(영문) 서울행정법원 2018.11.28. 선고 2017구단69291 판결

The Defendant’s order to restrict subsidies and loans for 360 days (from May 23, 2017 to May 17, 2018) imposed on the Plaintiff on May 22, 2017, revocation of both orders to return KRW 17,609,300, and additional collection of KRW 17,609,30,00.

Reasons

1. Details of the disposition;

A. As a taxi passenger transport company, the Plaintiff entered into an entrustment contract with B or C Co., Ltd. (hereinafter referred to as "D") which is a company recognized as the workplace skill development training course for workers, and entered into a contract for workplace skill development training (hereinafter referred to as "training in this case" and some of them are indicated as "first training, etc." according to the sequence), among the workers belonging to the Plaintiff, the Plaintiff entered into a contract for workplace skill development training for workers in the line of "training" (hereinafter referred to as "training in this case") and completed training in a normal condition that the trainees (hereinafter referred to as "training in this case") completed training and completed training, and received subsidies in the aggregate of KRW 17,609,300, as shown in the table "the subsidy".

A person shall be appointed.

B. On May 22, 2017, the Defendant, on the ground that the instant trainees did not undergo the instant training and did not meet the completion standard, and the Plaintiff applied for subsidies to the Human Resources Development Service of Korea, and received them, (i) was amended by Act No. 13902, Jan. 27, 2016; (ii) Article 55(2) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jul. 28, 2016; hereinafter referred to as the “Act on the Development of Vocational Skills”) and Article 2 and [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter referred to as the “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”); and (iii) the Plaintiff continued to order the Central Administrative Appeals Commission to grant subsidies and loans for 360 days (from May 5, 2017; 23, May 17, 2018) and returned the instant amount of vocational skills development KRW 17

On March 20, 2018, the administrative appeal claim was dismissed.

【Reason for Recognition】 Evidence Nos. 1 through 13, Eul’s Evidence Nos. 1 through 20 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In most cases, the trainees of this case received assistance from D employees on the street, etc., and met the normal course of training and completion standards, and thus, the Plaintiff cannot be deemed to have received subsidies by fraud or other improper means (the absence of objective grounds for disposition).

2) The instant training course conducted by commissioned education is entirely managed by D. The Plaintiff merely believed D’s explanation that trainees undergo normal training and meet the completion standards and did not have any other means to verify whether they meet the completion standards. Thus, there is no reason attributable to the Plaintiff in relation to the breach of duty (the existence of justifiable grounds, which cannot be caused by breach of duty);

3) In light of the aforementioned circumstances and the fact that the Plaintiff recruited the crime with D or did not participate in the crime, the Plaintiff paid full subsidies from the Human Resources Development Service of Korea as training fees, and did not obtain any benefits in relation to subsidies, and if the instant trainees failed to complete the normal training training and failed to meet the completion standards, the Defendant is also liable for negligence of supervision. In light of the fact that the instant disposition would result in the disadvantage suffered by the Plaintiff compared to the public interest to be achieved by the instant disposition (violation of the principle of proportionality).

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination1

1) Whether there exist objective grounds for disposition

A) Relevant legal principles

"False or any other fraudulent means" under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act refers to an active and passive act that is committed by a person who is not eligible to receive subsidies, and that may have an influence on decision-making with respect to subsidization of expenses, and "expenses" under each of the above provisions means expenses incurred by a business owner, etc. who is recognized as a vocational skills development training course and is supported by the Minister of Employment and Labor according to the number of trainees who completed the training (see, e.g., Supreme Court Decision 2013Du1980, Oct. 30, 2014).

Meanwhile, Article 20(3) of the Vocational Skills Development Act, Article 19(3) of the former Enforcement Decree of the Act on the Development of Workplace Skills (amended by Presidential Decree No. 27393, Jul. 26, 2016); Article 41(4) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 28160, Jun. 27, 2017); Article 60(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Presidential Decree No. 2015-114, Dec. 31, 2015; hereinafter referred to as the "former Regulations on Assistance") provides that if a business owner who received subsidies for workplace skill development training has failed to meet the standards for providing distance training under Article 10(3) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27393); if a training is conducted using printed materials for the purpose of conducting distance training, it should be evaluated as 30% or more of subsidies for training.

In addition, in an administrative litigation to which the provisions of the Civil Procedure Act apply mutatis mutandis, the burden of proof is, in principle, allocated between the parties in accordance with the general principles of civil procedure, and in the case of an appeal litigation, the defendant who asserts the legality of the disposition is obliged to bear the burden of proof as to the legitimacy of the disposition. However, if there is a reasonable and acceptable proof of the legitimacy of a certain disposition asserted by the defendant, the disposition is justifiable, and the assertion and proof contrary thereto return to the plaintiff, who is the other party (see, e.g., Supreme Court Decision 2015Du39156, Jun

In light of the following facts revealed by the health team and the aforementioned evidence, it can be sufficiently recognized that the trainee of the instant case did not undergo the instant training in a normal manner, and even if the trainee failed to meet the completion standards, the Plaintiff applied for subsidies to the Human Resources Development Service of Korea as if the trainee satisfied the completion standards, and there is no counter-proof. Thus, the Plaintiff’s assertion disputing the existence of the instant disposition is without merit.

