2011Revocation of administrative disposition, etc.

Korea Railroad Corporation

The Chief of the Gangseo branch office of the Central Regional Employment and Labor Office

November 29, 2011

December 20, 2011

1. The Defendant’s order to return KRW 31,353,270 to the Plaintiff on March 22, 2011 shall be revoked. 2. The costs of lawsuit shall be borne by the Defendant.

The same shall apply to the order.

1. Details of the disposition;

(3) From February 14, 208 to February 26, 2008, the Vice Governor of Seoul Metropolitan Area (hereinafter referred to as "the instant training") conducted training for 34 employees, and applied for the payment of training expenses to the head of the Gyeonggi Labor Agency (hereinafter referred to as "the head of the Gyeonggi Labor Agency") among March 17, 2008, including the instant training for 30 days. The Administrator of the Gyeonggi District Office paid 14,364,60 won as training expenses to the Plaintiff on March 21, 2008 (hereinafter referred to as "3. 1. 4. 1. 2. 2. 2. 1. 2. 2. 3. 2. 1. 3. 2. 3. 1. 2. 1. 3. 1. 1. 3. 1. 1. 206 . 3. 1. 1. 206 . 3. 1. 20. 20. 1. 1. 3. 26. 3. 20. 1. 3. 1. 3.

[Ground of recognition] Facts without dispute, Gap 2, 3 evidence, Eul 2, 4, 5, 6 evidence, the purport of the whole pleadings

A. The plaintiff's assertion

1) The fact that a trainee A is included in the person subject to the application for training costs because he/she was not present in the instant training does not constitute only a simple administrative error due to a failure to work for the first staff member in charge of the relevant work, but not a false or other unlawful manner.

2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same) (hereinafter referred to as “Enforcement Decree of this case”) is a violation of the Constitution, as it exceeds the bounds of delegation under Article 35(1) of the Employment Insurance Act, or excessively infringes on the Plaintiff’s property rights.

(iii)the scope of a disposition of return of the subsidy following a disposition of restriction on payment shall be limited to the scope of the subsidy provided by false or other unlawful means or to the workplace concerned.

4) In imposing sanctions against illegal receipt of subsidies, the instant disposition under the former Employment Insurance Act, which is not the Act on the Development of Workplace Skills of Workers, is unlawful as it deviates from the scope of discretion or abused discretion.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether the case constitutes a false or fraudulent method

Article 35 of the former Employment Insurance Act (amended by Presidential Decree No. 2001Du2270, Sept. 5, 2003) generally refers to any unlawful act committed by a business owner who is not entitled to a subsidy, etc. to pretend his/her qualification or to reduce lack of qualifications, etc. (see Supreme Court Decision 2001Du2270, Sept. 5, 2003). The following circumstances recognized by the aforementioned facts and the purport of the entire pleading are as follows: (i) although the Plaintiff, as the principal agent of the instant training, failed to verify whether the Plaintiff had been present before applying for the subsidy, he/she applied for the subsidy to the Administrator of Gyeonggi District Office without sufficiently verifying whether the Plaintiff was actually present at the instant training course; and (ii) the Plaintiff did not have been aware of the fact that the Plaintiff did not have been present at the instant training course due to his/her failure to obtain the subsidy from the head of Gyeonggi District Office for the first time after the date of the instant training; and (iii) the Plaintiff did not have been able to receive the subsidy from the Plaintiff.

2) Whether the provisions of the Enforcement Decree of the instant case are unconstitutional or unlawful

In light of the legislative form, structure, and language of Article 35(1) of the former Employment Insurance Act and Article 35(1) of the Enforcement Decree of the same Act, the disposition ordering the establishment of a restriction period and the return of subsidies, etc. paid during the restriction period constitutes a binding act. The instant provision of the Enforcement Decree is to prevent unlawful acts related to the payment of subsidies, etc., and ultimately to promote prevention of unemployment, promotion of employment, and development and improvement of workers’ vocational skills through the restriction period on payment of subsidies, etc. for one year to illegal recipients, and to promote the development and improvement of workers’ vocational skills, and its legislative purpose can be deemed to be justifiable in light of the fact that the subsidies, etc. are based on the limited public financial resources of the Employment Insurance Fund under the Employment Insurance Act. In addition, it appears that fraudulent acts related to the payment of subsidies, etc. may be reduced through the punitive sanctions under the Enforcement Decree of the same Act, and accordingly, the Employment Insurance Fund may be deemed to be more effective.

However, in light of the various circumstances seen below, the content of the enforcement decree of this case is a provision that excessively infringes on the property rights of the remaining illegal recipients who lack the requirement of ‘minimum degree of damage' or ‘a balance of legal interests', and is therefore null and void in violation of the delegation purpose of the mother law or the principle of excessive prohibition under the Constitution.

