208Nu2095 Revocation of revocation of the decision to pay the employment subsidy for disabled persons

Association for the Disabled in Ulsan Metropolitan City;

Ulsan (Ulsan)

Representative Director △△△

Korean Disabled Employment Promotion Corporation

Sungnam-si

Book of service

[Attachment▽▽▽▽▽]

A litigation performer's address;

Ulsan District Court Decision 2007Guhap2795 Decided April 30, 2008

December 5, 2008

January 9, 2009

1. Revocation of a judgment of the first instance;

2. According to the amendment of the purport of the claim in the trial, the defendant decided to recover the amount of 41,181,000 won for employment of disabled persons under half-yearly year 2005 and the amount of 51,352,000 won for employment of disabled persons under half-yearly year 2006. On August 22, 2007, the amount of recovery for employment of disabled persons under half-yearly disability in the year 2006 shall be appropriated from the amount of employment of disabled persons under half-yearly year 2007, and the amount of recovery for employment of disabled persons under half-yearly disability in the second half of the year 2005 shall be appropriated from the amount of employment of disabled persons under half-yearly year 207.

3. All costs of the lawsuit shall be borne by the defendant.

The text is the same (the plaintiff changed the purport of the claim in exchange for exchange).

1. Details of the disposition;

(A) The defendant is a public corporation established under the Employment Promotion and Vocational Rehabilitation of Disabled Persons Act (hereinafter referred to as the "Employment Promotion and Vocational Rehabilitation for Disabled Persons Act"), and was entrusted by the Minister of Labor with the authority to lend or support a standardized workplace for disabled persons pursuant to the Employment Promotion and Enforcement Decree thereof.

(B) As a business owner who employs disabled persons, the Plaintiff applied for a bounty for disabled person's employment under the Act on the Employment of Persons with Disabilities (hereinafter referred to as "Bounty") to the Defendant. On March 31, 2006, the Plaintiff received respectively a bounty of KRW 187,476,00 from the Defendant for the second half of the year of 2005, and KRW 197,163,000 for the first half of the year of 2006.

(다) 한편, 원고의 북구지회장인 ▲▲▲이 2007. 5. 31. 울산지방법원으로부터 장애인 고용법 위반의 범죄사실로 벌금형을 선고받자 , 피고는 그에 근거하여 2007. 7. 27. 원 고가 북구지회에서 장애인 ▷▷▷, ▶▶▶을 근로자로 고용한 사실이 없음에도 불구하 고 허위의 임금대장 등을 제출하여 2005. 3. 31.과 2005. 9. 13., 2006. 3. 31. 세차례에 걸쳐 장려금을 부정수급하였다는 이유로 장애인고용법 관련 규정에 따라 원고의 2005 년도 하반기분 부정수급액 징수액 3,637,000원과 추가징수액 3,637,000원, 지급제한에 따른 2005년도 하반기분 장려금 환수금 41,181,000원 합계 48,455,000원 및 2006년도 상반기분 장려금 부정수급액 징수액 2,287,000원과 추가징수액 2,287,000원 , 지급제한 에 따른 2006년도 상반기분 장려금 환수금 51,352,000원 합계 55,926,000원을 각 징수 하기로 결정하고 원고에게 위 금원을 같은 해 8. 27.까지 납부할 것을 통지하였다.

D. On August 22, 2007, the defendant decided on August 22, 2007 that a sum of 5,926,000 won for the first half of the year 2006, including the amount to be recovered, shall be appropriated from KRW 173,002,00 for the first half of the year 2007. The defendant decided on January 23, 2008 that a sum of 48,45,000 won, including the amount to be recovered from the employment subsidy for disabled persons, was appropriated from KRW 187,247,00 for the second half of the year 2007 (hereinafter, hereinafter, hereinafter, 'the series of collection and appropriation disposition as described in paragraph (d)' for the second half of the year 2007.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 4, Eul evidence 1-1, 2, Eul evidence 10, Eul evidence 10, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Since a person who unlawfully received grants is an independent business owner who is separate from the Plaintiff, and is an independent business owner registered with the Plaintiff, it is unreasonable to take the instant disposition against the Plaintiff, since he/she is an independent business owner registered with the Plaintiff.

(2) The Act on the Employment of Persons with Disabilities only stipulates that the Defendant may limit the payment of the amount of the bounty to the future, and there is no provision that the amount of the bounty already paid may be recovered. Thus, the instant disposition is unlawful as it is a disposition without legal basis, and it is also unlawful, and even if there are two persons who denied or received the bounty, the instant disposition is erroneous in violation of the principle of proportionality because the amount of the bounty recovered according to the instant disposition is excessive.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Whether the Plaintiff is the party to the instant disposition

사업주는 사업의 경영주체로서 근로자를 고용함에 있어 근로조건의 결정은 물론 인사 · 노무 · 회계 등 경영 전반에 관한 실질적인 권한이 있는 자로서 독립하여 권리의 무의 주체가 될 수 있는 자를 말한다 . 그런데 갑 제3호증의 2, 3, 갑 제4호증, 을 제1 호증의 1, 2의 각 기재에 변론 전체의 취지를 종합하면, 원고가 독립된 사단법인으로 등기되어 있고, 북구지회는 그 분사무소의 하나로 등기되어 있을 뿐이며, 원고가 피고 에게 장려금을 신청함에 있어도 신청서에 사업체명을 '사단법인 울산지체장애인협회' 로, 대표자를 '▼▼▼'으로, 법인등록번호를 원고의 법인등록번호인 '181221-0001862'로 , 사업장 수를 '11개'로 기재한 사실을 인정할 수 있다. 위 인정사실에 의하면 이 사건 처분의 상대방인 사업주는 독립된 사단법인으로서 권리의무의 주체가 될 수 있는 원고 이고, 원고의 북구지회는 원고의 분사무소로서 그 구성부분에 불과하여 독립된 권리의 무의 주체가 될 수 없으므로 이 사건 처분의 상대방이 될 수 없다. 따라서 이 부분 원 고의 주장은 받아들일 수 없다.

(2) Whether the instant disposition is lawful

(A) In light of the purport of the former Act on the Employment of Persons with Disabilities (amended by Act No. 8491 of May 25, 2007, hereinafter referred to as the "former Act on the Employment of Persons with Disabilities"), we examine whether the Defendant may impose ex post facto restrictions on payment of incentives already paid to the Plaintiff and collect collection measures to recover the incentives.

(B) Article 26-2(1) of the former Act on the Employment of Persons with Disabilities provides that where a person received a subsidy by fraud or other improper means (Article 26-2(1) and where a person received a subsidy by mistake or other improper means (Article 26-2(2)), he/she may collect the relevant amount, and in case of subparagraph 1, he/she may additionally collect an amount equivalent to or less than that equivalent to the amount as a punitive sanction. Furthermore, Article 26-2(2) of the same Act provides that, as a punitive sanction for such a case, the payment of the employment subsidy may be limited for one year from the date on

(다) 앞서 본 바와 같이 피고는 2005년 하반기와 2006년 상반기 당시에는 원고가 2005. 3. 31. 과 2005. 9. 13., 2006. 3. 31. 세차례에 걸쳐 허위로 ▷▷▷, ▶▶▶에 대 한 장려금을 수령한 사실을 알지 못하고 각 그 기간에 대한 원고 북구지회의 장려금을 모두 지급하였다. 그 후인 2007. 7. 27. 비로소 위 허위수령사실을 알아내고 피고는 구 장애인고용법 제26조의2 제2항의 장려금 지급제한에 관한 규정을 과거에 이미 지급한 장려금에 대하여 소급하여 적용할 수 있다고 보고, 원고가 허위로 ▷▷▷, ▶▶▶ 에 대한 장려금을 지급받은 날인 2005. 3. 31.과 2005. 9. 31.로부터 각 1년의 기간에 속 하는 2005년 하반기와 2006년 상반기 동안 원고 북구지회에 정상적으로 지급하였던 장려금을 다시 징수하기로 결정한 것이다.

D) However, the concept of "restrictions" under Article 26 (2) of the former Act on the Employment of Persons with Disabilities is an abstract and ambiguous concept different from the concept of "the action" or "the postponement," and it is not logical and bound, but the legal provision that recognizes the retroactive effect of the "cancellations" is recognized. However, in light of the fact that there is no provision that recognizes the retroactive effect under the former Act on the Employment of Persons with Disabilities as to the "restrictions" act, which is a much more ambiguous concept than the goods, there is no provision that recognizes such retroactive effect under the former Act on the Employment of Persons with Disabilities, and that there is no provision that the former Act on the Employment of Persons with Disabilities does not consider the retroactive effect as to the "restrictions" act in the legislative intent.

