2017Gudan50123 Order for return and revocation of a decision for additional collection, etc.

1. A;

2. B

3. C

4. D;

5. E.

6. F;

7. G.

Attorney Lee Dong-dong, Counsel for the plaintiffs

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

December 11, 2018

January 22, 2019

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

The Defendant issued an order to return KRW 1,016,00 to Plaintiff A on September 2, 2016; the order to return KRW 1,016,00; the order to additionally collect KRW 1,295,470; the order to return KRW 1,295,470; the order to return KRW 1,295,470 issued to Plaintiff B on September 12, 2016; the order to restrict loans for 330 days from the date of the disposition; the order to return KRW 2,864,00; the order to return KRW 2,864,864,00; the order to additionally collect KRW 00; the order to return KRW 360; the order to return KRW 4,07,080; the order to additionally collect KRW 4,07,077; and the order to return KRW 268; the order to return KRW 76,206; and the order to additionally collect KRW 767,275,207,207.7.27.7.6.7.20

1. Details of the disposition;

A. Details of the plaintiffs' entrusted training

1) Plaintiff A is a person operating each of the H apartment in Kimpo-si, H apartment in I, J child care center in Kimpo-si, Plaintiff C’s N apartment management Dong located in Kimpo-si, Plaintiff D’s N apartment management Dong in Kimpo-si, Plaintiff E’s R child care center located in Kimpo-si, Plaintiff E’s U child care center located in Kimpo-si, Kimpo-si, Kimpo-si, V apartment in Who-si, X-child care center located in Who-si, and Plaintiff G’s house located in Kimpo-si.

2) After concluding a contract with AA (hereinafter referred to as the “A”), the Plaintiffs submitted to the Human Resources Development Service of Korea documents that the childcare teachers met the requirements for the completion of entrusted training, and received the cost of workplace skill development training for their own account pursuant to Article 27 of the Employment Insurance Act, etc. (Article 8 of the Employment Insurance Act (Notice of the Ministry of Employment and Labor), the Plaintiffs must attend at least 80% of the training hours between the employer and complete the pertinent training course.

B. 1) During the investigation process into AA, which is an entrusted training institution, the Incheon Bupyeong Police Station: (a) drafted and issued a false commission contract and a tax invoice as if the business owner of 488 childcare centers, including the Plaintiff, did not pre-paid training expenses; and (b) notified the Defendant that the trainee failed to attend the training course at least 80% and failed to meet the completion standards, even if the trainee did not attend the training course, he/she would have been able to meet the completion standards and received training expenses.”

2) On April 22, 2016, the Defendant issued a voluntary report to the Plaintiffs on April 2, 2016, stating that, in the case of the investigation result of the Incheon Bupyeong Police Station, the details of illegal receipt of training expenses, the administrative disposition and possibility of requesting an investigation in the future, and the “voluntary report” under Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers, the Defendant may reduce all or part of the amount to be additionally collected in addition to the return of the amount of illegal receipt, and operated the voluntary report period from April 25, 2016 to May 10, 2016. However, the Plaintiffs did not comply therewith.

3) The Defendant, except for the portion for which the extinctive prescription has lapsed among the part received by the Plaintiffs, issued an order of return, additionally collecting, and restricting the loan of funds as stated in the purport of the claim (hereinafter “each of the instant dispositions”). The amount of unlawful receipt, excluding the training courses for each Plaintiff and the extinctive prescription and the part related to the extinctive prescription, and the total amount of unlawful receipt, are as listed below.

A person shall be appointed.

A person shall be appointed.

(c) Criminal punishment for representatives, etc. of AA;

1) On November 17, 2014, relevant persons, including the representatives of AA, 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 pronounced guilty (the part of the violation of the Subsidy Management Act was acquitted on the grounds that the Defendants did not constitute the recipient of the subsidy even though the two crimes were charged for ordinary concurrent crimes), Seoul High Court 2017No59, but appealed as Seoul High Court 2017, but the appeal was dismissed, and again appealed as Supreme Court 2017Do7147, but the first instance judgment became final and conclusive by dismissal of appeal on August 18, 2017 (hereinafter referred to as “criminal judgment”).

2) The main point of criminal facts is as follows.

The Defendants: (a) from May 6, 2012 to June 30, 2014, as indicated in the separate list of crimes, submitted to the Corporation a false training report and completion report as if the childcare center teachers were able to attend the training or to attend the training for 4 hours a day; (b) 30 hours a day, 50 hours a day, and 8 hours a day a day a day a day a day a day a day a day a day 50 hours training was conducted; and (c) in the case of Sundays 8 hours a day a day a day a day a day a day 4 hours a day a day a day a day a day 13 hours a day a day a day a day a day a day a day a day 8 hours a day a day a day 8 hours a day a day 8 hours a day a day 8 hours a day a day 8 hours a day a day a day 8 hours a day a day 8 hours a day a day 8 hours a day 8 hours a day a day 8 hours a day a day a day a day a day 8.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 7, Eul evidence 1 to 15, the purport of the whole pleadings

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

A. The plaintiffs' assertion

Since the attendance rate of trainees is less than 80%, there is no ground for disposition, and there is no intention to make payment or suspicion during the investigation, so it is erroneous in the misapprehension of legal principle that the decision of additional collection is made even though the intention is not recognized.

The Ministry of Employment and Labor’s guidance on the criteria for the administrative disposition of the business owner in relation to the instant disposition provides that the business owner who has received a non-prosecution as a discretionary standard shall be excluded from the administrative disposition; however, in the case of a business owner who has filed a voluntary report, the disposition was not specified, and thus imposes an additional collection at a disadvantage against the Plaintiffs who did not file a voluntary report. Even if it is not so, each disposition for additional collection is excessive in light of whether the Plaintiffs are recognized or not, and the degree of accountability such as the fact-finding, etc., each disposition of the instant case is unlawful

B. Determination

1) Non-existence of the grounds for disposition (whether a person has attended less than 80% of the training course)

In full view of the following circumstances, comprehensively taking into account the evidence presented above and the overall purport of the arguments, 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 to the effect that, under the premise that a AAA, who provided education and training to childcare teachers upon entrustment by the plaintiffs, provided 3 hours in the case of a 4-day training, 5 hours in the case of a 13-hour training in the daily day and 13-hour training in the case of a 13-hour training, 50 hours in the case of a 80/100 or more of the training courses, it constitutes a strong probative value in the case of a child care teacher, including the plaintiffs, and thus, 4888 hours in all.

B) In addition, the head of AB’s chapter and the instructors belonging to AA entered into an agreement on dental care for three hours a day and five hours a Saturday, and on Sundays, there was no lecture, and there was no infant care teacher who has completed all the training courses normally (Article 11-1-2, 3). (C) Ultimately, even in the case of each training course in which the Plaintiffs’ infant care teachers participated, the training hours including Saturdays and Sundays are less than 80%, and it can be recognized that the training hours including Saturdays and Sundays are less than 9 hours a total of 12 hours and less than 80%, so it is difficult to accept the allegation that there was no grounds for disposition since the attendance rate falls short of 80%.

2) Meritorious legal principles (related to intentional receipt and intentional collection and additional collection)

"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. 9316 of Dec. 31, 2008; hereinafter referred to as the "former Act on the Development of Workplace Skills") refers to all active and passive acts that may affect decision-making regarding the payment of training costs, in general, are all acts that are not correct under the social norms in order for a person who is not eligible to receive training to pretend as if he/she is qualified or to conceal the fact that he/she is not qualified.

Article 16(1), (2), and (3) of the former Vocational Development Act and Article 13(4)1 of the former Enforcement Decree of the Vocational Development Act (amended by Presidential Decree No. 21398, Mar. 31, 2009) stipulate that sanctions may be imposed in cases where a violator does not have intention (see Supreme Court Decision 2011Du7175, Jun. 13, 2013). Since the term of the same Act and the term of the same Act and subordinate statutes should be equally interpreted and applied, it should also be equally construed as "other fraudulent methods", which are the basis of each of the dispositions of this case, under Article 16(6) of the former Vocational Development Act (amended by Presidential Decree No. 21398, Mar. 31, 2009). Thus, in cases of serious negligence, it is difficult for the Plaintiffs to invoke the legal principles on the Act on the Development of Workers of Workers, which are the basis of the respective dispositions of this case.

