(영문) 부산고등법원 2013.11.22. 선고 2013누1768 판결

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of additional collection of KRW 112,792,00 among the disposition of unjust receipt of employment improvement subsidies against the plaintiff on February 24, 2012.

Reasons

1. Details of the disposition;

A. The plaintiff is a corporation that has its head office in Busan, which is engaged in the electric sea facilities and the electric theater manufacturing business. On the other hand, C Co., Ltd. (hereinafter referred to as "C") is a corporation that has its head office in Busan, Sho-gu D and operates the same type of business.

B. In-house director E, the representative of the Plaintiff, served as the vice president from F’s punishment C, the representative director of C.

C. On February 26, 2010, in order to receive subsidies to improve the employment environment of small and medium enterprises (hereinafter referred to as “subsidies”), the Plaintiff submitted to the Defendant “written letters of a plan to improve the employment environment of small and medium enterprises in 2010” to the effect that “the Defendant shall install shower rooms (including toilets) 18 and the physical training room (46m2) on the first floor of the factory in which the Plaintiff’s head office is located, a library of 18m2 and a library of 46m2 on the second floor, and newly employ five workers.” On April 2, 2010, the Plaintiff obtained approval of the said plan from the Defendant.

D. On April 29, 2010, the Plaintiff improved the employment environment as stated in the above report. On May 7, 2010, the Plaintiff filed a report on the report on the completion of the employment environment improvement, and was confirmed on the job site by the Defendant on May 7, 2010. E) On September 9, 2010, the Plaintiff filed an application with the Defendant for subsidies of KRW 57,200,00,000, including the amount of subsidies for KRW 120,976,000 for the improvement cost of the employment environment, and the amount of subsidies for KRW 57,20,000 for six new employees (= KRW 6,00,000), including the amount of subsidies for KRW 50,000 for the improvement cost of the employment environment, KRW 30,000 for the Plaintiff on September 30, 205, KRW 306,300,00 for the total amount of subsidies to the Plaintiff (i.e., the amount of KRW 63036,3630,030.

F. However, on February 24, 2012, the Defendant ordered the Plaintiff to return KRW 56,396,00 of the subsidies already paid to the Plaintiff pursuant to Article 35 of the Employment Insurance Act, Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010; hereinafter the same) and Article 78(1)1 of the Enforcement Rule of the Employment Insurance Act, and additionally collected KRW 112,792,00,000, which is twice the said amount, and imposed a disposition restricting the payment of subsidies for the next one year (hereinafter “instant disposition”).

① The Plaintiff’s factory at the seat of the head office (hereinafter “instant factory”) is in fact C’s secondary factory, and the Plaintiff reported the employees of C to obtain employment insurance under the Plaintiff and included C in C’s number of new employment eligible for subsidies.

② After the completion inspection of the employment environment improvement, the Plaintiff changed the purpose of use of welfare facilities subject to support without filing a prior report, and leased all the factories including welfare facilities subject to support after receiving the subsidy to other companies.

G. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Central Administrative Appeals Commission on March 22, 2012, but was subject to the dismissal ruling on October 16, 2012.

[Reasons for Recognition] Facts without dispute, Gap's 1 through 3, 7 through 10, Eul's 1 through 3, 10, 15, 18 (including each number; hereinafter the same shall apply), and all pleadings;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The instant factory is not C’s 2 factory, but the Plaintiff newly built the costs for the Maritime Sea Reclamation Business. In addition, the Plaintiff newly employed 6 non-regular workers, including C’s non-regular workers, for the said business. Therefore, the Plaintiff did not receive subsidies by improper means. However, the Plaintiff did not withdraw some of the employees while abandoning the Maritime Sea Reclamation Business after receiving the said subsidies, and only leased the instant factory to other companies.

(ii) the deviation and abuse of discretionary power;

Even if the Plaintiff received subsidies by unlawful means, the Plaintiff and its representative E did not commit any unlawful act prior to the instant case, and the Plaintiff cannot operate a normal business any longer if the Plaintiff was subject to additional collection of the amount twice the subsidy, in addition to the return of subsidies, as a permanent corporation with four to five employees, other than the return of subsidies. Considering such circumstances, the Defendant’s act of taking the instant disposition, other than the return order and the restriction on payment of subsidies, is unlawful as it deviates from and abused discretionary authority.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether there is a ground for disposition

A) Article 35(1) of the Employment Insurance Act provides that “The Minister of Employment and Labor may order a person who has received or intends to receive support for employment security and vocational skills development programs by fraud or other improper means to return the amount of support or subsidy.” In addition, where the Minister of Employment and Labor orders the return pursuant to paragraph(1), he/she may additionally collect an amount not exceeding five times the amount received by fraud or other improper means.”

On the other hand, Article 20 of the Employment Insurance Act provides subsidies to employers who expand opportunities for employment by improving the employment environment, etc., as prescribed by Presidential Decree.

