(영문) 서울행정법원 2018.1.12. 선고 2016구단51231 판결

2. On November 11, 2015, the part exceeding 428,536,600 won among the dispositions on consignment and restriction of recognition of workplace skill development training courses conducted by the Defendant against the Plaintiff, and the disposition on return of illegally received amount and additional collection shall be revoked.

3. The plaintiff's remaining conjunctive claims are dismissed.

4. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

[Disposition by the Defendant’s claim] On November 11, 2015, it is confirmed that an administrative disposition against the Plaintiff and an order for return of the amount of illegal receipt is invalid due to violation of the Workers’ Vocational Skills Development Act.

[Preliminary Claim] On November 11, 2015, the defendant revoked an administrative disposition against the plaintiff on November 11, 2015 against the violation of the Workers’ Vocational Skills Development Act and an order to return the amount of unlawful receipt.

Reasons

1. Details of the disposition;

A. The Plaintiff is operating the C Education Center (hereinafter referred to as the “instant Education Center”) on the 5th floor of Gangnam-gu Seoul Metropolitan Government B building.

B. The Plaintiff obtained recognition of D, etc. as a vocational skills development training course under Article 19(1) of the Act on the Development of Workplace Skills of Workers (hereinafter “Act on the Development of Workplace Skills of Workers”) from the Defendant as listed below (hereinafter “each of the instant training courses”, and “the instant training course” when referring to an individual training course.

A person shall be appointed.

C. On May 16, 2015 and May 26, 2015, the Defendant issued occasional guidance and inspection to the instant education center on two occasions, and based on the result, issued the following dispositions against the Plaintiff on July 10, 2015 (hereinafter referred to as “disposition on July 10, 2015”).

A person shall be appointed.

D. The Defendant issued the following dispositions against the Plaintiff on August 21, 2015 after conducting an additional investigation against the instant education center (hereinafter referred to as “disposition on August 21, 2015”).

A person shall be appointed.

E. On November 11, 2015, the Defendant issued a disposition to revoke recognition of each of the instant training courses (hereinafter referred to as the “disposition to revoke recognition”), a disposition to entrust and restrict recognition of workplace skill development training (hereinafter referred to as the “instant entrustment and restriction on recognition”), a refund of the amount of unlawful payments, and an additional collection (hereinafter referred to as the “instant order for return”) with respect to the Plaintiff on the following grounds (hereinafter referred to as the “disposition on November 11, 2015, each of the instant dispositions”).

1) Cancellation of recognition, entrustment, and restriction on recognition: A statement of "the facts and the details of the disposition that have caused the disposition" in the attached Form.

2) The part concerning the subsidy that the Plaintiff received, as a result of the refund of unlawful receipt and additional collection

A person shall be appointed.

B) Part on subsidies granted to trainees

A person shall be appointed.

291,716,002010101

【Ground of recognition】 The fact that there has been no dispute, Gap Nos. 1, 2, 27, 28, Eul evidence No. 1, the purport of the whole pleadings

2. Determination as to the defendant's defense prior to the merits

A. Summary of the defense prior to the merits

The part seeking the revocation of the recognition of this case and the revocation of the part concerning the training courses No. 6, 7, and 8 among the restrictions on entrustment and recognition is unlawful, since it was filed after the filing period has expired.

B. Determination

According to the records of this case, the plaintiff stated in the claim of the complaint that "the defendant shall revoke all dispositions, as shown in attached Tables 1, 2, and 3, to the plaintiff on November 11, 2015," and attached Tables 1, 6, 7, and 8 shall be attached to the part concerning the cancellation of recognition of this case and the restriction on entrustment and recognition. The plaintiff omitted the training courses, and subsequently changed the purport of the claim on April 7, 2016 as stated in the above claim column.

However, in light of the fact that the plaintiff alleged that the training courses No. 6, 7, and 8 were revoked due to the violation of the revocation of recognition and the limitation on entrustment and recognition, it is reasonable to deem that the plaintiff's omission of the training courses No. 6, 7, and 8 attached to the complaint is caused by mistake. Therefore, even if the plaintiff changed the purport of the claim after April 7, 2016, it is difficult to deem that the plaintiff filed a lawsuit after the lapse of the period for filing the lawsuit.

Therefore, the defendant's defense prior to the merits cannot be accepted.

