2011. Revocation of vocational ability development training expenses collection disposition, etc.

A Stock Company

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

March 29, 2012

April 12, 2012

1. The Defendant’s disposition of restitution of KRW 170,173,550, among administrative dispositions against the Plaintiff on August 26, 2011, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant.

On August 26, 2011, the disposition to revoke the recognition of the FA project for the improvement of business ability of the Plaintiff on the 45th FA public loan (property business personnel) against the Plaintiff.

1. Details of the disposition;

A. From April 21, 2008 to April 30, 2008, the Plaintiff conducted a program to improve the business ability of 45 employees belonging to the Plaintiff (hereinafter referred to as “instant training course”) of large-scale public bonds 45 FA (property and business employees) and received KRW 10,618,830 as subsidies from the Defendant on October 1, 208 by requesting the Defendant to subsidize training expenses according to the instant training course. The aforementioned subsidies include KRW 235,970 as Plaintiff’s employee from April 21, 2008 to April 25, 2008.

B. On August 27, 2010, the Defendant investigated the Plaintiff upon a request from the Board of Audit and Inspection and the Ministry of Employment and Labor for an investigation as to whether the participants entered or depart from the Republic of Korea during the training period for vocational skills development training. As a result, the Defendant confirmed that the Plaintiff’s employee B left the Republic of Korea from April 21, 2008 to April 26, 2008, but was treated as having attended the training course of this case from April 21, 2008 to April 26, 2008. On August 26, 2011, the Defendant returned the Plaintiff to the Plaintiff’s attendance at the training course of this case from August 30, 205 (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same shall apply) to recover the amount of occupational ability development training conducted by the Defendant pursuant to Article 25(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 251065, Mar. 16, 20197, 2019).

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 3, entry of Eul evidence 1 through 3, purport of whole pleadings]

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The instant disposition of revocation is unlawful for the following reasons.

A) In the process of implementing the instant training courses, etc., the Plaintiff managed to prevent students from arbitrarily signing after the fact by putting the crossing lines in the corresponding column of the attendance book and affixing the seal of the training officer. Nevertheless, in the case of B, the Plaintiff did not check any error in the entries of the attendance book due to clerical error or error, and did not intend to apply for training expenses to the Defendant and did not want to receive the expense by false or other unlawful means.

B) solely on the ground that there is an error in the attendance management for one of the 45 students, the Plaintiff cannot be deemed to have violated the contents recognized to the extent that the purpose of the instant training course was violated.

2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of this case”) provides that a uniform disposal without considering the type of unlawful act, etc. is contrary to the purport of delegation by the mother Act. The Plaintiff is obliged to return subsidies exceeding 700 times the amount unlawfully received, and the enforcement decree of this case is stipulated as “the date when the payment was received or applied for payment was made” and the Defendant cannot avoid losses due to the lack of prior knowledge of whether the payment was restricted. In light of the above, it is invalid in violation of the principle of excessive prohibition under the Constitution.

(b) Related statutes;

The entries in the attached statutes are as follows.

C. Determination

1) Determination of illegality of the disposition of this case

A) Whether Article 25(1)2 of the former Workers’ Vocational Skills Development Act violates

Sanction against violation of administrative laws is a sanction against the objective fact of violation of administrative laws in order to achieve administrative purposes, and thus, a sanction may be imposed even if the violator has no intention or negligence, barring any special circumstance, such as the failure to cause any negligence on the part of the violation, and the absence of any justifiable reason. "False or other unlawful means" means any and all unlawful acts conducted by an unqualified business owner in general in order to conceal the eligibility for payment or the lack of eligibility for payment of training expenses for vocational skills development training (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In full view of the above evidence and the purport of the whole argument, ① A submitted to the Plaintiff a leave of absence to apply for a marriage leave from April 21, 2008 to the 25th of the same month with the approval of the chief of the department in charge, ② the Plaintiff’s attendance at the Plaintiff’s training course is indicated as B’s appearance at the instant training course even during the Plaintiff’s new marriage travel period; ③ the Plaintiff’s employee training course is signed at the commencement and completion of each event, and the attending officer’s signature or seal was confirmed at the time of the commencement and completion of the class, and thereafter operated by the head of the agency with the authority in charge, and ④ the instant training course was conducted by the Plaintiff’s human resources development department itself, not by the Plaintiff’s entrustment to other agencies, ⑤ the Plaintiff’s participation in the instant training course is recognized as having been carried out by the Plaintiff’s active participation in the training course, and the Plaintiff’s participation in the training course could not be verified by the Plaintiff’s participation in the training course after his or her participation in the training course.