Article 15 of the former Enforcement Decree of the Employment Insurance Act provides that necessary support may be provided, and Article 15 of the former Enforcement Decree of the Employment Insurance Act provides that "Where an employer installs facilities or equipment necessary for the improvement of employment environment to expand employment opportunities and increases employment, some of the expenses and wages may be subsidized within budgetary limits, and matters necessary for the requirements for support, such as the scope of recognition of facilities or equipment subject to support, shall be determined

In addition, Article 3(1) [Attachment 1] of the "Public Notice of the Regulations on the Payment of Employment Environment Improvement Subsidies for Small and Medium Enterprises" (Notice of the Ministry of Employment and Labor No. 2010-13, Aug. 23, 2010; hereinafter referred to as the "Public Notice of this case") under the delegation of Article 15 of the former Enforcement Decree of the Employment Insurance Act provides that "facilities eligible for subsidies such as bathing facilities, etc." and "cultural, sports and convenience facilities such as books, physical training facilities, educational facilities, etc." respectively, and Article 7(1) of the Enforcement Decree of the Employment Insurance Act provides that "the detailed support requirements" shall be the improvement plan approved by the business owner.

The requirement of "investment in facilities and equipment worth at least KRW 10 million" is that the month to which the completion date of the employment environment improvement belongs, and that the monthly average number of workers in the following two months should exceed the monthly average number of workers for the three months immediately preceding the month to which the improvement plan is submitted."

B) He returned to the instant case, according to each of the above provisions, the employment environment improvement subsidy is to be paid only when the business owner installs the facilities subject to support as set forth in the instant notice, and thereby expands employment.

However, in full view of the overall purport of the pleadings in the descriptions or videos of the evidence Nos. 18 through 20, the Plaintiff may recognize the fact that the Plaintiff, after obtaining on-site verification from the Defendant on May 2010, the first floor training room of the instant factory is an office, the second floor training room is an laboratory, and the second floor library is a meeting room, etc., using the entire purpose of the pleadings.

As above, although the Plaintiff obtained confirmation as to whether to improve the employment environment from the Defendant and changed the purpose of the welfare facilities to the office, conference room, etc. subject to support, applying for subsidies to the Defendant on September 9, 2010 constitutes “an act of receiving support for employment security and vocational skills development projects by fraud or other improper means” under Article 35 of the Employment Insurance Act.

Therefore, the disposition of this case is deemed to exist without examining whether the plaintiff actually operated the factory of this case, whether the plaintiff was newly employed from 5.33 workers. Thus, this part of the plaintiff's assertion is without merit.

2) Whether the discretion is deviates or abused or not

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion by social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the offense as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all relevant circumstances. In such a case, even if the criteria for the punitive administrative disposition are prescribed in the form of Ministerial Ordinance, it is nothing more than that prescribed in the internal rules for handling affairs of the administrative agency, and

Since there is no binding effect of the pertinent disposition, and the legality of the pertinent disposition should be determined not only by the above disposition criteria but also by the contents and purport of the relevant Acts and subordinate statutes, it cannot be said that the pertinent disposition is legitimate as it conforms to the above disposition criteria.

However, barring any reasonable ground to believe that the above disposition disposition does not conform with the Constitution or laws or that a punitive administrative disposition based on the above disposition disposition is considerably unreasonable in light of the content of the offense and the content and purport of the relevant laws and regulations, it shall not be deemed that the prepaid disposition has deviates from the scope of discretionary power or has abused discretionary power (see Supreme Court Decision 2007Du6946, Sept. 20, 2007).

B) Based on these legal principles, the amount additionally collected pursuant to Article 78(1)1 of the Enforcement Rule of the Employment Insurance Act (hereinafter “Act”) pursuant to Article 35(1) of the Act is either received or intended to receive the amount of money additionally collected pursuant to Article 35(2) for the last five years prior to the date of detection of fraudulent act.

In the absence of any restriction on payment or order for return from the Minister of Employment and Labor, it shall be twice the amount received by false or other unlawful means.

The above criteria for dispositions prescribed by the Enforcement Rules of the Employment Insurance Act are reasonable to ensure consistency and predictability of administrative dispositions by excluding arbitrary dispositions by public officials in charge, and at the same time to determine the disposal level in consideration of the power of illegal receipt of subsidies. The instant disposition conforms to the above criteria for dispositions.

Furthermore, in addition to the insurance premium, the financial resources required for the employment insurance consisting of money collectible, reserves, funds operation earnings, and other revenues under the Employment Insurance Act (Article 78(2) of the Employment Insurance Act). As such, the Employment Insurance Fund created by the National Treasury, etc. provides support for the employment safety and vocational skills development projects (Article 80(1)1 of the Employment Insurance Act). Therefore, the necessity of public interest is very high to prevent misconduct in relation to the provision of subsidies for the improvement of employment environment and to ensure that the employment insurance

In full view of the above circumstances, even if considering various circumstances such as the Plaintiff’s illegal act before the instant case was committed or the Plaintiff’s size is zero, the public interest to achieve the instant disposition cannot be deemed to be less vulnerable than the disadvantage that the Plaintiff may suffer due to such an act. Therefore, the instant disposition is not deemed to be an unlawful act of deviating from or abusing discretion.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just, and the plaintiff's appeal shall be dismissed as it is without merit. It is so decided as per Disposition.