(영문) 부산지방법원 2018.8.30. 선고 2017구합24012 판결

On October 28, 2016, the Defendant revoked the payment restriction, the return order, and the decision of additional collection made against the Plaintiff.

Reasons

1. Details of the disposition;

A. On December 7, 2015, the Plaintiff was a corporation established for the purpose of the game development business and the game service business, etc., and was employed by B, C, and D (hereinafter “instant workers”) as an employee with no fixed period of time, and was paid KRW 13,50,000 as follows.

A person shall be appointed.

B. On October 28, 2016, the Defendant received notice from the Busan Local Police Agency that the Plaintiff was receiving subsidies for employment promotion, and paid KRW 7,50,000 to the Plaintiff on October 28, 2016, the Plaintiff: (a) prepared a labor contract stating the date of employment contract and wages with the pertinent workers; and (b) prepared a labor contract as if he had been employed in the Plaintiff’s workplace; (c) the Plaintiff filed a false claim for subsidies for employment promotion from May 25, 2016 to July 17, 200, on the ground that: (a) even though D had retired on April 25, 2016, the Plaintiff filed a false claim for subsidies for employment promotion under Article 35 of the Employment Insurance Act, Articles 26 and 56 of the Enforcement Decree of the same Act; and (b) Articles 44 and 78 of the Enforcement Rule of the same Act to impose subsidies for up to 13,500,000,000 won for additional collection from 16.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 10 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Around January 2016, the Plaintiff employed the instant workers who completed the actual employment success program as employees and paid the wages of KRW 1,600,000 per month. Since the money received from the Plaintiff was invested, the Plaintiff paid the said workers wages above the minimum wage amount.

2) Even if the Plaintiff received employment promotion support denied, in light of the fact that the Plaintiff was led by other persons than the Plaintiff’s representative, and that the Plaintiff’s economic situation is difficult, the instant disposition was deviates from and abused discretion.

3) However, since workers D received subsidies for promotion of employment from the Defendant after their retirement, 2,130,000 won received from the Defendant is deemed to have been illegally received, the order of return of KRW 11,370,00 (=13,500,000 - 2,130,000), 22,740,000 (-11,370,000 x 2 times) (excluding the above 2,130,000 - 11,370,000), and the disposition of imposing subsidies for promotion of employment should be revoked illegally.

B. Relevant legislation

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to the non-existence of grounds for disposition

A) Facts of recognition

(1) On May 2015, the Plaintiff representative E was aware of the instant workers who are students of the same private teaching institute while attending the game planning, etc. at the 8th floor of the FG in Busan-gu, Busan-gu, and thereafter registered the business of “H engaged in software development business on the 9th floor of the F building, the immediately upper floor of which was the FG, and established the Plaintiff for the purpose of developing the game at the same place around December 2015.

(2) The instant workers completed the employment success program as listed below.

A person shall be appointed.

(3) As of January 26, 2016 or January 28, 2016, the Plaintiff employed the instant workers as an employee with a fixed period of KRW 1.6 million per month (one hundred and fifty thousand per month of ordinary wage, KRW 1.5 million per month), and on May 19, 2016, the Plaintiff filed an application for the first employment promotion subsidy for the Defendant from February 2016 to April 2016. On August 2, 2016, the Plaintiff filed an application for the second employment promotion subsidy for the Defendant from May 5, 2016 to July 2016.

On June 1, 2016 and August 25, 2016, the Defendant paid KRW 13,500,000 to the Plaintiff each of the subsidies for employment promotion.

(4) From February 25, 2016 to July 25, 2016, the instant workers received monthly deposit of KRW 1,464,040 from the Plaintiff in each of their respective accounts under the name of wage, and returned to the Plaintiff in cash the remainder excluding KRW 7,50,000 among them. In particular, even though D withdrawn on April 25, 2016, until July 25, 2016, it received monthly deposit of KRW 1,464,040 from the Plaintiff as wage, and returned to the Plaintiff in cash the remainder excluding KRW 200,000 among them.

(5) On August 1, 2016, ○○○○○, a member of the Plaintiff, prepared and submitted a fraudulent act report stating that “The Plaintiff paid KRW 1.5 million to a worker as wages, and returned KRW 7.5 million among them to the worker in cash, and actually paid wages in violation of the Minimum Wage Act to the worker.”

(6) At Busan District Court Decision 2016 High Court Decision 2016 High Court Decision 2010Da18570, the Defendant filed an application for formal trial with Busan District Court 2016 High Court Decision 3846, Nov. 16, 2017, which sentenced E to a fine of KRW 5,00,000. Although E appealed appealed as Busan District Court 2017481, the lower court sentenced the dismissal of appeal on June 21, 2018. The foregoing judgment became final and conclusive on June 29, 2018.

Defendant (E, hereinafter the same shall apply) within the Plaintiff’s office on January 1, 2016, the instant workers may receive subsidies for employment promotion if the written employment contract is prepared as if they were employed after completing the employment success program executed by the Ministry of Employment and Labor. The monthly wage shall be stated in the written employment promotion subsidy, but if the monthly wage is deposited in the passbook, the monthly wage shall be KRW 1,60,000,000,000 shall be paid at KRW 7,10,000,000, and the instant workers shall receive it.E applied for the first employment promotion subsidy for the year 2016 to the Busan Regional Employment and Labor Office, and submitted the written employment contract to each of the instant workers and each of the instant workers stated in the written application, “three new eligible persons”, “6,750,000,000,” and “ordinary wage of KRW 1,50,000,000,” respectively.

