2011 Doz. Revocation of a disposition such as restriction on payment

The Korea Telecommunications Research Institute

Daejeon Head of Local Employment and Labor Agency

March 28, 2012

April 25, 2012

1. The Defendant’s disposition of restricting payment made against the Plaintiff on August 31, 2011 and the order of return KRW 330,664,632 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On August 21, 2007, the Plaintiff was recognized as a vocational skills development training course with respect to 33 curricula including a manager’s accounting/financial management curriculum to be conducted by the Plaintiff from the Defendant (hereinafter “instant curriculum”).

B. After implementing the instant curriculum, the Plaintiff received subsidies from the Defendant for expenses for vocational skills development training from the Defendant on nine occasions, including February 4, 2008. The Defendant was requested by the Board of Audit and Inspection to investigate whether or not the trainees who entered and depart from Korea during the training period for vocational skills development training and investigated the Plaintiff, and as a result, confirmed the fact that 31 trainees of the instant curriculum were present even though they did not appear after leaving Korea during the training period, and confirmed the fact that they were handled even if they did not appear during the training period. On August 31, 2011, the Plaintiff issued an order to restrict the payment (from February 5, 2008 to September 9, 2009) for one year with respect to the Plaintiff to return training fees paid 330,664,632 won during the suspension period (hereinafter “each disposition of this case”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2 (including additional number), Eul evidence 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff’s identity is minor in terms of “false or other unlawful means.”

(2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis for the instant disposition, goes beyond the bounds of delegated legislation and goes against the principle of excessive prohibition under the Constitution.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The instant curriculum is a self-training conducted by the Plaintiff.

(2) A trainee of the accounting/financial management curriculum of this case from August 26, 2007 to September 1, 2007, from September 1, 2007, from September 18, 2007 to October 2, 2007, from December 28, 2007 to December 7, 2007, one of the instant curriculum, left Korea three times, and was confirmed as having been present in the curriculum even though he did not attend the curriculum at the time of education. The curriculum of this case was confirmed as having been present in the curriculum even if he did not attend the curriculum during the period of departure from Korea.

[Ground of recognition] Facts without dispute, entry of evidence No. 3, purport of the whole pleadings

(d) judgment;

(1) As to whether the Plaintiff received training costs by fraud or other improper means;

"False or other unlawful means" under Article 35 of the former Employment Insurance Act refers to all unlawful acts conducted by an unqualified business owner in order to conceal the eligibility for payment or to conceal the eligibility for payment by the unqualified business owner, which may affect the decision-making on the payment of new employment promotion incentives (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In light of the following circumstances revealed by the aforementioned evidence, i.e., ① 31 trainees who did not participate in part of the curriculum of this case were stated differently from the fact that they participated in the part of the curriculum, ② subsidies for training expenses are paid depending on whether they were present, so it is necessary to confirm accurate attendance because they are paid according to whether they are present, ③ the curriculum of this case is not entrusted to other companies, and the plaintiff was conducted by himself. It is reasonable to deem that the plaintiff was negligent because 31 trainees among the curriculum of this case were aware of the fact that they did not participate in the part of the curriculum of this case. Even if they were not aware of the fact, even if they did not know of the fact, they could have been aware of the fact that they did not attend the curriculum of this case, so it is reasonable to deem that there was negligence by the plaintiff. Accordingly, the plaintiff's assertion in this part is without merit.

(2) As to whether Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis for the instant disposition, deviates from the limitation of delegated legislation or violates the principle of excessive prohibition under the Constitution, and thus becomes invalid

(A) Whether the delegation legislation limits are exceeded

In a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of whether the subordinate statute complies with the limits of delegation should be made by comprehensively examining the legislative purpose and content of the pertinent provision, structure of the provision, and relationship with other provisions. In a case where the delegation provision itself clearly states the limits of delegation by using terms with which accurate contents can be identified, whether the delegation provision exceeds the limits of its literal meaning, or whether a new legislation was made beyond the bounds of delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see, e.g., Supreme Court Decision 2009Du17797, Apr. 29, 2010).

Article 35 (1) of the former Employment Insurance Act provides that "the Minister of Labor may order a person who has received or intends to receive subsidies or vocational skills development training programs under this Chapter by fraud or other improper means to restrict such subsidies or to return the subsidies already provided, as prescribed by Presidential Decree," and Article 35 (2) of the same Act provides that "the Minister of Labor may additionally order a person who has received or intends to receive subsidies, incentives, or vocational skills development training expenses under paragraph (1) by fraud or other improper means, to return the subsidies or vocational skills development training expenses under paragraph (1)." Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act provides that "the Minister of Labor shall order a person who has received or intends to receive subsidies, incentives, or vocational skills development training expenses by fraud or other improper means for one year from the date on which he/she has received or applied for subsidies, incentives, or vocational skills development training expenses, and the Minister of Labor shall order a person to return subsidies, incentives, or vocational skills development training expenses paid during a restriction period."