3. Whether the disposition issued on November 11, 2015 is lawful;

The plaintiff's assertion that is inconsistent with the following judgments shall not be accepted in all.

(a) Related Acts and subordinate statutes;

It is as shown in the attached Table related statutes.

(b) the existence of a defect

1) The part revoking the recognition of the instant case

A) Whether there is a procedural defect that constitutes a double disposition

The Plaintiff asserts that the part of the training courses Nos. 1, 2, 3, and 4 among the cancellation of recognition of the instant case is erroneous as it overlaps with the disposition of July 10, 2015 or the disposition of August 21, 2015.

Article 19 (2) of the Vocational Skills Development Act provides that "the Minister of Employment and Labor may issue a corrective order or revoke recognition of a training course if a person who has obtained recognition of a workplace skill development training course pursuant to paragraph (1) falls under any of the following subparagraphs: Provided, That such recognition shall be revoked if the person falls under subparagraphs 1 through 4." If the person obtains recognition under paragraph (1) by fraud or other improper means under subparagraph 2, or if the person obtains or intends to obtain subsidies or loans for training costs by fraud or other improper means, if the person receives or intends to obtain subsidies or loans for training costs from workers who attend workplace skill development training under subparagraph 3, subparagraph 4, subparagraph 1 and subparagraph 2, Article 19 (2) of the Act provides that "the person who has obtained recognition of a training course under subparagraph 1 and subparagraph 2 shall be deemed to have violated a corrective order under subparagraph 6, Article 7-1 and subparagraph 2, and Article 19 (2) of the Act provides that "the person who has obtained recognition of a training course under subparagraph 2 and subparagraph 15 shall be deemed to have been revoked."

Furthermore, the effect of each of the dispositions taken on July 10, 2015 and August 21, 2015, which was issued on November 11, 2015, was suspended by the order issued on October 19, 2015 and rendered on August 21, 2015 (see, e.g., evidence 30-1) by this Court (see, e., evidence 30-1), and it is difficult to view that the previous revocation of recognition constitutes the revocation of overlapping recognition with respect to training courses, the validity of which was lost due to the revocation of recognition.

Therefore, the plaintiff's above assertion is not accepted.

B) Whether the content of the disposition is unclear or not

The plaintiff asserts that the cancellation of the recognition of this case is unlawful without disclosing the effect of cancellation when and when.

However, in the case of the withdrawal of an administrative act, the validity of the original administrative act is to be invalidated in the future due to its nature. It is desirable to clarify explicitly that in the case of revocation of an authority of an administrative act, the administrative agency would not cause the same effect as that of the original administrative act from the beginning or lose the validity of the original administrative act only in the future. However, even if the administrative agency did not disclose it, the revocation of authority can not be immediately deemed unlawful, and if the beneficial administrative act is revoked ex officio due to a cause attributable to the other party, the retroactive effect should be recognized.

In light of the above legal principles, even if the defendant did not disclose the nature of the effect in the cancellation of recognition of the case, it cannot be deemed unlawful. The plaintiff's above assertion is rejected.

C) the existence of the reasons for the disposition

(1) Whether Article 19(2)1 of the Vocational Skills Development Act exists

The defendant cited that the training courses of this case were recognized as workplace skill development training courses by fraud or other improper means as the grounds for revocation of recognition of this case. Accordingly, there is no evidence to find that the plaintiff had no intention to conduct the training courses of this case at the time of applying for recognition to the defendant in order to recognize the training courses of this case as the workplace skill development training course (the plaintiff attempted to conduct the training courses of this case as recognized by the defendant, but it seems that the plaintiff opened and operated a lecture later, on account of the circumstances such as the plaintiff's failure to recruit students due to the lack of seal, etc., and the recruitment of students was not smooth).

(2) Whether there are grounds for Article 19(2)2 and 5 of the Vocational Skills Development Act

In addition to the purport of the entire arguments as indicated below, the plaintiff may recognize that the training course of this case was not conducted as recognized as the vocational ability development training course as shown in the following table (other evidence submitted by the plaintiff alone does not have any counter-proof). The fact that the plaintiff received subsidies from the defendant in relation to the vocational ability development training course conducted by the plaintiff is without dispute between the parties. This constitutes Article 19 (2) 2 and 5 of the Vocational Skills Development Act. Accordingly, the plaintiff's assertion to this purport is rejected.

A person shall be appointed.

2) The instant consignment and restriction on recognition

The administrative disposition should be made in writing, unless there are special circumstances prescribed by Acts and subordinate statutes (Article 24(1) of the Administrative Procedures Act), and the contents of the disposition should be specific and clear as stated in the written disposition. If the administrative disposition is a disciplinary disposition for which the period is fixed, it is more so the period of sanction and the starting point of the period is

In this case, it is clear that the restriction of entrustment and recognition of this case is the first day of the restriction period or the period.

① With respect to the instant restrictions on commission and recognition, the Defendant stated the details of the instant restrictions on commission and recognition in the form of each training course (Evidence 2 of Article 19(2)1, 2, and 5 of the Vocational Skills Development Act) in each disposition (Article 19(5) of the Enforcement Rule of the Vocational Skills Development Act (Article 19(2)1, 2, and 5 of the Vocational Skills Development Act) 2. Criteria for the measures such as the development of vocational skills (including account combination training courses) and the cancellation of recognition (hereinafter referred to as the “instant guidelines for the measures”). For instance, in D, the Defendant applied for the training course subject to false recognition despite that the training content is not subject to recognition of this training course, and conducted training as the training content corresponding to the area subject to recognition restriction. It stated that the instant restrictions on commission and recognition have not been conducted for 1 year prior to the date on which each of the instant measures was taken pursuant to subparagraph 3 of Article 19(2)1 of the Vocational Skills Development Act; 20 years prior to the initial criteria for recognition or restriction on entrustment 15 years.

② Standard 1. General Criteria 5) provides that “where at least two grounds for restrictions on entrustment and recognition occur simultaneously, or where additional grounds for restrictions occur during the period of restrictions on entrustment and recognition occur, the period of restrictions on entrustment and recognition shall be the aggregate of the respective periods of restrictions up to three years. In such cases, the starting point of the period of restrictions where grounds for restrictions on entrustment and recognition occur shall be the date of initial recognition.” In the previous case, “A training course” was subject to the revocation of recognition and restrictions on entrustment and recognition of a specific workplace skill development training course (hereafter referred to as “A training course” in this paragraph) and the previous disposition of restrictions on entrustment and recognition of the whole course (hereafter referred to as “B training course” in this paragraph) was taken, if any other workplace skill development training course was revoked and a disposition of restrictions on entrustment of and recognition of the entire course was taken, the period of restrictions on entrustment and recognition of the B training course whose recognition was revoked later is affected, and if any, the starting point of the period shall be the starting point of the measure criteria in

However, if the recognition of the training course is revoked pursuant to Article 19(2) of the Vocational Skills Development Act for one or more of the courses operated by a person who conducts at least two workplace skill development training, and the person who conducts the relevant workplace skill development training course constitutes a person subject to entrustment and recognition restrictions pursuant to Article 19(3) of the Vocational Skills Development Act, the term of validity of recognition of other workplace skill development training courses operated by the person who conducts the relevant workplace skill development training course may be referred to in Article 17(4) of the Enforcement Decree of the Vocational Skills Development Act, which provides that "if a training is conducted according to the other workplace skill development training course as of the date the recognition is revoked, the date the training is completed, and if a training is not conducted, the date the recognition is revoked, and if a training is not conducted pursuant to the B training course as of the date the recognition of the A training course is revoked, the validity of recognition of the A training course is terminated, and from that time, the entrustment and recognition restrictions on the B training course shall also begin.

The Defendant stated the date of revocation of each recognition of each of the instant training courses [the training courses referred to in subparagraphs 1 and 2], August 21, 2015 (the date of August 10, 2015, August 21, 2015, and November 11, 2015 (the training courses referred to in subparagraphs 5, 6, 7, and 8) to the effect that the starting point of the period of sanctions following the instant consignment and recognition is the date of revocation of recognition. However, the Defendant’s disposition on August 21, 2015 (including the day of revocation of recognition of the training courses and the day of entrustment and restriction of recognition) was issued on August 21, 2015 (including the day of completion of the training courses referred to in subparagraphs 5, 6, 7, and 8). Thus, it is probable to recognize that the training courses were conducted on August 15, 2015, and that the training courses were concluded on August 27, 2015.