Therefore, the allegation that the disposition of additional collection is unlawful because the Plaintiffs received a decision on payment or non-guilty suspicion during the investigation process and the intent to receive unfair payment is not recognized. Furthermore, as seen earlier, the Plaintiffs confirmed that they had received proper training for childcare teachers under their own responsibility, and then applied for subsidies to the Human Resources Development Service of Korea with receipts attached thereto. However, only a part of the training process was conducted on the ordinary daily and Saturdays, and in particular on Sundays, it was not confirmed whether the training was properly conducted even if the training was not conducted. In full view of the fact that, even though the training was not conducted on Sundays, the Plaintiffs did not confirm whether the training was properly conducted or not, and transferred the training fees to A, the Plaintiffs’ gross negligence is recognized, and thus, the additional collection disposition of each of the dispositions of this case is legitimate.

3) A deviation from and abuse of discretionary power

A) Claim on violation of discretionary rules

The discretionary rule on the administration of the internal affairs of an administrative agency prepared as a basis for the exercise of discretionary power is a discretionary rule, and such discretionary rule is generally effective only within the administrative organization, but does not have external binding power. Thus, the administrative disposition is not immediately unlawful merely because it is in violation of such rule. However, if the administrative practice is implemented after a pooling as prescribed by the discretionary rule, the administrative agency is placed under self-detained in relation to the other party in accordance with the principle of equality or the principle of protection of trust. In such a case, barring any special circumstance, any disposition contrary thereto is an illegal disposition that deviatess from and abuses the discretionary authority contrary to the principle of equality or the principle of protection of trust (see Supreme Court Decision 2011Du28783, Nov. 14, 2013).

On the other hand, the Ministry of Employment and Labor, on April 12, 2016, sent "in relation to the result of the investigation into the illegal receipt of training fees by the business owner of the Incheon Bupyeong Police Station" to the competent administrative agency including the defendant, including the defendant, a guidance on the administrative disposition guidelines, etc. for the business owner's illegal training. The above disposition guidelines only state the opinion of the superior agency in relation to a specific case, but they cannot be said to be a discretionary rule as stated by Ordinance of the Ministry of Information and Communication, and it cannot be said that the defendant is detained or violated, and it is not immediately a deviation or abuse of discretionary power. Therefore, this part of the plaintiffs' assertion is without merit without any need to examine

B) Claim regarding voluntary declaration

As seen earlier, the Defendant issued each of the instant dispositions with respect to the Plaintiffs who did not file a voluntary report, including additional collection and disposition with respect to the return order, on the other hand, the amount of illegal receipt should be returned only. Such disposition criteria have been clearly announced in advance. Moreover, it is reasonable in light of Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers as it conforms to the content of Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers and it is difficult to view that the content

C) Claim regarding additional collection disposition

The Act on the Development of Workplace Skills of Workers stipulates that a business owner, etc. who engages in a workplace skill development project shall, in order to promote and support workplace skill development throughout his/her life and train technical and skilled human resources needed in the industrial field, subsidize expenses necessary for the project, and if the expenses are subsidized by unlawful means, a certain disciplinary measure may be imposed. However, in light of the following: (a) in the case of training expenses paid by the Plaintiffs by unlawful means, the extinctive prescription for a considerable portion of the training expenses has expired; (b) the unfair payment period is short; and (c) in the case of Sundays, the claim for additional collection is filed without the training course; and (d) the disadvantage caused by the additional collection among each of the dispositions of this case cannot be deemed excessive in light of the purpose or intent to achieve

4) Accordingly, each of the instant dispositions is lawful.

4. Conclusion

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

Judges Kim Yong-sik