On the other hand, Article 35 (1) of the former Employment Insurance Act provides that "restriction on support" and "an order to return" are "an additional collection disposition" and Article 35 (2) of the same Act provides that "an additional collection disposition" and "an additional collection disposition" shall take effect in the future from the date of the disposition. It is reasonable to interpret that "restriction on support" and "an additional collection disposition" shall take effect in the future from the date of the disposition, and the meaning of "in order to restrict retroactive support" should be clearly stated in the law, and Article 35 (1) of the former Employment Insurance Act separately provides that "an order to return" shall be recovered through the return order, and Article 35 (2) of the former Employment Insurance Act provides that "an additional collection order" and "an additional collection order" shall be effective in the future from the date of the disposition to December 31, 2010, Article 35 (2) of the former Enforcement Decree of the Employment Insurance Act provides that "an additional collection order shall be effective in the future from the date of the enforcement of the provision."

(B) Whether the principle of excessive prohibition is violated

Article 35(1) of the former Employment Insurance Act and Article 56(2) of the Enforcement Decree of the same Act (hereinafter “Enforcement Decree of this case”) provide that a disposition that orders the establishment of a period of restriction on payment, and the return of subsidies granted during the period of restriction on payment is an act of continuous employment. As such, it is a matter of whether the enforcement Decree of this case, which provides that, under Article 35(1) of the former Employment Insurance Act, an illegal recipient who has received, or attempted to receive, vocational skills development training expenses, etc. by fraud or other improper means, must be obliged to refund training expenses, etc. paid during the period of restriction on payment for one year, does not violate the principle of excessive prohibition.

In light of the fact that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, etc., the legislative purpose of the instant provision is justifiable in light of the following: (a) the restriction on the payment of training costs, etc. for one year for illegal recipients and the order to refund subsidies paid within the restriction period; and (b) the purpose of the instant provision is to prevent misconduct in relation to the payment of training expenses, etc., and ultimately to promote the development and improvement of workplace skill of workers, and (c) vocational ability development training is conducted through limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act. In addition, the instant provision appears to have reduced misconduct in relation to the payment of training expenses, etc., through disciplinary sanctions

However, as seen below, the enforcement decree of this case is in violation of the Constitution as a provision that excessively infringes on the property rights of the remaining illegal recipients who lack the requirement of "minimum degree of damage" or "a balance of legal interests."

① Article 35(2) of the former Employment Insurance Act provides that a person may collect an amount equivalent to or less than the amount received by fraud or other improper means within a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act and Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009) and Article 9(1) of the Enforcement Rule of the same Act stipulate that the amount to be additionally collected shall be calculated based on the number of times a person has applied for expenses by fraud or other improper means during the past five years. Meanwhile, separate from the aforesaid additional collection disposition, the provision of the Enforcement Decree of the same case provides that the amount of subsidies paid within the said restriction period shall be limited to the amount of subsidies paid to the illegal recipient for one year, and at the same time, the order to return the subsidies within the said restriction period shall be imposed uniformly, unlike the aforementioned additional collection disposition, on the other hand, the Plaintiff and the small amount of subsidies that are subject to additional collection may not be denied.

(2) In addition, since the provision of the Enforcement Decree of this case specifies the initial date of the restriction on payment as "the date on which the application for payment was made" rather than the date on which the payment was made, the illegal recipient shall return retroactively the amount already received prior to the date on which the restriction on payment was made. However, if the illegal recipient had known in advance that the payment of training expenses, etc. would be restricted for one year, he could reduce the amount of the order to return by flexibly implementing the training course during the restriction period, and it would not be unreasonable to operate the training course. Ultimately, even if the provision of the Enforcement Decree of this case stipulates the restriction on payment as a binding act, the initial date of the restriction on payment was set as the date of receiving training expenses or the date on which the application for payment was made, it cannot be deemed that the principle of "minimum damage" was observed.

③ In addition, Article 1 of the Enforcement Decree of the instant case provides for "training expenses or an order to return subsidies already paid during the period of one year from the date of receipt of the training expenses or the application for payment, but does not impose any special restrictions on the period during which the said sanctions may be imposed, thereby creating a problem that the status of an illegal recipient is unstable for a long

④ Therefore, even if the legislative purpose of this case can be more efficiently achieved by stipulating the provision of the Enforcement Decree of this case, which is a disciplinary measure, in addition to the additional collection disposition against an illegal recipient, the provision of this case’s legislative purpose was to impose a restriction on payment for one year and to order the return of subsidies paid during the restriction period, without setting detailed standards depending on the pattern of the illegal recipient’s act, violates the provision by excessively restricting the property rights of the illegal recipient (see Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010; Article 56(1) of the Enforcement Decree of the Employment Insurance Act provides for one-year restriction on payment to the illegal recipient; however, “if three years have passed from the date of receipt of subsidies or incentives and the amount of receiving or seeking to receive subsidies by fraud or other improper means is less than three million won, the restriction on payment for one-year period is not applicable to the person who received or attempted to receive subsidies under the provision of this case’s new provision of Article 15(3).

(C) Accordingly, each of the instant dispositions based on Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which deviates from the limitation of delegated legislation, and is null and void due to a violation of the principle of excessive prohibition under the Constitution,

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.

The presiding judge, judge and officer

Judges Jeon Jae-il

Judges Lee Jae-sung

1) The Plaintiff stated the purport of the claim as around September 201, but appears to be a clerical error in August 31, 201.

A person shall be appointed.

A person shall be appointed.