2010Guhap658 Designation of training facilities, etc.

Korea Manpower Development Institute, a foundation for workplace skill development training

The President of the Gwangju Regional Labor Administration

September 26, 2013

October 24, 2013

1. On February 16, 2010, the Defendant’s restriction on the entrustment of three months to the Plaintiff, the portion exceeding 455,410 won out of the refund of training expenses 1,613,940 won, and the additional collection of KRW 1,613,940, and the restriction on payment for one year of vocational skills development training expenses, and the revocation of designation of a designated vocational training facility shall be revoked.

2. The plaintiff's remaining claims are dismissed.

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

4. Of the dispositions specified in paragraph (1), the restriction on commission and recognition of the entire course for three months, the restriction on the payment of training expenses for vocational skills development, and the revocation of designation of the designated occupational training establishment shall be suspended until the judgment in this case becomes final

On February 16, 2010, the Defendant’s restriction on the entrustment and recognition of the entire course for three months to the Plaintiff, restriction on the recognition of one-year entrustment for the pertinent training course, refund of 1,613,940 won for the training course, additional collection of KRW 1,613,940 for the training course, and revocation of the designation of a designated vocational training facility for one-year restriction on the payment of vocational skills development training expenses, and revocation of designation

1. Details of the disposition;

A. The plaintiff operates Honam vocational technical school (hereinafter referred to as the "facilities of this case"). The facilities of this case were designated as vocational skill development training facilities under the Act on the Development of Workplace Skills of Workers from the defendant around June 29, 2006.

B. The plaintiff entered into an entrustment contract (hereinafter referred to as "the entrustment contract of this case") with the defendant for six months of the training period for the training period of 4 months (from June 18, 2007 to October 17, 2007) and 30 trainees for the training course (hereinafter referred to as "computer training course of this case") and for the training period of 6 months (from February 29, 2008 to August 28, 2008) for each training period of 30 trainees (hereinafter referred to as "the training course of this case"). The main contents are as follows:

Article 1

(1) The Plaintiff shall conduct training for trainees entrusted by the Defendant.

(2) The Plaintiff shall observe training regulations, guide and supervise trainees so that they do not escape from middle age, and endeavor to develop training techniques, curriculum, etc. to improve the quality of training.

Article 4

(2) When the plaintiff conducts lawful training pursuant to the training regulations, the defendant shall pay training fees to the plaintiff.

(4) Where training allowances have been paid to a person who is not eligible for training allowances due to the plaintiff's improper attendance verification, etc., the plaintiff shall refund the relevant amount to the defendant.

(6) The defendant shall pay training expenses calculated from the commencement date to the plaintiff only for trainees confirmed by the training regulations.

Article 8

The plaintiff shall accurately confirm and manage the attendance of trainees, and shall assist trainees to promptly claim training allowances.

C. On February 16, 2010, the Defendant issued to the Plaintiff a training course of the instant computer account A, a training trainee B of the instant computer training course, a false or other unlawful means, and received training expenses of KRW 1,613,940 for the Plaintiff’s unlawful receipt of KRW 1,613,940 (hereinafter “instant disposition”), while restricting the recognition of the commission for three months of the entire course, restricting the recognition of the commission for one year for the pertinent training course, imposing additional collection of KRW 1,613,940, additional collection of KRW 1,613,940, for one year for expenses for vocational skills development training, and imposing a disposition revoking the designation of the designated occupational training establishment (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence 1-2, Gap evidence 3-1, 2-5, Gap evidence 6-5, 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

A) A’s departure from the Republic of Korea for overseas employment, and the number of days required for a trainee’s absence on the ground of a job examination is deemed to be the number of days required. Thus, even if A had been treated with attendance during the period of departure from the Republic of Korea, it is not subject to expulsion. Unless the Plaintiff knew that A’s substitute attendance was conducted and received training expenses, the Plaintiff cannot be deemed to have conducted the job progress management or received training expenses by false or other unlawful means.

B) The plaintiff continued to conduct the training course without knowing that A had been present on his behalf, and as long as A has completed the remaining training course after having been present on his behalf, only training expenses during the period during which A actually present on his behalf shall be deemed to fall under the amount of illegal payment. However, the defendant is erroneous in recognizing training expenses for the entire training period as the amount of illegal payment after having been present on his behalf.

