(영문) 광주지방법원 2010.9.16. 선고 2010구합344 판결

On January 19, 2010, the Defendant terminated the agreement with the Plaintiff on January 19, 2010 following the illegal receipt of the subsidies for the creation of social jobs and revoked the decision to return the illegally received amount.

Reasons

1. Details of the disposition;

A. On June 24, 2009, the Plaintiff was a non-profit corporation specializing in performing arts established on January 15, 2009, and was selected as a participating organization in the project of creating social jobs under the name of "B" (hereinafter "the instant project"). On July 21, 2009, the Defendant and the support period were from June 24, 2009 to June 20, 2010, and the number of persons eligible for support was 40 persons (hereinafter "the instant support agreement").

B. As a result of examining whether the instant project is properly operated, the Defendant: (a) confirmed that the Plaintiff was provided with a false attendance book; (b) paid subsidies to double-employed workers; (c) paid excessive subsidies to the full-time workers; (d) on January 19, 2010, the Defendant terminated the instant support agreement to the Plaintiff; and (e) ordered the Plaintiff to return KRW 4,630,460 out of the subsidies already paid to the Plaintiff as an illegal amount of subsidies (hereinafter “instant disposition”).

C. On January 29, 2010, the Plaintiff dissatisfied with this request filed an administrative appeal with the Prime Minister Administrative Appeals Commission, but the said commission rendered a ruling of rejection on the ground that the disposition of this case is not recognized on May 4 of the same year.

[Reasons for Recognition] Unsatisfy, Gap evidence 3, 4, Eul evidence 8, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

The defendant asserts that the disposition of this case is merely a termination of the contract (the support agreement of this case) entered into with the plaintiff on an equal footing with the other party and recovery therefrom, and thus cannot be seen as an administrative disposition subject to appeal litigation (the defendant does not explicitly assert it, but the above rejection ruling was submitted as evidentiary materials).

The issue of whether an administrative disposition is an administrative disposition can not be determined abstractly and generally. In specific cases, an administrative disposition is a law enforcement with regard to specific facts conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people. In mind, the contents and purport of the relevant Acts and subordinate statutes and whether the act satisfies the requirements of establishment and validity as an administrative disposition to a certain extent in the subject, contents, form, procedure, etc. of the relevant Acts and subordinate statutes, substantial relation between the act and disadvantage suffered by interested parties such as the other party, and the attitude of the administrative agency and interested parties related to the pertinent act, etc. shall be determined individually (see Supreme Court Decision 2005Du4397, Jun. 14, 2007, etc.).

According to the statements in evidence Nos. 3 and 4 concerning this case, the plaintiff is implementing the business of this case in the form of "support agreement with the defendant," and the disposition of this case also has the appearance of the return of the subsidy as "the termination of an agreement made on the ground of the plaintiff's non-performance of the support agreement of this case" and "the restoration of the original state accordingly" cannot be denied.

However, if the purport of Gap's evidence Nos. 1 through 4 is added to the whole argument, the "social job creation project" is a system implemented on the basis of Article 18-3 of the Framework Act on Employment Policy, Articles 10 and 14 of the Social Enterprise Promotion Act. The Ministry of Employment and Labor or a local government, etc. discover a participating organization as an operating entity of the system and takes the role of concluding a support agreement after receiving an application from a desired organization, and then examine and examine the project. ② Under Articles 2 (2) 2 and 10 of the Support Agreement, the defendant can regularly evaluate the actual conditions of the project even after the conclusion of the support agreement, and it is possible for the plaintiff to exercise the right to access the place of business in accordance with the above evaluation results, and it is possible for the plaintiff to issue a warning, corrective order, and further to terminate the agreement. ③ According to Article 11 of the Support Agreement, the plaintiff can not receive or return part of the subsidy in accordance with the guidelines for the execution of the project of this case to the plaintiff's new guidelines or other administrative disposition.

In light of various circumstances, such as the purport of the system of a business creating social jobs, the status and role of an administrative agency within the above system, the possibility of self-performance by an administrative agency in the event of a failure to perform an agreement by the counter-party to a disposition, and the disadvantage incurred by the counter-party to the disposition is different from the ordinary contractual failure, which entails the effects of public law, and the plaintiff had no choice but to recognize the disposition of this case as an administrative disposition due to a series of procedures conducted by the defendant, regardless of the external form of the support agreement of this case, the disposition of this case cannot be deemed as the termination and reinstatement of the contract concluded by the defendant on the equal status with the plaintiff, and it is reasonable to view that the disposition of this case was an administrative

Therefore, the defendant's above assertion is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Despite the absence of the Plaintiff’s intent, the Defendant issued the instant disposition without confirming accurate factual relations, and even if there was an act of illegal receipt and demand, taking into account various circumstances, such as the amount invested by the Plaintiff in the instant project, the issues of employment of the participating workers in the instant project, the Plaintiff’s experience and experience in the social job creation project, and voluntary additional work after the instant disposition, the instant disposition was deviates from and abused discretion.

B. Relevant statutes

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

(1) Relevant provisions of the instant enforcement guidelines

① The instant implementation guidelines was established by the Ministry of Employment and Labor on October 2008 in order to efficiently manage and operate the social job creation project.

② The enforcement guidelines of the instant case stipulate that “an organization (or representative) participating in a business creating social jobs receives or intends to receive subsidies by fraud or other improper means” as one of the illegal receipt of subsidies, and include embezzlement and exploitation of subsidies, preparation of false documents, recruitment of employers and employees, etc.

If such facts are discovered, local labor authorities collect subsidies provided by a participating organization, terminate a support agreement, limit the participation of a participating organization for two years after the termination of the agreement to participate in a project for creating social jobs, and notify the participation organization's illegal receipt to other relevant institutions such as central administrative agencies and local governments (Provided, That if such activities are caused by simple mistake, guidance, supervision, and corrective measures may be replaced by guidance, supervision, and corrective measures).

③ In order to verify the above illegal receipt, the implementation guidelines of the instant case provide that participating organizations shall keep materials, such as the attendance book, work status book, wage ledger, etc. for participating workers, and shall comply with the request of the head of a local labor office for materials.

(2) Results of the Defendant’s business guidance and inspection

① On August 28, 2009, the Plaintiff’s management staff C shall work in a general office as a worker D who participated in the Plaintiff’s answer, and there was no reason to make the Plaintiff work in a separate place from the date of the pertinent investigation after the instant project was implemented. There was a time when the Plaintiff’s management staff C is working in an office until he leaves the office, and there was a time to view the Plaintiff’s work in another performance place without a business trip order.

- Participatory workers E, F, G, H, and I worked for 4 hours in the vacations, 2, 3 hours in the vacations, and 5:0 p.m. from 3 p.m. to 5:30 p.m. during the vacations. The working hours are less than 4 hours but the wages were paid for 8 hours, and the participatory workers’ commuting period was at the time when the participatory workers voluntarily attend their office, and there was a time for C to substitute.

On August 31, 2009 and September 1 of the same year, the written answer to the Plaintiff's standing directors J was practically led by the project of this case and is responsible for the direction and supervision of participating workers.

Participatory workers E, F, G, H, and I worked for 4 hours in the vacation during the vacation, 2,3 p.m. and 5:30 p.m. during the vacation, but they worked for 5:30 p.m. during the remaining hours. However, there is no evidence to prove that the above participatory workers conducted research on these teaching materials.

Participatory Workers E worked for 1,208 and 1,00 hours after the attendance, and 2,00 hours after the attendance, or 1,000 days after the attendance, and 3,00 times on the day when 1,00 days after the attendance, but 3,000 days after the attendance, the above C sent the body of commuting by proxy

- Participatory workers I, as a member of the K church, concluded an employment contract with the knowledge of the fact that the church is receiving wages.

(3) Each written answer issued on August 28, 2009 to participating workers I

- I received the amount of 1.5 million won per month as a member of the K church, but entered into an employment contract with the plaintiff while he was paid the amount of 1.5 million won per month.

- I shall work at the office of month, number, and Friday and sign at the work, and on the Triday, sign the above C instead of the above C.

- I waiting for the plaintiff's office, sent other participating workers to the KI, and confirmed whether other participating workers teach students in the church affairs.

④ On August 28, 2009, the written answer to the Plaintiff’s Staff L, which was signed on August 28, 2009, I is a pastor exclusively belonging to and works for the KG.

5. The written answer dated August 28, 2009 to Participatory Workers D

- D signed directly on the work book from July 21, 2009 to July 23, 2009, and the remainder was signed by the above C instead of the above C.