③ As seen earlier, on July 10, 2015 and August 21, 2015, the Defendant issued a disposition of the entrustment or restriction of recognition for the entire process or the pertinent process, and on November 2, 2015, the Defendant issued a disposition of the revocation of recognition and the entrustment or restriction of recognition for the three-month entire process (see evidence 31), and on the written disposition dated November 11, 2015, the fact that the above disposition was an additional disposition and on the date of the first revocation of recognition for each of the instant training courses, and there is no indication as to whether the previous disposition was an additional disposition.

3) The part of the order to return of this case

A) Article 56(2) of the Act on the Development of Workplace Skills provides that "the Minister of Employment and Labor may order the person whose recognition has been revoked pursuant to Article 19(2) or 24(2), or workers or business operators whose recognition has been restricted pursuant to Article 55(2) to return the amount of subsidies or loans already received by the industry-specific human resources development council or the organization of workplace-specific human resources development, such as business operators or business operators' organizations, etc., by fraud or other improper means." In addition, Article 56(3) of the Act on the Development of Workplace Skills provides that "the State, local governments or the Minister of Employment and Labor may additionally collect the amount of subsidies or loans in accordance with the standards prescribed by Ordinance of the Ministry of Employment and Labor for the amount of subsidies or loans received by fraud or other improper means." According to subparagraph 1 of Article 16, a person whose entrustment contract is terminated pursuant to Article 16(2) or whose recognition has been revoked pursuant to Article 19(2) or 24(2).

The plaintiff did not operate each of the training courses of this case as recognized after being recognized as workplace skill development training course, and the defendant revoked the recognition of this case as mentioned above. The part equivalent to the subsidy received by the plaintiff among the orders for return of this case premised on such fact is legitimate.

The Plaintiff asserts that the Plaintiff’s order to return the instant training course was recognized as the vocational skills development training course by fraud or other improper means (Article 19(2)1 of the Vocational Skills Development Act) and that the Defendant’s revocation of recognition of the instant training course is premised on the premise that the Plaintiff had obtained recognition of the instant training course. Therefore, in relation to the grounds for the instant disposition, “where the Plaintiff obtained recognition by fraud or other improper means (Article 1,2, 3, 5, and 6)” (Article 1, 2, 3, 5, and “where he/she received training costs by obtaining recognition by fraud or other improper means” (Article 7, 8). However, the Plaintiff’s order to return the instant training course under Article 19(3) of the Disposition No. 1999, Nov. 11, 2015 (Article 19(2)1 of the Vocational Skills Development Act) is inconsistent with the purpose of training above.”

Therefore, the plaintiff's above assertion is not accepted.

B) Comprehensively considering the provisions of Articles 17 and 23 of the Act on the Development of Vocational Skills for Workers, the Minister of Employment and Labor’s provision of subsidies or loans to workers for attending workplace skill development training courses in order to support workers’ autonomous workplace skill development and provision of subsidies or loans for workplace skill development projects conducted by workplace skill development organizations is distinguishable from each other. Article 56(2) of the Vocational Skills Development Act provides that a refund order may be issued to workers who have received subsidies or loans by fraud or other improper means. Therefore, even if workers were to receive subsidies or loans, barring special circumstances, it shall not be deemed that workplace skill development organizations cannot order the refund, etc. of the amount equivalent to the subsidies that the trainees received.

Therefore, the return order of KRW 583,432,00, which includes the subsidy (291,716,000) received by the trainee among the return order of this case and the additional dues (291,716,000) is unlawful.

In order for a defective administrative disposition to be null and void as a matter of course, the defect must be objectively obvious because it violates the important part of the law, and it should be objectively clear, and in judging whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time reasonable consideration should be made on the characteristics of the specific case itself.Although there are defects in the part of health class, the restriction on entrustment and recognition of this case, and the subsidy for which a trainee has received from the order of return of this case, the defect is due to misunderstanding related to the interpretation of the law, and it has not reached a serious and obvious case, it is difficult to deem the

4. Conclusion

Therefore, all of the plaintiff's main claims are dismissed as they are without merit, and the conjunctive claims are justified only within the scope of the above recognition. The remaining conjunctive claims are dismissed as they are without merit. It is so decided as per Disposition.