(영문) 서울행정법원 2016.10.17. 선고 2016구단52128 판결

The Defendant’s disposition of returning KRW 34,006,410 to the amount of unlawful receipt of training expenses for the Plaintiff on January 18, 2016, additionally collecting KRW 34,006,410, and disposition of restricting support and financing from January 1, 2016 to December 25, 2016, respectively, shall be revoked.

Reasons

1. Details of the disposition;

A. On October 18, 2013, the Plaintiff concluded a contract for workplace skill development training with E-learning Co., Ltd. (hereinafter “instant training institution”) as a travel service provider that develops and sells travel products.

B. Pursuant to the above consignment contract, the instant training institution conducted a consignment training for its employees, as shown in the separate sheet from November 9, 2013 to December 2, 2014, pursuant to the said consignment contract (hereinafter “instant training”). The Plaintiff was supported by the Defendant in total by KRW 34,006,410.

C. On July 28, 2015, which was carried out as a part of the Defendant’s plan to direct and supervise vocational skills development training institutions in July 28, 2015, the results of the instant training institution conducted by the Minister of Employment and Labor, and the process recognized by the Plaintiff was two processes: “ACE-Unscisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfisfit,” “ACE-1" for 2014, and “ACE-Unsatfisfisfisfisfisfisfisfisf,” the fact was discovered that the actual process was carried out as shown in the attached list,

D. On January 18, 2016, the Defendant issued a refund of 34,006,410 won for training expenses from the Defendant, based on Articles 55(2)1 and 56(2) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jan. 27, 2016; hereinafter “Vocational Skills Development Act”), additional collection of the same amount, and 360 days for loan restriction (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, Eul evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

Although the Plaintiff was aware that the instant training was conducted by the instant training institution with the certification of the Minister of Employment and Labor, the Plaintiff merely entrusted the instant training institution with the education, and did not recognize that the content of the education actually conducted was not certified. Moreover, it cannot be deemed that the instant training was conducted differently from the content recognized.

Therefore, in such a situation, it is difficult to view that the Plaintiff’s provision of training expenses to the Defendant constitutes “cases where the Plaintiff received subsidies by fraud or other improper means.”

2) A deviation from or abuse of discretionary power

Even if there are grounds for the instant disposition, in light of the fact that there is no intentional or gross negligence on the part of the Plaintiff and the degree of violation is minor, the instant disposition that restricts subsidies and loans for 360 days was ordered to additionally collect the same amount in addition to the return of the amount of illegal receipt.

B. Relevant statutes

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

C. Judgment on the non-existence of grounds for disposition

1) Relevant legal principles

Inasmuch as sanctions against violations of administrative laws are sanctions imposed based on the objective fact that is a violation of administrative laws and regulations to achieve administrative purposes, barring any special circumstance, such as where a failure to perform duties is not caused by the violator, it may be imposed by intention or negligence (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). “False or other unlawful means” refers to any unlawful act committed in order for a person who is not generally entitled to receive an order for return and sanctions for additional collection under Article 56(2) and (3) of the Vocational Ability Development Act to pretend the eligibility for payment or to decrease the eligibility for payment of training expenses (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

2) Determination

In full view of the following circumstances, it is reasonable to deem that the Plaintiff was paid training expenses from the Defendant by fraud or other improper means, taking into account the aforementioned facts acknowledged, the statement of evidence Nos. 1 through 7, and the witness B’s testimony and the entire purport of oral argument.

① The instant training was conducted with the recognition of the Minister of Employment and Labor as the process of “ACE-Based Professional Process”, “ACE-1”, “ACE-based program”, “ACE-1”, and “ACE-1,” and “ACE-based Experts-1,” and was conducted with the main contents of the development of the CSS (CR) capacity, telephone counseling capacity, etc. irrelevant to the training of the Plaintiff’s employees, and “Web-programing process” were conducted with the main contents of the development of the ability to provide telephone counseling, etc., and “Web-programing process” related to the development of essential web program ability. In the end, the instant training was conducted with the instant training institution’s implementation of the call monitoring training, as a result, without the fact that the training institution had been approved by the Minister of Employment and Labor from the employees belonging to the Plaintiff, as the curriculum is “AES-based expert.”

(2) The amount of training expenses for the curriculum, such as “ACE-based professional course,” recognized by the Minister of Employment and Labor, is higher than that for the CSS improvement curriculum, and the Plaintiff may not receive 34,006,410 won from the Defendant if the training is based on the actual progress of the instant program.

③ Even if the Plaintiff entrusted the instant training to the instant training institution, even though the Plaintiff was obligated to verify whether the instant training was conducted with prior recognition from the Minister of Employment and Labor, the Plaintiff did not appropriately exercise such obligation.

④ The instant training institution proposed to the effect that “the Plaintiff, who completed a high-amount course for refund and received an increase in the subsidization of expenses,” and the Plaintiff appears to have been undergoing the instant training contrary to the actual contents recognized, and even if the instant training institution led to receiving training expenses for the curriculum that was not actually conducted from the Defendant, the Plaintiff’s error regarding the training cannot be deemed to have been insignificant.

⑤ Since it appears that the Defendant would not have paid the subsidy to the Plaintiff if he had known the above facts, the Plaintiff’s act should be deemed that the business owner, who was not entitled to receive the subsidy for the curriculum, such as “ACE Dominist,” and “Unauthorized,” thereby affecting the decision-making on the payment of the subsidy by unlawful act.

D. Determination on the assertion of deviation or abuse of discretionary power

1) Relevant legal principles

제재적 행정처분이 재량권의 범위를 일탈하거나 남용하였는지 여부는 처분사유로 된 위반행위의 내용과 그 위반의 정도, 당해 처분에 의하여 달성하려는 공익상의 필요와 개인이 입게 될 불이익 및 이에 따르는 제반 사정 등을 객관적으로 심리하여 공익침해의 정도와 그 처분으로 인하여 개인이 입게 될 불이익을 비교·교량하여 판단하여야 한다(대법원 2006. 2. 9. 선고 2005|11982 판결 등 참조).

2) Determination

The following circumstances revealed through the purport of the above facts and the whole oral argument, namely, ① the contents of the instant disposition were returned to the Plaintiff 34,006,410 won which the Plaintiff received illegal payments, additionally collecting the same amount for 360 days, and restricting loans. This is consistent with Article 56(2) and (3) of the Vocational Skills Development Act, Article 22 [Attachment Table 6-2] 1-B and Article 22-2(1)2 of the Enforcement Rule of the same Act, and there is no room to regard each provision as unconstitutional and illegal; ② If the Plaintiff’s act was neglected for the purpose of increasing the training fees, it is highly likely to undermine the trust and fairness in the workplace skill development training system; ③ The instant disposition was made with the need for public interest to prevent the Plaintiff from abusing the employment safety support system in the future; ④ Even if the Plaintiff’s abuse of discretionary power can not be considered to be limited to the Plaintiff’s exercise of discretionary power by taking into account the following circumstances:

E. Sub-committee

Therefore, the plaintiff's assertion is without merit.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit.