2011Kahap339 Revocation of Disposition of Revocation of Illegal Demand and Supply

A An incorporated association

Korea

May 12, 2011

June 30, 2011

1. Of the instant lawsuit, the part concerning the claim for confirmation of invalidation of termination is dismissed. 2. The remainder of the Plaintiff’s claim is dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

The termination of April 15, 2010 between the Plaintiff and the Defendant regarding the support agreement for the social job creation (name of business: B) concluded on December 22, 2009 between the Plaintiff and the Defendant is invalid, and the Defendant pays to the Plaintiff 20% interest per annum from the day following the delivery of the copy of the application for modification of the purport of the claim as of May 4, 201 to the day of complete payment.

1. Basic facts

A. On June 15, 2009, the Plaintiff was a specialized social issues survey and academic research institute established in 1994, and was selected as a participating organization for social job creation projects from the Gwangju Regional Labor Support Center (hereinafter referred to as the “Gwanju Regional Labor Support Center”) affiliated with the Defendant, and was subsidized from June 24, 2009 to December 23, 2009. On December 18, 2009, the Plaintiff re-designated as a participating organization for social job creation projects (hereinafter referred to as the “instant project”). On December 22, 2009, the Plaintiff entered into an agreement with the Gwangju Regional Labor Support Center and the period of support from December 24, 2009 to June 23, 2010 to June 23, 2010; and entered into an agreement for social job creation support for the project name B (hereinafter referred to as the “instant agreement”).

B. On April 15, 2010, the Gwangju Regional Labor Office notified the Plaintiff of the cancellation of the instant agreement (hereinafter “the termination of the instant agreement”) on April 15, 2010 on the grounds that the Plaintiff received subsidies by falsely preparing and reporting the attendance book of C, D, E, and F among the participatory workers of the instant project, and notification the Plaintiff of the decision to restrict participation in the social job programs and return KRW 6,613,140 for three years from the termination date of the agreement. In addition, the Gwangju Regional Labor Office notified the Plaintiff of the decision to return KRW 6,613,140 on April 19, 2010 that “the Plaintiff received subsidies by falsely preparing the attendance book of the attendance book of other central government departments, local governments, etc. including Jeonnam-do Governor, Gwangju Metropolitan City Mayor.”

C. The foregoing determination by the Gwangju Regional Labor Agency is based on the appropriate investigation into the Plaintiff’s business operation conducted from January 14, 2010 to March 23, 2010, and the aforementioned investigation period is the entire period during which the Plaintiff received subsidies in relation to the business of creating social jobs.

[Ground of recognition] The facts without dispute, Gap evidence Nos. 5, 6, 7, 8, 13 (including each number, if any) and the purport of the whole pleadings

2. Determination as to the legitimacy of the claim for confirmation of invalidity of termination of the instant case

A. The plaintiff's assertion

The plaintiff, a public official of the Gwangju Regional Labor Agency (hereinafter referred to as the "Defendant public official") under the defendant, has cancelled the agreement of this case and notified it to other agencies by negligence of applying the relevant provisions and making a decision contrary to the principle of proportionality. As a result, the plaintiff asserts that it is necessary to confirm the cancellation of the agreement in order to remove the state of the right of this right, since the plaintiff is subject to restrictions on receiving orders in various competitive biddings by state agencies, local governments and public organizations, drop in social trust

B. Determination

On the other hand, it is not allowed to seek confirmation of the performance based on the performance claim, even though it is possible to bring an action for performance based on the performance claim. As seen thereafter, the plaintiff claims for state compensation for damages incurred by the above negligence of the defendant public official, along with the confirmation of invalidity of this case. Thus, under the premise that the termination of this case is null and void, the plaintiff sought compensation for losses incurred by the plaintiff's business profit loss and the plaintiff's social trust and evaluation decline, etc., and eventually, the ground for claim is the same as before and after the confirmation of invalidity of this case. Thus, the invalidity of this case is merely a premise to determine the legitimacy of the state compensation claim, which is a performance lawsuit, and therefore there is no separate benefit of lawsuit.

Furthermore, according to the statements in Gap evidence Nos. 32 through 40 (including each number), Eul evidence Nos. 18, 19, and 25, it can be recognized that a person who received a disposition of illegal receipt of benefits is able to participate in job creation projects because the restriction on participation in job creation for illegal recipients was abolished due to the revision of the Ministry of Employment and Labor’s guidelines on January 7, 201, by amending the Ministry of Employment and Labor. Thus, even if the plaintiff suffered disadvantage as alleged by the termination of the contract in this case by the defendant, it cannot be recognized as a mere emotional and economic interest, not a legal interest.

Ultimately, the lawsuit seeking confirmation of invalidity of the termination of the instant case is unlawful.

3. Judgment on the claim for State compensation

A. The plaintiff's assertion

C, D, E, and F written out a different attendance book from the fact is due to the nature of mental labor, which is deemed to have taken place outside of work, home-based work, holiday work, etc., and they achieved performance above the assigned tasks. Therefore, even though this does not fall under a case where a simple failure to work and a case where a “non-payment of subsidies” was not a case where a “non-payment of subsidies” was made, the Defendant’s public official made a wrong interpretation by intention or negligence, and even if this falls under an illegal receipt, the decision of termination was made in violation of the proportional principle.

