2012Guhap2257 Revocation of Disposition of Illegal Supply and Demand by the Small and Medium Business Administration

A Stock Company

The head of the Central and Central Regional Employment and Labor Office;

April 16, 2013

May 14, 2013

1. The plaintiff's claim is dismissed.

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

On May 29, 2012, the defendant revoked the disposition against the plaintiff on the illegal receipt of the youth employment internship system by small and medium enterprises.

1. Details of the disposition;

A. On July 22, 2009, the Plaintiff entered into an agreement with the Korea Chamber of Commerce and Industry for the internship support to receive subsidies for the implementation of the project for the internship support for small and medium enterprises, and employed Nonparty C after entering into the agreement with the Korea Chamber of Commerce and Industry on April 2, 2010. On June 2, 2011, the Plaintiff entered into the agreement with the Korea Chamber of Commerce and Industry for the internship support and employed Nonparty D.

B. However, on May 29, 2012, the Defendant: (a) hired B under the condition that the Plaintiff did not reach the “five or more regular employees working at the workplace” under the detailed implementation guidelines for the youth internship system for small and medium enterprises in 2009 (hereinafter “2009 Guidelines”); and (b) banned the Plaintiff from employing the instant new intern for one year after the date of receipt of the first subsidy (from December 23, 2010 to December 2013, 201) on the ground that the employment of C and D as an existing employee constitutes illegal receipt.

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

1) The 2009 Guidelines, which limit the internship working company to five or more full-time workers, is not only only only an internal guidelines that are not legalized, but also the number of the Plaintiff’s full-time workers as of July 2009 employed by B (E, F, G, H, I, and J). Thus, the instant disposition based on B’s wrongful receipt of supply and demand related to the instant case is unlawful (Dispute 1).

2) The Plaintiff already expressed in the High Chamber of Commerce and Industry that C and D are working as part-time students in the Plaintiff Company before the Convention was concluded. Therefore, it constitutes a deviation from and abuse of discretionary power to determine whether the Plaintiff’s wrong return and unjust receipt constitutes a deviation and abuse of discretionary power (Dispute 2).

3) Even if there was a problem in the employment process of the internship B and C, it is unlawful to order the return of the full-time conversion subsidy for the above two persons to the extent that the said subsidy was also returned (Dispute 3).

(b) Markets:

1) Determination on key issues 1

According to Article 25(1)3 and (2) of the former Employment Insurance Act (amended by Act No. 1039, Jun. 4, 2010); Article 35 subparag. 2 and Article 36 subparag. 1 and (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010), the Minister of Labor may provide for expenses to those who carry out employment assistance projects, such as provision for internships, and the type and contents of the target business, the scope of the target business, the target business, and the method of application for the subsidy. Accordingly, the Minister of Labor, upon the premise that the Plaintiff’s employment insurance guidelines for implementation of the 209 Guidelines for Youth 200, which were the basis for providing support business, were set out in the 209 Guidelines for the 2000 Workers and thus, did not constitute an employment insurance guidelines for the Plaintiff’s employees. Accordingly, the Minister of Labor, upon the conclusion of the 209 Agreement, did not constitute an employment insurance guidelines.

Therefore, the prior plaintiff's assertion on a different premise is without merit.

2) Determination on key issues 2

2010 and 2011 guidelines prohibit a person who had performed training, employment, or special duties under the Military Service Act in an enterprise to be employed as an intern before the date of application for an internship from participating in the relevant enterprise, and prohibit the return of the subsidies already paid to the illegal recipient and employment of an intern for one year from the date of application or date of receipt.

As to the instant case, comprehensively taking account of the overall purport of the arguments in the Health Team, Gap evidence No. 18-3, Eul evidence No. 5, Eul evidence No. 14, Eul evidence No. 19-2, Eul evidence No. 20-1, No. 20-2, Eul evidence No. 21-2, Eul evidence No. 24, and Eul evidence No. 30, and the overall purport of the arguments as to the instant case, it is recognized that the plaintiff filed an application for participation in the youth internship with the concealment of the fact that the two persons had already employed Eul around February 2010 and around March 6, 2011, even though they had already employed D, the above two persons did not have been covered by four insurances, while the evidence submitted by the plaintiff alone is insufficient to acknowledge that the plaintiff was informed of such circumstance in advance to the Goyang chamber of Commerce and Industry, and there is no other evidence to prove otherwise.

In light of this point, the Defendant’s instant disposition ordering the Plaintiff to return subsidies and prohibit the employment of internships for one year as stipulated in the guidelines of 2010 and 2011 is not deemed to have abused and abused discretion. Therefore, the Plaintiff’s above assertion is without merit.

3) Determination on key issues 3

On the other hand, the full-time conversion subsidy that the Defendant ordered the Plaintiff to return is paid when the applicant company convertss the internship legally employed in accordance with the guidelines for the implementation of the youth employment internship system to regular workers. As seen earlier, as long as the Plaintiff did not meet the qualification requirements under the guidelines in 2009, 2010 and was found to have illegally received the subsidy, it is reasonable to conclude that the additional subsidy that the Plaintiff converted two persons to regular workers and received is also an illegal payment. Accordingly, the Plaintiff’s aforementioned assertion is without merit.

3. Conclusion

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

The presiding judge, the entrusted judge

Judges Song Jong-hwan

Judges Kim Gung-Un