(영문) 서울행정법원 2010.7.1. 선고 2010구합18154 판결

The Defendant’s order to return KRW 28,800,000 for new employment promotion subsidy granted to the Plaintiff on August 20, 2009 and KRW 36,840,00 for small and medium enterprise experts.

Reasons

1. Details of the disposition;

A. On May 14, 1998, the Plaintiff was established for the purpose of manufacturing and selling wire and wireless communication equipment. Around 2006, the Plaintiff was paid KRW 33,580,640,00 for new employment promotion subsidy to the Defendant by requesting the payment of new employment promotion subsidy from April 24, 2006 to February 16, 2007, by applying for the payment of new employment promotion subsidy from the Defendant for the reason that he newly employed B in a unemployment condition exceeding three months.

A person shall be appointed.

B. However, on August 20, 2009, the Defendant ordered the Plaintiff to return KRW 33,580,640 of the new employment promotion subsidy already paid pursuant to Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter “Act”) and Article 56(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 28, 2010; hereinafter “Enforcement Decree”), on the ground that the Plaintiff reported the acquisition date of the insured status of B, etc. by reporting it differently from the actual employment date, and received the new employment promotion subsidy by fraudulent or other illegal means, and ordered additional collection of KRW 38,380,640,640 of the said new employment promotion subsidy pursuant to Article 35(2) of the Act.

C. In addition, the Defendant issued the instant disposition to the Plaintiff on the same day pursuant to Article 35(1) of the Act and Article 56(2) of the Enforcement Decree of the Enforcement Decree of the Act on the ground that the sum of KRW 28,800,000 for the new employment promotion subsidy paid to the Plaintiff in relation to the employment of workers I, J, K, L, M, M, N, andO (hereinafter “I”) and KRW 65,560,000 (hereinafter “instant subsidy”) was paid during the period of restriction on payment under Article 56(2) of the Enforcement Decree. The payment details of the instant subsidy are as follows.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap 2-4 evidence, Eul 1, 2, 8, 9 evidence (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although it is recognized that the Plaintiff received new employment promotion subsidy of KRW 33,580,640 in relation to employment of B, etc. as ‘false or other unlawful means', the instant disposition ordering the Plaintiff to return the subsidy of this case, regardless of the employment promotion subsidy of B, etc., on the ground that the Plaintiff was paid during the period of restriction on payment, is in violation of the instant statutory provisions, since Article 35(1) of the Act and Article 56(2) of the Enforcement Decree of the Act (hereinafter referred to as “the instant statutory provisions”) shall be limited to the subsidy of this case, which the Defendant may order the return of the subsidy of this case, which the Plaintiff received lawfully during the period of restriction on payment, is contrary to the principle of prohibition of double punishment and the principle of prohibition of excessive restriction under the Constitution, unless the instant statutory provisions are interpreted as above.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

Unlike Article 56 (1) of the Enforcement Decree, where a person has received or intended to receive a new employment promotion subsidy, etc. by applying for, or having received, a new employment promotion subsidy, etc. by fraudulent or other unlawful means, and where the payment of money payable is restricted, it is reasonable to view that Article 56 (2) of the Enforcement Decree does not provide any kind of incentives, etc. for one year from the date on which he/she received or intended to receive a subsidy, etc. by "any false or other unlawful means," or for one year from the date on which he/she received or attempted to receive the subsidy, or for one year from the date on which he/she received or attempted to receive it, regardless of whether he/she is related to "the false or other unlawful means," and it is reasonable to view that it is a provision prepared in order to achieve the purpose of punishing the unfair recipient of the subsidy, etc. by ordering the return thereof, and to prevent the payment of future subsidy, etc. (see, e.g., Supreme Court en banc Decision 2009Du6476, Aug. 20, 2009).

In addition, it cannot be said that "the punishment as an exercise of the State's penal authority prohibited by Article 13 (1) of the Constitution has been repeated." Thus, the provision of the Act and subordinate statutes of this case providing for the imposition of administrative sanctions against an unjust recipient of subsidies, etc. and the disposition of this case based thereon cannot be deemed to violate the principle of prohibition of double punishment under the Constitution.

In addition, as seen earlier, the statutory provisions of this case are designed to punish unjust recipients of subsidies, etc. and prevent future payments, and its purpose is justifiable, and appropriate in a way to achieve its purpose. It is appropriate to restrict payment of subsidies, etc. for a period of one year only, and to order the return of erroneously paid subsidies, etc. to the minimum extent necessary to infringe on property rights. In order to promote the soundness of employment insurance finance and secure the efficient and transparent operation of the support system for the promotion and stability of employment, it is more necessary to strictly control and manage the payment of subsidies, etc. to the public interest than the private interest that is in violation of the principle of excessive prohibition. Accordingly, the statutory provisions of this case cannot be deemed to violate the principle of excessive prohibition.

Ultimately, in the instant case where there is no dispute as to the fact that the Plaintiff received the instant incentive that occurred during the period of restriction on payment due to the Plaintiff’s receipt of the new employment promotion incentive 33,580,640 won in relation to the employment of B, etc., and then, it is reasonable to view that the instant incentive has to be returned regardless of whether it has been paid by false or other unlawful means. Accordingly, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.