(영문) 서울고등법원 2012.8.22. 선고 2012누12145 판결

The plaintiff A was appointed as a state public official of Grade VII on December 20, 1990, and served as the head of the Daejeon Regional Employment and Labor Office Daejeon (hereinafter referred to as the "Center") Daejeon from July 16, 2009 to March 7, 2010, and served as an administrative official in the Ministry of Employment and Labor planning and coordination office as of March 8, 2010.

On November 10, 2010, the defendant was subject to the resolution of the Central Disciplinary Committee, and was reprimanded on the ground that the plaintiff violated the duty of good faith under Article 56 of the State Public Officials Act for the following reasons (hereinafter referred to as the "disposition of this case").

According to Article 16(2)2 of the Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same shall apply) and Article 6(3) [Attachment Table 1] of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 320, Apr. 1, 2009; hereinafter the same shall apply), where a workplace skill development training institution has received or intends to receive training costs by fraud or other improper means, the commission contract is terminated, and if the amount of illegal receipt is more than one million won but less than five million won, the entrustment contract is terminated, and if the workplace skill development training institution is subject to restrictions on commission for three months, and Article 31(1)3 of the same Act and Article 13 of the Enforcement Rule of the same Act [Attachment 3] of the same Act and Article 6(3) [Attachment 1] of the same Act, the designation of the workplace skill development training institution is revoked.

As the director of the workplace skill development training division of the instant center, the Plaintiff reviewed the computation of the illegal receipt amount of B-professional schools (C-491,700 won, D 891,250 won, and D 1,382,950 won) and ordered the F-person in charge of E and the team leader to take measures, such as the cancellation of designation of workplace skill development training facilities, in accordance with Articles 16 and 31 of the Workers’ Vocational Skills Development Act. In addition, the Plaintiff had instructed F- etc. to take measures, etc. in accordance with guidelines, if it is deemed inappropriate for the revocation of designation by applying the relevant statutes to the Ministry of Labor.

Nevertheless, around July 209 and July 2009, the Plaintiff ordered E to take a disciplinary measure against B vocational technical schools that received training expenses by fraud or other improper means, to exclude part of the trainee C, which was removed retroactively from the calculation of the amount of unfair supply and demand, and it was found that the head of the instant center G did not take a measure to revoke the designation of the vocational technical schools as to B vocational technical schools by the above logic.

In accordance with the above unfair instructions, E prepared August 11 of the same year, and requested approval, and made E and F enter the report on investigation into G with the approval of the Director.

The Plaintiff filed an appeal review with the appeals review committee of the Ministry of Public Administration and Security seeking revocation of the instant disposition, but the appeals review committee of the Ministry of Public Administration and Security dismissed the Plaintiff’s appeal review on March 4, 2011.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1-1 to 3, the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

In calculating the amount of unlawful payment of training expenses at B vocational technical schools, the Plaintiff did not perform duties by interpreting statutes with reasonable grounds and suggesting personal opinions to F or E, which is a subordinate employee, in order to carefully handle heavy punitive administrative dispositions, such as restrictions on the entrustment of training facilities and the revocation of the designation thereof, when there was no established standard for interpretation of precedents or statutes. Moreover, “training facilities have continued to conduct training without requesting the body of a substitute attendance or removing a trainee who actually participated in the substitute attendance, and have received training expenses, after leaving the Republic of Korea and having entered the Republic of Korea, the training expenses actually paid are not included in the amount of unlawful payment, and are included in the amount of unlawful payment of training expenses only for the number of days of actual absence,” in accordance with the purport of the lower court’s judgment, since the amount of improper payment received by B vocational technical schools is less than one million won, the Plaintiff’s failure to revoke the designation of B vocational technical schools was a normal business process, and thus, it cannot be said that the Plaintiff breached its duty under the State Public Officials Act.

2) A deviation from or abuse of discretionary power

Even if the Plaintiff violated the duty of good faith, it did not commit an intentional act but did not exist in precedents, which led to an erroneous interpretation in interpreting and applying the statutes; the Plaintiff faithfully worked as an exemplary public official for a period of 20 years and was given official commendation by the Defendant; and in particular, in light of the fact that the Plaintiff has accumulated a lot of public services, such as the Plaintiff’s work at the agency evaluation of the Ministry of Employment and Labor at the time of performing duties in the workplace skill development department of the instant center, the instant disposition is unlawful by deviating from and abusing discretionary authority.

