2012 Gohap 5169 Revocation of a disposition, etc. to refund training costs

A Stock Company

The Head of Seoul Regional Employment and Labor Agency

November 14, 2012

November 23, 2012

1. On November 23, 2011, the Defendant’s disposition of ordering the return of training expenses subsidies of KRW 755,52,360 against the Plaintiff shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 1/20 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The disposition of ordering the Plaintiff to refund training costs of KRW 59,980, which was issued by the Defendant on November 23, 2011, and the disposition of additional collection of training costs of KRW 59,980 shall be revoked.

1. Details of the disposition;

A. Pursuant to Article 24 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same), the Plaintiff obtained recognition of vocational skills development training courses from the Defendant regarding “S/W text understanding” (in case of intra-company gathering and training period: 16 hours in total from October 9, 2007 to October 10, 2007; hereinafter “instant training course”) that explains the structure of software for 30 employees of the Plaintiff.

B. During the training period, the Plaintiff conducted the instant training course for 30 Plaintiff’s employees, and on October 1, 2008, filed an application with the Defendant for subsidies for vocational skills development training expenses including the instant training course costs, and received KRW 1,79,400 from the Defendant for the instant training course on November 25, 2008.

C. Upon receipt of a request from the Board of Audit and Inspection and the Ministry of Employment and Labor for an investigation as to whether a trainee who was confirmed to have been at home during the training period for vocational skills development training, the Defendant conducted three training courses including the instant training courses at the request of the Plaintiff on September 2010, confirmed that the Plaintiff’s employee B, who was scheduled to attend the instant training course, was in attendance abroad during the training period (from October 8, 2007 to October 14, 2007), but was in attendance abroad during the training period. D. Accordingly, on November 23, 2011, the Defendant issued each of the following dispositions against the Plaintiff (i.e., a disposition to return the fixed amount of subsidies, i., an additional collection, i.e., a disposition to return the fixed amount of subsidies, i., a disposition to return subsidies, i.e., a disposition to return subsidies, i., an additional collection).

A person shall be appointed.

[Ground of recognition] Evidence Nos. 1 through 4, Evidence Nos. 1 through 8, and the purport of the whole pleadings

A. The plaintiff's assertion

1) Article 35(1) of the former Employment Insurance Act provides that a person who has received support from a workplace skill development project by "a false or other unlawful means" shall restrict the support or return the support already provided. Paragraph (2) of the same Article provides that in order to constitute "a fraudulent or other unlawful means" in addition to the above order of return, it shall be deemed that a person who has received support from a workplace skill development project by "a person who has received support from a workplace skill development project by "a person who has received support" or "a person who has received support from a department in charge of the training course of this case shall be deemed to have committed an act different from the facts", and it shall be interpreted that the case is not included in the case due to a simple business error. It was stated that the division of this case was an overseas business trip immediately before the commencement of the training course of this case and instead, although other employees attended the training course of this case on behalf of the department in charge of the training course of this case, the division in charge of this case filed a claim for training expenses as stated in B, and thus, it cannot be deemed to constitute a fraudulent application for the payment of this case.

2) Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of this case”). The enforcement Decree of this case is not only contrary to the purport of delegation by the mother law, but also violates the principle of excessive prohibition under the Constitution as it excessively infringes on the property rights of a person who received unfair training costs, etc., and thus, Article 3 is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the case constitutes "any false or fraudulent means"

A) Sanction against violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws to achieve administrative purposes, and thus, it may be imposed even if there is no intentional or negligent act on the part of the violator, barring special circumstances, such as where the violator does not cause any negligence (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). "False or other unlawful means" under Article 35 (1) of the former Employment Insurance Act, which applies to each of the dispositions of this case, refers to all unlawful acts conducted by an unqualified business owner in order to conceal the eligibility for payment or lack of eligibility to receive training costs (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

B) In light of the above legal principles, the following circumstances acknowledged by the health team, the facts and evidence revealed earlier, i.e., (i) insofar as the attendance rate becomes the prerequisite for the subsidization of training expenses, the attendance management in the instant training course appears to be very important and essential. (ii) B, who was scheduled to attend the training course during the training period, could not be able to meet the requirement for completing the training course because it did not participate in the training course during the training period, and therefore, the Plaintiff could not receive training expenses related thereto. (iii) If the Plaintiff paid early attention in relation to the attendance management, he could not be able to be able to attend the training course in this case due to the foreign business trip, but the Defendant could be found to have received the Defendant’s application for the subsidization of the training expenses related to B, and as alleged by the Plaintiff, the Plaintiff’s assertion that the Plaintiff’s act was unconstitutional by attending the training course instead of the Plaintiff’s attendance at the training division, and that the Plaintiff’s act was not aware of the Plaintiff’s act of being conducted the training course in this case.

In relation to the third disposition, we examine whether the provisions of the Enforcement Decree of this case asserted by the plaintiff are invalid or not.

