(영문) 대전지방법원 2012.4.18. 선고 2011구합3724 판결

A. On September 4, 2007, the Plaintiff was recognized as a vocational skills development training course with respect to “207 supervisor 7 XR education” (52 times in total from September 11, 2007 to 2008, 6, 200, and 380 trainees: hereinafter referred to as “the instant education course”) to be conducted by the Administrator of the Changwon District Office of the Busan Regional Employment and Labor.

B. From June 10, 208 to March 13, 2008, the Plaintiff conducted the 49th curriculum (training period: 4, 32 hours; hereinafter referred to as “instant curriculum”) among the instant curriculum for six employees, including the Plaintiff’s Vice-Chairperson B, and applied for subsidies for vocational skills development training to the head of the Changwon of Busan District Office for 1, July 1, 2008, and received total 45,729,400 won from July 14, 2008. The Plaintiff’s subsidies for the instant training program were KRW 948,528 won, and among these subsidies, KRW 158,08,000 were collected from the Plaintiff’s employees to the 10-5th anniversary of the fact that the Plaintiff’s new training program was conducted for 108th anniversary of the Plaintiff’s new training program’s new training period, and the head of the Busan District Office for 208,080 won was notified of the Plaintiff’s new training program.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff did not know that part of the instant training course was not available to the Plaintiff, and thus did not constitute a case where the Plaintiff received training expenses by “any false or other unlawful means.”

(2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis for the instant disposition, is null and void in violation of the purport of the mother law’s status or the principle of excessive prohibition under the Constitution.

(b) Related statutes;

It is as shown in the attached Form.

(1) The instant training course is a self-training conducted by the Plaintiff.

(2) As a trainee of the instant training course, B, who is the Plaintiff’s employee, left Korea from June 12, 2008 to June 15, 2008, and had another person attend the training course on behalf of the Plaintiff at the time of education, and confirmed the Plaintiff’s attendance at the attendance at the attendance on June 13, 2008 at the attendance of the Plaintiff on June 13, 2008 after returning home. [Grounds for recognition] The judgment is based on the absence of dispute, Eul’s evidence 1-2, Eul’s evidence 5, and 7, and the purport of the entire pleadings.

(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., (1) as if B participated in the attendance of the Plaintiff without participating in the education on June 13, 2008 among the instant training courses; (2) as the subsidies for training expenses are paid depending on whether the attendance was confirmed, it is necessary to confirm accurate attendance; (3) since the instant training courses are not entrusted to other enterprises, and the number of trainees is less than six, it is reasonable to deem that B was well aware of the fact that he was not present in the instant training courses; and even if he was unaware of this, it is reasonable to deem that the Plaintiff was negligent in the Plaintiff because B was sufficiently informed of the fact that he was not present in the instant training course; and therefore, it is reasonable to deem that there was negligence. Accordingly, the Plaintiff’s assertion on this part of the instant training courses should be deemed that the Plaintiff’s claim for training expenses against B, who did not participate in the education on June 13, 2008, was based on “other unlawful means”.

(2) As to whether Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis of the instant disposition, violates the purport of the mother law’s status or the principle of excessive prohibition under the Constitution and thus invalid

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”) provide that a disposition that orders the establishment of a period of restriction on payment and the return of subsidies granted during the period of restriction on payment is an act of binding force. As such, it is problematic whether the enforcement Decree of this case, which provides that a person who received, or intends to receive, vocational skills development training, etc. by fraud or other improper means pursuant to Article 35(1) of the former Employment Insurance Act, must be obliged to refund training expenses, etc. paid during the period of restriction on payment, without paying training expenses, etc. for one year, is inconsistent with the principle of excessive prohibition.

In this case, the enforcement decree of this case provides for training expenses, etc. for one year for fraudulent recipients.

The legislative purpose of this case is to prevent unlawful acts related to the payment of training expenses, etc. and ultimately to promote the development and improvement of workers’ vocational ability by issuing an order to refund subsidies within the period of restriction on payment and the payment restriction, and 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, the legislative purpose of this case is justifiable. In addition, it appears that unlawful acts related to the payment of training expenses, etc. are to be reduced through disciplinary sanctions prescribed in the Enforcement Decree of this case, and accordingly, it is deemed that the amount of public resources, such as the Fund, will be improved compared to

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 an amount equivalent to or less than the amount that was received by fraudulent or other illegal means may be collected as punitive means. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act, Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398 of March 31, 2009), and Article 9(1) of the Enforcement Rule of the same Act provides that the amount to be additionally collected shall be calculated based on the number of times of application for payment by fraudulent or other unlawful means during the past five years. Meanwhile, the provision of the instant case, separate from the foregoing disposition, provides that the Plaintiff would have been obliged to receive subsidies for one year from an illegal recipient, and thus, the amount of subsidies that would have been paid within the above restriction period shall not be deemed to have been unduly reduced by 90 times the total amount of subsidies that were paid to the Plaintiff during the restriction period, as well as the amount of subsidies that were paid to the Plaintiff during the restriction period of payment.

③ In addition, Article 1 of the Enforcement Decree of the instant case provides for a mandatory return order with respect to subsidies already paid during the period of one year from the date on which the training expenses were received or the application for payment was filed, and there is a problem that the status of an illegal recipient is unstable for a long time due to the lack of special restrictions on the period during which the said disciplinary measure may

④ Therefore, even if the legislative purpose of the instant provision, which is a disciplinary measure, can be more effectively achieved by stipulating the same in addition to the additional collection disposition against illegal recipients, the provision of the Enforcement Decree of the instant case, which is a disciplinary measure, provides for the restriction on payment for one year and the order for return of subsidies paid during the restriction period, without setting detailed standards depending on the pattern of the unlawful act committed by the illegal recipients, is an infringement by excessively restricting the property rights of the illegal recipients (see Article 56(2) of the Enforcement Decree of the Employment Insurance Act, amended by Presidential Decree No. 22026, Feb. 8, 2010; Article 56(1) of the Enforcement Decree of the Employment Insurance Act provides for one year restriction on payment to the illegal recipients; however, the provision provides for the restriction on payment for one year and three years after the date of receipt of the subsidies or the incentive, which is less than three million won and where the first fraudulent act is discovered, the restriction on payment for one year and three years after being amended by Presidential Decree No. 22603, Dec. 31, 20101>

Therefore, the instant disposition based on the provision of the Enforcement Decree of the instant case, which is null and void in violation of the Constitution, is unlawful.

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.