(영문) 서울행정법원 2016.5.27. 선고 2015구단17883 판결

A. On May 8, 2013, the Plaintiff, as the representative of B, employed workers C and applied for the principal of the employment promotion district to the Defendant.

B. Accordingly, the Defendant paid to the Plaintiff KRW 1.7 million on September 9, 2013, KRW 1.7 million for the first employment promotion subsidy, KRW 1.7 million for the second employment promotion subsidy on December 16, 2013, and KRW 2.6 million for the third employment promotion subsidy on February 26, 2014.

C. On March 8, 2014, the Defendant confirmed that the Plaintiff was dismissed on March 8, 2014, and rendered a decision to recover the full amount of the subsidies for promotion of employment (hereinafter the instant disposition) to the Plaintiff on April 9, 2015.

[Ground of recognition] Facts without dispute, Eul 1 to 8, purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Article 56(1) of the Enforcement Decree of the Employment Insurance Act only stipulates that the return of the subsidy for promotion of employment may be ordered if the subsidy was received by fraud or other improper means. The Plaintiff is not a recipient of the subsidy for promotion of employment by fraud or other improper means, but a failure to comply with the reduction period for C. As such, there is no ground to order the return of the subsidy for promotion of employment already paid in such a case. In other words, the instant disposition was made without legal basis and is unlawful.

2) The revocation of a beneficial administrative disposition is an infringement on the people's vested rights. Thus, even if there exists a ground for revocation, the exercise of the right to revoke is necessary for important public interest to justify the infringement of the vested rights. If it is necessary to protect the interests of a third party, the exercise of the right to revoke shall be determined by comparing and comparing with the disadvantages that the other party receives and comparing with the disadvantages that the other party suffers, etc., and is unlawful as it goes beyond the bounds of the discretionary authority. In this case, the Defendant did not notify the Plaintiff of the fact that, while paying the subsidy for promotion of employment, the Plaintiff failed to comply with the reduction period, and the Plaintiff could be recovered from the subsidy if he did not comply with the reduction period. In light of the fact that the Plaintiff knew that the Plaintiff could have complied with the reduction period if he was employed more than 2 months, it is more unfavorable

3) The Defendant did not give the Plaintiff an opportunity to give prior notice or to present opinions while rendering the instant disposition, which is unlawful as it violates Articles 21 and 22 of the Administrative Procedures Act.

B. Relevant statutes

Article 23 of the Employment Insurance Act (Support for Promotion of Employment of Aged, etc.) The Minister of Employment and Labor may, under the conditions as publicly announced by the Minister of Employment and Labor, provide necessary support to those who have, inter alia, difficulty in employment (hereinafter referred to as "seniors, etc.") to promote the employment of the aged, etc., as prescribed by Presidential Decree, to those who have newly employed the aged, etc. or who have taken measures necessary for their employment security, or those who have taken measures for their employment security, as prescribed by Presidential Decree. Article 26 (Support for Promotion of Employment) (1) of the Enforcement Decree of the Employment Insurance Act (hereinafter referred to as "the Minister of Employment and Labor") shall provide employment promotion support to those who have registered with the employment security office or any other institution prescribed by Ordinance of the Ministry of Employment and Labor (hereinafter referred to as "employment security office, etc.") for the promotion of employment of those who have, inter alia, difficulty in employment under the ordinary conditions of the labor market.

C. Determination

1) As to the Plaintiff’s assertion

A) The facts that the Plaintiff employed C on May 8, 2013, but dismissed on March 8, 2014 are as seen earlier. It is evident that the Plaintiff constitutes grounds for restrictions on the payment of subsidies for promotion of employment under Article 26(3)4 of the Enforcement Decree of the Employment Insurance Act, i.e., where the business owner leaves his/her employment (excluding workers employed later than the workers eligible for subsidies for promotion of employment) through an adjustment in employment from three months before employing a person eligible for subsidies for promotion of employment to 12 months after employment ( May 8, 2014).

B) The purport of Article 26 (3) 4 of the Enforcement Decree of the Employment Insurance Act is to prevent an employer from leaving his/her job by means of employment adjustment instead of hiring a person eligible for subsidies. Thus, the Plaintiff asserts that the relevant employee, who is eligible for subsidies for employment promotion, is not a "worker" under the above provision. However, the purport of the above provision is to promote employment stability of the relevant employee as well as the existing employee, and it cannot be accepted as a assertion clearly contrary to the language and text of the Act.

C) The Plaintiff asserts to the effect that, on the basis of Article 26(2) of the Enforcement Decree of the Employment Insurance Act, the insured may receive subsidies for employment promotion as long as he/she has employed the insured for at least three months. However, examining the system of the above provision, it is reasonable to deem that the subsidies for employment promotion, which meet the above reasons for restricting the payment of subsidies

D) Therefore, the Defendant’s subsidy for promotion of employment that was already paid to the Plaintiff is unlawful, and the disposition agency that rendered an administrative act is entitled to revoke the subsidy by itself, even if there is no other legal basis (see, e.g., Supreme Court Decision 2003Du4669, May 25, 2006). The Plaintiff’s assertion that the instant disposition was revoked by the Defendant’s defective administrative act and that there is no legal basis is no legal basis.

2) As to the Plaintiff’s assertion

A) If a citizen acquires a certain benefit and right through a certain administrative disposition, the administrative disposition revoking the previous administrative disposition must be a separate administrative disposition deprived of the existing interest and right of the person who already acquired, and the public need to cancel the administrative disposition to be cancelled. Furthermore, even if there is a defect in the administrative disposition, the administrative disposition can be cancelled only if it is a strong measure to justify the disadvantage of the party to the public interest, such as the necessity of the public interest, protection of trust and infringement of the stability of legal life, etc., to be borne by the party due to the cancellation. The burden of proof on the defect or the need to cancel is an administrative agency that has made a disposition that infringes on the existing interest and right (see Supreme Court Decision 2011Du2375, Mar. 29, 2012).

B) On the other hand, as seen earlier, the purpose of the employment promotion subsidy system is to promote employment promotion and stability of workers. As long as the plaintiff dismissed C without complying with the reduction prevention period, there is a strong need for public interest to recover the subsidies paid to the plaintiff. According to the evidence No. 6, the notice of the employment promotion subsidy that the plaintiff received from the defendant specified the duty to prevent reduction, and the fact that the subsidy is not paid if the plaintiff violated it, it is reasonable to view that the plaintiff's right to benefit is infringed upon by the disposition of this case, but it is significant to justify the disadvantage that the plaintiff suffers. Accordingly, the plaintiff's above assertion is without merit.

3) As to the Plaintiff’s assertion

According to the statement No. 2 of Eul, the defendant can be acknowledged on March 24, 2015, prior to the disposition of this case, that the defendant sent a notice to the plaintiff on March 24, 2015 concerning the collection of employment promotion support funds. Thus, the plaintiff's above assertion is

3. Conclusion

Therefore, the plaintiff's claim is without merit, and it is so decided as per Disposition.