(영문) 인천지방법원 2019.1.22.선고 2017구단50369 판결

The Defendant’s order to return KRW 4,793,200 against the Plaintiff on November 17, 2016, and the disposition of restricting loans for 360 days from the date of disposition shall be revoked.

Reasons

1. Details of the disposition;

A. Details of the Plaintiff’s entrusted training

1) The Plaintiff is the business owner operating D child care centers in the building C of Kimpo-si, and entered into a contract for entrusted training with D child care teachers, and submitted to the Korea Industrial Manpower Agency a document that the Plaintiff first paid training expenses to E after meeting the requirements for the completion of entrusted training, and received the expenses for workplace skill development training in accordance with Article 27 of the Employment Insurance Act, etc. (Article 8 of the Regulations on Supporting Workplace Skill Development Training for the Business owner (Notice of the Ministry of Employment and Labor), the Plaintiff must attend at least 80% of the training hours and complete the relevant training course.

2) As such, expenses for workplace skill development training received by the Plaintiff are totaling KRW 10,81,144 of the training costs for 26 courses, including 'the number of workplace skill development training teachers affiliated with four from May 5, 2012 to March 17, 2014.'

B. The Incheon Bupyeong Police Station notified the Defendant that “A total of 488 childcare centers, including the Plaintiff, did not pre-paid training expenses,” which was the entrusted training institution, prepared and issued a false commission contract and tax invoice as if the pre-paid childcare teachers did not attend the training course by at least 80%, and even if the trainee’s infant care teachers did not attend the training course, they did not meet the completion standards and received training expenses.”

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

3) On November 1, 2016, the Defendant issued a disposition on the return of unlawful amount received after excluding the portion for which extinctive prescription has lapsed among the illegal amount received by the Plaintiff, and then issued a disposition on the restriction of subsidies and loans for 360 days from the date of the disposition (hereinafter “each of the instant dispositions”). Criminal punishment against the E representative, etc.

1) On November 17, 2014, related persons, including the representatives of E, 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 convicted (the part of the violation of the Subsidy Management Act was acquitted on the grounds that the Defendants were not the recipient of the subsidy even though the two crimes were charged with ordinary concurrent crimes). The Seoul High Court appealed as 2017No59, but appealed as Seoul High Court 2017No59, but the appeal was dismissed on April 27, 2017, and again appealed as the Supreme Court 2017Do7147, but the first instance judgment became final and conclusive by dismissal of the appeal on August 18, 2017 (hereinafter referred to as the “criminal judgment”).

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

The Defendants, as indicated in the separate list of crimes from May 6, 2012 to June 30, 2014, submitted to the Corporation a false training report/training completion report/training completion report as if the childcare center teachers were able to attend the training or attend the training, 30 hours in the case of 4 hours a day, 50 hours in the case of 13 hours a day, 50 hours a day, and 8 hours a day a day a day is less than 80/100 of the training hours an actual training hours a day is less than 4 hours a day, Saturdays, and Sundays 13 hours a day, and Sundays 8 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day as.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 2, Eul evidence 1 to 15, the purport of the whole pleadings

2. Determination on the defense prior to the merits

Of each of the dispositions of this case, the Defendant asserts that the 360 days support and loan restriction measures against the Plaintiff were imposed on April 23, 2017, and all of the periods were imposed on the Plaintiff. As such, the Defendant asserts that there is no interest in the lawsuit, and thus, it is unlawful as there is no interest in the lawsuit. According to the [Attachment 6-2] of the Enforcement Rule of the Workers’ Vocational Skills Development Act (Article 22 related) for the period of restriction on the loan and the class (Article 22-2 related), the Defendant provided that “where a person who received the restriction is subject to the restriction repeatedly, the restriction measures may be taken within the scope of three

Even after the expiration of the period of a restrictive measure, there is a disadvantage in the provisional arbitration system on the basis of the past record of violation of the law, so the plaintiffs still have a benefit to seek the cancellation of such restrictive measure.

Therefore, this part of the defendant's assertion that there is no benefit of lawsuit even after the actual cancellation is without merit.

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

A. The plaintiff's 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 purport of the entire pleadings, the Plaintiff’s infant care teacher may be deemed to have attended less than 80% of the training course.

A) Above all, even if a criminal judgment is not bound by the fact-finding in a criminal trial, the fact that the court found the same fact-finding was guilty is valuable 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 did not conduct a training for 3 hours in case of E who provided education and training to infant care teachers at the Plaintiff’s entrustment, 5 hours in case of 13 hours in day and 13 hours in case of E who provided education and training for 13 hours in day, and it did not conduct a training for 80/100 or more of the total amount of subsidies provided to 488 employees including the Plaintiff and 3 hours in case of Sundays, and thus, it did not constitute a strong probative value of 3 hours in this case.