(E) For this reason, the defendant asserts that if the provision on the restriction on payment of the incentives is applied retroactively to the previous payment incentive, the previous payment incentive constitutes the erroneous payment incentive, and thus, it can be collected pursuant to the provisions of Article 26-2 (1) 2 of the former Act, so there is no provision on the recovery of the previous payment incentive. However, the defendant's payment restriction was not limited at the time of the payment of the second half of 2005 and the first half of 2006 to the plaintiff, and it cannot be deemed that the payment restriction was anticipated to have been applied without any defects at the time of the payment. Thus, each of the above incentives is that the payment restriction was normally paid without any defects at the time of the defendant's payment, and that the payment was changed to the fact that the ordinary payment was made retroactively according to the Defendant's discretionary disposition after the fact that the payment was made was made erroneously, and thus, it is unfair as it seriously infringes legal stability and the protection of the other party's trust.

In particular, it can be seen that the purpose of punitive sanctions has been achieved by prescribing to collect the amount of incentives received by some illegal means under Article 26-2 (1) of the former Act on the Employment of Persons with Disabilities, even though it is not limited to the additional punitive sanctions under Article 26-2 (2) of the same Act, by stipulating that the scope of restrictions on the payment of incentives is limited to the incentives for one year in the future to the entire disabled employed by the relevant business owner, the scope of restrictions on the payment of incentives should be limited to the incentives for one year in the future, so that the disadvantage caused by the provision is so severe that it can not be compared with the punitive sanctions under Article 26-2 (1) of the same Act, without a clear legal basis, it cannot be applied retroactively to the past by arbitrarily expanding the scope of application of the above provisions without permission.

(G) Of course, considering that it is most difficult for the Defendant to investigate the propriety of the request for the payment of incentives to all workplaces prior to the payment of incentives because it is difficult for the Defendant to find out that there is a case where the illegality of the request for the payment of incentives after the lapse of one year from the time of the payment of the incentives is revealed, if the application of Article 26-2(2) of the former Act on the Employment of Disabled Persons is restricted by the retroactive application of the same provision, the provision is not likely to be de facto and de facto, and it is not likely that the above provision should be applied retroactively to the social justice room through sanctions against the business owner who restores the loss of the Employment Promotion and Vocational Rehabilitation of Disabled Persons Act and abuse employment of disabled persons. However, even if it is so, it is not reasonable to resolve the problem through the retroactive application of the above provision.

(h) Ultimately, Article 26-2(2) of the former Act on the Employment of Persons with Disabilities cannot be applied retroactively to the incentives that were normally paid in the past. Therefore, a series of dispositions taken on different premise is unlawful.

3. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case should be accepted on the ground of its reason, and the judgment of the court of first instance, which concluded differently, is unfair, and it is so decided as per Disposition by cancelling this and accepting the plaintiff's claim.

Kim Shin (Presiding Judge)

Audit and Inspection of Evidence

Kim Kim

Relevant statutes

former Act on the Employment of Persons with Disabilities (amended by Act No. 8491 of May 25, 2007)

Article 26 (Payment of Subsidy for Employing Disabled Persons)

(1) The Minister of Labor may, for the purpose of an employment promotion and employment security of disabled persons, pay an employment incentive to the business owner who has employed disabled persons (including the business owners to whom the provisions of Article 24 (1) are

Article 26-2 (Collection of Unjust Enrichment and Restrictions on Payment)

(1) The Minister of Labor shall collect the relevant amount from any person who has received the employment incentive under Article 26, if he/she falls under any of the following subparagraphs: Provided, That in cases falling under subparagraph 1, he/she may additionally collect an amount not exceeding the amount equivalent to the amount paid according to the standards prescribed by the Ordinance of

1. Where a person received the employment incentive by false or other unlawful means;

2. Where the employment incentive has been erroneously paid.

(2) With respect to any person who has received or intended to receive the employment incentive by false or other unlawful means, the Minister of Labor may restrict the payment of the employment encouragement amount to him/her for one year from the date he/she received or intended to receive the employment incentive.

Article 27-2 (Appropriation and Refund of Charges, etc. Paid by Mistake)

The Minister of Labor shall, when he/she intends to refund any amount of dues and other dues and disposition fees for arrears under this Act that are paid by any business operator, or when he/she intends to pay any employment incentive to any business operator under Article 26, preferentially appropriate such amount of dues and other dues under this Act, according to the order determined by Presidential Decree, and refund or pay the balance to

Article 33 (Extinctive Prescription)

If a charge under this Act or other money collectible under this Act is not exercised for three years, the extinctive prescription shall expire when the right to receive the refund and the right to receive the employment incentive are not exercised.