B) Whether Article 25(1)3 of the former Workers’ Vocational Skills Development Act is violated

Article 25 (1) 3 of the former Workers' Vocational Skills Development Act provides that one of the grounds for the cancellation of recognition shall be one of the cases where workplace skill development training is conducted in violation of the details recognized under Article 24 of the same Act, and Article 25 (2) of the same Act provides that a person whose recognition is revoked under paragraph (1) shall not be recognized under Article 24 within the limit of five years from the cancellation date, and Article 25 (5) of the same Act provides that matters necessary for the cancellation of recognition and restriction on recognition shall be prescribed by Ordinance of the Ministry of Labor, and accordingly, Article 9 (3) [Attachment 2] of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 320 of April 1, 2009; hereinafter the same shall apply) (Article 25 (1) 3 (a) of the same Act provides that "by 10/10 or more of the previous Workers' Vocational Skills Development Act for the purpose of completion of training courses and the purpose of training courses for which are less than 50/10 days of training."

In light of the following circumstances revealed in light of the content of related statutes, i.e., the vocational ability development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, and the Ministry of Employment and Labor establishes a basic premise for the payment of subsidies after confirming whether trainees attend the training course through the attendance book submitted by the employer. In order to achieve the purpose of vocational ability development training and prevent unfair claims for training expenses, it is recognized that there is a need to thoroughly manage the attendance of trainees, and ii) it is highly likely to undermine the foundation of the vocational ability development training system itself if the trust and fairness in the attendance management is shaken, and thus, the defect in the attendance management conducted by the Plaintiff in relation to the workplace skill development training course is deemed to be very important and essential. In light of the above facts, it is difficult to determine that the defect in the attendance management conducted by the Plaintiff in relation to the workplace skill development training course constitutes a violation of Article 25(1)3(a) [Attachment 3(a) of the former Enforcement Rule] of the Act.

2) Determination of illegality of the instant restitution disposition

A) Notwithstanding the amended provisions of Articles 4 through 35 of the Addenda of the former Employment Insurance Act as amended on December 31, 2008, there are transitional provisions regarding restrictions on subsidies to those who received, or attempted to receive, subsidies by false or other unlawful means prior to the enforcement of this Act, and accordingly, the relevant statutes based on the instant disposition are identical to the aforementioned relevant laws and regulations. The order for the establishment of the form and structure of the provision of Article 35(1) of the former Employment Insurance Act, the Enforcement Decree of the instant case’s provision, and the return of subsidies paid during the period of restriction on payment under the language and text constitutes a binding act. As such, the order for the person who received, or attempted to receive, vocational skills development training costs, etc. by fraudulent or other unlawful means (hereinafter “unlawful recipients”), and without paying training costs, etc. for one year for the period of restriction on payment, is a matter of violation of the purport of delegation of the parent law or the principle of excessive prohibition.

B) Whether it is contrary to the purport of delegation by the mother law

Even if Article 35(1) of the former Employment Insurance Act does not explicitly specify the scope of delegation to the Presidential Decree, it is reasonable to view that the scope or limitation of inherent delegation in accordance with the legislative intent, purpose, etc. of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Du6578, Jul. 22, 1997). In light of the following: (a) various types of violations are likely to be committed; and (b) the form or legislative purpose of the above provision, etc., the purport of delegation under Article 35(1) of the former Employment Insurance Act is to reasonably subdivide and define the standards for restriction on subsidization or return of subsidy depending on the type, degree, motive, seriousness of the outcome thereof, etc.; (c) it is reasonable to view that there is no room to uniformly reduce the scope of delegation to the competent administrative agency within a certain scope; and (d) it is possible to uniformly determine the scope or standard of restriction on payment in accordance with the above provision.

