2011-gu 23276 Revocation of restrictions on the payment of employment insurance subsidies, return disposition, etc.

Export-Import Bank

The Head of Seoul Regional Employment and Labor Office Seoul Southern Site

November 4, 2011

November 18, 2011

1. The disposition taken by the Defendant against the Plaintiff on April 29, 201 against the Plaintiff, the disposition to return training expenses for the restriction on payment of employment insurance for the Plaintiff on April 29, 201, and the disposition to pay a site for vocational skills development training expenses by the business owner on July 11,

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

The disposition listed in paragraph 1 of the order and the disposition taken by the defendant against the plaintiff on April 29, 201 for the return of the employment insurance training fee and additional collection of training fees shall be revoked.

1. Details of the disposition;

A. On August 30, 2007, the Plaintiff entered into a contract with Kwikset Swikset’s course (hereinafter “instant training”). According to the contract, the training period was 10 days out of September 4, 2007 to October 11, 2007, 30 hours out of the period of training, 80% of the number of trainees who attend the training, and the certificate of completion was issued to B on October 11, 2007.

B. The Plaintiff completed the instant training, and applied for the Defendant’s vocational skills development training expenses for the Defendant and received subsidies of KRW 104,470 on May 2, 2008 (hereinafter “the instant subsidies”).

C. The Defendant confirmed the fact that B had been on September 11, 201, despite having been traveling abroad from September 10, 2007 to September 14, 201. On April 29, 2011, the Defendant issued a completion certificate of the instant training due to the Plaintiff’s illegal attendance and issued a completion certificate of the training, and issued the subsidies, pursuant to Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) and Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter the same shall apply) and Article 35 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sep. 18, 2008; 204, 104, 107.

D. After that, on May 11, 201, the Plaintiff filed an application with the Defendant for a total of KRW 68,810,287 out of the training expenses for the training courses in the latter part of the second half of 2008, and KRW 51,321,486 out of the total training expenses for the first half of 2009 on the 16th of the same month. However, on July 11, 2011, the Defendant rendered a land-based disposition on the ground that the above application was related to the training courses conducted during the period of restriction on payment (hereinafter referred to as "disposition in this case, in addition to the dispositions in the preceding paragraphs (i) through (iii) and (iv) during which there is no dispute over the grounds for recognition, (i) evidence Nos. 1 and 2, evidence No. 3-1, 2-2, 1, and 2-1, and (ii) evidence No. 2, the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The fact that a day was attended and processed without attending the instant training during the period of departure from the Republic of Korea is not the Plaintiff’s responsibility, but the error in the attendance management is not the Plaintiff’s responsibility, and it cannot be deemed that the Plaintiff could have known if he knew of or paid considerable attention to such circumstances. Therefore, the Plaintiff did not receive support by fraud or other improper means, and the instant disposition did not exist.

(2) Even if the Plaintiff received the instant subsidy by false or other unlawful means, the possible disposition is limited to the return of training expenses and additional collection pursuant to Article 35 of the former Employment Insurance Act, and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of the instant case”) which stipulates that the payment of the Plaintiff’s insurance benefits should be completely restricted during one year from the day following the receipt of employment insurance benefits was enacted without delegation by the mother law, and thus, it is unlawful, and the disposition of restricting the payment period based on the unlawful Enforcement Decree of the Employment Insurance Act is also unlawful.

(3) Even if the instant provision on the restriction of the payment restriction period for domestic affairs is in the status of a delegating person under the law, the Enforcement Decree provides that the law shall be determined by discretionary act, and that the training expenses subsidized during the restriction period shall be returned after a long period of one year or more from the date on which the training is completed, it violates the principle of trust protection, the principle of proportionality, and the above constitutional and invalid.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Article 35 of the Employment Insurance Act (i.e., an order to return money already received, restrictions on payment, additional collection, etc.), which is a requirement for sanctions under Article 35 of the same Act, refers to any fraudulent act committed by an employer who is not entitled to receive subsidies, grants, etc. to pretend his/her eligibility or to conceal his/her eligibility, which may affect the decision-making on the payment of subsidies, grants, etc. (see Supreme Court Decision 2001Du2270, Sept. 5, 2003), the aforementioned evidence, the statement of evidence No. 4, and the purport of oral argument, are as follows: (a) the Plaintiff was obligated to verify whether he/she was actually present before applying for subsidies to the Defendant, and (b) the training period of this case was merely an illegal act during the period of time from September 4, 2007 to October 11, 207; and (c) the Plaintiff was not an unlawful act during which he/she had been present during the training period from 300 days to 10 days.7 days.

(2) Whether the provisions of the Enforcement Decree of the instant case are unconstitutional or unlawful

In light of the form, structure, and language of Article 35(1) of the former Employment Insurance Act and Article 35(1) of the Enforcement Decree of the same Act, the disposition ordering the establishment of a period of restriction on payment and the return of subsidies, etc. paid during the period of restriction on payment constitutes a binding act. The instant provision of the Enforcement Decree is to prevent unlawful acts in relation to the payment of subsidies, etc., and ultimately promote the prevention of unemployment, promotion of employment, and development and improvement of workers’ vocational skills through the restriction on payment of subsidies, etc. for one year to illegal recipients, and the order to return subsidies, etc. granted during the restriction period, and its legislative purpose is justifiable in light of the fact that the subsidies, etc. are based on the limited public financial resources of the Employment Insurance Fund under the Employment Insurance Act. In addition, the instant provision of the Enforcement Decree of the same case appears to have reduced improper acts related to the payment of subsidies, etc. through the punitive sanctions under the Enforcement Decree of the same Act, and accordingly

However, in light of the various circumstances seen below, the content of the enforcement decree of this case is a provision that excessively infringes on the property rights of the other illegal recipients who lack the requirement of ‘minimum of damage' or ‘a balance of legal interests', and is therefore invalid in violation of the delegation purport of the parent law or the principle of excessive prohibition under the Constitution.

