(영문) 대전지방법원 2013.8.28. 선고 2012구합3554 판결

A. The Plaintiffs entered into an entrustment contract with A Co., Ltd. (hereinafter referred to as “A”) for which recognition of vocational ability training courses has been granted by the Minister of Employment and Labor, and conducted the same training course as stated in Schedule 1 to Schedule 5 “the name of each training course” and “training period” (hereinafter referred to as “each training course of this case”). All of the training courses of this case were conducted in the manner of “the distance training for which evaluation results, which can be completed at least 60 points in all during the training period, can be completed at least by means of “the distance training for all”.

B. Afterwards, the Plaintiffs filed a subsidy for vocational skills development training expenses for each of the training courses of this case with the Defendants, and received the same subsidy as indicated in the “each training expenses” column in attached Table 1 to attached Table 5 from the Defendants.

C. However, the Daejeon District Police Agency discovered, as a result of the investigation into the misconduct of the remote training institution in the jurisdiction and the relevant illegal supply and demand workplace, that the trainee was found to have committed an unlawful act, such as making a false report on the completion of the training to the Defendants (hereinafter referred to as “the instant unlawful act”), as if the trainee was able to receive the training course in the instant case under the direction of the representative B of A, by leaving the Plaintiffs’ workplace and leading the trainees to access the A website.

D. Accordingly, on the date stated in the separate sheet No. 1, the Defendants received training expenses from the Plaintiffs by false or other unlawful means, and in accordance with the respective laws and regulations, the Defendants returned the amount of unlawful receipt (hereinafter “each of the instant return dispositions”) and the additional collection disposition (hereinafter “each of the instant additional collection dispositions”) and the restrictive collection disposition (hereinafter “each of the instant restrictive dispositions”) as stated in the separate sheet No. 1 of the same Table on the grounds that they received training expenses from the Plaintiffs by means of false or other unlawful means (hereinafter “each of the instant dispositions”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

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

A. The plaintiffs' assertion

1) Non-performance of disposal requirements

A) Since the Plaintiffs exclusively carried out the instant training courses, they were not aware of whether A’s representative B had completed the training courses by unlawful means, and there was no participation or conspiracy. Moreover, based on the materials received from A, the Defendants applied for training expenses to the Defendants, and subsequently, the Plaintiffs received a non-prosecution disposition that is not suspected of being convicted in the relevant criminal cases against the persons in charge of the Plaintiffs. Accordingly, the Plaintiffs did not have intention or gross negligence on the instant misconduct. Accordingly, each of the instant dispositions based on the premise that it was unlawful.

B) According to Articles 55 and 56(2) of the Workers’ Vocational Skills Development Act (hereinafter “Act”), the other party to the return of illegally received subsidies and the additional collection disposition is a person whose entrustment contract is terminated on the grounds of fraudulent act, etc. or a worker who is restricted from taking lectures or providing subsidies, and the employer to whom the employee belongs is not the other party to the disposition, but the employer, such as the Plaintiffs, received subsidies from the Defendants after paying the training expenses in advance, did not take any economic benefits. In fact, B deposited the amount equivalent to the above illegally received amount with the Defendants as the principal of the deposit. In addition, each of the instant return dispositions and the additional collection disposition of the instant case, which erroneously designated the other party to the disposition as the Plaintiffs, are unlawful.

2) The scope of return following each of the dispositions of return in this case

According to Article 56 (2) of the Act, the object of the return of the subsidy illegally received is "the amount of subsidy or loan received by false or other unlawful means out of the amount of subsidy already provided or loaned," and Article 56 (3) of the Act provides that the subject of additional collection is "the amount of subsidy or loan received by false or other unlawful means." Since a considerable number of trainees are trained in accordance with normal procedures, the plaintiffs are subject to the return or additional collection disposition only for the amount of subsidy received through B's unlawful act among the amount of subsidy received by the defendants, but the defendants are subject to the return or additional collection disposition, so they are unlawful.