On January 5, 2018, the prosecutor of the Seoul Central District Public Prosecutor's Office (hereinafter "Seoul Central Public Prosecutor's Office") charged E, F, and G with the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud 2018.30). In the above case, the Defendants were sentenced to imprisonment of 17,609,300 won with prison labor of 30 years from 15 years from the Republic of Korea and 4 years from 5 years from 2016, with prison labor of 1,788,460,90, and 1,785 won from the Republic of Korea since they met the requirements for the completion of the remote training course by visiting the place of a gold transportation business entity as an internal director E, department F, and director G, who is the representative of D, without providing training materials to trainees. The above Defendants were sentenced to imprisonment with prison labor of 17,609,300 won and 2 years from 3 years from 2016.

Of the judgment of the first instance court, Defendant F and G were confirmed as they were, because both the Defendants and the prosecutor did not appeal, and Defendant E appealed to the Seoul High Court on April 11, 2018 (No. 20181112), but only claimed unfair sentencing as the grounds for appeal, and the judgment dismissing the appeal was rendered on September 20, 2018.

Along with the above indictment, D employees made a statement to the effect that they visited the company that entrusted workplace skill development training to D with workplace skill development training in the Seoul Western District Office and the investigative agency of the Seoul Regional Employment and Labor Office prior to the prosecution, they conducted a proxy lecture and a proxy test by creating IDs with the personal information of trainees, and that they conducted so-called interview training to ask questions about only one OX problem formally and formally, in order to eliminate the image of the agent lecture and the agent exam. Some trainees also did not have any one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - another - one - one - one - one - another -

The following circumstances have also been confirmed through the result of the analysis of the system for managing the learning of trainees in the instant training, which can be a typical feature of the training course and the vicarious examination.

- The program for the lifelong learning management in the names of the trainees of this case (hereinafter referred to as the "rogator") focuses on a specific day and specific time period. The proportion that therogator takes place within 10 minutes in the name of another trainee after the termination of the trainee’s name from the same computer IP address (Internet) is 94.38%, 2 training 96.01%, 3 training 91.9%, 3 training 91.9%, and 489.53%. - The average learning time in the name of the trainee of this case reaches 15.7 seconds, 2 training 21.4 seconds, 31.1 seconds, 41.1 seconds, 41.46 seconds, and 41.46 seconds in the name of the plaintiff and his employee in charge of the training of this case. The list shall not be verified by the plaintiff and his employee in the name of the company.

- On June 9, 2015, even if the same answer sheet was prepared in the name of the trainee, the G asks for the removal of the system for the prevention of maternity response to the “H”, which is the controlled entity of the system for the prevention of maternity response, in order to prevent the confirmation from being made in the system for the prevention of maternity response.

2) Whether there is a justifiable reason that is not attributable to the breach of duty

Sanction against violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws and regulations to achieve administrative purposes, and thus, a sanction may be imposed even if there is no intention or negligence on the part of the violator, barring any special circumstance, such as where the breach is not attributable to the duty of the violator (see, e.g., Supreme Court Decisions 2012Du1297, May 10, 2012; 201Du1297, Jun. 10, 201). In light of the following circumstances, comprehensively taking into account the facts acknowledged as above and the overall purport of the pleadings, the Plaintiff cannot be deemed to have any justifiable reason for

The Act on the Development of Vocational Skills stipulates that employers shall conduct workplace skill development training for workers, have many workers participate in workplace skill development training, and make efforts to create conditions for workplace skill development training by selecting workers and persons in charge of workplace skill development training (Article 4(2)). The Minister of Employment and Labor provides that employers who conduct workplace skill development training (including the case of conducting workplace skill development training on commission) may provide subsidies or loans for expenses incurred in the business (Article 20(1)1), and that workplace skill development training for workers shall be conducted by employers as the subject of workplace skill development training, which is the same as workplace skill development training conducted by the method of "entrusted training". Accordingly, the same applies to workplace skill development training conducted by the Plaintiff as the subject of the instant training, and as the subject of the payment of subsidies, the Plaintiff was responsible for self-verification of whether the trainees of the instant case meet the standards for receiving subsidies, prior to applying

0 Furthermore, the instant training was conducted for the employees belonging to the Plaintiff’s workplace, and the Plaintiff could easily understand the process of the training by observing the training course or directly checking the employees. However, the Plaintiff seems to have recognized that at least the instant trainees did not undergo training but failed to meet the completion standards.