A) The disposition ordering the establishment of the period of restriction on payment under the provisions of the Enforcement Decree of the instant case and the return of subsidies, etc. paid during the period of restriction on payment constitutes a binding act. Therefore, the issue is whether the provisions of the Enforcement Decree of the instant case, which stipulate that the person who received or attempted to receive vocational skills development training costs, etc. by false or other unlawful means (hereinafter referred to as “unlawful recipients”) pursuant to the delegation under Article 35(1) of the former Employment Insurance Act shall be obliged to pay subsidies, etc. for one year, and shall order the full return of subsidies, etc. paid during the period of restriction on payment, violates the purport of delegation by the mother

B) On the other hand, the legislative purpose of the instant provision is to prevent unlawful acts related to the payment of subsidies, etc., to prevent unemployment, to promote employment, and to develop and improve the vocational ability of workers through the restriction on payment of subsidies, etc. for one-year period for the illegal recipient, and the order to return subsidies, etc. during the restriction period for payment, and ultimately, to promote the prevention of unemployment, to promote employment, and to promote the development and improvement of vocational ability of workers. In addition, the legislative purpose of the instant provision is justifiable in light of the fact that subsidies, etc. are made with limited public resources of the Employment Insurance Fund under the Employment Insurance Act. Furthermore, it appears that fraudulent acts related to the payment of subsidies, etc. are to be reduced through the punitive sanctions prescribed in

C) However, in light of the various circumstances seen below, the content of the enforcement decree of this case is 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' and thus violates the delegation purport of the parent law or the principle of excessive prohibition under the Constitution.

(1) Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount that was already paid by fraud or other improper means may be collected as a punitive sanction. Accordingly, Article 25(4)1 of the former Act on the Development of Workplace Skills of Workers, Article 22-2 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers, and Article 9(1) of the former Enforcement Rule of the Act on the Development of Workplace Skills of Workers stipulate the amount to be additionally collected based on the amount of fraudulent receipt and the number of applications for fraudulent receipt during the past five years, etc. In addition, Article 35(2) of the former Employment Insurance Act provides that the amount of subsidies shall be imposed for one year separately from the aforementioned additional collection disposition. In short, the instant provision stipulates that the amount of subsidies shall be returned to the illegal recipient regardless of whether the subsidies were paid by fraud or other improper means. Although the legislative purpose of the aforementioned additional collection disposition is more strong than the provision on the grounds for additional collection disposition, the provision on the amount of subsidies to be returned can only be uniformly provided to the Plaintiff and the employer.

(In the case of the plaintiff, the amount of illegal receipt is KRW 59,980, and the amount of training expenses ordered to be returned in excess of the above amount of illegal receipt due to the third disposition is about KRW 755,552,360, which is about KRW 12,596,00.

(2) In addition, the provision of the Enforcement Decree of this case provides that the initial date of the restriction on payment shall not be the date on which the application for the payment was received or made, rather than the date on which the application for the payment was made. Thus, if an illegal recipient becomes aware of the fact that the payment of subsidies would be restricted for one year, he may flexibly conduct workplace skill development projects during the restriction period and reduce losses, and it cannot be deemed unfair to operate workplace skill development projects as such. Thus, even if the provision of the Enforcement Decree of this case provides that the date of commencement of the restriction on payment shall be limited to the date on which the application was made or the date on which the application was made, the provision of this case does not comply with the minimum amount of damages caused to the illegal recipient. In addition, the provision of the Enforcement Decree of this case provides that the date on which the application for the restriction on payment was made shall not be the date on which the application was made or the date on which the application was made for the payment was made, which may result in an unreasonable difference in the number of eligible recipients of the subsidies, etc.

(3) In addition, the enforcement decree of this case also provides that the payment restriction and the return order of subsidies paid during the payment restriction period shall be mandatory for one year from the date on which the person received or applied for the payment of subsidies, etc., but there is a problem that the status of the illegal recipient is unstable for a long time due to the lack of special restrictions within the time limit for the said sanctions

(4) Meanwhile, even if Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of delegation to Presidential Decree, the scope or limitation of delegation inherent in the legislative purport or purpose, etc. of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Nu6578, Jul. 22, 197). In light of the fact that various types of violations, such as various kinds of subsidies granted under the former Employment Insurance Act, etc. are likely to occur, and the legislative purpose of the above provision, the principle of excessive prohibition under the Constitution, etc., the purport of delegation under Article 35(1) of the former Employment Insurance Act is to ensure that the relevant administrative agency can reasonably subdivide and delegate the standards for disposition based on the type of misconduct and its degree, motive, consequence, etc., or it is difficult to limit the payment thereof, and thus, it conforms with the legislative purport and purpose of the above provision to uniformly determine the scope or scope of delegation provision.

(5) Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides for restrictions on the payment of subsidies for one year to illegal recipients: Provided, That the same shall not apply to cases where three years have elapsed since the date of receipt of subsidies or incentives, or where fraudulent acts have been discovered for less than three million won as the amount received or to be received by fraudulent or other illegal means, and Article 56(1) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) provides that "the return of subsidies already received by fraudulent or other illegal means shall be ordered"; and Article 56(2) of the Enforcement Decree of the Employment Insurance Act provides that "the Minister of Employment and Labor may order a person who has received or intended to receive any of the subsidies under paragraph (1) for one year from the date of receipt of subsidies or incentives to the extent that it constitutes a new one-year restriction on the payment under paragraph (1).

(6) In addition to Article 35(2) of the former Employment Insurance Act, where a disposition of additional collection may be taken against an illegal recipient as a punitive sanction, the legislative purpose of this case can be more efficiently achieved by prescribing the provisions of the Enforcement Decree of this case in duplicate, but the provision of the Enforcement Decree of this case provides for the order of full return of subsidies, etc. paid during a period of one year, without reasonably subdividing and stipulating the standards according to the type of the illegal recipient’s offense, to the extent that the provision of the Enforcement Decree of this case is excessively infringing

D) Therefore, the third disposition based on the provision of the Enforcement Decree of the instant case, which is null and void because it violates the delegation purport of the parent law and the principle of excessive prohibition under the Constitution, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim as to the third disposition shall be accepted on the ground of the reasons, and the plaintiff's claim as to the first and second disposition shall be dismissed on the ground of the reasons. It is so decided as per Disposition.

the presiding judge and deputy judge

Judges Yang Yang-ju

Judge Kim Gin-hun

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.