B. Relevant statutes

It is as shown in the attached Form.

C. On September 16, 2008, B vocational technical schools designated as vocational skills development training facilities under the Workers’ Vocational Skills Development Act enter into a training consignment agreement to conduct vocational skills development training for the unemployed under Article 16 of the Daejeon Regional Employment and Labor Office and Article 13 of the Enforcement Decree of the same Act (the training period: September 16, 2008; March 12, 2009; hereinafter “instant training course”) and receive training expenses from the Daejeon Regional Employment and Labor Office after conducting the instant training course for the unemployed during the training period.

B. On November 26, 2008, although C and D, who participated in the instant training course, were employed as follows before and after the commencement of the training period, they reported the fact to the Daejeon Regional Employment and Labor Office.

A person shall be appointed.

On December 9, 2008, the Daejeon Regional Employment and Labor Office confirmed the above facts, and (1) issued a one-year restriction on taking courses with respect to C and D, and (2) additionally collected transportation expenses and food expenses paid to C employed before the commencement of the instant training course, and removed them as of the date of the training commencement (However, the inside computer network for vocational training (HR-Net) remains without removing the records about C. ③ No sanctions were imposed on B-specialized schools on the ground that there is no cause attributable to B-specialized schools.

On November 208, 2008, the Board of Audit and Inspection found the fact that 27 vocational training facilities have illegally received training expenses for trainees who have taken training courses for unemployed workers in Seoul and Busan in 2007, compared with the attendance materials of trainees who have taken training courses for unemployed workers in 2007 and overseas immigration data. After all, the scope of training courses has been expanded across the country, and the status of the attendance of trainees who have left Korea during 2007 and 2008 has been examined and notified to the Defendant on May 6, 2009 to verify whether the training facilities have illegally received training expenses.

On May 11, 2009, the Defendant held a meeting of the director of the vocational ability development department of each local employment and issued a list of persons suspected of illegal withdrawal, and ordered them to deal with the same violation nationwide in accordance with the same standard. On November 2008, the Defendant distributed data prepared various relevant statutes and guidelines, including the cases of vocational schools.

On July 2009, E, who served as the job counselor of the center of this case, confirmed the fact that C had left Korea during the training period but had been falsely present while leaving Korea, and calculated the illegally received amount of training expenses for B vocational technical schools as KRW 1,382,950, and notified the Defendant and the Board of Audit and Inspection to the Board, while reporting to F and the Plaintiff, a superior of the center of this case, to the Plaintiff.

A person shall be appointed.

On July 16, 2009, the Plaintiff was appointed as the director in charge of vocational skills development of the instant center from E, and received the above report from E, and “C” did not constitute a trainee subject to the instant training course from the beginning of the training commencement date, and on the ground that training costs incurred by illegal withdrawal to a person who is not a trainee do not include training costs in the amount of illegal receipt of training costs, the Plaintiff expressed his/her intention to include the portion of illegal withdrawal in C in the calculation of the amount of training costs for B vocational technical schools, and ordered E to review it again.

E/F confirmed that there are similar cases to other local employment and labor offices, and asked the Ministry of Employment and Labor with the interpretation of the above matters by telephone, but did not obtain any precedent, and no clear interpretation. In such a situation, on the premise that the scheduled date of commencement of new training courses conducted at the B Vocational Special School should be prior to the internal calculation of the amount of training fees for training institutions, it would be unfair that the trainees who already been removed from the training commencement date are subject to double sanctions, as well as training institutions are subject to sanctions for the illegal payment of training fees on the ground that they were subject to double sanctions, and it is unfair from the viewpoint of training institutions, so it is reasonable to exclude the portion of the C non-payment from the calculation of the amount of the non-payment of training fees for B Vocation Special School.

On the other hand, on August 5, 2009, the defendant issued the "Guidelines for Administrative Dispositions against Actual Business Operator's Vocational Training Findings" to each local employment support center under the defendant's jurisdiction. The main contents of the guidelines are as follows: the scope of illegal receipt of a training worker's substitute attendance from overseas; the period of restriction on commission; the period of restriction on commission; the period and scope of restriction on payment; the timing of restriction on attending a training institution for a training trainee who has attended a substitute attendance; and if the training institution is an illegal receipt and demand training institution, it ordered the restriction on commission under Article 16 (2) 2 and (6) of the Workers' Vocational Training Act; Article 6 (3) [Attachment Table 1] of the Enforcement Rule of the Employment Insurance Act; and the restriction on support under

