(영문) 대전지방법원 2012.4.25. 선고 2011구합4406 판결

(a) Defendant (Appointed Party)’s order to return KRW 203,395,291 subsidies for vocational skills development as provided by the head of the Daejeon Regional Employment and Labor Office on August 4, 201;

B. An order to return KRW 159,809,862 as of August 4, 201 by the head of the Daejeon Regional Employment and Labor Office;

(c) an order to return the workplace skill development subsidy of KRW 15,262,372 issued on August 4, 201 by the Appointor Seoul Regional Employment and Labor Director;

(d) an order to return KRW 16,375,510 for vocational skills development subsidies granted on August 9, 201 by the name of the deputy local employment campaign name of the Appointor;

(e) An order issued to return KRW 11,947,540 to the head of the port of port of the Daegu Regional Employment and Labor Office on August 23, 2011 by the selector;

Each cancellation shall be revoked.

2. The costs of lawsuit shall be borne by the defendant (appointed party).

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. From October 31, 2007 to November 1, 2007, the Plaintiff conducted 59 'the strengthening process of core capacity for corporate growth' (hereinafter referred to as the "the curriculum of this case') for 59 workers, including B, who belong to the Plaintiff. On January 14, 2008, the Plaintiff received 3,317,570 won as subsidies for business owners' vocational skills development training from the head of the Daejeon Regional Employment and Labor Office Branch Office of Daejeon (hereinafter referred to as the "Defendant"). The above subsidies included 56,230 won for training expenses for B, who is a trainee of the curriculum of this case, as the Plaintiff's employee.

B. The Administrator of the Central and Medium Local Labor Agency received a request from the Board of Audit and Inspection for an investigation as to whether a trainee entered or departing from the Republic of Korea during the vocational skills development training period, along with his/her list of trainees entering or departing from the Republic of Korea, and inspected the Plaintiff. As a result, even though B, who is an employee of the Plaintiff, left the Republic of Korea from October 2007 to November 2, 2007, he/she confirmed the fact that he/she was treated as having attended each of the instant courses on November 1 of the same year, and on August 4, 2011, on the basis of Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply), Article 35(1) of the former Employment Insurance Act, the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sep. 18, 2008; hereinafter the same).

D. On August 4, 2011, the head of the Seoul Regional Employment and Labor Agency notified the Plaintiff of the illegal receipt of subsidies based on the management of the Plaintiff’s improper withdrawal, ordered the Plaintiff to refund KRW 15,262,372 of vocational skills development training expenses paid to the Plaintiff’s training courses during the period of restriction on payment, and the head of the Daejeon Regional Employment and Labor Agency ordered the Appointor to refund KRW 16,375,510 of vocational skills development training expenses paid to the Plaintiff’s training courses during the period of restriction on payment on August 9, 2011, the head of the Daegu Regional Employment and Labor Agency issued a disposition to return KRW 11,947,540 to the Plaintiff’s training courses conducted by the Plaintiff on August 23, 2011, and the head of the Daejeon Regional Employment and Labor Agency ordered the Defendants to refund KRW 16,375,510 of the training expenses paid to the Plaintiff on August 4, 2011 (the head of the Daejeon Regional Employment and Labor Agency).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 9 (including paper numbers), Eul evidence Nos. 1 and 2 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff did not know that he did not participate in part of the instant curriculum and did not intend to receive illegal demand and supply. Therefore, the Plaintiff does not constitute a case where he received training fees by “a false or other unlawful means.”

(2) The preceding disposition of this case and each disposition of this case, which order the return of the subsidy already received in the past, do not have any legal basis, and Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis of each disposition of this case, violates the principle of excessive prohibition under the Constitution and are null and void.

(3) Each of the dispositions of this case by the Defendants on different premise should be revoked in an unlawful manner.

(b) Related statutes;

It is as shown in the attached Form.

C. Facts of recognition

(1) The instant curriculum is a training conducted by the Plaintiff upon entrustment to C institutions.

(2) As a trainee of the instant curriculum, B, who is the Plaintiff’s employee, left Korea from October 29, 2007 to November 2, 2007, and participated in the instant curriculum. However, the Plaintiff’s employee D, who was delegated by the Plaintiff with the support for the personnel management and the progress of education, signed the Plaintiff’s employee D, instead of B, to verify the attendance.

[Ground of recognition] Facts without dispute, Gap evidence No. 7-3, Eul evidence No. 4, and the purport of the whole pleadings is determined.

(1) As to whether the Plaintiff received training expenses by "any false or other fraudulent 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., (i) as if B did not participate in the entire curriculum of this case and entered differently from the facts as if B participated in the attendance book managed by the Plaintiff; (ii) as training expense subsidies are paid depending on whether the Plaintiff was present; and (iii) D entrusted with the management of the number of trainees by the Plaintiff was delegated with the management of the student's attendance at the attendance book instead of B; (iv) it is reasonable to deem that B was aware of the fact that he was not present at the curriculum of this case, and even if he was unaware of the fact, it is reasonable to deem that the Plaintiff was negligent because B was aware of the fact that he was not present at the curriculum of this case, and therefore, even if he was not aware of the fact, it is reasonable to deem that there was negligence on the part of the Plaintiff. Accordingly, this part of the Plaintiff's assertion 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 support for employment security and vocational skills development programs under this Chapter by fraud or other improper means to restrict such support or return the subsidy already provided, as prescribed by Presidential Decree," and Article 35 (2) of the former Employment Insurance Act provides that "the Minister of Labor may order a person who has received or has received support for workplace skill development programs under this Chapter by fraud or other improper means to return the subsidy or to return the subsidy already provided, in accordance with the guidelines prescribed by Ordinance of the Ministry of Labor." In addition, Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act provides that "the Minister of Labor may order a person who has received or intends to receive the subsidy, subsidy, or vocational skills development training expenses under each subparagraph of paragraph (1) by fraud or other improper means for one year from the date on which he/she received the subsidy, subsidy, or vocational skills development training expenses, and the Minister of Labor shall order the person to return the subsidy, subsidy, or training

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”) stipulate the form of the provision, structure, or language of the provision of Article 35(1) of the same Act, and the establishment of the period of restriction on payment, and a disposition ordering the return of subsidies granted during the period of restriction on payment is an act of continuous payment. 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.

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 have flexibly conducted the training course during the restriction period and could have reduced the amount of the order of return. It would not be unreasonable to operate the training course. Ultimately, even if the provision of the Enforcement Decree of this case prescribes the restriction on payment as a continuous act, the initial date of the restriction on payment was set as the date of receiving training expenses or the date of application for payment was set as the date on which the illegal recipient would suffer damages by separately setting the initial date,

In addition, Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; Presidential Decree No. 22020, Feb. 1, 2010; Presidential Decree No. 20135, Feb. 1, 2010; Presidential Decree No. 2015, Feb. 1, 2010; Presidential Decree No. 20135, Feb. 3, 2010; Presidential Decree No. 20135, Feb. 3, 2010; Presidential Decree No. 20135, Jan. 3, 2010; Presidential Decree No. 20135, Feb. 3, 2010; Presidential Decree No. 20130, Feb. 1, 2010; Presidential Decree No. 2020, Feb. 3, 2013>

(C) Therefore, the instant prior disposition and each of the instant dispositions in accordance with Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which deviate from the limitation of delegated legislation, and are 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.