① Article 35(2) of the Enforcement Decree of the instant case provides that, apart from the disposition of additional collection under Article 35(2) of the Act, which is a disciplinary measure based on illegal receipt, subsidies, etc. shall be mandatorily imposed for one year to a person who received subsidies by fraud or other wrongful means. If subsidies, etc. were to be granted during the period of restriction on payment, it shall be ordered that all be returned regardless of whether such subsidies, etc. were paid by fraud or other wrongful means. This is more strong than the provision on the ground of additional collection disposition. Unlike the provision on the ground of the aforementioned additional collection disposition, the provision on the ground of the aforementioned additional collection disposition, the provision on the suspension of payment and the order for return of subsidies, etc. granted during the period of restriction on payment uniformly without setting detailed standards depending on the content and degree of the offense. Accordingly, the Defendant has no choice but to uniformly impose the aforementioned sanctions against a small business owner, which is extremely small amount of money received as the Plaintiff, and the amount of subsidies, etc. subject to the order is remarkably higher than the amount of illegal receipt and payment, which would considerably exceed the scope.

② The provision of the Enforcement Decree of this case provides that the initial date of the restriction on payment shall not be the date on which an application for the payment was made, but the date on which the application was made, and thus the illegal recipient shall return the subsidy, etc. already received prior to the restriction on payment. However, if the illegal recipient becomes aware of the fact that the payment of the subsidy, etc. would be restricted for one year, it may flexibly conduct vocational skills development projects during the restriction period and reduce the loss, and it cannot be deemed unfair to operate workplace skill development projects. Thus, even if the provision of the Enforcement Decree of this case provides for the restriction on payment as a continuous act, it did not comply with the principle of "minimum of damage caused by the illegal recipient by failing to fulfill all efforts to minimize the damage suffered by the illegal recipient, by setting the initial date of the restriction on payment as the date on payment was received or applied for the payment of the subsidy, etc., rather than the date on which the application was made for the restriction on payment was made, it may result in an unreasonable difference between the number of eligible recipients of the subsidy, etc. and the time of payment.

③ The enforcement decree of the instant case provides for the restriction on payment and the order to return the subsidies paid during the period of restriction on payment for one year from the date on which the application for the subsidies was received or made, but does not have any special restriction on the period during which the said sanctions may be imposed, thereby creating an unstable situation for a long time.

④ Even if Article 35(1) of the Act explicitly does not specify the scope of delegation to Presidential Decree, the legislative intent or limitation of inherent delegation in accordance with the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 1996; 96Nu6578, Jul. 22, 1997). In light of the following: (a) various types of violations are expected to be committed; (b) the legislative purpose of the above provision; (c) the principle of excessive prohibition under the Constitution; and (d) the purpose of delegation under Article 35(1) of the Act is to reasonably subdivide the standards depending on the degree of violations, such as the type and degree of violations; (d) or (e) delegate the relevant provision to the competent administrative agency; or (e) otherwise, it conforms with the legislative purpose of the above provision that allows the reduction of the scope of delegation to a certain extent; (e) the provision that allows the reduction of the scope of delegation to a certain extent; (e) the purpose of restriction on payment for one year, regardless of delegation.

⑤ Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides for restrictions on the payment of subsidies for one year to illegal recipients: Provided, That the same shall not apply to cases where three years have passed since the date of receipt of subsidies or incentives or where the amount of subsidies received or to be received by fraudulent or other illegal means is less than three million won and where fraudulent acts have been discovered for the first time, and Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010; Presidential Decree No. 22603, Dec. 31, 2010; Presidential Decree No. 56(1) of the Employment Insurance Act (amended by Presidential Decree No. 22026) provides for restrictions on the payment of subsidies for one of the subsidies under paragraph (1) by fraud or other improper means; however, the Minister of Employment and Labor appears to have reduced the amount of subsidies by one-year.

(6) Therefore, in addition to Article 35(2) of the Act that can additionally collect and impose disciplinary sanctions against illegal recipients, the legislative purpose of this case can be more effectively achieved by prescribing the provisions of the Enforcement Decree of this case in duplicate, but the provisions of the Enforcement Decree of this case stipulate the restriction on payment for one-year period and the order to return subsidies paid during the restriction period, without reasonably subdividing the standards according to the type of the illegal recipient’s offense, are excessively infringing on the property right of the illegal recipient.

3) Sub-decisions

Ultimately, the instant disposition is based on the invalid provision of the Enforcement Decree of the instant case, and thus, should be revoked as it is unlawful without examining the remainder of the Plaintiff’s assertion.

3. Conclusion

The claim of this case seeking the cancellation of an illegal disposition is reasonable, and therefore, it will be accepted.

The presiding judge shall transfer the judge to another judge.

Judges Mobile-hee

Correction of Judges

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.