E is limited to the act of improper withdrawal of D on August 13, 2009 according to the above internal resolution: ① a disposition of restriction on taking courses for one year from September 21, 2008, which received training allowances; ② a disposition of restriction on taking courses for one year from September 23, 2008, which is the point of time of the act of improper withdrawal; ② a disposition of restriction on taking courses for two years from September 23, 2008, which is the point of time of the act of improper withdrawal, was conducted on the premise that (B) the amount of the illegal payment of training expenses is calculated as KRW 891,250, and the amount thereof is less than one million; ② the instant entrustment contract is terminated for one year for the instant training course; and ③ the amount of the unlawful payment of training expenses is additionally collected; and ③ the details of the investigation report for less than 30,000,000 local employment insurance and the details of the investigation report under Article 35 of the Employment Insurance Act are not prepared and received from Daejeon.

On March 26, 2010, the Board of Audit and Inspection demanded disciplinary action against the Plaintiff, E, F, and G on the ground that it did not cancel the designation of vocational training facilities for the Plaintiff, etc. even though the illegally received amount is at least one million won, since the result of the audit and inspection on the above administrative disposition includes training expenses received by B as a substitute attendance by C. The Defendant issued a reprimand against the Plaintiff, etc. following the resolution of the Central Disciplinary Committee. On April 26, 2010, the Daejeon Regional Employment and Labor Agency imposed written questions on the Defendant and calculated the illegally received amount of training expenses paid by B, as KRW 1,035,30, by adding training expenses paid by C and D as a substitute or false attendance, and then additionally issued a disposition against B, such as ① three-month consignment restriction on the entire training course, ② revocation of the designation of vocational training facilities, ③ restriction on the payment of the employment insurance fund for one year.

On the other hand, the Seoul High Court rendered a ruling to the effect that training costs are included in the amount of fraudulent payment, not in the amount of illegal payment, provided that training costs are not included in the amount of illegal payment, unless the training facilities were neglected intentionally while being aware of the act of acting in the vocational training facilities and were actually paid after entering the country (Seoul High Court Decisions 2009Du35124, Oct. 14, 201; 2009Nu21026, Jan. 11, 201; 2010Nu2830, Jan. 11, 2011).

Since there is no evidence to acknowledge that a vocational technical school intentionally neglected the representation or false attendance of C and D, it shall not exceed one million won when calculating the amount of illegal receipt by B and a vocational technical school according to the purport of the above judgment.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, 7 evidence, Eul evidence 2-1 through 5, Eul evidence 3-5, witness J testimony and whole purport of pleading

D. According to Article 16(2)2 of the Workers’ Vocational Skills Development Act, where a person entrusted with workplace skill development training has received or attempted to receive training costs by fraud or other improper means, an entrustment contract shall be terminated. According to Article 16(3) of the same Act, Article 13-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 2009, Mar. 31, 2009; Presidential Decree No. 21398; hereinafter the same shall apply), among those whose entrustment contract is terminated under paragraph (2), the Defendant, etc. may restrict the entrustment of workplace skill development training within five years from the date of termination. According to Article 16(6) of the same Act, the designation of a consignment contract shall be prescribed by Presidential Decree as necessary for the cancellation of entrustment contract and restriction on entrustment of workplace skill development training facilities by taking into account the specific grounds for cancellation of designation and restriction on entrustment of workplace skill development training facilities and the specific criteria for cancellation of designation and restriction on entrustment of workplace skill development training facilities for more than 10 months.

B Vocational Specialized Schools do not neglect intentionally even with knowledge of the act of representation or false attendance by C, D, so only the training fees received for the number of days of actual absence by C, D is the amount received by false or unlawful means, and the amount is less than one million won. If the amount of fraudulent receipt is less than one million won, an entrustment contract shall be terminated in accordance with the relevant laws and regulations on the development of workers’ vocational abilities.

A vocational technical school is not subject to restrictions on entrustment, and is not subject to the revocation of the designation of a vocational training facility. Ultimately, the Plaintiff’s illegal receipt of a vocational technical school is deemed to be less than one million won and does not revoke the designation thereof is a legitimate business process. The Plaintiff’s failure to revoke the designation of a vocational training facility for a vocational technical school cannot be deemed to violate the duty of good faith as a public official.

3. Conclusion

The judgment of the first instance is revoked because it is unfair to conclude a different conclusion. The disposition of this case is revoked.