2017Guest 50178 Order to Return and Order to Additional Collection, etc.

1. A;

2. B

3. C

4. D;

5. E.

6. F;

Attorney Lee Dong-dong, Counsel for the plaintiffs

The Deputy Director General of the Central Regional Employment and Labor Office;

[Judgment of the court below]

May 29, 2018

July 10, 2018

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

The Defendant issued an order to return KRW 3,158,670 to the Plaintiff on August 19, 2016; the order to additionally collect KRW 3,158,670; the order to return KRW 2,165,060; the order to return KRW 2,165,060; the order to additionally collect KRW 2,165,060; the order to return KRW 2,165,060; the order to return KRW 2,126,40; the order to return KRW 2,126,40; the order to additionally collect KRW 2,126,40; the order to return KRW 2,126,40; the disposition to restrict subsidies and loans; the order to additionally collect KRW 360; the order to return KRW 1,848,40; the decision to additionally collect KRW 360; the order to grant and loan KRW 2360; the order to return KRW 239,239; the order to the Plaintiff for additional collection;

An order to return KRW 3,987,420 to Plaintiff F, a decision to additionally collect KRW 3,987,420, and a disposition to restrict a loan for 360 days from the date of the disposition shall be revoked respectively.

1. Details of the disposition;

A. Details of the plaintiffs' entrusted training

1) The Plaintiffs are all representatives of child care centers, who are employers, and enter into an entrustment training contract with G Co., Ltd. (hereinafter referred to as “G”), and their infant care teachers, prepare a document that they met the requirements for the completion of entrusted training and pre-paid their training expenses to G and submit it to the Korea Industrial Complex Corporation, which is a Korean Industrial Complex, and thereby receive the compensation for their training expenses (Article 8 of the Employment Insurance Act, etc., of the Act on Employment Insurance (Notice of the Ministry of Employment and Labor) (Article 8 of the Regulations on the Support for Workplace Skill Development Training for Business Operators).

2) Specifically, the number of Plaintiffs A (the representative of H child care centers) is nine (122) infant care teachers under his/her control (the total number of 122 students), including the I Act, which was conducted from June 16, 2012 to March 17, 2014; and (2) Plaintiff B (the representative of J child care centers) is seven (142) infant care teachers under his/her control (the total number of 29 teachers under his/her control), including the K K, until January 13, 2014; (3) Plaintiff C (the representative of L child care centers) was conducted on the total number of 17 infant care teachers under his/her control, including the total number of 20 to 25 infant care teachers under his/her control; and (5) the total number of 15 infant care teachers under his/her control including Plaintiff C; and (4) the number of representatives of 20 to 214 others under his/her control, including the 217 infant care teachers.

B. 1) During the investigation into G, which is an entrusted training institution, the Incheon Bupyeong Police Station notified the Defendant that “a total of 488 childcare centers including the Plaintiff, did not pre-paid training expenses,” a false commission contract and tax invoice was prepared and issued as if the pre-paid childcare teachers did not attend the training course at least 80%, and even if the trainee’s infant care teachers did not attend the training course, they did not meet the completion standards, they received reimbursement and training expenses.”

2) Accordingly, as indicated below, the Defendant classified the Plaintiffs’ actual illegal receipt amount and the amount of supply and demand, excluding the portion for which the extinctive prescription has lapsed. On August 19, 2016, the Defendant issued 360 days for each of the Plaintiffs, as indicated in the purport of the claim, and issued an additional collection of the same amount as the amount of the order of return (hereinafter “each of the instant dispositions”).

A person shall be appointed.

C. Criminal punishment for G representatives, etc.

1) On November 17, 2014, the representatives of G and related persons were indicted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on the Management of Subsidies. On December 15, 2016, the part of fraud was convicted (the part of the violation of the Subsidy Management Act was acquitted on the grounds that the Defendants were not the recipient of subsidies since the two crimes were charged for ordinary concurrent crimes). The Seoul High Court appealed as 2017No59, but appealed as Seoul High Court 2017No59, but the appeal was dismissed on April 27, 2017, and again appealed as the Supreme Court 2017Do7147, but the first instance judgment became final and conclusive by dismissal of the appeal on August 18, 2017 (hereinafter referred to as the “criminal judgment”).

2) The main point of the criminal judgment is as follows.

The Defendants: (a) from around June 2012, to June 30, 2014, as indicated in the attached list of crimes, the Defendants submitted to the Service a false report on implementation and completion of training, and (b) 30 hours in the case of child care teachers for 4 hours a day, 5 hours in the case of child care teachers for 13 hours a day, and (c) 80/100 of the training hours a day has not been conducted in the case of Sundays 8 hours a day; (b) although the training hours of child care teachers for 4 hours a day, Saturday 13 hours a day, and Sundays 8 hours a day is normally conducted and the attendance rate is 80 to 100% a day, the Defendants paid 48 hours a false report on implementation and completion of training, and (c) 48 hours a day, 15, 317, 197, 47, and 80 won a child care teachers to the Service during the aforementioned period as subsidies for vocational training expenses.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1 to 11

2. Determination on the defense prior to the merits

The defendant asserts that each of the dispositions in this case against the plaintiffs' 360 days of each of the dispositions in this case is unlawful as there is no benefit of lawsuit.