Therefore, the above termination decision by Defendant’s public official constitutes tort, and the Defendant is liable to compensate the Plaintiff’s damages. The damages suffered by the Plaintiff are KRW 242 million due to the discontinuance of business for two years in 2010, and KRW 242 million due to the Plaintiff’s interruption of business for two years in 2011, and KRW 150 million for consolation money for the Plaintiff’s social trust and evaluation decline, etc., which is KRW 392 million. Thus, the Defendant is liable to pay among them KRW 150 million, which the Plaintiff seeks, and damages for delay.

(b) Fact of recognition;

First, the existence of the defendant's intention or negligence is examined.

The following facts may be acknowledged according to the evidence of Nos. 20 through 24, Eul-1 through 5, 8, 9, 11 through 16, and the purport of the whole pleadings.

(1) Of the workers participating in the instant project, C, D, E, and F entered into a contract with the Plaintiff to work from 9:00 to 18:00 on a daily basis from e-mail to e-mail.

(2) From September 28, 2009 to December 8, 2009, the Plaintiff corporation stated that G worked as the team leader of the Culture and Tourism Research Team; G worked as the team leader at the time of his work, and that H, who is engaged in volunteer service in the Plaintiff corporation, was signing on the work book of C instead of C, on his work book at the Plaintiff corporation; for this reason, C refused the attendance inspection despite the repeated demand of the Gwangju Regional Labor Agency. In addition, the Plaintiff corporation stated that it was not well aware of the work fact of C from September 1, 2009 to January 8, 2010.

(3) From August 31, 2009 to December 18, 2009, D sent out for lectures to K University from August 31, 2009 and from August 18, 2009, from August 31, 2009 to December 15, 2009, from August 31, 2009 to December 17, 2009, from August 31, 2009 to December 12, 2009, from August 31, 200 to June 6, 200 to L University. Accordingly, D had a lot of cases where he retires from office or goes to work before the point of time. In particular, D was signed on November 12, 2009, but it was not submitted to the Dong Office, signed on March 8, 2010 to the Dong Office.

(4) From January 2, 2009 to February 3, 2010, E worked in the Plaintiff corporation on each week’s demand and signed on the entire week’s attendance book.

(5) From October 30, 2009 to December 18, 2009, F served as after-school essay teachers at the NH from January 18, 2010 to January 25, 2010. (6) The responsible research institute for the "P 2009 customer satisfaction survey service" alleged that the Plaintiff participated in the National Education Service site in Q, R research institute, J, I, SP 209, SP 2009, SP 2009, R R Research Institute, J, J, J, J, J, V, V, V, 200, TM 209, TM 209, and QW Do 2009.

(7) Meanwhile, the Plaintiff’s attendance book submitted to the Gwangju Regional Labor Agency on March 8, 2010 stated that the said participating workers worked on the day preceding the said daily attendance book.

C. Relevant provisions

(1) Article 30 of the Act on the Budgeting and Management of Subsidies (Revocation of Decision to Grant Subsidies in Violation of Acts and Subordinate Statutes) (1) The head of a central government agency may cancel all or part of the decision to grant subsidies when a subsidy program operator uses subsidies for other purposes, or violates the provisions of Acts and subordinate statutes, the decision to grant subsidies, the disposition taken by the head of a central government agency in accordance with the Acts

(2) Guidelines for the Implementation of Social Enterprise Job Creation Project (hereinafter “Guidelines”) by the Ministry of Employment and Labor (Ministry of Labor at that time) (hereinafter “Guidelines”).

(a) [Attachment 2] Action Guidelines; 2. Individual Criteria; Violation: Where a person received or attempted to receive a subsidy by fraud or other improper means;

The actual level of measures: Upon termination of an agreement, restitution of the amount of illegal receipt, restrictions on participation for three years, notification of illegal receipt to other central and local governments, etc. (or corrective measures in cases of simple mistake).

B) 24-2 In the event that an organization (or representative) participating in a social enterprise job creation project receives or intends to receive a subsidy by fraud or other improper means, the term "in the event that it receives or intends to receive a subsidy by fraud or other improper means" means ① embezzlement and exploitation of the subsidy, ② preparation of a false (public) document, ③ public invitation of business operators and workers, ④ conversion of employees employed by the organization to a participating employee, ⑤ Other cases where the head of the local labor office recognizes it as illegal receipt.

(3) Article 5 (Conclusion, etc. of Labor Contracts) of the Agreement on Support for Social Job Creation Projects (As of December 22, 2009, hereinafter referred to as the "Agreement of this case")

(4) The place of work for participating workers shall be the plaintiff's workplace and business site.

Article 11 (Sanctions)

(1) Where the Plaintiff has received subsidies, such as personnel expenses, social insurance premiums, business development expenses, etc. in violation of the guidelines for implementing a project for creating social jobs (hereinafter referred to as "implementation guidelines") or this agreement, he/she shall fully or partially refund the subsidies in accordance with the implementation guidelines in accordance with the guidelines for measures

(5) When the defendant deems it unreasonable for the plaintiff to continuously support the implementation of a project due to the grounds under paragraphs (1) and (2), he/she may modify or terminate the agreement.

The plaintiff shall not allow the participating workers who are provided with personnel expenses and social insurance fees to engage in any work other than social jobs. In such cases, the defendant shall reduce the number of those who are provided with the relevant personnel.

(1) Detailed criteria for the violation of the plaintiff's agreement or implementation guidelines shall be governed by attached Table 2 of the implementation guidelines, and matters not prescribed in this agreement concerning the refund and recovery of personnel expenses and social insurance premiums shall be governed by relevant provisions, such as "Act on the Budgeting and Management of Subsidies"

(d) judgment;

(1) Social job creation projects are projects that create jobs through social services, such as environment, culture, regional development, social welfare, etc., which are necessary in society but are not sufficiently supplied in the market due to profitability problems, etc., and are designed to provide such social services to the community as above and provide sustainable jobs to the disadvantaged class. Accordingly, whether new jobs are created in relation to the instant projects and whether new jobs are properly managed according to the employment contract submitted by the project is an important factor in determining whether the subsidies provided to the project are properly used in line with the purpose of the project.

(2) According to the facts acknowledged above, a participating worker C does not have worked daily, and it is inevitable to view that a participating worker signed as if he worked daily in the attendance book instead of the worker at the attendance book. This falls under the preparation of a clear false document. The evidence submitted by the Plaintiff alone is difficult to understand what the work performed by C is, as alleged by the Plaintiff, through the Plaintiff, through the work performed by C in the Plaintiff’s workplace and the business site, and there was a circumstance that the participating worker would have to work on the Plaintiff’s workplace and the business

Therefore, it is reasonable to view that the supply of subsidies related to C is illegal receipt.

(3) Although the supply and demand of subsidies to D, E, and F solely with different occupation cannot be readily determined as illegal receipt, it is evident that the work hours under the labor contract are performing duties other than those related to the instant business, and therefore, it is obvious that the Plaintiff corporation does not work as prescribed by the instant agreement, and even if it was signed as if it were daily work, it is also the preparation of the above worker’s work book and the preparation of false documents.

Therefore, based on this, it is necessary to calculate the subsidy and claim it on the premise that workers worked on the preceding day and receive it.

(4) Furthermore, even if the Plaintiff recommended the participating workers to have a different occupation, and some of the workers are aware of the situation in which they work differently from that stated in the labor contract or work book, it is difficult to view the aforementioned illegal receipt of benefits to be a simple mistake on the ground that the part-time employee’s absence from work or the part-time work is concealed.

(5) Ultimately, the Plaintiff’s false preparation of the attendance book constitutes 2-4-22 'the preparation of a false document'. Thus, the Plaintiff’s false preparation of the attendance book includes the case of receiving subsidies by false or other unlawful means, so the Gwangju Regional Labor Administration, based on the level of measures under the above [Attachment 2], can conclude that the agreement is terminated, the amount of illegal payment is recovered, and the notification of illegal receipt to the relevant agencies.

In addition, D, E, and F had another occupation while being employed as a participating worker. It is in itself a violation of Article 11(6) of the instant agreement and constitutes “cases of receiving subsidies in violation of the agreement” under Article 11(1). Therefore, when it is deemed unreasonable to continue supporting the implementation of the project due to such a reason, the Defendant may terminate the agreement pursuant to Article 11(5).

Therefore, it cannot be deemed that there was an intentional or negligent act of applying the relevant provisions to the public official who made a decision without any grounds for the relevant regulations or the above public official.

(6) In addition, the Plaintiff did not properly manage the withdrawings and work status, which are the most basic of the instant project. According to the facts acknowledged earlier, it cannot be deemed that the extent of the Plaintiff’s failure is insignificant, and the amount of illegal receipt reaches KRW 6,613,140, and the subsidy-related project, such as the instant project, requires thorough supervision of the execution procedure (not a few cases of criminal punishment due to a similar case) because there is a possibility that the waste of budget due to moral hazard may occur, and there is a need for thorough supervision of the execution procedure (not a few cases of criminal punishment). In light of the lack of evidence to acknowledge that the Plaintiff has intentionally committed a violation of the Plaintiff’s guidelines or agreement by inducing participating workers to have other occupations, and that the participatory workers at issue in the instant case had achieved work performance on a holiday, etc. as alleged by the Plaintiff, it cannot be deemed that the Defendant public official intentionally or negligently made an erroneous decision in violation

(7) The Plaintiff’s assertion cannot be accepted without further review, unless the Defendant’s intent or negligence is acknowledged as above.

4. Conclusion

Therefore, the claim for confirmation of invalidation of the lawsuit in this case shall be dismissed, and the claim for national compensation shall be dismissed.

The presiding judge, judge and vice-chairperson

Judges Kim Yong-han

Judges Park Young-young