3) According to the language and text of Article 22-2(1)2 of the Enforcement Rule, a disposition to additionally collect the amount of illegal receipt is a discretionary act. Article 22-2(1)2 of the Enforcement Rule of the Act (hereinafter referred to as the “Enforcement Rule”) stipulates that an amount equivalent to the amount of subsidies received in a uniform manner is to be collected in addition to the amount of subsidies, and does not give room for discretion. Article 22-2(1)2 of the Enforcement Rule is illegal as a provision that goes beyond the limit of delegation. Therefore, each of the instant additional collection dispositions based on Article 22-2(1)2 of the Enforcement Rule is unlawful.

4) A deviation from and abuse of discretionary power

In light of the background of the instant wrongful act, the degree of involvement of the Plaintiffs, the details of the receipt of the instant training fee, and the circumstances in which B’s illegal receipt was deposited in the Defendants’ future, each of the instant dispositions is erroneous in the misapprehension of discretionary authority by excessively harshly treating the Plaintiffs.

B. Relevant statutes

Attached Table 3 shall be as stated in the relevant statutes.

C. Determination

1) Whether the disposal requirements are not met

A) Whether the plaintiffs participated in the unlawful act of this case

(1) Sanction against violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws to achieve administrative purposes, and thus, it may be imposed even if there is no intentional or negligent act on the part of the violator, barring special circumstances such as where the violator does not cause any negligence (see Supreme Court Decision 2002Du5177, Sept. 2, 2003). "A measure against which sanctions may be taken pursuant to the relevant provisions of the individual Acts and subordinate statutes applicable to each of the dispositions of this case" means any unlawful act conducted by a person who is not generally entitled to receive, in order to conceal the eligibility for payment or the lack of eligibility to receive training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009), which means all active and passive acts that may affect the decision-making on the payment of training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

(2) According to the overall purport of evidence Nos. 5 and 6 as to the instant case, 1) if a trainee C, etc. enters the answer of the trainee in advance by accessing the website, the representative B, upon visiting each workplace of the Plaintiffs and accessing each workplace of the Plaintiffs, was represented as if the trainee applied for a direct evaluation by submitting the answer that entered in advance, after visiting the workplace of the Plaintiffs, and submitting the answer from the computer located there, on the part of the trainee. ② Thereafter, based on the documents such as the list of trainees transferred to A, etc., the Plaintiffs’ employees made a false report as if the trainee were to undergo a normal inspection, and made the trainee apply for a direct subsidy or let the employee of A apply for a subsidy. ③ On September 28, 2012, the representative B was prosecuted for committing a crime that the Defendants received the subsidy from the business owner through the instant wrongful act, and was sentenced to imprisonment for three years from the Daejeon District Court to imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the judgment became final and conclusive around five years.

The above facts and the evidence revealed as follows: ① the application for the evaluation of each of the training courses of this case and its completion are very important and essential as it serves as the premise for the pertinent subsidization of training expenses; ② Even if the plaintiffs entrusted the training courses of this case to A, the plaintiffs directly apply for the subsidies, and thus, the plaintiffs have the duty to manage and confirm whether the trainees of each of the training courses of this case applied for the examination and passed the examination, and finally, manage and confirm whether they failed to perform the above duty. However, it is difficult to view that the plaintiffs did not have any error in the management behavior of the plaintiffs, ③ The plaintiffs' application for the subsidies of this case and its completion are not sufficient to be determined on behalf of the plaintiffs, and the plaintiffs' application for the subsidies of this case and its completion are not sufficient to be determined on behalf of the plaintiffs. In light of the above facts, it is difficult to view that the plaintiffs did not have any legitimate reason to be determined on behalf of the plaintiffs in relation to the above plaintiffs' application for the examination.