E submitted an application for the first employment promotion subsidy in 2016 and each written employment contract, which belongs to E received KRW 6,750,000 from the Ministry of Employment and Labor as the subsidy for employment promotion on June 1, 2016, from the Plaintiff’s account under the name of the Plaintiff, and received KRW 6,750,000 in the above way on August 26, 2016. As such, E received KRW 13,50,000 in collusion with the instant workers and acquired them by transfer on two occasions in total.

(7) When the Plaintiff prepares a labor contract with the instant workers, the Plaintiff did not separately prepare the investment contract, and there was no particular provision regarding the requirements for the payment of the investment amount. The instant workers stated that there was no collection of the investment amount from the Plaintiff, and there was no evidence to deem that the Plaintiff requested the return of the investment amount.

(8) The instant workers, who were employed by the Plaintiff from November 2015 to receive the actual monthly salary of KRW 750,000,000, and entered monthly wage in KRW 1.6 million upon preparing a written employment contract around February 2016 (in particular, C completed the employment success program around January 2016, which was after employed by the Plaintiff).

(9) According to the Minimum Wage Notice applied in 2016 (Notice of Ministry of Employment and Labor No. 2015-39), the minimum wage amount in 2016 is KRW 6,030 per annum, monthly conversion amount is KRW 1,260,270 per annum.

[Reasons for Recognition] Judgment on Non-contentious Facts, Gap evidence 3, 4, 10-18, Eul evidence 1-14, and Eul prior to pleadings

(1) According to Article 23 of the Employment Insurance Act, Article 26(1) and (3) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27738, Dec. 30, 2016; hereinafter the same shall apply) and Article 44 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 176, Dec. 30, 2016; hereinafter the same shall apply), the Minister of Employment and Labor requires an employment security office or any other institution prescribed by Ordinance of the Ministry of Employment and Labor to grant subsidies for promotion of employment to employers who employ the unemployed who have completed employment assistance program for those who have particular difficulty in finding employment under the ordinary conditions of the labor market, as publicly notified by the Minister of Employment and Labor.

However, where a worker, etc. is employed to receive wages below the minimum wage amount, he/she shall be excluded from the payment (Article 26(3)1 of the former Enforcement Decree of the Employment Insurance Act and Article 44(3)3 of the former Enforcement Rule of the Employment Insurance Act).

(2) On the other hand, even though it is not bound by the facts established in the criminal trial in the administrative trial, the facts established in the judgment of the criminal case which has already been convicted are significant evidence. Thus, it shall not be rejected unless there are special circumstances where it is deemed difficult to employ the factual judgment in light of other evidence submitted in the administrative trial (see Supreme Court Decisions 90Da11028, Jan. 29, 1991; 98Du10424, Nov. 26, 1999). (3) According to the above facts, the wages of the instant workers were 750,00 won per month below the minimum wage, and the Plaintiff had already employed workers C and had them complete the employment promotion support program in order to receive the employment promotion subsidy even if they had already employed workers C, and then prepared a labor contract as if they were employed by the Plaintiff. Therefore, the Plaintiff constitutes the payment of employment promotion subsidy by false or other unlawful means under the status of failing to meet the requirements for employment promotion support.

Therefore, this part of the plaintiff's assertion is without merit.

2) Determination on the assertion of deviation or abuse of discretionary power

A) Relevant legal principles

Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the act of violation and the public interest to be achieved by the act of violation as the ground for the disposition. In this case, even if the criteria for the punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed in the administrative agency’s internal business rules, and it is not effective externally to the public or court, and whether such disposition is legitimate or not shall be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes as well as the above criteria for disposition. Thus, it cannot be said that the pertinent disposition is legitimate merely because it meets the above criteria for disposition. However, unless the above criteria for disposition do not conform with the Constitution or laws, or there are reasonable grounds to believe that the sanction administrative disposition in accordance with the above criteria is significantly unreasonable in light of the content and purport of the relevant Acts and subordinate statutes and the contents and purport of the relevant Acts and subordinate statutes (see Supreme Court Decision 2007Du6964, Sept. 266, 207, 2007.

B) Determination

(1) According to Article 35 of the Employment Insurance Act, Article 56 of the former Enforcement Decree of the Employment Insurance Act, and Article 78 of the former Enforcement Rule of the Employment Insurance Act, the Minister of Employment and Labor shall order a person who has received or intends to receive subsidies for employment security and vocational skills development projects by fraud or other improper means to return the subsidies which he/she has already received or intends to receive by fraud or other improper means. In addition, an order to return may be issued according to the frequency of receipt of a restriction on payment or an order to return during the last five years prior to the date on which illegal act was discovered. A person who has received or intended to receive the subsidies by fraud or other improper means shall be limited to the amount of the subsidies newly provided within a certain scope from the date on which the order to return or restrict payment was issued. If there is no frequency of receipt of a restriction on payment or order to return by fraudulent or other improper means during the last five years prior to the date on which illegal act was discovered, the amount already paid shall be additionally collected as two times the amount received by fraud or other improper means.

(2) As seen earlier, the Plaintiff’s act of abusing the employment promotion support system by unlawful means cannot be deemed to be negligible. The instant disposition of additional collection at the same time was conducted in the need of public interest to prevent the Plaintiff from abusing the employment promotion support system in the future, and at the same time, such disposition is deemed to be considerably unfair in view of comparing and balancing the disadvantages the Plaintiff received and the need for public interest as above. Therefore, it is difficult to deem that the Defendant’s act of taking the instant disposition in accordance with the pertinent relevant statutes deviates from the scope of discretion or abused discretionary power.

Therefore, this part of the prior plaintiff's assertion is without merit on different premises.

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.