(영문) 울산지방법원 2011.9.7. 선고 2010구합2740 판결

On May 10, 2010, the Defendant issued an order to return subsidies for employment security programs and issued a decision to additionally collect such subsidies against the Plaintiff is invalid.

Reasons

1. Details of the disposition;

A. 1) After reporting the plan for employment maintenance measures to the Defendant, the Plaintiff suspended business in accordance with the plan from February 2, 2009 to June 2 of the same year, and applied for the payment of subsidies for employment security activities for the above period (hereinafter referred to as “subsidies”) as indicated in the following table, and received each of the subsidies.

2) After that, the Defendant investigated whether the Plaintiff was actually suspended from business during the reported period, and it was rare that the Plaintiff dispatched the Plaintiff’s staff to the relevant business entity from March 2009 to June 20 of the same year.

3) On May 10, 2010, the Defendant ordered the return of KRW 9,214,450, which was illegally received from March 3, 2009 to June of the same year among the subsidies received by the Plaintiff as indicated below, and issued a disposition of notifying the Plaintiff to additionally collect KRW 46,072,250 (hereinafter referred to as the “instant Enforcement Rule”) by applying Article 78(1)3 of the former Enforcement Rule of the Employment Insurance Act (amended by Labor Ordinance No. 319, Apr. 1, 2009; hereinafter referred to as the “Enforcement Rule”).

A person shall be appointed.

B. The instant disposition is in accordance with the guidelines of the Ministry of Employment and Labor with respect to the interpretation of the enforcement rules of the instant case as follows.

Where the same subsidy is received several times according to the period of payment, each separate act includes each illegal receipt and payment, and the relevant fraudulent act subject to additional collection also falls under the category of "the one that received or attempted to receive the same subsidy," which is a requirement for the illegal receipt, and includes the number of times of the fraudulent receipt and payment.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3, 4, 5, 6, 7, 9, Eul evidence Nos. 1, 2, 3, 4, 5 (including each number), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) In rendering the instant disposition, the Defendant applied Article 78(1) of the former Enforcement Rule of the Employment Insurance Act, which was in force on February 9, 2010, to the instant disposition, but applied the instant Enforcement Rule, which is the former Enforcement Rule prior to the amendment.

2) The instant Enforcement Rule separately calculates the amount of money to be collected on the basis of “the number of times a person received or applied to receive by false or other unlawful means” for the last five years prior to the date of detection of such unlawful act. However, in calculating the number of times prescribed in the said provision, the amount of money to be additionally collected should not be included in “act prior to the date of the appropriate occurrence” but the amount of money to be collected, including the illegal act discovered by the Plaintiff, was calculated and the amount of money

3) The foregoing defects constitute significant and apparent defects, and therefore the instant disposition is null and void as a matter of course.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Judgment on Plaintiff 1’s assertion

Article 1 of the Addenda of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter referred to as the "Enforcement Rule") which was in force at the time of the instant disposition provides that "this Rule shall enter into force on the date of its promulgation," and Article 5 (1) provides that "additional collection against a person who received subsidies by fraud or other improper means prior to the enforcement of the Rules shall be governed by the previous provision, notwithstanding the amended provisions of Article 78 (1)." In the case of the Plaintiff, the date of application and the payment of subsidies in this case shall be before the enforcement date of the instant Enforcement Rule (amended by the enforcement date of the instant Enforcement Rule, Apr. 1, 2009), and Article 5 (2) of the Addenda after the amendment provides that the starting point for calculating the number of times of illegal power in cases where the Enforcement Rule applies after the amendment, as alleged by the Plaintiff, the provision of the instant Enforcement Rule shall be applied.

2) Judgment on the Plaintiff’s assertion 2

A) According to the above, the Defendant issued the instant disposition that additionally collects five times the subsidies for employment security programs paid pursuant to Article 3 of the Enforcement Rule of the instant case, and it appears that the Plaintiff received subsidies on April 23, 2009, June 15, 2009, July 6, 2006, and July 17, of the instant year by fraud or other improper means, and subsequently was discovered at once thereafter, it appears that the Plaintiff constituted “cases where the Plaintiff received or applied to receive subsidies by fraud or other improper means during the last five years prior to the date of detection of the wrongful act” under Article 35(3) of the Enforcement Rule of the instant case.

B) (1) According to the provision of the Enforcement Rule of this case, the Minister of Labor may additionally collect the amount of incentives paid by false or other unlawful means during the latest five years prior to the date of detection with respect to those who received incentives by fraudulent or other unlawful means, as well as the number of times they applied for such unlawful acts (hereinafter “illegal power”). As such, if one of such unlawful acts is one or several cases, such unlawful acts may have been committed before the date of detection, and thus, such one cannot be deemed to have been committed only one of such unlawful acts or those committed on the date nearest to the date of detection of such unlawful acts, and thus, the above provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s provision’s to be additionally collected during the latest 3 years period of fraudulent acts cannot be applied to those cases where one of such unlawful acts was discovered or its provision’s provision’s provision’s provision’s provision’.

(2) Therefore, there is a defect in interpreting and applying the provision of the Enforcement Rule of this case erroneously to the additional collection of each of the Defendant’s dispositions of this case (hereinafter referred to as “additional collection part during the instant disposition”). Furthermore, in full view of the above recognized facts and the various circumstances revealed in the pleading, the scope of the punishment for the degree of the violation seems to be harsh enough to lose the proportionality, and thus, there is a defect in deviation from and abuse of discretionary authority.

C) Determination as to whether the portion to be additionally collected among the instant disposition is void as a matter of course

(1) In order for an administrative disposition to be null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is objectively obvious as serious in violation of the important part of the law. In determining the importance and apparent of the defect, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, as well as reasonable consideration on the specificity of the specific case itself. In addition, in a case where an administrative disposition was taken by applying a certain provision to a certain legal relation or factual relationship, notwithstanding the absence of room for dispute over the interpretation of the law, the legal principles clearly stating that the provision of the law is not applicable to the legal relation or factual relationship, and thus, if there is room for dispute over the interpretation because the administrative disposition was taken by applying the above provision, it shall be deemed that the defect is grave and obvious, but if the legal principles that the provision of the law is not applicable to the legal relation or factual relation are not clearly revealed, it shall not be said that the administrative disposition

(2) On April 1, 2009, after the enforcement of the provision of the instant Enforcement Rule, it may be interpreted as the Defendant if the language of the provision of the instant Enforcement Rule is interpreted as the same. According to the above facts, the number of times the Plaintiff received or applied to the Defendant by false or other unlawful means after April 1, 2009 when the provision of the instant Enforcement Rule became effective is four times, and thus, it is also possible to take the same disposition as the additional collection from the instant disposition when interpreting and applying the provision of the instant Enforcement Rule in accordance with the language and text. It cannot be said that the additional collection in the instant disposition is unreasonable. The additional collection in the instant disposition is within the limit prescribed by the Employment Insurance Act as the mother corporation, and the additional collection in the instant disposition is within the limit prescribed by the Employment Insurance Act, and there is no opinion that the Defendant did not interpret as it was expressed by the administrative appeals commission or a lower court, but it was in a revocation or revocation lawsuit, and therefore, it is obvious that there is no dispute over the Plaintiff’s above part of the instant disposition.

3. Conclusion

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