In addition, Article 56 (2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides for restriction on payment for one year to illegal recipients: "However, if three years have passed since the date of receipt of the subsidy or subsidy or if the amount received or intended to receive it by fraud or other improper means is less than three million won and if there is an initial fraudulent act, the restriction on payment for one year shall not apply." On December 31, 2010, Article 56 (2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) is currently in force. The Minister of Employment and Labor seems to have taken into account the problems of the revised Enforcement Decree of the Employment Insurance Act with respect to any of the subsidy under paragraph (1) newly provided within the scope of one year from "the date of an order to return or restriction on payment" under paragraph (1).

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) Whether it violates the principle of excessive prohibition

The legislative purpose of the instant enforcement decree is to prevent unlawful acts related to subsidies, etc., such as subsidies, etc., and ultimately to promote the prevention of unemployment, promotion of employment, and the development and improvement of workers’ vocational skills through the restriction on payment of subsidies, etc. for one-year period for illegal recipients and the return order of subsidies, etc. granted within the restriction period. Furthermore, considering that workplace skill development training support projects are conducted with limited public resources, such as the Employment Insurance Fund under the Employment Report Act, the legitimacy of the legislative purpose is recognized. In addition, since the effect of reducing improper acts related to subsidies, etc. due to punitive sanctions as prescribed by the Enforcement Decree of the instant case is expected to be reduced due to such punitive sanctions as prescribed by the Enforcement Decree of the instant case, and accordingly

However, as seen below, the enforcement decree of this case is judged to violate the principle of excessive prohibition under the Constitution because it does not meet the minimum of damages or the balance of legal interests.

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 may be collected within a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act and Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); and Article 9(1) of the Enforcement Rule of the same Act provides that an amount to be additionally collected shall be subdivided based on the number of times the Plaintiff requested expenses by false or other unlawful means during the past five years. However, even though the aforementioned additional collection disposition has the characteristics of punitive sanctions, unlike the aforementioned additional collection disposition, the provision of the Enforcement Decree of the same case provides that the amount of subsidies paid during the period of restriction on payment and the period of restriction on payment shall be uniformly returned to the business owner, as the Plaintiff, who is the small amount eligible for the order to return the subsidies. Ultimately, the amount of subsidies that considerably exceeds the amount of the Plaintiff’s property right to receive and receive is considerably 3070.

② In addition, since the provision of the Enforcement Decree of this case specifies the initial date of the restriction on payment as ‘the date on which the application for payment was received' rather than the date on which the restriction on payment was imposed, the illegal recipient shall return retroactively the amount already received prior to the date of the restriction on payment. However, if the illegal recipient knew in advance that the payment of training expenses, etc. would be restricted for one year, he could reduce the amount of the order of return by flexibly implementing the training course during the restriction on payment period, and it cannot be deemed unfair to operate the training course flexibly. Ultimately, it seems that the initial date of the restriction on payment under the provision of the Enforcement Decree of this case is set as the date of the restriction on payment as the date of the sanction, but could have achieved legislative purpose such as the prevention of fraudulent act, etc. (the initial date of the restriction on payment was changed in the amended Act).

③ Furthermore, the provision of the Enforcement Decree of the instant case provides for a mandatory return order with respect to subsidies, etc. already paid for one year from the date on which the payment of subsidies, etc. was received or applied for payment was made, and for a limited payment period, there is a problem that the status of an illegal recipient is unstable for a long time due to the lack of special restrictions.

D) Therefore, this case’s disposition based on the provision of the Enforcement Decree of the instant case is unlawful, since it is contrary to the purport of delegation of the mother law and thus null and void because it violates the principle of excessive prohibition under the Constitution.

3. Conclusion

Therefore, since the disposition of recovery of this case is unlawful, the plaintiff's claim seeking its revocation is accepted on the grounds of its reasoning, and the claim regarding the disposition of revocation of this case is dismissed on the grounds of its merit. It is so decided as per Disposition.

Presiding Judge, Judge

Judges Kim Jae-hwan

Judges Kim Jin-han

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.