(영문) 대법원 2016.11.9.선고 2012두2757 판결

The part of the lower judgment pertaining to the Defendant’s land pay disposition and restriction on payment on November 30, 2009 is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

Reasons

1. The decision shall be made ex officio;

A. Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; Act No. 1039, Jun. 4, 2010; hereinafter “former Employment Insurance Act”) provides that “The Minister of Labor may order a person who has received or intends to receive support for employment security and vocational skills development projects under this Chapter by fraud or other improper means to restrict such support or to return the amount of support received by fraud or other improper means, as prescribed by Presidential Decree” (hereinafter “the instant legal provision”).

B. On March 31, 2016, the Constitutional Court decided that the provision of this case’s legal provision that limits support or limits support as prescribed by Presidential Decree (hereinafter “the provision on restriction on support”) is unconstitutional on the ground that it goes against the principle of prohibition of comprehensive delegation under Article 75 of the Constitution, and that the provision that “it may order the return of the amount subsidized by fraudulent or other illegal means” (hereinafter “the part on the order to return”) is not unconstitutional.

C. According to the reasoning of the judgment of the court below and the records of the court of first instance cited by the court below, on November 30, 2009, the defendant received or attempted to receive support payment support payment for the plaintiff by deceit or other fraudulent means, applying the part on the restriction on support payment under the legal provision of this case, ① a site payment disposition for 15 applications, such as support payment support payment (hereinafter referred to as "the site payment disposition of this case") on March 2009, and ② a decision on the suspension period of payment from February 24, 2009 to August 2, 2010 (hereinafter referred to as "the restriction period of payment of this case"), applying the provision of this case to the return order of 13 employment support payment of 5,233,270 won and the return order of 23,421,50 won (hereinafter referred to as "return order, etc.") and each disposition of this case is known.

D. Since the instant lawsuit seeking the revocation of each of the instant dispositions was pending before the Constitutional Court’s unconstitutional decision, the legal provisions of this case were the premise of a trial before the Constitutional Court’s unconstitutional decision and continued to the court, the Constitutional Court’s unconstitutional decision with respect to the restriction on support in the legal provisions of this case shall also be deemed to have reached the instant case. Therefore, the instant land pay disposition and the instant restriction on payment should be revoked as it is unlawful.

Nevertheless, the lower court determined that the instant site pay disposition and the instant restriction disposition were lawful on the premise that the part of the instant legal provisions is valid. In so determining, the lower court erred by misapprehending the legal doctrine on the validity of the instant legal provisions.

2. The ground of appeal No. 4 is examined.

A. Article 56 (1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21928, Dec. 30, 2009) provides that "the Minister of Employment and Labor may order the person who received or intended to receive the subsidy by fraud or other improper means to return the subsidy, as prescribed by Presidential Decree." In addition, Article 56 (2) of the same Act provides that "the Minister of Employment and Labor may order the person to return the subsidy, subsidy, or training expenses already paid, in accordance with the standards prescribed by Ordinance of the Ministry of Employment and Labor."

Here, the amount of money that the Minister of Employment and Labor may order a person who received support for employment security activities by fraud or other improper means is limited to those provided as "the pertinent fraudulent or other improper means" (see, e.g., Supreme Court Decision 2003Du9640, Nov. 1, 2003).

B. According to the reasoning of the judgment of the court below and the records of the court of first instance as cited by the court below, it is reasonable to view that the plaintiff received the employment maintenance support payment from the defendant in a false or unlawful manner under Article 35 (1) of the former Employment Insurance Act by receiving the employment maintenance support payment from the defendant while considering the circumstances as stated in its reasoning, the court below determined that the defendant's order to return the unfair amount of employment maintenance support payment to the plaintiff 5,23,270 won and to additionally collect KRW 23,421,50 for the plaintiff on November 30, 2009 was lawful.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the ground of appeal, the lower court did not err by misapprehending the legal doctrine on the crime of return of subsidies, etc. already

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part of the lower judgment pertaining to the instant site pay and the instant restriction on payment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal regarding the instant return order and the instant additional collection disposition is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench