2011Guhap14852 Revocation of a decision on collection of vocational ability development training costs

ELLA Insurance Co., Ltd.

1. The head of the Seoul Regional Employment and Labor Office;

2. The Administrator of the Gyeonggi-do Office for Local Employment and Labor;

August 25, 2011

September 22, 2011

1. On March 16, 201, the head of the Seoul Regional Employment and Labor Agency (hereinafter “Seoul Regional Employment and Labor Agency”) shall revoke the disposition to recover training costs of KRW 753,301,380 against the Plaintiff.

2. The plaintiff's claim against the head of the Gyeonggi-gu Regional Employment and Labor Agency, and the remainder of the claim against the head of the Seoul Local Employment and Labor Agency shall be dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the head of the branch office of the Korea Employment and Labor Agency, and the part arising between the Plaintiff and the Defendant and the head of the Seoul Employment and Labor Agency shall be borne by the Plaintiff, and the remainder by the said Defendant, respectively.

The disposition taken to recover training costs of KRW 86,580 and additional collection of KRW 86,580 against the Plaintiff on March 16, 2011 by the head of the Seoul Regional Employment and Labor Office and the head of the Seoul Regional Employment and Labor Office shall be revoked. On March 16, 2011, the revocation of recognition for the Plaintiff’s FY207 LIG-In-house MBA course (4) and the disposition to restrict recognition for one year for the pertinent training course shall be revoked.

1. Details of the disposition;

(a) Recognition of curricula and payment of training expenses;

(1) On January 7, 2008, the Plaintiff was recognized as a vocational skills development training course on the part of FY207 LIG - In-house MBA course (in-house training method: domestic aggregate training and training period: 24 hours from January 11, 2008 to January 26, 2008; hereinafter referred to as "the instant curriculum") that the Plaintiff intended to undertake for the purpose of training preliminary managers who can play a key role in the management log from the head of the Gyeonggi-gu Regional Employment and Labor Agency (hereinafter referred to as "Defendant 2").

(2) From January 11, 2008 to January 26, 2008, the Plaintiff provided the instant curriculum with 26 key managers belonging to the Plaintiff and 36 employees of LIG Group. On March 11, 2008, the Plaintiff applied for subsidies for vocational skills development training expenses including the instant curriculum to the head of the Seoul Regional Employment and Labor Agency (hereinafter “Defendant 1”). On March 11, 2008, Defendant 1 received total of KRW 12,578,990 from Defendant 1 as subsidies. Of the above subsidies, subsidies for the instant curriculum were KRW 2,164,725, and among them, there were 86,580,580, a training student of the instant curriculum as an employee of the Plaintiff.

B. Each disposition of this case

(1) Defendant 2’s disposition Defendant 2 received a request from the Board of Audit and Inspection and the Ministry of Employment and Labor for an investigation as to whether or not his or her illegal outflow management was conducted during the vocational ability development training period, along with the list of trainees who entered or depart from the Republic of Korea during the vocational ability development training period. As a result, Defendant 2 confirmed the fact that the Plaintiff’s employee left the Republic of Korea from January 23, 2008 to January 27, 2008, which was the date of the implementation of the instant education course, was treated as having attended on January 25, 2008 and January 26, 2008. Accordingly, Defendant 2 appears to have taken the following administrative dispositions on March 16, 201 on the ground that Defendant 2 did not clearly indicate the grounds for each disposition at the time of entry or departure, in light of Article 2 subparag. 1 of the Act on the Development of Vocational Skills and Training of Workers (the “Act on the Development of Vocational Skills”).

A person shall be appointed.

A person shall be appointed.

(2) On March 16, 201, Defendant 1 notified Defendant 1’s disposition Defendant 2 of the Plaintiff’s illegal receipt of subsidies based on the management of illegal withdrawals by Defendant 1, who was subject to the following administrative dispositions against the Plaintiff on March 16, 201. Defendant 1 also did not clearly indicate the relevant Acts and subordinate statutes by each disposition at the time of the disposition. However, in light of the prior notice of administrative disposition and the details of the hearing notice (Evidence A2) prior to the disposition, it appears that Defendant 1 issued a disposition based on the former Employment Insurance Act, etc. on the ground that the Plaintiff constitutes “cases where he received training expenses by cooking or other unlawful means.”

A person shall be appointed.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap 1 (including each number), 2, Eul 1 through 5 (including the number of evidence of Eul 3), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) As to Defendant 2

(A) In light of the fact that the Plaintiff, related to Article 25(1)2 of the former Workers’ Vocational Skills Development Act (illegal subsidization), entrusted all matters related to the instant curriculum to the Mesta Management Research Institute, Inc. (hereinafter “Mesta Management Research Institute”), under the responsibility of the Mesta Management Research Institute, and applied for the payment of subsidies, the Plaintiff trusted the management of the withdrawal of the Mesta Management Research Institute and applied for the payment of subsidies to A by including training expenses for A. In light of the fact that the number of times the Plaintiff reported a student’s absence of training in relation to the instant curriculum reaches approximately 10 times, the Plaintiff cannot be deemed to have received subsidies for vocational skills development training by fraud or other improper means.

(B) In light of the fact that there are only one trainee who was at issue in the attendance process in the instant curriculum related to the grounds of Article 25(1)3 of the former Workers’ Vocational Skills Development Act (violation of the contents of recognition), and that training expenses additionally received by the Plaintiff due to the denial of the management of runningout to A are about 4% of subsidies for the instant curriculum, 164,725, etc., the Plaintiff cannot be deemed to have violated the contents of training, training period, training hours, etc. to the extent recognized to be contrary to the purpose of training.

(C) In light of the fact that it is difficult to see that the Plaintiff intentionally or by gross negligence is recognized with respect to the discretionary power control for A related to the deviation and abuse of discretionary power, and that the degree of the Plaintiff’s violation is very minor, the first and second dispositions are in violation of the law that deviates from or abused the scope of discretionary power

(2) As to Defendant 1

(A) Related to Article 35(1) of the former Employment Insurance Act: The Plaintiff’s existence or absence of “a false or any other unlawful means” does not constitute Article 35(1) of the former Employment Insurance Act, since it does not receive subsidies for vocational skills development training costs by “a false or any other unlawful means.” Therefore, a prior 3 through 5 is unlawful on a different premise.

(B) Additional assertions relating to Disposition 5

① Although both the Employment Insurance Act and the Act on the Development of Workers’ Vocational Skills stipulate the subsidization or refund of training costs for vocational skills development, in light of the legislative intent of each of the above Acts, the Act on the Development of Workers’ Vocational Skills, which has the character of the Special Act, shall take precedence over the application of the Act on the Development of Vocational Skills. However, the Act on the Development of Workers’ Vocational Skills at the

Even in cases where the former Employment Insurance Act and the Enforcement Decree of the same Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) are deemed to be the basis for a disposition 5, it is invalid because Article 56(2) of the Enforcement Decree of the same Act provides that an order for the return of condition with respect to training expenses paid for one year from the date of illegal receipt is contrary to the purport of delegation by the former Employment Insurance Act as the mother

③ In addition, in light of the fact that Defendant 1’s exercise of discretionary power was conducted by Defendant 5, and that the trainee who was at issue in the attendance process in the instant curriculum is only one, and that the Plaintiff’s additional training fees are merely 86,580 won due to the denial of the attendance management with respect to A, the disposition No. 5 is an illegal disposition that deviates from or abused the scope of discretionary power due to an excessive excessive error in the disposition No. 5.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On September 28, 2007, the Plaintiff entered into an agreement on the operation of the “FY2007 LIG - In-house MBA education program with the MBA education institute, and entrusted the management institute of MBA with the planning of in-house MBA education program including the instant curriculum and the management of students’ academic affairs.

(2) As a trainee of the instant curriculum, A, who is the Plaintiff’s employee, has made an overseas business trip from January 23, 2008 to January 27, 2008, and accordingly, A submitted in advance a training program on January 25, 2008 and January 26, 2008 of the instant curriculum, but A was present and signed at the attendance book prepared on the date of the instant training program. In this regard, A prepared and submitted an explanatory statement (Evidence 6) stating that the signature attached to the name of A is not his/her signature.

(3) A did not meet the requirements for completion due to the failure to attend for two days among the instant curriculum for which four days (24 hours in total) elapsed.

[Reasons for Recognition] Unsatisfy, Gap 3, 5 to 7 each entry

D. Determination

The plaintiff's assertion is divided into issues and examined.

(1) Whether there exist grounds for Article 25(1)2 of the former Workers’ Vocational Skills Development Act and Article 35(1) of the former Employment Insurance Act (a)

In imposing sanctions on the ground of an illegal act, in principle, the relevant laws and regulations shall govern at the time of the act, and the revised laws and regulations shall not govern (see, e.g., Supreme Court Decision 82Nu1, Dec. 28, 1982). In each of the dispositions of this case, which are sanctions against the Plaintiff, the former Employment Insurance Act and the former Workers’ Vocational Skills Development Act shall apply. In addition, sanctions against an administrative violation shall be imposed based on the objective facts of the administrative laws and regulations in order to achieve administrative purposes, unless there are special circumstances, such as where it is impossible to cause a breach of duty due to an intentional or negligent act, barring special circumstances, such as where a breach of duty due to an intentional or negligent act cannot be caused. "False or other unlawful means" refers to all unlawful acts conducted by an unqualified business owner under the former Employment Insurance Act and the former Workers’ Vocational Skills Development Act, which can be subject to sanctions under the relevant provisions, which would have an influence on the payment of training fees (see, e., Supreme Court Decision 2009Da232529.209.

In full view of the following circumstances, it is reasonable to view that the Plaintiff received subsidies for vocational skills development training costs by fraud or other improper means, comprehensively taking account of each of the above recognized facts, Gap evidence 6, Eul evidence 1, Eul evidence 2, Eul evidence 1, and Eul evidence 1 through 4 (including various numbers):

① The Plaintiff, as a implementing entity of the instant curriculum, was obligated to finally verify whether the trainee was actually present and trained before filing an application for subsidies to Defendant 1. Nevertheless, the Plaintiff neglected such duty and applied for subsidies, including training expenses, to A, with the trust of the details of the attendance transferred from the Mesta Management Research Institute without undergoing verification procedures as to whether the trainee was actually present during the instant curriculum, and whether the Plaintiff was present at the education on January 25, 2008 and January 26, 2008. Furthermore, under the Plaintiff’s approval, the Plaintiff applied for subsidies, including training expenses, to the Plaintiff. Furthermore, the Plaintiff submitted the curriculum to the Mesta Management Research Institute for a total of 36 trainees. Among them, the instant trainee was merely included in B’s employees who did not know of the Plaintiff’s internal report or sent the Plaintiff’s employment insurance program to the Plaintiff. In light of the circumstances that the Plaintiff did not attend the curriculum during the instant period, it is difficult to view that the Plaintiff did not know that the Plaintiff did not attend the curriculum for 24 days during the instant period.

While the Plaintiff failed to meet the completion requirements due to his failure to attend education on January 25, 2008 and 2008, 1,26 of the instant curriculum, the Plaintiff applied for subsidies to A and received them from Defendant 1 as if he met the normal completion requirements. If Defendant 1 became aware of this fact in advance, he would not be entitled to subsidies to the Plaintiff. Therefore, it is reasonable to view that the Plaintiff’s act as above affected Defendant 1’s decision on the payment of subsidies as a fraudulent act committed by an employer who is not entitled to subsidies to A, and thus, Defendant 1’s decision on the payment of subsidies.

