(영문) 부산지방법원 2011.11.17. 선고 2011구합2959 판결

1. On March 22, 2011, the Defendant’s order to return training costs for vocational skills development of KRW 184,882,190 against the Plaintiff is 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) Recognition of training courses and payment of training expenses;

1) On February 4, 2008, the Plaintiff received training course recognized as a vocational skills development training course from C (14-07 and 1) (from February 5, 2008 to February 29, 2008 (1j), from February 25, 2008 to February 25, 2008 (2j), from February 14, 2008 to February 26, 2008 to February 26, 2008 (3j), from February 26, 2008 to May 5, 2008; hereinafter referred to as the “instant third-party course”).

2) After implementing the instant training course with 34 employees from February 14, 2008 to February 26, 2008, the Plaintiff applied for the payment of training expenses for the total amount of the C training course including the instant training course to the head of the Gyeonggi District Employment and Labor Office on March 18, 2008. The head of the Gyeonggi District Employment and Labor Office paid 14,364,600 won to the Plaintiff on March 21, 2008. Of the above training expenses, the training expenses for the instant training course included 4,93,298 won for the Plaintiff’s employees, including 145,097 won for the trainee E who is the head of the D Business Office (Grade III).

(b) Each disposition against the plaintiff by the Administrator of the Gyeonggi-do Office for Local Employment and Labor;

1) On August 2010, the Board of Audit and Inspection and the Ministry of Employment and Labor requested the head of the Gyeonggi-do branch office of the Gyeonggi-do Office for Employment and Labor to investigate whether the status of trainees who enter or depart from the Republic of Korea during the vocational ability development training period was managed unfairly. As a result of an investigation conducted by the head of the Gyeonggi-do Office for Employment and Labor, it was confirmed that the Plaintiff E, an employee of the Plaintiff, left Korea from February 14, 2008 to February 26, 2008 and was present at the instant training course, although he did not attend the instant training course, he/she was treated as having attended for the day of February 15, 2008, which is the date of the execution of the said training course.

2) Article 25 of the former Act on the Development of Workers’ Vocational Skills (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same shall apply) and Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) shall apply to the Gyeonggi-do Administrator of the Gyeonggi-do Office, on March 21, 201, and March 22, 2011, reported that the Plaintiff completed the training course on a normal basis, and received training expenses by fraud or other improper means.

C. In the Defendant’s disposition against the Plaintiff, on March 22, 2011, the Defendant ordered the Plaintiff to return KRW 184,882,190 of the training expenses that the Defendant subsidized to F for the period of restriction on payment (from March 24, 2008 to March 23, 2009) based on the disposition of restricting payment by the Central and Medium Local Labor Agency (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 2, 3, 4, 10, 14, 20 evidence, Eul 1 and 4 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The inclusion of E in the person subject to the application for training costs is merely an administrative error due to the failure to perform the duties of G, which was first in charge of the relevant duties at the time, and was not intended to receive training costs by false or other unlawful means, and thus, the instant disposition based on the premise is all unlawful. Even if the act constitutes a household fraud or other improper means, the act of violation is very insignificant and thus, each of the instant dispositions is unlawful because it exceeds the scope

2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which served as the basis of the instant disposition, exceeded the bounds of delegation under Article 35(1) of the former Employment Insurance Act, and is unlawful as it lacks the requirements of minimum degree of damage or balance of legal interests. It is unlawful as it deviates from the scope of discretion or abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

1) The instant training course is a self-training conducted by the Vice-Governor of the Seoul metropolitan area under the Plaintiff, the business owner.

2) G was in charge of the affairs related to the instant training courses, such as the establishment of training plans and the application for support for training expenses, etc. G was in charge of the personnel and labor team in Seoul Special Metropolitan City Vice Governor under the Plaintiff’s control. Since January 14, 2008, G was in charge of the occupational ability development training programs such as the instant training courses, while performing duties related to the management of records and security.

3) E included in the list of trainees of the instant training course used annual paid leave from February 15, 2008 to February 26, 2008 to travel abroad. With E, H, who became a trainee of the instant training course, made a statement on behalf of E’s signature as if he/she attended the training course for the total four days on February 15, 2008, among five training hours, as the training hours (Evidence A No. 6) was on February 14, 2008; 8.

4) The number of trainees in C (14-07, and 1) course, including the instant training course, was 102, but among whom four persons, who attended less than five days, including E, were treated as ‘unclaimed injury’ or ‘unclaimed injury’.

5) After the completion of the instant training course, G entered 9 trainees including HRD-Nt Administrative Support System (not including three trainees, other than E), who completed the training course C (14-07 and 1) into the training course (the training course is completed and submitted to the Administrator of the Gyeonggi-gu Regional Employment and Labor Office.) accordingly, G submitted an application for subsidies for vocational skills development training expenses to the said 99 trainees.

6) Meanwhile, E participated in the second period C process conducted from March 25, 2008 to April 18, 2008 and completed it for five days.