(A) Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount that was already paid as a punitive measure pursuant to Article 35(1) may be collected as a result of a false or other unlawful act. Article 25(4)1 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008) provides that Article 25(4)1 of the same Act shall apply mutatis mutandis to the amount that is to be additionally collected for vocational skills development training holders who receive subsidies by means of fraud or other improper means. However, Article 25(4)1 of the former Workers’ Vocational Skills Development Act provides for additional collection of subsidies for those whose recognition of vocational skills development training courses is revoked, i.e., “Article 25(4)2” of the former Enforcement Decree provides for the amount of subsidies to be additionally collected for the period of time for which the subsidies were granted to those who received subsidies by fraud or other improper means, and thus, it appears that the above provision is legislative error.

(B) In addition, the provision of the Enforcement Decree of this case provides that the initial date of the restriction on payment shall not be the date on which the application for the payment was received or made, rather than the date on which the application for the payment was made. Thus, if an illegal recipient becomes aware of the fact that the payment of subsidies would be restricted for one year, he may flexibly conduct vocational skills development projects during the restriction period and reduce the loss, and it cannot be deemed unfair to operate workplace skill development projects as such. Therefore, even if the provision of the Enforcement Decree of this case provides that the date of commencement of the restriction on payment as a continuous act is set as the date on which the application for the payment was made, the provision of this case did not comply with the principle of "minimum damage suffered by the illegal recipient" by prescribing the date on which the application for the restriction on payment was made, rather than the date on payment, the date on which the application for the subsidy was made or the date on which the application was made for the payment was made, it may result in an unreasonable difference in the number of eligible recipients of the subsidy, etc. and the time of the payment.

(C) In addition, the instant enforcement decree also provides for a mandatory payment restriction and an order to return subsidies, etc. paid during the period of restriction on payment for one year from the date on which the person received or applied for the payment of subsidies, etc., but it 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

(D) Meanwhile, even if Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of delegation to Presidential Decree, the scope or limitation of inherent delegation by the legislative intent or purpose, etc. of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Du6578, Jul. 22, 1997). Considering the fact that various types of violations are likely to occur due to the nature of various subsidies granted under the former Employment Insurance Act, and the legislative purpose of the above provision, the principle of excessive prohibition under the Constitution, etc., the purport of delegation under Article 35(1) of the former Employment Insurance Act is that the purpose of delegation can be reasonably subdivided and defined according to the type of misconduct, its degree, motive, and consequence, etc., and if so, it is anticipated that the administrative agency may increase or decrease the scope of delegation within a certain scope, regardless of the legislative intent purpose of the above provision, and that the provision can be uniformly applied to the provision in accordance with the legislative purpose of a uniform provision.

(E) Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010 provides for a restriction on the payment of subsidies for one year to illegal recipients: Provided, That the Minister of Employment and Labor has limited the restriction on the payment for one year in cases where three years have passed since the date of receipt of subsidies or incentives or where the amount received or intended to receive subsidies by fraud or other improper means is less than three million won and where fraudulent acts have been discovered for the first time, and Article 56(2) of the Enforcement Decree of the Employment Insurance Act currently in force after the amendment by Presidential Decree No. 22603, Dec. 31, 2010 has limited the amount of subsidies under paragraph (1) to any one of the subsidies under paragraph (1) by fraud or other improper means, taking into account the problems of return order or payment restriction under paragraph (1) as a result of the amendment of the Enforcement Decree of the Employment Insurance Act, the said restriction on the payment of subsidies would be reduced by one-year.

(F) Therefore, even if Article 35(2) of the former Employment Insurance Act, other than Article 35(2) of the former Employment Insurance Act, which can be additionally collected by an illegal recipient as a disciplinary measure, and the legislative purpose of this case can be more efficiently achieved by prescribing the provisions of the Enforcement Decree of this case in duplicate, the provision of the Enforcement Decree of this case, which provides for the restriction on payment and the order for return of subsidies, etc. paid during the period of restriction on payment, according to the type of the illegal recipient’s act committed, is excessively

(3) Sub-decisions

Ultimately, the part ordering the return of the instant subsidy out of the instant disposition, or the part ordering additional collection of such amount is lawful, but the remainder is based on the provision of the Enforcement Decree of the instant case that is null and void, and thus, should be revoked.

3. Conclusion

The plaintiff's claim shall be quoted within the extent of the above recognition, and the costs of litigation shall be borne by the defendant in accordance with Article 8 (2) of the Administrative Litigation Act and the proviso to Article 101 of the

The presiding judge and the associate judge;

Judges Yoon Young-man

Judges Choi Young-hoon

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.