(2) Whether there is a reason under Article 25(1)3 of the former Workers’ Vocational Skills Development Act (violation of the contents of recognition) or not, pursuant to Article 25(1)3 of the former Workers’ Vocational Skills Development Act, Article 24 of the same Act

Article 25 (2) of the same Act provides that one of the grounds for the cancellation of recognition shall be one of the cases where workplace skill development training is conducted in violation of the recognized contents. Article 25 (2) of the same Act provides that a person whose recognition has been revoked under paragraph (1) shall not be recognized under Article 24 within the scope of five years from the date of cancellation, and Article 25 (5) of the same Act delegates matters necessary for the cancellation of recognition and restriction on recognition to the Minister of Labor. Article 9 (3) [Attachment 2] 1-B of the Enforcement Rule of the same Act. Article 9 (3) [Attachment 2] 1-B of the same Act. Article 9 (1) 3 (a) of the same Act provides that one of the violations falling under Article 25 (1) 3 (a) of the former Act on the Development of Workplace Skills of Workers violates the purpose of training. Therefore, it is a question whether the Plaintiff's denial of workplace skill development training for A violates the contents of training, training period, training hours, and training methods.

Considering the following circumstances revealed in light of the content of the relevant statutes, that is, workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, and the Minister of Employment and Labor confirms whether trainees attend the training through the attendance book submitted by the employer and pays training expenses, it is necessary to thoroughly manage the attendance of trainees in order to achieve the purpose of workplace skill development training and prevent the unfair claim for training expenses. Furthermore, since the trust and fairness in the employment management are likely to undermine the foundation of the vocational ability development training system itself, the entry management in the workplace skill development training process constitutes very important and essential matters. Accordingly, the Plaintiff’s denial of entry management in A violates the contents recognized to the extent that it violates the purpose of training, such as the details of training, and thus, constitutes a violation of Article 25(1)3 of the former Workers’ Vocational Skills Development Act, Article 9(3) [Attachment 2] of the Enforcement Rule of the same Act and Article 9(3) [Attachment 3(a) of the same Act.

(3) Whether the discretionary authority is deviates from or abused (related to Defendant 2’s First and Second Measures)

Defendant 2’s disposition was made in accordance with the standards prescribed by relevant statutes, and the entry management in the course of workplace skill development training constitutes a very important and essential matter. As seen earlier, it is difficult to deem that Defendant 2’s disposition deviates from the scope of discretion or abused it, in light of the following: (a) Defendant 2’s failure to perform the duty to perform the duty to perform the duty to perform the duty to perform the duty to perform the duty to perform the duty to perform the duty to perform the duty to perform the duty to perform the duty to perform the duty to perform the duty to manage the decision is insignificant,

(4) As to Defendant 1’s additional assertion as to Defendant 5’s fifth disposition

(A) Whether the former Employment Insurance Act is excluded

Unless the former Employment Insurance Act does not stipulate that the Act on the Development of Workers’ Vocational Skills does not exclude the application of Article 35(1) of the former Employment Insurance Act to the Plaintiff on the ground that there is no provision that it is possible to order the Plaintiff to return subsidies received for one year from the date of illegal receipt of subsidies under the Act on the Development of Workers’ Vocational Skills. According to the relevant statutes, both the former Employment Insurance Act and the Act on the Development and Improvement of Workers’ Vocational Skills Development (hereinafter “Act”), and the purpose of the former Employment Insurance Act is to include the development and improvement of the worker’s vocational ability, and only include the employment security and vocational skills development projects under

(B) The validity of the enforcement decree of this case

Article 35(1) of the former Employment Insurance Act and Article 56(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) (hereinafter “the Enforcement Decree of this case”) provide that a disposition ordering the establishment of a period of restriction on payment and the return of subsidies paid during the period of restriction on payment constitutes a binding act. However, it is problematic whether the enforcement Decree of this case does not violate the principle of excessive prohibition.

