(영문) 광주지방법원 2013.5.9. 선고 2012구합5510 판결

1. On May 8, 2012, the order issued by the Defendant to return the illegal receipt of employment maintenance support payment to the Plaintiff and the disposition to revise the restriction on payment of various subsidies, grants, etc. shall be revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff was a business entity that manufactures and sells food, etc. in the Young-gu, Young-gu, Young-gu, Young-gu, Seoul Special Metropolitan City, which was engaged in the production and sales of food in accordance with Article 436-4, and the Plaintiff’s dietitians employed on August 2009, January 201, February 201, and August 201, reported false suspension of business, and received the total amount of KRW 84,659,80 from the Defendant as subsidies for maintenance of employment.

B. On April 18, 2012, the Defendant issued an order to return subsidies of KRW 84,659,880, and an additional collection of KRW 84,659,880, and a disposition to restrict payment of subsidies, etc. from April 18, 2012 to April 17, 2013 (hereinafter “prior disposition”).

C. On May 8, 2012, the Defendant issued a disposition to additionally collect twice the amount of 84,659,880 won that the Plaintiff’s unlawful act as above falls under Article 35(2) of the former Employment Insurance Act (amended by Act No. 9792, Oct. 8, 2009; hereinafter “former Employment Insurance Act”) and Article 78(1)1 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 335, Jan. 6, 2010; hereinafter “Enforcement Rule of the former Employment Insurance Act”) or additionally collect twice the amount of 84,659,880 won that was received by false or other unlawful means, and thus, the Defendant issued a disposition to additionally collect twice the amount of 84,659,880 won that was paid by mistake as twice the amount of misappropriation and the amount of additional collection to be collected from KRW 280,986,986,20.

D. On July 10, 2012, the Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Central Administrative Appeals Commission, but the Central Administrative Appeals Commission rendered a ruling dismissing the Plaintiff’s request for administrative appeal on September 11, 2012.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 3, Eul evidence Nos. 2, 3, 5, and 6 (including paper numbers, hereinafter the same), the purport of the whole pleadings

2. Whether the disposition of this case is unlawful

A. The plaintiff's assertion

1) As long as the Defendant erroneously interpreted Article 78(1)1 of the former Enforcement Rule of the Employment Insurance Act, thereby making the preceding disposition, the error of interpreting the above statutes does not constitute a ground for correction under Article 25 of the former Administrative Procedures Act.

2) The revocation of the preceding disposition of this case, which was already committed for the purpose of making a heavy disposition of this case for the same reason, is not permissible since it seriously undermines the Plaintiff’s trust and legal stability as to the preceding disposition of this case.

3) Since the Defendant did not undergo the prior notification procedure at the time of the instant disposition, the instant disposition was unlawful in violation of Article 21 of the former Administrative Procedures Act.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the error of interpreting statutes constitutes a ground for correcting a disposition under Article 25 of the former Administrative Procedures Act

A) “Correction of a disposition” under Article 25 of the former Administrative Procedures Act shall, to the extent that the content of the disposition is not substantially modified, be corrected or supplemented by the administrative agency’s own correction or supplement to the extent that such correction does not interfere with the execution of the disposition. In a case where it is apparent that both the administrative agency and the other party are a simple error in entry or calculation, and there is no dispute over its substance, it shall be deemed that the purport is to avoid repeating an administrative act, such as cancelling the same disposition on the grounds of minor defects.

B) The Defendant’s correction of the additionally collected amount of KRW 84,659,880, among the preceding dispositions, to KRW 169,319,760, does not constitute a minor error such as an apparent error or miscalculation, as it causes a significant change in the content. In addition, even if Article 78(1)1 of the former Enforcement Rule of the Employment Insurance Act provides that double the amount of illegal receipt as an additional collection in the form of Ministerial Ordinance, even if the standard of punitive administrative disposition is prescribed in the form of Ministerial Ordinance, it is nothing more than that of the administrative agency’s internal business rules, and thus, it cannot be deemed an obvious error even if the Defendant violated the foregoing prior disposition. Therefore, it is difficult to view that the instant disposition constitutes a correction of the instant prior disposition, and the Defendant’s above alteration constitutes a correction of the instant prior disposition, and thus, constitutes a correction of the amount of additional collection at KRW 169,319,760, on the ground that there is a defect in the instant prior disposition.

2) Whether the instant disposition violates the principle of trust protection

A) In a case where an administrative agency has once taken an administrative disposition, the administrative agency that taken the administrative disposition may not revoke (including the meaning of withdrawal) the administrative disposition as a person, except where there is a statutory provision, defect in the administrative disposition, the continuation of the administrative disposition is contrary to the public interest, or the consent of the other party is obtained (see Supreme Court Decision 9Du10520, Feb. 25, 200).

B) Even if the preceding disposition violates the criteria for administrative disposition under Article 78(1)1 of the former Enforcement Rule of the Employment Insurance Act, it does not immediately mean that it is unlawful just on the basis of such facts. Moreover, the Plaintiff, as the Plaintiff, has already formed trust in the continuation of the preceding disposition by taking effect of the preceding disposition, and it does not seem that the existence of the preceding disposition is manifestly contrary to the public interest. Therefore, revocation of the preceding disposition already taken place for the same reason, which would seriously undermine the Plaintiff’s trust and legal stability, cannot be permitted. Thus, the Defendant’s disposition of this case is unreasonable.

3. Conclusion

Therefore, without examining the remaining arguments of the plaintiff, the plaintiff's claim is justified, and it is so decided as per Disposition by the assent of all participating Justices.