(영문) 의정부지방법원 2019.5.14.선고 2018구합11499 판결

On June 29, 2016, the Defendant’s order to return the cost of occupational ability development training to the Plaintiff and the disposition of additional collection and restriction on loans shall be revoked.

Reasons

1. Details of the disposition;

A. From September 6, 2011 to June 9, 2014, the Plaintiff is a person who operated the Seongdong-gu building B and the D Children's House in C (hereinafter referred to as the "Child Care Center in this case").

B. E, from June 2013 to March 2014, upon being entrusted by an employer operating a childcare center with the development of vocational abilities for childcare teachers who are workers in the childcare center, conducted training for childcare teachers, and operated the said education center as the representative director of F Co., Ltd. (hereinafter referred to as “F”), which is an educational institution that received training expenses from the employer.

C. On July 29, 2015, the chief of the Incheon Bupyeong-gu Police Station: (a) prepared a false statement to the Defendant on July 29, 2015; (b) prepared a false statement even if the head of the Child Care Center did not pay training expenses; and (c) filed a false application for training expenses as if the infant care teacher did not complete training more than 80%, and received the training falsely; and (d) submitted a false statement of crimes along with the list of crimes. The list of crimes included 246,00 won related to the child house of this case.

D. As a result of the investigation into the fraudulent receipt of subsidies for training expenses related to the instant childcare center, the Defendant confirmed that the Plaintiff received KRW 246,000 in total as subsidies for training expenses on the ground that G workers of the instant childcare center (at the instant childcare center from August 5, 2013 to May 31, 2014) took training courses, including “H, from December 28, 2013 to January 15, 2014.”

E. On June 29, 2016, the Defendant: (a) conspired with the Plaintiff on June 29, 2016, (b) Articles 55(2), 56(2), and 56(3) of the Act on the Development of Workplace Skills of Workers; (b) Articles 22 and 22-2(1) of the Enforcement Rule of the same Act that “the Plaintiff participated in training at less than 80% of the total training hours approved for the provision of the training entrusted by the business owner (affiliated workers)” on the ground that “the Defendant was provided with subsidies by unlawful means; (c) orders for return of 246,00 won; (d) orders for additional collection of 246,00 won; (e) 240 days of subsidies; and (e) orders for restriction on loans for 240 days to be provided by the Seoul District Court on September 9, 2016; (e) provided that the Defendant was provided with subsidies from 170% or more of the total number of the victims’ vocational skills development support facilities.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 6, 9, Eul evidence Nos. 1, 3, 5, 8, and 13, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) According to the guidance on the criteria for the administrative disposition on the business owner's illegal training. The business owner who did not file a voluntary report with respect to the disposition of this case was subject to an administrative disposition following an investigation on a written investigation, etc. However, the defendant did not conduct an additional investigation, etc. to the plaintiff who did not file a voluntary report, and the plaintiff did not receive the written disposition of this case. Thus, the disposition of this case is unlawful

2) The Plaintiff did not enter into an entrustment contract with F for vocational skills development, and the F Representative E did not inform the Plaintiff of the fact that the childcare teacher G was not in attendance at the training course, and applied for subsidies for training expenses without knowing to the Plaintiff. Thereafter, the Plaintiff did not intend to transfer the subsidies to G immediately after having received education with his own money, and did not intend to receive subsidies for training expenses. Accordingly, the instant disposition that the Plaintiff neglected to pay the subsidies for training expenses, even though there were justifiable grounds for not being able to cause the Plaintiff’s failure to perform his/her duties, is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The assertion on procedural illegality

A) Facts of recognition

The following facts are recognized in full view of the purport of the entire pleadings in each entry (including each number) in the evidence Nos. 2 to 7.

(1) On April 12, 2016, the Minister of Employment and Labor notified the Defendant of the following guidelines, such as the criteria for the disposition disposition against the employer’s illegal training (hereinafter referred to as “instant criteria for disposition”).

The employer, who is in cooperation with the prosecutor's investigation results and confirms the suspicion of illegal receipt of data, such as the criteria for the administrative disposition for illegal training by the business owner, shall be subject to the disposition of illegal receipt of data by the prosecutor's office. If, as a result of the prosecutor's investigation, the suspicion of illegal receipt of data by the business owner is unclear, it shall be handled in accordance with the case of suspension of prosecution and investigation.