In light of the fact that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, etc., the legislative purpose of the instant provision is justifiable in light of the purpose of preventing misconduct in relation to the payment of training expenses, etc. through the restriction on the payment of training expenses, etc. for one year for illegal recipients and the order to refund subsidies paid within the restriction period, and ultimately, promoting the development and improvement of workplace skill development training of workers. Furthermore, the instant provision appears to have reduced misconduct in relation to the payment of training expenses, etc. through disciplinary sanctions prescribed under the Enforcement Decree of the instant case, and accordingly, the public resources, such as the Fund, etc., are deemed to have been raised more. Thus, the instant provision can be

However, as seen below, the enforcement decree of this case is a provision that excessively infringes on the property rights of the remaining illegal recipients who lack the requirement of "minimum degree of damage" or "a balance of legal interests" and thus is in violation of the Constitution. Therefore, the fifth disposition based on the enforcement decree of this case which is null and void due to a violation of the Constitution is null and void.

① Article 35(2) of the former Employment Insurance Act provides that an amount not exceeding the amount equivalent to the amount received by false or other unlawful means may be collected within a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act, Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); Article 9(1) of the Enforcement Rule of the same Act provides that the amount to be additionally collected shall be subdivided based on the number of times the Plaintiff requested expenses by false or other unlawful means during the past five years. Meanwhile, the provision of the instant case, separate from the aforesaid disposition, provides that the amount of subsidies paid within the said restriction period shall be limited to one year, and the amount of subsidies paid within the said restriction period shall be limited to 30 times the amount of subsidies paid to the Plaintiff, which is considerably 80 times the amount of subsidies paid, and the amount of subsidies paid to the Plaintiff shall be limited to 80 times the amount of subsidies paid for the said restriction of payment.

(2) In addition, since the provision of this case specifies the initial date of the restriction on payment as "the date on which the application for payment was made" rather than the date on which a sanction was imposed, the illegal recipient shall return retroactively the amount already received prior to the sanction. However, if the illegal recipient knew in advance that the payment of training expenses, etc. would be restricted for one year, he could reduce the amount of the order of return by flexibly implementing the training course during the restriction on payment period, and it is not unreasonable to operate the training course. Ultimately, even if the provision of the Enforcement Decree of this case stipulates the restriction on payment as binding act, the initial date is set as the date of the payment or the date of payment application for training expenses, etc. cannot be deemed to have complied with the principle of "minimum damage" in light of the fact that the damage suffered by the illegal recipient could be reduced by separately setting the initial date.

3) In addition, Article 1 of the Enforcement Decree of the instant case provides for a "training expenses or an order of mandatory return of subsidies already paid during the period of one year from the date of receipt of the training expenses or the application for payment of such training expenses, but does not impose any special restrictions on the period during which the said sanctions may be imposed, thereby creating a problem that the status of an illegal recipient

④ Therefore, even if the legislative purpose of this case can be more efficiently achieved by stipulating the provision of the Enforcement Decree of this case, which is a disciplinary measure, in addition to the additional collection disposition against an illegal recipient, the provision of the Enforcement Decree of this case, which is a disciplinary measure, provides for the restriction on payment for one year and the order to return subsidies paid during the restriction period, without setting detailed standards depending on the attitude of the illegal recipient’s act, is an infringement by excessively restricting the property rights of the illegal recipient (see Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010; Article 56(1) of the Enforcement Decree of the Employment Insurance Act provides for one year restriction on payment to the illegal recipient; however, the provision provides that “where three years have passed from the date of receipt of subsidies or incentives and the amount of receiving or seeking to receive subsidies by fraud or other improper means is less than three million won, it does not apply to the restriction on payment for one year, which is newly implemented by the Minister of Employment and Labor under Article 16(1).

(4) The theory of lawsuit

Therefore, Defendant 1’s 5 disposition among each of the dispositions of this case is unlawful without any further determination as to the Plaintiff’s assertion that it deviates from or abused the scope of discretion, and all of the remaining dispositions are legitimate.

3. Conclusion

Therefore, the plaintiff's claim against the defendant 1 is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. The plaintiff's claim against the defendant 2 is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the chief judge and the vice judge

decoration of Judge Merit;

Judges Kim Jae-soo

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.