2010Guhap3947 The amount of illegal receipt and the amount of additional collection shall be revoked.

Korea Manpower Development Institute, a foundation for workplace skill development training

The President of the Gwangju Regional Labor Administration

September 26, 2013

October 31, 2013

1. On August 13, 2010, the Defendant’s disposition to additionally collect the amount exceeding KRW 23,010 and KRW 537,050 from the disposition to refund training fees of KRW 107,410 against the Plaintiff is revoked.

2. The plaintiff's remaining claims are dismissed.

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

The Defendant’s disposition to return training fees of KRW 107,410 and to additionally collect KRW 537,050 against the Plaintiff on August 13, 2010 is revoked.

1. Details of the disposition;

A. The plaintiff operates Honam vocational technical school (hereinafter referred to as the "facilities of this case"). The facilities of this case were designated as vocational skill development training facilities under the Act on the Development of Workplace Skills of Workers from the defendant around June 29, 2006.

B. The Plaintiff and the Defendant entered into an entrustment contract for occupational categories selection training (hereinafter “instant entrustment contract”) with regard to the training course for the instant training period from September 1, 2008 to February 27, 2009, and the total training period from September 1, 2008 to 700 hours, and the main contents thereof are as follows.

Article 4 (Payment, etc. of Training Expenses)

2. The defendant shall pay training expenses to the facility of this case only where the facility of this case complies with the following subparagraphs and faithfully conducts training:

1. The defendant shall actively cooperate with regard to the formulation of a training course, exchange of information, management of trainees, request for submission of documents by the defendant concerning the training execution status, inspection, report on the status of training execution, etc.;

Article 5 (Application Mutatis Mutandis)

With respect to the implementation of training, the facility of this case must comply with the provisions of the relevant statutes and the provisions on the types of occupation and implementation of preferentially selected occupational categories (amended by Ordinance of the Ministry of Labor No. 2008-72, Nov. 24, 2008; hereinafter referred to as “training regulations”).

Article 8 (Termination, etc. of Contracts)

(1) The defendant may terminate the contract where it is deemed difficult to continue the normal training due to concerns over poor training, etc. in the course of the training of the instant facilities.

C. On August 12, 2010, the disposition agency terminated the instant training course on the ground that “the Plaintiff was confirmed to have violated the Workers’ Vocational Skills Development Act, including physical attendance at A’s training courses on behalf of trainees,” and on August 13, 2010, the Defendant issued a disposition to the Plaintiff to return KRW 107,410 and additionally collect KRW 537,050 (hereinafter “instant disposition”).

[Grounds for recognition] The items of evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

A) On February 23, 2009, A had already met the attendance rate required for the completion of a training course on his/her behalf, and there is no reason to treat the Plaintiff as having intentionally attended a training course. Thus, insofar as the Plaintiff was aware of the above substitute attendance and did not receive training expenses, the Plaintiff cannot be deemed to have conducted the attendance management or received training expenses by fraud or other improper means.

B) Inasmuch as the substitute presence does not fall under the grounds for the expulsion of trainees under the relevant provisions, it is unlawful to determine the training costs that the Plaintiff received without expulsion from A as an unfair receipt amount.

(ii) the deviation and abuse of discretionary power;

Although there is no intentional or gross negligence on the Plaintiff’s substitute attendance, and the proxy attendance date of a trainee is merely one day and the degree of violation is minor, the Defendant’s failure to take the mitigation measure is illegal as a deviation or abuse of discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) The facility of this case confirms the presence of a trainee with a vocational training card, and according to the training regulations, a trainee who does not consent to the withdrawal management by fingerprint recognition shall be selected according to the vocational training card or the attendance book (Article 15(1)), and according to the vocational training card operation guidelines, a training institution shall take measures against all trainees who did not attend, early leave, or laver, leave, or request a substitute check if a trainee entrusts his/her card to another trainee (Article 4-8(2)).

(ii) management of attendance and receipt of training costs for A;

A) A left China from February 21, 2009 to February 24, 2009, and was absent from the training course of this case during the above period. A’s attendance book is recorded with attendance on February 23, 2009, and the list of those absent from the training site of February 23, 2009, prepared by the training teacher, is missing.

B) The Plaintiff continued the instant training course against A, and had A complete the instant training course. The Plaintiff received KRW 107,410 from the Defendant as training expenses for A, and the Plaintiff included KRW 23,010,010, which was received due to the Defendant’s failure to take a leave of absence for February 23, 2009.

[Reasons for Recognition] Unsatisfy, Gap evidence 2, 3, Eul evidence 3 and 4, the purport of the whole pleadings

D. Determination

1) The meaning of "any false or fraudulent means"

"False or other unlawful means" under Article 16 (2) 2 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 931, Dec. 31, 2008; Act No. 11272, Feb. 1, 2012; hereinafter referred to as the "former Vocational Development Act") refers to the active and passive acts that can affect the decision-making on the payment of training costs by social norms, referring to all the acts that a person who is not entitled to training costs is not proper under the social norms, but who is entrusted with workplace skill development training (hereinafter referred to as "trustee") and is paid in compensation for training. Since it is reasonable for a trustee to request the payment of training costs differently from the fact that he/she has received training as if he/she was aware of the fact that he/she had not received training due to his/her failure to undergo training, he/she should not be deemed to have received training or other improper means, even if he/she had failed to receive training or other legitimate grounds for his/her failure to receive training.

2) Whether the instant entrustment contract was lawfully terminated

A) In light of the above facts, as long as the Plaintiff claimed training costs differently from the fact that A had not received the training, it constitutes a case where A received training costs by false or other unlawful means, even if the Plaintiff knew that A had not received the training, it constitutes “the case where A had received training costs by false or other unlawful means.”

B) Also, considering the following circumstances, i.e., training regulations and vocational training card operation guidelines, and the contents of the entrustment contract for the instant training courses, which can be known by adding the purport of the entire pleadings, the supervising person should pay more attention to the above facts as follows: (a) training regulations and vocational training card operation guidelines are important and essential matters in the occupational ability development training course; (b) in the case of a computerized presence check using a card, an agent check can be easily conducted; and (c) in the instant training course, the training teacher was absent from A on February 23, 2009 on the list of the absents of the training day prepared by the training teacher; (c) in the training course where the training student was absent from the training course for a large number of 23 trainees, it was neglected to manage the training course to the extent that the training student was not able to become aware of such act in good faith; and (iv) in the event that the plaintiff et al. was an agent, he/she did not have an obligation to manage the trainee immediately and without being able to develop the training.

C) Therefore, the instant consignment contract was lawfully terminated in accordance with Article 16(2)2 and 3 of the former Vocational Development Act.

3) Whether there exist grounds for the disposition

(A) Disposition to return 107,410 won of illegal receipt training expenses;

Article 16 (5) of the former Vocational Development Act provides that "the State or a local government may order a person whose entrustment contract is terminated pursuant to paragraph (2) to return the amount of training expenses paid or subsidized by false or other unlawful means out of training expenses paid or training allowances subsidized in relation to workplace skill development training." A, aside from the fact that the plaintiff continued to conduct training without expulsion and received training expenses incurred in relation to such training, the evidence submitted by the defendant alone is insufficient to recognize that the plaintiff had continued to conduct training for A despite being aware of the above substitute attendance, and there is no other evidence to acknowledge otherwise, the calculation standards for training expenses paid by the plaintiff by fraudulent or other unlawful means shall include only training expenses paid for the number of days of absence, and it is reasonable to deem that the plaintiff conducted training without expulsion of trainees in violation of the entrustment contract and did not include training expenses paid therefor. However, since training expenses paid during the period of absence by A fall under training expenses paid by fraudulent or other unlawful means, only the above amount can be refunded to the defendant, and thus, the part of the disposition shall be revoked.

B) Additional collection of KRW 537,050

According to Article 16 (6) 1 (a) of the former Vocational Development Act, Article 13-2 of the Enforcement Decree of the same Act (Amended by Presidential Decree No. 22356, Aug. 25, 2010; Presidential Decree No. 22356), and Article 6 (1) 1 (c) of the Enforcement Rule of the same Act (Amended by Ordinance of the Ministry of Employment and Labor No. 5, Aug. 30, 2010); an administrative agency may additionally collect an amount not exceeding five times the amount provided (where the number of times the commission contract was revoked by fraud or other improper means is at least twice) if the amount provided to a person whose commission contract was revoked by fraud or other improper means is less than KRW 1,00,00,00, an amount not exceeding five times the amount provided (where the number of times the commission contract was filed by fraud or other improper means

The defendant deemed that the number of times requested expenses by false or other unlawful means during five years prior to the date of detection of the plaintiff's recent violation is more than twice, and additionally collected 537,050 won, which is 107,410 won, which is 23,010 won. As seen earlier, this part of the disposition by the defendant is unlawful, and in light of the above provisions, the defendant has the discretion to additionally collect an amount equivalent to five times the above 23,010 won, and thus, the above unlawful disposition has affected the whole additional collection disposition. Accordingly, the additional collection disposition should be revoked in entirety.

4) Whether the discretion is deviates or abused or not

Among the dispositions in this case, the following circumstances are revealed with regard to the portion of 23,010 won of the refund of 107,410 won of the training fee in question: (i) occupational ability development training is conducted with limited financial resources, such as budget and employment insurance fund under the Employment Insurance Act; and (ii) the public interest in promoting the stabilization of workers' employment, social and economic status, and the enhancement of corporate productivity due to the above disposition is significant; (ii) in particular, in order to achieve the purpose of occupational ability development training and prevent unfair claims for training expenses, the entry management for trainees should be thoroughly conducted; and (iii) the trust and fairness in the entry management is highly likely to undermine the basis of the occupational ability development training system itself; and (iv) the Plaintiff’s failure to attend the training by proxy constitutes a serious act of denying the Plaintiff’s participation in training expenses due to the Plaintiff’s failure to perform the duty of entry management; and (v) vocational ability development training is not deemed to have been conducted within the scope of 100% of the above disposition in this case’s appeal.

3. Conclusion

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

The presiding judge, Kim Jae-young

Judges Hong Young-jin

Judges Park Young-young

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.