(영문) 서울고등법원 2018.12.27. 선고 2018누59313 판결

On August 20, 2016, the Defendant issued a payment order of KRW 1,626,260 to the Plaintiff (related to D Child Care Centers), the decision of additional collection of KRW 1,626,260, the decision of restricting loans for 330 days, (E Child Care Centers) the order to return KRW 921,410, the order to additionally collect KRW 921,41,410, the decision of additional collection of KRW 921,410, and the restriction on loans for 360 days

A disposition against Plaintiff B, an order to return KRW 2,494,470, an order to additionally collect KRW 2,494,470, and a disposition to restrict a loan for 360 days from the date of the disposition, and an order to return KRW 1,098,210 against Plaintiff C, an order to return KRW 1,098,210, an order to additionally collect KRW 1,098,210, and a disposition to restrict a loan for 360 days

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiffs falling under the following cancellation shall be revoked. On August 20, 2016, the part against the defendant against the plaintiff shall be revoked: (a) the payment order of KRW 1,626,260, KRW 1,626,260, KRW 921, KRW 410, KRW 921, KRW 410, KRW 9210, KRW 9210, KRW 1,098, KRW 210, KRW 1,098, and KRW 210, KRW 1,098, and KRW 210, which the defendant appealed against the plaintiff (in relation to D child care centers), and the decision of additional collection of KRW 1,626, and KRW 1,626,260, KRW 260, KRW

Reasons

1. Details of the disposition;

The reasoning for this part of this Court is that the corresponding part of the judgment of the court of first instance is the same as that written by the court of first instance, except for the use of, addition to, or deletion as follows. Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence

The portion of the Plaintiff B (the representative of H child care centers) shall be deleted from 37 training courses, including the Plaintiff B (the total number of 107 persons per year) and 3. The portion of the “3 to 4 pages” shall be removed from 37 training courses, including the Plaintiff B (the representative of H child care centers) from August 23, 2012 to March 7, 2014.

A person shall be appointed.

0. The following is added to 1.05 pages 2 below the 4th page "this Court" as "In Mancheon District Court". On the other hand, the prosecutor issued a non-prosecution disposition on suspicion of violation of the Act on the Interest of the Director of Child Care Center operated by the plaintiff C on January 12, 2014.

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

A. The plaintiffs' assertion

1) The Defendant, on the sole basis of the criminal punishment against F representative, etc., did not properly confirm the fact of the cause of each Plaintiff’s disposition, and concluded that each of the instant dispositions was constituted an unconditioned attendance of less than 80%. In addition, in the criminal judgment against the above F representative, etc., there was no intent on the Plaintiffs in receiving training expenses, and the head of the childcare center operated by the Plaintiff C was subject to a disposition of no suspicion after being investigated as a suspect, and in the case of the Plaintiff A, he was not admitted to the investigation agency. Nevertheless, the Defendant concluded that the Plaintiff was paid training expenses by “a false or other unlawful means” and thus, the Defendant was subject to each of the instant dispositions.

Since each disposition of this case was issued by mistake of facts, there is an error of law that does not exist any grounds for the disposition.

2) Even if there were no errors of mistake of facts as above in each of the dispositions in this case, each of the dispositions in this case was taken against the plaintiffs who were not subject to a non-prosecution disposition or not admitted to an investigation agency, unlike the disposition standards of the Ministry of Employment and Labor, which are the discretionary rules, and each of the dispositions in this case was made solely on the grounds that the plaintiffs did not file a voluntary report irrespective of the degree of their causes attributable to them,

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The reasoning for this part of the judgment of the court of first instance is as follows: (a) whether the Plaintiffs’ infant care teachers were present at less than 80%; and (b) this part is identical to the corresponding part of the judgment of the court of first instance, except for the removal of the entry from 7 pages to 1 to 8 pages 13; and (c) the corresponding part of the judgment of the court of first instance (from 6 pages 4 to 13). Therefore, this part is cited in accordance with Article 8(2) of the Administrative Litigation Act; and Article 420 of the Civil Procedure Act.

2) “False or other unlawful means” prescribed as grounds for sanctions under Articles 55 and 56 of the Act on the Development of Workplace Skills of Workers as to whether the Plaintiffs received subsidies for training costs due to “false or other unlawful means” refers to all acts that are generally unreasonable under the social norms with intent to make sure that a person who is not eligible to receive training costs is qualified, or that are not qualified, and that may affect the decision-making on the payment of training costs (see, e.g., Supreme Court Decisions 2011Du3777, Jun. 13, 2013; 201Du7175, Jun. 13, 2013; 201Du24764, Jul. 24, 2014; 2012Du24764, Jul. 24, 2014; 205Du20975, Jul. 24, 2017).

In light of the above legal principles, the Plaintiffs did not confirm whether each affiliated nursery teacher was able to claim training costs due to the failure to complete the training course as seen earlier, and whether they completed the training course, and whether they were able to apply for training costs. Moreover, even if the training costs were not paid in advance to F, the Plaintiffs filed an application for support for training costs in the manner of attaching false tax invoices without being issued. This constitutes an act that a person who is not entitled to training costs ought to be presumed to have been qualified or is not qualified under the social norms, and even in such a case, it is difficult to secure the effectiveness of the regulations on sanctions if the Plaintiffs

Therefore, even if the president of the Plaintiffs’ child-care center received a non-suspected disposition from the investigative agency or did not separately appear in the investigative agency, it is reasonable to view that the Plaintiff’s child-care center was entitled to receive training expenses by fraud or other improper means, and thus, the return order and the disposition of additional collection under Article 56(2)1 and (3) of the Act

3) Whether each of the dispositions of this case deviates from and abused discretion

A) On November 17, 2014, there is no evidence to acknowledge that the prosecutor indicted relevant persons, including the F’s representative, on suspicion of fraud, etc., and that the Plaintiff A was admitted to an investigation agency and was investigated. The fact that the head of the childcare center operated by the Plaintiff C was subject to a non-prosecution disposition that the Plaintiff C was suspected of having been issued a non-prosecution disposition. Meanwhile, in full view of the overall purport of the pleadings in each of the evidence Nos. 3, 5, 22, the employment union sent guidance (hereinafter referred to as “instant standard”) to the competent administrative agency including the Defendant regarding the result of the investigation into the illegal receipt of training fees for the business owner of the Bupyeong-gu Incheon Bupyeong Police Station on April 12, 2016, including the Defendant, on the basis of the entire purport of the oral argument, the fact that the Plaintiffs did not submit any opinion even if they received a written public notice, such as notification on voluntary report prior to the illegal receipt of training fees, and a written request for submission of training fees.

[Guidance on the criteria, etc. for the administrative disposition on the case for which the prosecution investigation is terminated] / [Guidance on the business owner's disposition (in the case of indictment)'s investigation results by the prosecutor's office, the business owner whose suspicion of illegal receipt is confirmed by cooperation with the data on the investigation results by the prosecutor's office *, the investigation results by the prosecutor's office / excluding the administrative disposition where it is not clearly confirmed that the illegal act is not clearly confirmed, such as "where the suspicion of illegal receipt by the business owner is unclear, it shall not confirm the grounds for non-prosecution by the prosecutor's office (in the case of non-prosecution)" corresponding to the case in which the prosecution is suspended and investigation is being conducted / [2] Where the business owner files a voluntary report to the business owner whose illegal receipt is confirmed after separate investigation by the employment center, the fact that the business owner has reported the illegal receipt by means of a written investigation and a written confirmation document (including the evidential data) submitted by the mail business owner and a written confirmation document (including the evidential data).

If not subject to an administrative disposition, a business owner who fails to submit a written investigation (a business owner who fails to submit a written investigation and a written confirmation), such as a written investigation, shall conduct an additional investigation, such as a business owner's attendance at the employment center, and determine

B) In light of the following circumstances, each of the instant dispositions cannot be deemed to have violated the instant standards, and further, it cannot be deemed to have violated the discretionary authority, by abusing and abusing the discretionary authority. Accordingly, the Plaintiff’s assertion on this part is without merit.

① According to the instant standard, in a case where a prosecutor’s investigation was completed and prosecuted, the administrative agency may proceed with the business owner’s disposition procedures upon confirmation of the business owner’s suspicion of illegal receipt, upon confirmation of the investigation results by the prosecutor’s office. However, in a case where the suspicion of illegal receipt is unclear solely based on the investigation results by the prosecutor’s office, it may confirm whether the business owner was illegal receipt by means of a written investigation and a written confirmation, etc., and, if the business owner fails to submit it, it may decide whether to take an administrative disposition by conducting an additional investigation, such as an appearance investigation. As seen earlier, the relevant parties, including F, were indicted. The Defendant, based on the data transmitted by the investigative agency pursuant to the instant standard, provided the Plaintiffs, who were the business owner, with an opportunity to send a written investigation and a written confirmation, based on the fact that the Plaintiffs’ infant care teacher was supported by less than 80% of the training course, provided the Plaintiffs with an opportunity to present their opinions, but

In addition, where the Defendant voluntarily filed a report in accordance with the instant standard, the amount of illegal receipt shall be returned, but each of the instant dispositions against the Plaintiffs who did not file a voluntary report, including additional collection and disposition with the return order. The instant standard and each of the instant dispositions based thereon correspond to Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Vocational Skills, and it is difficult to deem that the content thereof is considerably unreasonable as it is unreasonable.

③ In order to promote and support workers’ vocational skills development through their lives and train technical and skilled human resources needed at industrial sites, the Act on the Development of Workers’ Vocational Skills stipulates that a certain disciplinary measure may be taken against employers, etc. who engage in vocational skills development projects, to subsidize expenses incurred in conducting such projects. However, in the case of training expenses subsidized by unlawful means, most of the Plaintiffs were in a situation where it is impossible for them to issue a return order and to additionally collect additional collection due to the lapse of the extinctive prescription in the case of training expenses provided by unlawful means. In particular, in the case of Plaintiff A, the amount of training expenses actually received by the operation of two childcare centers was relatively large. Considering the above circumstances, the disadvantages suffered by the Plaintiffs by each disposition of this case cannot be deemed excessive in light of the purpose

3. Conclusion

The part of the plaintiffs' claims, excluding the part of the defendant's claim for revocation of each restriction on financing, shall be dismissed. This part of the judgment of the first instance is justified in conclusion, and therefore, the plaintiffs' appeal is dismissed as it is without merit.