According to the Enforcement Rule of the Act on the Development of Workplace Skills of Workers [Attachment 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers [Attachment 6-2] 1-A, 3 of the period of support, financing, and restriction on taking lectures (related to Article 22), where a person subject to the restriction is subject to the restriction repeatedly, the restriction may be imposed within the extent of three years.”

Even after the expiration of the period of a restrictive measure, there is a disadvantage in the provisional arbitration system on the basis of the past record of violation of the law, so the plaintiffs still have a benefit to seek the cancellation of such restrictive measure.

Therefore, this part of the defendant's assertion that there is no benefit of lawsuit even after the actual cancellation is without merit.

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

A. The plaintiffs' assertion

The defendant did not properly confirm the cause of the disposition by each plaintiff on the sole basis of the criminal punishment against G representatives, etc., and concluded that the plaintiffs did not have any intention in receiving training costs, etc., in a criminal judgment against G representatives, etc., and concluded that the plaintiffs A, C, and B received support by false or other unlawful means even if they received a decision of non-guilty suspicion after being investigated as a suspect, and thus, made a disposition of support, restriction on loans, return order, additional collection. Each disposition of this case was made on the basis of the erroneous factual basis, and is unlawful.

B. Determination

1) Whether the attendance of less than 80% of the training courses was conducted

Considering the following circumstances comprehensively, the Plaintiffs’ infant care teachers may be deemed to have attended less than 80% of the training courses.

A) Above all, even if a criminal judgment is not bound by the fact-finding in a criminal trial, the fact that a criminal judgment already became final and conclusive was guilty on the same factual basis is significant evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a factual judgment in the criminal trial in light of other evidence submitted in the administrative trial (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012). However, the criminal judgment held that: (a) in the case of a training for 4 hours a day by which a G who provided education and training to a childcare teacher entrusted by the plaintiffs was not allowed to do so for 3 hours a day and 5 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day asss day a day a day a day a day a day a day a day a.

B) Each of the training courses in which the plaintiffs' infant care teachers belonging to the plaintiffs participate are composed of a total of 13 hours per day (K), total of 14 hours per day (S, T, U, etc.), and total of 40 hours per ten days (V,W, X, etc.). The shortest case is about 13 hours per day, the total of 40 hours per day, and the remainder is about 14 hours per two days. However, the total of 13 hours per day is about 13 hours per day, the total of 14 hours per day, and the total of 40 hours per day is about 13 hours per day, and 4 hours per day per day, if 10 hours per day or 40 hours per day per day, 3 hours per day training hours per day among 4 hours per day, 10 hours per day, 2 hours per day, and 3 hours per day training hours per day per day per day, and 8 hours per day, even if 13 hours per day and per day, 8 hours per day training hours per day.

C) In addition, G’s chapter Y as well as G’s head of G’s chapter Y, and instructors belonging to G have entered into an advisory agreement at three hours a day, five hours a Saturday, and on Sundays, there was no lecture, and there was no infant care teacher who has completed all training courses normally (No. 12-1, 2, and 3).

D) In addition, it was revealed that the results of the investigation conducted by each of the radio stations with respect to the Plaintiff A, D’s infant care teachers, and AA were not G during the training period (No. 22).

2) Whether the contractor is an illegal contractor

Article 16 (2) 2 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316 of Dec. 31, 2008; hereinafter referred to as the "former Act on the Development of Workplace Skills") generally refers to the affirmative and passive act that may affect the decision-making on the payment of training fees by a person who is not eligible to receive training expenses, as if he/she were qualified or not able to conceal the fact that he/she is not qualified. Article 16 (1), (2), and (3) of the former Act on the Development of Workplace Skills and Article 16 (6) of the former Enforcement Decree of the former Act on the Development of Workplace Skills (amended by Presidential Decree No. 21398 of Mar. 31, 2009; hereinafter referred to as the "former Act on the Development of Workplace Skills"), and Article 13 (4) 1 of the former Act on the Development of Workplace Skills provides that "any intentional or gross negligence committed by a person who violated the Act shall be construed equally in the same manner."

However, as seen earlier, the Plaintiffs received subsidies by fraudulent or other illegal means inasmuch as they were unable to claim training expenses, even though they were unable to complete the training course properly, they can be deemed to have received subsidies. This does not necessarily change to the extent that they were not required for intention. Furthermore, in full view of the fact that the Plaintiffs did not perform the obligation to verify the completion of trainees in relation to the application for training expenses and the appropriateness of the application for training expenses, and that they applied for subsidies for training expenses in the manner of attaching false tax invoices, even though they did not have paid advance payment to G, it is reasonable to deem that the Plaintiffs received subsidies by fraudulent or other illegal means.

3) Therefore, the instant disposition is lawful.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Yong-sik