- D 20 days during the work period were sent out to the outside o'clock without the plaintiff's order of business trip, but there was no fact that he had been on duty at the site.

6. On August 28, 2009, the questions and answers of participating workers H, F, and G were submitted only to the morning, and from 3 p.m. to 5 p.m. 30 p.m., children’s music guidance and psychological treatment were conducted from 3 p.m. to 5 p.m., and the remaining time was discussed with other participating workers.

(3) The state of attendance record;

On July 2009 and August 20, 2009 managed by the Plaintiff, the above participatory workers E, F, G, H, I, and D are signed that they worked daily on the day from the date of concluding their labor contract with the Plaintiff to August 28, 2009.

(4) Calculation of the amount of illegal receipt

Based on the results of the guidance inspection mentioned above, the Defendant calculated the amount of wages paid by the Plaintiff to each participating worker and the amount of the business owner's 4th premium as shown below.

(unit: Won)

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 3, 5, Eul evidence 1 to 8 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

D. Determination

(1) On the other hand, the implementation guidelines of this case provide detailed management and operation measures necessary for the implementation of the "social job creation project" by the Minister of Employment and Labor, and otherwise, in Articles 18-3 and 10 and 14 of the Framework Act on Employment Policy, which are the basis for the above social job creation project, and Articles 10 and 14 of the Social Enterprise Promotion Act, the implementation guidelines of this case are merely administrative rules that provide for the criteria for interpretation and application of statutes within the administrative agency. Thus, even if the defendant issued the disposition of this case in accordance with the implementation guidelines of this case, it is reasonable to see that the implementation guidelines of this case is merely administrative rules that provide for the criteria for interpretation and application of statutes within the administrative agency. Thus, whether such a disposition is deviating from and abusing discretionary power should

(2) If the purport of the entire argument is added to the above facts of recognition, the following circumstances are revealed.

① The purpose of a social job creation project is to create jobs through non-profit organizations, etc. in the field of social affairs, such as environment, culture, regional development, and social welfare, which is necessary in society, but which is not sufficiently supplied in the market due to profitability problems, etc., and thereby contribute to social integration and the improvement of the quality of life of the people. As such, it is highly necessary to clarify whether subsidies provided to such projects are properly used, thereby inducing the proper settlement of the system, and even in the relevant regulations, such as the implementation guidelines of this case, various institutional devices have been installed. In addition, the Plaintiff’s management employees C signed the Plaintiff’s work at the work book on every week, the said participating workers’ work on the daily basis, and even if the snow C signed by proxy after confirming the actual attendance of the said participating workers as Plaintiff’s assertion, it constitutes the preparation of a clearly false document.

B. On the sole basis of the fact that participating workers have this other occupation, the supply and demand of I cannot be deemed to be an illegal receipt, but I appears to have worked at the KGG meeting and have been engaged in the work as an assistant pastor of a church, not in accordance with a labor contract with the Plaintiff. Therefore, it is reasonable to deem that the Plaintiff received the subsidy for I, and the Defendant does not seem to have any illegality in calculating the amount of illegal receipt of this part.

C. Participatory workers D appears to have worked only on a 20-day business trip as a doping, and participatory workers E, F, G, and H are deemed to have worked on a half-day business in the morning or the p.m. Therefore, it is reasonable to deem that the Plaintiff’s claim and receipt of the subsidy for the above part of the participating workers is an illegal receipt, and the Defendant does not seem to have any illegality in calculating the amount of unjust receipt of this part.

③ The Plaintiff did not properly manage the withdrawal and work status, which can be the most basic of the instant business, and the degree of such failure is considerably limited. While having been aware of the aforementioned situation through the said J, it is difficult to view that the Plaintiff’s act of improper receipt of subsidies was a simple mistake on the ground that it was a claim for subsidies to the Defendant by hiding the date of absence or reflect work of participating workers, even though it was actually aware of the aforementioned situation through the said J. which led the business.

(3) In light of the above circumstances, it cannot be deemed that there was any deviation or abuse of discretionary power in rendering the instant disposition, and only the circumstances cited by the Plaintiff and the statements in the evidence Nos. 6 through 35 and the multiple circumstances cited by the Plaintiff are insufficient to reverse the above conclusion, and there is no other evidence to acknowledge the Plaintiff’s assertion.

4. Conclusion

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