3) Whether the principle of proportionality is violated

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant disposition, by objectively examining the content of the offense as the ground for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances. In this case, even if the criteria for punitive administrative disposition are provided in the Enforcement Rule, it is nothing more than that prescribed in the internal rules of administrative agency, and thus externally binding upon citizens or courts. Thus, the legality of the pertinent disposition should be determined in accordance with the relevant laws and regulations as well as the above criteria for disposition. Thus, the pertinent disposition cannot be deemed legitimate merely because it conforms to the criteria for disposition. However, unless the above criteria for disposition do not conform to the Constitution or laws, or unless there are reasonable grounds to believe that the result of its application is considerably unreasonable in light of the content of the offense as the ground for disposition and the relevant laws and regulations, it should not be readily determined that the disposition in accordance with such criteria has exceeded the scope of discretion or abused discretionary power (see, etc.).

B) Comprehensively taking account of the following circumstances revealed by the facts acknowledged as above and the purport of the entire arguments and evidence revealed in the instant case, the instant disposition did not constitute a case where the Plaintiff suffered disadvantage compared to the public interest intended to be achieved by the instant disposition, and thus, it cannot be deemed that the instant disposition was excessively harsh to the Plaintiff. Therefore, the Plaintiff’s assertion on this part is without merit.

The purpose of workplace skill development training is to contribute to the development of society and economy by facilitating and supporting workplace skill development through the life of workers. The act of receiving workplace skill development training subsidies by fraud or other improper means is to contribute to the stabilization of employment of workers, the improvement of social and economic status, the improvement of corporate productivity, and the realization of a competence-oriented society. Since the act of receiving workplace skill development training subsidies by fraud or other improper means causes the insolvency of the employment insurance fund, and may inflict damage on the insured who paid the employment insurance premium in good

In order to promote the employment security of workers, improvement of social and economic status, and the establishment of the Employment Insurance Fund by operating the workplace skill development training support system fairly and transparently, it seems important for the Plaintiff to not be disadvantaged due to the instant disposition. Even if the ○○ Plaintiff did not fully refund the difference between the training fees paid to D and the subsidies paid from the Human Resources Development Service of Korea, the Plaintiff, a business owner, is obligated to conduct workplace skill development training for workers (Article 4(2) of the Vocational Skills Development Act), and the Plaintiff, a business owner, has the duty to conduct workplace skill development training for workers (Article 4(2) of the Vocational Skills Development Act), thereby making the Plaintiff enjoy benefit from the improvement of the worker’s vocational ability through the workplace skill development training conducted as above, and the Defendant only subsidized the necessary expenses. Considering these circumstances, it is difficult to evaluate that the Plaintiff suffered damage equivalent to the difference between the training

○ Of the instant dispositions, the part regarding the restriction on subsidies and loans in accordance with the standards prescribed in Article 22 and attached Table 6-2 of the Enforcement Rule of the Vocational Skills Development Act, and the part additionally collected pursuant to Article 22-2(1)2 of the Enforcement Rule of the Vocational Skills Development Act, are not in conformity with the Constitution or laws, or the application of the said standards is considerably unreasonable in light of the contents of the Plaintiff’s act and the purport of the relevant statutes.

The proviso to Article 6-2 of the Enforcement Rule of the Act on the Development of Vocational Skills (Attachment Table 6-2) provides that "if there is no intention or gross negligence or if the degree of violation is minor, the measures to restrict subsidies and loans may be taken by reducing the measures within the limit of 1/2 of the standard set by the individual standard." However, the above provision is not only a discretionary mitigation provision, but also a discretionary mitigation provision, and as seen earlier, the Plaintiff had an intention to deny the receipt of subsidies, and the frequency of the illegal receipt reaches KRW 17,609,30, etc. is serious. Therefore, there is no room for the Plaintiff to apply the above provision.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Kang Jae-soo

Note tin

1) The period of sanctions prescribed in a disposition restricting subsidies and loans (from May 23, 2017 to May 17, 2018) has already been imposed on the Do, but the time when the Vocational Skills Development Act was enforced.

Article 22 [Attachment Table 6-2] 1.a.3 of the Administrative Rules 12 [Attachment Table 6-2] 1.3 [Attachment 6-2] adopts the records of the loan restriction as the basis of

In other words, this part of the disposition is lawful (see, e.g., Supreme Court Decision 2006Du13312, Jan. 11, 2007).

2) However, as seen earlier, the Plaintiff received KRW 3,046,880 on January 17, 2015 from the Human Resources Development Service of Korea in relation to the second training, and:

The plaintiff paid KRW 3,071,690 again on December 4, 2015, but in the facts charged, the plaintiff paid KRW 3,071,690 (=3,046,880 + 25,080).

On January 17, 2015, all payments have been made.