[Ground of recognition] Facts without dispute, Gap 6 through 9, 11 through 13, Eul 2, 3, 5 through 7, each entry of Gap 23 through 25, and the purport of the whole pleadings

D. Determination

1) Whether the person received support by "any false or other fraudulent means"

A) Sanction against violation of administrative regulations is a sanction against the objective fact that is a violation of administrative regulations to achieve administrative purposes, and thus, it may be imposed even if the violator has no intention or negligence, barring any special circumstances such as there is a justifiable reason not to cause any negligence on the part of the violator. "False or other unlawful means" under Article 35(1) and (2) of the former Employment Insurance Act and Article 56(1) and (2) of the Enforcement Decree of the same Act refers to all unlawful acts conducted by an unqualified business owner in general in order to conceal the eligibility for payment or to conceal the lack of eligibility to receive training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

B) However, the circumstances acknowledged by the aforementioned disposition and the evidence revealed earlier, i.e., (i) the Plaintiff’s duty to finally verify whether the trainee was present before applying for the instant training course; (ii) the Plaintiff appears to have applied for the payment of subsidies including training expenses for E without properly verifying whether the trainee was present at the instant training course; (ii) the Plaintiff’s act was conducted on the following day of the instant training commencement and left Korea; (iii) the instant training course was conducted for a short period of time (five days) as well as on 34 trainees; and (iv) the Plaintiff could not be deemed to have sufficiently known the fact that the Plaintiff did not attend the instant training course, even if having paid due to the Plaintiff’s failure to attend the training course; and (iii) the head of the Busan District Labor Agency, as the agent of the instant training site, did not have been aware of the fact that the Plaintiff failed to attend the training course as above, and thus, the Plaintiff’s act of neglecting the Plaintiff’s duty to pay subsidies to the Plaintiff, which was the Plaintiff’s 20th employee.

2) Whether Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter the same) is unlawful

For example, in imposing sanctions on the ground of an illegal act, in principle, the sanction and criteria should be governed by the law at the time of the act, and, barring any special provision, it cannot be governed by the amended law (see Supreme Court Decision 8271, Dec. 28, 1982). In addition, Article 4 of the Addenda to the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008) (amended by Act No. 9315, Dec. 31, 2008) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008) provides that "The former provision of Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 200) shall apply

Therefore, the underlying statute of the instant disposition is the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) and the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter the same shall apply), which applies at the time of the act of unlawful supply and demand. Therefore, it is deemed as to whether Article 56(2) of the former Enforcement Decree of the Employment Insurance Act is illegal.

A) According to Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of the Employment Insurance Act”), Article 35(1) of the former Employment Insurance Act provides that a person who has received, or intended to receive, vocational skills development training costs, etc. by false or other unlawful means (hereinafter “unlawful recipients”) shall be obligated to pay training costs, etc. for one year, and shall be returned in full with respect to training costs, etc. paid during the period of restriction on payment. The disposition ordering the establishment of the restriction period and the return of subsidies granted during the restriction period is a binding act.

B) Above all, we examine whether the instant enforcement decree provisions violate the principle of excessive prohibition.

The principle of excessive prohibition refers to the limit of the basic principles or legislative activities to be observed by the State in carrying out legislative activities that limit the fundamental rights of the people, and the legislative purpose of which is to restrict the fundamental rights of the people is to recognize legitimacy in accordance with the constitutional and legal system (grounded on legitimacy of the purpose), and the method should be effective and appropriate in order to achieve the purpose of the restriction (grounded on appropriateness of the method). Even if the measure of restricting the fundamental rights chosen by the legislative authority is appropriate in order to achieve the legislative purpose, the restriction of fundamental rights should be limited to the necessary minimum (minimum degree of damage), and the public interest to be protected in balancing comparison with the public interest to be protected by the legislation is the principle of the Constitution. Acts and subordinate statutes or provisions that violate the principle of excessive prohibition are in violation of the Constitution and have no effect as themselves.

(1) First, we examine whether the provision of the Enforcement Decree of this case satisfies the legitimacy of the legislative purpose and the appropriateness of the means. The provision of this case aims to prevent misconduct in relation to the payment of training expenses, etc. and ultimately to promote the development and improvement of workers’ vocational abilities through the restriction on payment of training expenses, etc. for one year to the illegal recipient and the order to refund subsidies paid within the restriction period. In addition, considering that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, the purpose of the provision is justifiable. Furthermore, it appears that misconduct in relation to the payment of training expenses, etc. is reduced through punitive sanctions stipulated in the Enforcement Decree of this case, and accordingly, the above disciplinary disposition constitutes a means suitable for accomplishing the legislative purpose.

(2) Next, we examine whether the enforcement decree of this case satisfies the minimum requirements for damage and the balance of legal interests.

Article 35(2) of the former Enforcement Decree of the Employment Insurance Act provides that the amount of subsidies that the Plaintiff would have received for less than 2 years can be collected by means of false or other unlawful means as a result of the instant restriction on the payment of subsidies for 10 years and that the amount of such subsidies would have been significantly less than 10 years since the date of the instant restriction on the payment of subsidies under Article 25(4)1 of the former Act and Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009). Article 9(1) of the former Enforcement Decree of the same Act provides that the amount of subsidies that the Plaintiff would have received for less than 2 years would have been subject to restriction on the payment of subsidies for 10 years since the date of the instant restriction on the payment of subsidies would not be subject to additional collection or restriction on the payment of such subsidies for 2 years, unlike the above restriction on the payment of subsidies for 3 years.

(3) Therefore, the enforcement decree of this case violates the principle of excessive prohibition under the Constitution and is null and void. The plaintiff's assertion on this point is justified.

C) As long as the instant provision violates the principle of excessive prohibition under the Constitution and cannot be effective, the instant disposition based on the provision of the Enforcement Decree of the instant case is unlawful without further examining the remainder of the Plaintiff’s assertion.

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.