 35 (1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026).

Therefore, the enforcement decree of this case is unlawful as it deviates from the purport of delegation under Article 35(1) of the former Employment Insurance Act.

C) Next, we examine whether the instant enforcement decree provisions violate the principle of excessive prohibition.

The purpose of the enforcement decree of this case is to prevent fraudulent acts related to the payment of subsidies, etc., to prevent unemployment, to promote employment, and to develop and improve the vocational ability of workers through the restriction on payment of subsidies, etc. for one year to illegal recipients and the order to return subsidies, etc. during the period of restriction on payment, and ultimately, to promote the development and improvement of the vocational ability of workers. In addition, the legislative purpose of this case is justifiable in light of the fact that subsidies, etc. are carried out through the limited public resources of the Employment Insurance Fund under the Employment Insurance Act, which is the Employment Insurance Fund under the Enforcement Decree of this case. Furthermore, it appears that fraudulent acts related to the payment of subsidies, etc. are to be reduced through the punitive sanctions prescribed under the Enforcement Decree of this case, and accordingly, the Employment Insurance Fund is deemed to be more solid. Accordingly, the enforcement decree of this case can be deemed as a means suitable for the achievement of its legislative purpose. However, in light of the various circumstances seen below, the content of the enforcement decree of this case is

(1) Article 35(2) of the former Employment Insurance Act provides that an amount not exceeding an amount equivalent to the amount received by false or other unlawful means within a punitive meaning shall be collected. Accordingly, Article 25(4)1 of the former Vocational Development Act, Article 22-2 of the former Enforcement Decree of the Vocational Development Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); Article 9(1) of the former Enforcement Rule of the Vocational Development Act provides that the amount to be additionally collected based on the number of times the Plaintiff applied for expenses during the past five years shall be calculated by false or other unlawful means. Meanwhile, Article 35(2) of the former Employment Insurance Act provides that the amount of subsidies that were paid during the period of restriction on payment shall be imposed on the illegal recipient for one year, separately from the aforementioned additional collection, and that the amount of subsidies that were paid during the period of restriction on payment shall be uniformly refunded to the Plaintiff, regardless of whether the subsidies were paid by fraudulent or other unlawful means, and thus, the provision of the Enforcement Rule of this case requires the Plaintiff to be deemed unlawful payment.

(2) In addition, since the provision of the Enforcement Decree of this case provides that the initial date of the restriction on payment shall not be the date on which the application for the payment was received or made, which is not the date on which the application was made for the restriction on payment, the illegal recipient shall return retroactively the subsidy already received prior to the restriction on payment. However, if the illegal recipient becomes aware of the fact that the payment of the subsidy would be restricted for one year, it may be flexibly conducted during the restriction on payment period and may reduce the loss, and it cannot be deemed unfair to operate workplace skill development business as such. Thus, even if the provision of the Enforcement Decree of this case provides for the restriction on payment as a binding act, it cannot be deemed that the illegal recipient complies with the principle of "minimum of damage" in light of the fact that the date of commencement can be minimized by setting the date of receipt or application

(3) In addition, the instant enforcement decree also provides for a mandatory payment restriction and an order to return subsidies, etc. paid within one year from the date on which the person received or applied for the payment of subsidies, etc., but does not impose any special restrictions on the period during which the said sanctions may be imposed, thereby creating a problem that the status of an illegal recipient becomes unstable for a long time

(4) As seen earlier, Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) or Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) which was currently in force can be deemed as a result of reflecting the content and degree of the violation and the return of subsidies, etc. accordingly.

D) Therefore, since the Plaintiff’s assertion is unlawful as it violates the purport of delegation of the parent law or violates the principle of excessive prohibition under the Constitution, Article 4 and 5 of the Enforcement Decree of the instant case, which are invalid, this part of the Plaintiff’s assertion is reasonable (as seen earlier, Article 35(1) of the former Employment Insurance Act grants discretion to the Minister of Labor, and delegates specific standards for exercising discretionary power to the Minister of Labor, according to the type of misconduct, its degree, contents, motive, seriousness of its result, etc., which is anticipated to stipulate that the criteria for the restriction on subsidization or the return of subsidies should be reasonably subdivided and prescribed within the scope of the competent administrative agency to be increased and reduced within a certain scope. Thus, even if the provision of the instant Enforcement Decree provides that the return of subsidies for 1 year and 5 years in accordance with the contents and degree of the instant violation, the period of restriction on payment under the instant provision of the instant case’s 10 years in consideration of the meaning of the statutory maximum limit, and it can be deemed that the Plaintiff’s return of the instant subsidy and 10 years in light of the foregoing provision is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judge and deputy judge

Judge Chuncheon

Judge Lee Chang-chul

1) Although the written disposition states that it is a restriction on payment for one year, the actual period of restriction on payment is from November 28, 2008 to 2009, as seen thereafter.

5. 1. Since up to 1., it was determined in line with the actual period of restriction on payment.

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.