(ii) the deviation and abuse of discretionary power;

Since the opening of February 25, 1993, the facility of this case trained 8,207 trainees for the occupational categories to be selected, 8,417 trainees for the unemployed, 13,99 trainees for employees, and 30,623 workers for other training. On November 200, 200, the facility of this case awarded multiple prizes, such as winning the Prime Minister prize in the Vocational Skills Development Promotion Competition in the Ministry of Labor. At present, 52 employees are engaged in the training of the unemployed, etc., even if the plaintiff was found to have failed to detect the presence of the representative, the disposition of this case causing the closure of the facility of this case is unlawful because it is excessively harsh and thus deviates from and abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The facility of this case confirms the attendance of trainees by card, and according to the former Regulations on the Implementation of Workplace Skill Development Training (amended by Ordinance of the Ministry of Labor No. 577 of Jan. 22, 2009, hereinafter referred to as the "Training Regulations"), where attendance is not confirmed by card due to unavoidable reasons, the trainee's attendance status may be entered in the official recruitment register and input it ex officio on the computer network (Article 30(4)), and where a trainee is absent for more than five consecutive days without justifiable reasons, such as natural disasters, if a trainee is absent for more than five consecutive days, he/she shall be excluded from training (Article 31(1)1 and 5). However, if a trainee fails to undergo a national examination or job examination related to training, etc., he/she shall be deemed to have undergone training according to the number of days required (Article 30(2)).

(ii) management and receipt of training costs with respect to A and B;

A) A trainee A of the instant computer accounting training course shall be China from July 26, 2007 to July 27, 2007, and the trainee B of the instant computer training course shall depart from the UK respectively from July 28, 2008 to August 21, 2008, and was absent from each of the instant training courses for the aforementioned period.

B) The Plaintiff continued to conduct the instant computer accounting training course against A, and caused A to complete the instant computer accounting training course, and continued to conduct the instant computer training course against B, and caused B B to complete the instant computer training course. The Plaintiff received KRW 1,208,580 from the Defendant as training expenses for A. From July 26, 2007 to July 27, 2007, the Plaintiff included KRW 50,050, which was paid due to the Defendant’s failure to complete the training course for two days, and received KRW 405,360 as training expenses for B. This includes KRW 351,850, which was received due to the Plaintiff’s failure to complete the training course for 13 days from July 28, 2008 to August 21, 2008.

[Reasons for Recognition] Unsatisfy, Eul evidence No. 1, the purport of the whole pleadings

D. Determination

1) Applicable legislation

In full view of the provisions of Articles 16, 25, 29, and 31 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316, Dec. 31, 2008; hereinafter referred to as the “former Act on the Development of Workplace Skills”) which were in force at the time of the Plaintiff’s violation, and Articles 16, 25, 29, and 31 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316, Dec. 31, 2008; hereinafter referred to as the “Revised Act on the Development of Workplace Skills”) and Articles 16, 25, 29, and 31 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 11272, Feb. 1, 2012; hereinafter referred to as the “former Act on the Development of Workplace Skills of Workers”) which were in force at the time of the Plaintiff’s violation, the above Act was amended as to recognize the Plaintiff’s duty of the Act and development.

2) "False or other unlawful means" under Article 16 (2) 2 of the Act on the Improvement of Functions and Development of Certified Occupational Development" refers to all active and passive acts that may affect the decision-making on the payment of training costs by a person who is not eligible to receive training costs, and "training costs" refers to expenses that the person entrusted with occupational ability development training (hereinafter referred to as "trustee") has paid in compensation for training. Where a person who is not eligible to receive training claims training differently from the fact that he/she has received training due to a violation of the legal or contractual obligations related to the management of the rehabilitation of trainees, etc. Even if the trustee knew that he/she was not eligible to receive training, he/she should not be paid training costs. Therefore, it should be viewed that the trustee's failure to receive training constitutes "false or other unlawful means" even if he/she knew that he/she had not received training.

In addition, even if a trustee conducted training for a trainee and requested the payment of such training, if the trainee had already been removed from such training, and the training teacher, etc., who is subject to his/her management and supervision, knowingly conducted training in violation of the legal or contractual obligations that require the expulsion of the trainee, he/she shall not be paid for due process, so it is reasonable to interpret that training costs are not merely a violation of the consignment contract, but also a fraudulent or other unlawful method (see Supreme Court Decision 2011Du377, Jun. 13, 2013).