C) Examining each training course in which the Plaintiff’s infant care teachers participated and its implementation days, recognition hours, etc., ① Chambling 1 (13 hours a Saturday), ② C-1 (12 hours a day in total), C-1 (13 hours a day in total), C-Lbling 1 (13 hours a Saturday and 14 hours a day a day a day a day a day a day adembling), ④ C-Lbling 2-11 (2 hours a day adembing a day ademb, 60 hours a day a day adembling 2-14 (14 hours a day ademb-day and a day ademb-day day ademb-day ademb-day a total of less than 14 hours ademb-day ademb-day ademb-day and 2-day ademb-day ademb-day ademb-day ademing 14 hours a day adembday.

D) Therefore, we cannot accept the allegation that there is no reason to dispose of childcare teachers because the attendance rate of trainees is less than 80%.

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

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") generally refers to the affirmative and passive acts that may affect the decision-making on the payment of training costs, as all acts that are not correct under the social norms with an intention to see that a person who is not entitled to training costs is qualified, or that is not qualified, as if he/she were qualified, or to conceal the fact that he/she is not qualified, and the term "any other unlawful acts" refers to the affirmative and passive acts that may affect the decision-making on the payment of training costs. Article 16 (1), (2) and (3) of the former Act and Article 16 (6) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 21398 of Mar. 31, 2009).

Therefore, the Plaintiff’s assertion that the disposition of additional collection is unlawful because the Plaintiff received a decision on payment or suspicion during the investigation process, and the Plaintiff’s intent to receive unfair payment is not recognized. Furthermore, as seen earlier, the Plaintiff’s disposition of additional collection is lawful, in full view of the Plaintiff’s gross negligence is recognized, since it is recognized that the Plaintiff received training fees from its own childcare teachers, and then received subsidies from the Human Resources Development Service of Korea, along with receipts, etc., after checking whether the Plaintiff had properly trained the childcare teachers under his/her responsibility. However, the Plaintiff was entitled to receive subsidies from the Human Resources Development Service of Korea, including only a part of the daily and Saturdays, even if the training was not conducted, and in particular, on Sundays, even if the training was not conducted in advance, the Plaintiff did not confirm whether the training course was properly conducted, and transferred the training fees by receiving false tax invoices and attaching them.

3) A deviation from and abuse of discretionary power

A) Claim on violation of discretionary rules

The discretionary rule of administrative affairs established as the basis for the exercise of discretionary power is a discretionary rule, and such discretionary rule is generally effective only within an administrative organization and does not have external binding power. Thus, an administrative disposition is not immediately unlawful solely on the ground that it has violated it. However, if administrative practice is performed by being implemented in accordance with such discretionary rule as set forth in the principle of equality or the principle of protection of trust, an administrative agency is placed under self-detained in relation to the other party. In such a case, barring any special circumstance, a disposition contrary thereto is an illegal disposition that deviates from or abused discretion contrary to the principle of equality or the principle of protection of trust (see, e.g., Supreme Court Decision 2011Du28783, Nov. 14, 2013).

Meanwhile, according to the evidence No. 2, the Ministry of Employment and Labor may recognize the fact that the Ministry of Employment and Labor sent "in relation to the result of the investigation into the illegal receipt of training fees for 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 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 cannot be said to be a discretionary rule that states the general guidelines for handling the case, and it cannot be said that the defendant is detained or violated, and it is not immediately a deviation from 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 took each of the instant dispositions against the Plaintiffs who did not file a voluntary report at the same time, including additional collection and disposition with regard to an order to return the illegally received amount of money, while it does not constitute a deviation or abuse of discretionary authority on the ground that the criteria for such disposition have been clearly announced in advance. Moreover, as it conforms to Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers as it is unreasonable in its content as it is considerably unreasonable or difficult to view it as being in proportion to the Plaintiff’s causes.

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 support the promotion of workplace skill development throughout his/her life and to train technical and skilled human resources needed in the industrial field, provide for a certain disciplinary measure if the expenses are subsidized by unlawful means. However, in light of the following: (a) in the case of training expenses for which the Plaintiff was provided by unlawful means, the extinctive prescription for a considerable portion of the training expenses has expired; (b) an order for return and additional collection was not possible; and (c) in the case of Sundays, the wrongful payment period is not short; and (d) a claim is filed for additional collection even without any training course; (b) any disadvantage imposed by each of the dispositions in the instant case, which

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

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