B) Whether it is unlawful to designate the other party to the disposition as the plaintiffs

The basis of each of the instant restrictive dispositions is not Article 56(1) of the Act, but Article 56(2) of the Act, and Article 55(2) of the Act provides that "the Minister of Employment and Labor may order the return of the amount of subsidies or additional collection measures by fraud or other improper means, such as the person whose recognition has been revoked pursuant to Article 19(2) or 24(2) or the worker or business owner, business owner or business owner's association, etc. whose recognition has been restricted pursuant to Article 55(2), or the person whose amount of subsidies or loans has been already provided by the industry-specific human resources development council or workplace skill development organization, or the business owner's organization, which has already received subsidies or loans, shall order the return of the amount of subsidies or additional collection measures by fraud or other improper means pursuant to Article 56(2) of the Act."

2) As to the scope of return following the disposition of return of this case, Article 56 (2) of the Act provides that "the amount of subsidy or loan received by false or other unlawful means out of the amount of subsidy already received," and Article 56 (3) of the Act provides that "the amount of additional collection shall be "the amount of subsidy or loan received by false or other unlawful means." However, according to the above evidence, the evaluation of each of the training courses of this case is conducted en bloc through Gap's employees, not training students belonging to the plaintiffs, but through Gap's employees, and the facts recognized in the case of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against B related to the unlawful act of this case, which is the whole amount of the subsidy received by the plaintiffs. Thus, it is lawful to consider the entire subsidy received by the plaintiffs as the subsidy received by the plaintiffs and take the return disposition and additional collection disposition of this case, and in light of the statement of evidence No. 5-29 of this case, it is difficult for the plaintiffs to believe this part of the evidence No. 7.

3) Whether Article 22-2(1)2 of the Enforcement Rule is unlawful

Article 56 (3) of the Act means the State, local governments, or the Minister of Labor pursuant to paragraphs (1) and (2).

Where ordering a return, the following amount may be additionally collected with regard to the amount of subsidies or loans received by fraud or other improper means in accordance with the standards determined by Ordinance of the Ministry of Labor. Article 55 (2) 2 of the same Act provides that "the Council on Human Resources Development by Industry or the Development of Vocational Skills, such as workers, business operators, business operators, organizations of business owners, etc. whose subsidies or loans are restricted pursuant to Article 55, or organizations that develop vocational abilities: "amount below the amount of unlawful receipt"; and Article 22-2 (1) 2 of the Enforcement Rule provides that "in cases falling under Article 56 (3) 1 (b) and 2 of the Act: Additional collection of the amount of subsidies or loans

In light of the above provisions, Article 22-2(1)2 of the Enforcement Rule provides that, in cases where an administrative agency decides to additionally collect money from business owners, etc. pursuant to the main sentence of Article 56(3) of the Act, the amount corresponding to the amount of money received by unlawful means, in the case falling under Article 56(2)2 of the Enforcement Rule, the amount of additional collection should be determined by the specific standard. Thus, it is reasonable to view that Article 22-2(1)2 of the Enforcement Rule does not necessarily stipulate the act of additional collection as an act of binding upon the administrative agency, unlike that prescribed by the administrative agency’s discretionary act. Therefore, this part of the plaintiffs’ assertion on the premise that the above provision falls under the necessary provision or it is stipulated as an act of binding on which there is no room for discretion

4) A deviation from and abuse of discretionary power

However, as seen earlier, ① the Plaintiffs’ illegal receipt of subsidies by unlawful means, and the frequency and amount of this case’s fraudulent act has been prolonged for a long time, ② Additional collection, support and loan restriction orders, etc. are all conducted in accordance with the standards prescribed by the relevant Acts and subordinate statutes, ③ The public interest to strictly control and manage the payment of subsidies for vocational ability development training subsidies in order to realize the financial soundness of the workplace skill development training subsidies and operate the support system in an efficient and transparent manner cannot be deemed to be less than the Plaintiffs’ private interest that are limited due to the instant dispositions; ④ As seen earlier, even if B deposits the amount illegally received by the Defendants in the relevant criminal cases, it does not affect any legal effect on each of the instant dispositions against the Plaintiffs even if considering various circumstances asserted by the Plaintiffs, it is difficult to criticize the Plaintiffs as illegal disposition that deviates from and abused discretionary power. This part of the Plaintiffs’ assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit. It is so decided as per Disposition.