3) Whether the instant entrustment contract was lawfully terminated

A) In light of the above facts, as long as the Plaintiff claimed reimbursement of training costs differently from the fact that A and B had not received training, it constitutes a case where the Plaintiff received training costs by false or other unlawful means even though the Plaintiff was unaware of the fact that A and B had not received training.

B) In addition, considering the following circumstances revealed in light of the above facts, i.e., training regulations and guidelines for the vocational training card system, and the consignment contract form for each of the training courses of this case, more attention should be given to the supervisor as it is important and essential in the occupational ability development training process, ii) it can be easily conducted in the case of a computerized presence check using a card, i.e., it is more difficult for the supervisor to pay attention to this point. In the instant training course, it is insufficient to manage the progress to the extent that the proxy check might have been achieved for 2 to 13 days, 30 consecutive absence from the training course for 2 to 13 consecutive days, i.e., the specific trainee was conducted on the part of the private teaching institute, and ii) it is not sufficient for the plaintiff to be paid the training fee to the extent that it is impossible for the training trainee to become aware of such proxy check act, i.e., the plaintiff's agent did not immediately perform the training in violation of the A training entrustment agreement.

C) Therefore, the instant consignment contract was lawfully terminated in accordance with Article 16(2)2 and 3 of the former Vocational Development Act.

4) Whether there is a reason for the disposition

(A) restrictions on consignment and recognition for three months in total, and restrictions on recognition of commission for one year in the training course;

(1) According to Article 16(3) of the amended Vocational Development Act and Article 13-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22356, Aug. 25, 2010; hereinafter the same), the State or the Minister of Labor may choose not to entrust and recognize workplace skill development training for a person whose commission contract is terminated under paragraph (2) of the same Article within a period of five years from the date of termination. However, there are no particular exceptions in cases of contractual breach, while, in cases where training costs are paid or intended to be paid by fraud or other improper means, if the training costs are less than KRW 1,00,000,000.

Meanwhile, the Defendant: (a) deemed that training costs the Plaintiff received by false or other unlawful means are at least KRW 1,00,00,000; and (b) recognized the restriction on the commission and recognition of the entire process for three months pursuant to Article 16(3) of the amended Vocational Development Act, Article 6(3) [Attachment 1] [Attachment 1](b) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Employment and Labor No. 12, Jul. 12, 2010; hereinafter the same shall apply); (b) Article 25(2) of the amended Vocational Development Act; and Article 9(4) [Attachment 2](b) of the Enforcement Rule of the same Act; and (c) Article 16(3) of the amended Vocational Development Act; and Article 6(3) [Attachment 1] of the Enforcement Rule of the same Act [Attachment 1], Article 25(2) [Attachment 4(b) of the same Act].

(2) It is reasonable to view that the Plaintiff continued to conduct a training for less than 5 months without being required to attend the training for less than 0 days, and that the Plaintiff did not receive training for less than 20 days on the ground that the Plaintiff was unable to receive training for less than 5 months on the ground that the Plaintiff was unable to receive training for less than 5 months on the ground that the Plaintiff was not absent for 0 days on the ground that the Plaintiff did not receive training for less than 20 days on the ground that the Plaintiff was unable to receive training for less than 5 days on the ground that the Plaintiff was not absent for not more than 5 days on the ground that the Plaintiff did not receive training for less than 6 days on the ground that the Plaintiff was not absent for 0 days on the ground that the Plaintiff was not absent for 4 days on the ground that the Plaintiff was not absent for 5 days on the ground that the Plaintiff was not absent for 5 days on the ground that the Plaintiff was not absent for more than 6 days on the ground that the Plaintiff’s training period on the ground that the Plaintiff was not absent for 5 days on the training.

(3) In this case, the restriction on recognition of a one-year entrustment of the pertinent training course is "in a case where workplace skill development training was conducted in violation of a consignment agreement," and "in a case where training personnel was operated by fraud or other improper means, or where training was conducted, or where training was conducted in a manner that violates the purpose of training concerning the material matters of training methods," and thus, the defendant may take a disposition of restriction on entrustment and recognition of the pertinent training course for one-year entrustment pursuant to Article 16 (3) of the revised Functional Development Act, Article 6 (3) [Attachment 1]-B-3] of the Enforcement Rule of the same Act, Article 25 (2) of the amended Functional Development Act, Article 9 (4) [Attachment 2]-B-4] of the Enforcement Rule of the same Act, so this part of the plaintiff's assertion is without merit.

B) According to Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same), the Minister of Labor may order a person who has received or intends to receive support for employment security and vocational skills development projects by fraud or other improper means to restrict such support or return the subsidy already provided, as prescribed by Presidential Decree. Here, a person who received support for employment security and vocational skills development projects refers to a business owner, local government, or non-profit corporation or organization prescribed by Presidential Decree, which provides employment security and vocational skills development projects prescribed in Chapter III of the former Employment Insurance Act, and a training institution entrusted by the State or a local government is deemed to fall under such training institution. Thus, it is unlawful to restrict the payment of the above training expenses for one year for a plaintiff who does not fall under support for vocational skills development projects under the former Employment Insurance Act.

C) According to Article 31(1)3 and Article 29 subparag. 9 of the Act on the Revocation of Designation of Workplace Skill Development Training Facilities, the designation of a workplace skill development training establishment should be revoked if the workplace skill development training establishment is commissioned or recognized, but the same shall not apply where some of the training courses commissioned or recognized have been entrusted or recognized. As seen earlier, the three-month restriction restriction on commission of each of the instant training courses does not exist, and thus, the one-year restriction on commission of each of the instant training courses is illegal, and the one-year restriction on commission of each of the instant training courses is merely a restriction on commission of some training courses, and thus, the revocation of designation of a workplace skill development training

D) Disposition to return training costs of KRW 1,613,940;

Article 16 (5) of the amended Vocational Development Act provides that "the State or a local government may order a person whose entrustment contract is terminated pursuant to paragraph (2) to return the amount paid or subsidized by fraud or other improper means out of training expenses paid or training allowances subsidized in relation to workplace skill development training." As seen earlier, since training expenses paid by fraud or other improper means are KRW 455,410, the defendant can only order the return of the amount. As such, the part exceeding KRW 455,410 in the disposition of return of training expenses for improper receipt should be revoked in an unlawful manner.

(E)an additional collection of KRW 1,613,940.

According to Article 16(6)1 (a) of the amended Vocational Development Act, Article 13-2 of the Enforcement Decree of the same Act, and Article 6(1)1 (a) of the Enforcement Rule of the same Act, where the amount subsidized by a commission contract terminated by fraud or other improper means is less than KRW 1,00,000,000, an administrative agency may additionally collect an amount equivalent to five times the amount subsidized by fraud or other improper means (where there is no frequency of application for expenses by fraud or other improper means during five years before the date of detection of the violation, it shall be three times the amount subsidized by the subsidized amount by fraud or other improper means) from a person whose commission contract is terminated.

The Defendant deemed the Plaintiff’s illegal receipt amount as KRW 1,613,940 and additionally collected the amount corresponding thereto. As seen earlier, the Defendant’s disposition on this part is unlawful, and in light of the above provisions, the Defendant has the discretion to additionally collect the amount equivalent to three times the amount equivalent to the above 455,410 won, and thus, the disposition on additional collection should be revoked in full.

5) Whether the discretion is deviates or abused or not

With respect to the remaining parts of the instant disposition (the portion equivalent to KRW 45,410, among the disposition of refundinging KRW 1,613,940, the portion of the pertinent training course for one year, and the portion equivalent to KRW 1,613,940, among the disposition of refunding KRW 455,00,00), the following circumstances can be seen as being added to the purport of the entire arguments. In other words, workplace skill development training is conducted with limited financial resources, such as budget and employment insurance fund under the Employment Insurance Act, and it is very important for the public interest to improve the employment security, social and economic status, and to improve the company's productivity due to the above disposition.

3. Suspension of execution.

In full view of the records in the instant case, it is recognized that there is an urgent need to prevent damage that may be caused to the Plaintiff due to the entrustment of three months in the entire course of the instant disposition, restriction on the payment of training expenses for one year, restriction on the revocation of the designation of vocational skills development training facilities, and there is no evidence to acknowledge that the suspension of execution may cause a serious damage to the public welfare due to the suspension of execution. Therefore, the restriction on the entrustment and recognition of three months in the entire course, restriction on the payment of training expenses for one year in vocational skills development training, and revocation of the designation

4. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder of the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, Kim Jae-young

Judges Hong Young-jin

Judges Park Young-young

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.