- The cases for which it is not clearly confirmed that the illegal act is not clearly confirmed, such as (non-prosecution) the prosecutor's non-prosecution of the prosecution, is not an administrative disposition / [2] With respect to a case for which the suspension of prosecution or investigation is being conducted after a separate investigation is conducted by the employment center, where the business owner of the dispositiveO (self-reported business owner) files a voluntary report to the business owner, he/she shall take measures to return only the amount of the illegal receipt (limited to loan restriction) - (including a self-reported business owner) written investigation and written confirmation (including evidential materials) submitted by the mail business owner who has not submitted a written report and written confirmation to the business owner who has not submitted the written confirmation, the case shall be excluded from the administrative disposition - (written investigation and written confirmation) for the business owner who has not submitted a written investigation, such as a written investigation, conducted an additional investigation by the employment center

(2) On the other hand, on April 6, 2016, the defendant requested the Seoul Western District Prosecutors' Office to peruse and copy the criminal case records E, and around that time, it confirmed that there was the reason for the instant disposition to the plaintiff by reading and copying all of the prosecutorial investigation data.

(3) On June 29, 2016, the Plaintiff visited the Goyangyang Branch Office of the Central Employment and Labor Agency, and submitted a statement of opinion to the effect that the child care center of this case was duly paid to the relevant teacher for vocational skills development training expenses. After confirming the content of the statement of opinion on the same day, the person in charge of the Goyangyang Branch Office of the Central Employment and Labor Agency granted the Plaintiff a mail bag containing the instant written disposition, and the Plaintiff confirmed the instant written disposition, and then returned the instant written disposition, with a camera stating that “I cannot deny or apply for training expenses.”

B) Specific determination

(1) First, with respect to whether the Defendant was taking the instant disposition against the instant disposition criteria, the Minister of Health and Welfare, and the content of the instant disposition criteria, the business owner whose suspicion of illegal receipt and demand was confirmed with cooperation from the prosecutor’s investigation results by the prosecutor’s office, shall conduct the process of taking the disposition for illegal receipt and demand, and shall conduct an administrative disposition through a separate investigation by receiving voluntary report from the business owner or sending a written investigation report and written confirmation by mail, in accordance with the case where the business owner’s suspicion of illegal receipt and demand is unclear. As seen earlier, as long as the Defendant, in accordance with the instant disposition criteria prior to the instant disposition disposition, inspected and copied all of the prosecutor’s investigation results in accordance with the instant disposition criteria, and confirmed the Plaintiff’s grounds for the instant disposition, it cannot be said that the instant disposition was unlawful on the ground that it did not undergo a separate investigation by sending the written investigation report and written confirmation to the Plaintiff. Accordingly

(2) Next, as seen earlier, insofar as the Plaintiff received and confirmed the instant disposition once the Plaintiff received the instant disposition once it was earlier, the instant disposition is deemed to have been lawfully served, and thus, the Plaintiff’s assertion on this part is without merit.

2) The assertion that there is no intention to do so for illegal supply and demand

A) Even if it is not binding on the finding of facts in a criminal trial for an administrative trial, the facts found guilty of the same facts are valuable evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a factual judgment in a criminal trial in light of other evidence submitted in a civil or criminal trial, the facts opposed thereto cannot be acknowledged (see Supreme Court Decisions 81Nu324, Sept. 13, 1983; 201Du28240, May 24, 2012). Further, “false or other unlawful means stipulated as the grounds for sanctions under Articles 55 and 56 of the Act on the Development of Workplace Skills of Workers” refer to the affirmative and passive acts that a person who is not entitled to training expenses would not have been able to act as if he/she is qualified or to conceal the fact that he/she is not qualified under the social norms, and thus, it can not be unreasonable for the person to be aware of the fact that he/she failed to perform his/her duty to pay training expenses, such as an objective violation of administrative laws and regulations.

Unless there are circumstances under which one of the parties has intentionally or negligently committed a violation may be imposed (see, e.g., Supreme Court Decision 2010Du24371, Jun. 28, 2012).

B) With respect to the instant case, the following circumstances, i.e., a criminal judgment against F’s representative E, upon the Plaintiff’s request from F to provide workplace skill development training for the instant childcare teacher on the commission of the Plaintiff, were stated in the attendance rate of 100% or more, and the Plaintiff, the employer, submitted an application form for workplace skill development training expenses and a false tax invoice, etc. for training expenses, and made the Plaintiff, the employer, the Plaintiff, the employer, receive the training fees. (ii) In an investigative agency, E, “I prepared a false statement that the childcare teacher, who participated in the training course, did not attend at least 80% of the number of 80% of the number of childcare teachers, and issued both an entrustment contract form, receipt, etc., to a childcare center.” (iii) It appears that G participated in the training process by requesting the Plaintiff to submit an entrustment contract form, and thus, it appears that the Plaintiff could not be deemed that there was any reason for the Plaintiff’s failure to comply with the Plaintiff’s request for training expenses without any justifiable reason for the Plaintiff’s payment of training expenses.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.