2010Guhap4340 Revocation of an administrative disposition

A

The Deputy Director General of the Central Regional Employment and Labor Office;

May 26, 2011

July 14, 2011

1. The Defendant’s actions against the Plaintiff on September 28, 2010: ① To restrict the entrustment and recognition for 1.5 months from October 16, 2010 to November 30, 201 of the entire course of workplace skill development training; ② to restrict the entrustment and recognition for 1.5 months from November 30, 209 to January 13, 201 of the automobile maintenance process; ③ to restrict the further collection of KRW 174,870, out of the additional collection of KRW 174,870 from November 30, 209 to January 13, 201.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 30% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Disposition stated in paragraph 1 shall be suspended until the judgment of this case becomes final and conclusive.

The Defendant’s measures taken against the Plaintiff on September 28, 2010: ① Termination of a contract for the entrustment of workplace skill development training, and 1.5 months from October 16, 2010 to November 30, 201; ② Termination of a contract for the automobile maintenance process, and restriction on the entrustment of and recognition for 1.5 months from January 5, 2009 to January 13, 201; ③ Return of the illegally received amount of KRW 1,730,420, and additional collection of KRW 1,730,730,420, and KRW 420; ④ Revocation of the designation of workplace skill development training establishment.

1. Details of the disposition;

A. On February 25, 2002, the Plaintiff was a person who operates the C Job Technical Training School in Seocheon-gu, Seocheon-gu (hereinafter referred to as the “instant facilities”). On February 25, 2002, the instant facilities were designated as vocational skills development training facilities under the former Workers’ Vocational Skills Development Act (amended by Act No. 1038, May 31, 2010; hereinafter referred to as the “Act”).

B. On May 28, 2008, the Plaintiff was commissioned by the Defendant to conduct the following training courses for automobile maintenance (hereinafter “instant training courses”) (hereinafter “instant entrustment contract”).

- Training course: Automobile maintenance;

- Training Institution: Facility of this case (the representative plaintiff)

- Training period: 6 hours from May 29, 2008 to November 28, 2008 - total of 764 hours per day - 25 hours: 25 (former 18 persons, new 7 persons). The defendant issued a disposition to the plaintiff on November 30, 2009 on the ground that "the training teacher attended the training course and received training expenses 58,290 won for the trainees departing from the Republic of Korea," on the ground that "the training teacher illegally received training expenses for the plaintiff during the training course".

D. On September 28, 2010, the Defendant revoked ex officio the disposition of November 30, 2009, on the ground that the training fees of KRW 1,730,420 paid from the date of the substitute attendance to the date of the completion of the training, on the grounds that the substitute attendance constitutes a reason for expulsion, and that the training fees of KRW 1,730,420 paid from the date of the substitute attendance to the date of the completion of the training, and against the Plaintiff, the disposition of the Plaintiff was revoked ex officio as of November 30, 2009: ① the termination of the contract to entrust the workplace skill development training course, from October 16, 2010 to November 30, 2010; ② the termination of the contract for the automobile maintenance process; ② the restriction on entrustment and recognition of the workplace skill development training for January 5, 2009 to November 13, 2011; and ③ the designation of the training facility of this case (hereinafter referred to as “the instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 9, Eul evidence Nos. 1, 2 and 5 (including branch numbers, if any; 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) Training Teachers D did not have received a request from a trainee E to attend a training course, and only did he/she attend a training course due to a simple error of business, so the Plaintiff does not constitute a case where he/she received training costs by fraud or other improper means.

2) A trainee E does not constitute a ground for expulsion of a trainee under Article 31 of the Regulations on the Implementation of Workplace Skill Development Training, including the unemployed, because it was not true that the trainee E requested a substitute attendance. Accordingly, training costs illegally received by the Plaintiff are merely KRW 58,290 for three days during which the Plaintiff was absent.

3) The Defendant’s disposition of this case, which was issued on November 1, 2009 and 10 months later, is against the principle of trust protection, the principle of proportionality, the principle of equality, the principle of self-detention, the principle of prohibition of unfair decision-making, and the instant disposition was excessively excessive and abused discretion.

B. Relevant statutes

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

C. Facts of recognition

1) Some contents of the instant consignment contract are as follows.

Article 1 (1) The plaintiff shall conduct training for trainees entrusted by the defendant.

(2) The Plaintiff shall observe the training rules and guide and supervise trainees so that they do not escape from active training, and endeavor to develop training techniques, curriculum, etc. in order to improve the quality of training.

Article 4 (2) When the plaintiff conducts legitimate training in accordance with the training regulations, the defendant shall pay training expenses to the plaintiff.

(4) Where training allowances have been paid to a person who is not eligible for training allowances due to the plaintiff's improper attendance verification, etc., the plaintiff shall refund the relevant amount to the defendant.

(6) The defendant shall pay training expenses calculated from the commencement date to the plaintiff only for trainees confirmed by the training regulations.

Article 8 The plaintiff shall accurately confirm and manage the attendance status of trainees, and shall assist trainees in promptly claiming training allowances.

Article 9 The defendant may take measures pursuant to Article 39 of the Training Regulations where the plaintiff falls under any of the following subparagraphs:

1. Where the training rules are violated;

2. Where it is deemed that it has no ability to conduct a training, or it is inappropriate for other vocational training institutions for the unemployed.

2) The facility of this case confirms the attendance of trainees by card, and according to the Regulations on the Implementation of Vocational Skills Development Training including the unemployed (amended by Ministry of Labor No. 580, Mar. 5, 2009; hereinafter referred to as "the Training Regulations of this case"), where attendance by card is not confirmed due to unavoidable reasons, the trainee's attendance status may be entered in the ex officio on the computer network (Article 30(4). On the other hand, where a trainee is absent for more than five consecutive days without justifiable reasons such as natural disasters, he/she shall be excluded from the training where the trainee is represented by another trainee by the method that he/she entrusts his/her card to another trainee (Article 31(1)1 and 5). However, if a trainee fails to undergo a national examination or job examination related to this training, etc., he/she shall be deemed to have undergone the training for the number of days required (Article 30(2)).

(iii) management of attendance and receipt of training costs for E;

A) E, a trainee of the instant training course, left Canada for the purpose of employment immigration from July 13, 2008 to the 20th of the same month, and was absent from the instant training course from July 14, 2008 to the 18th (Friday) day of the same month.

B) At around July 11, 2008, E, "D, a training teacher, must be employed in Canada for employment. At the next week, E applied for leave and made leave in a Friday, so as to make a lawful attendance for three days, E was given D with his own call card, and D was present with E’s call card from July 14, 2008 to the 16th day of the same month.

C) The Plaintiff continued the instant training course against E and completed the instant training course. The Plaintiff received KRW 1,730,420 from the Defendant as training expenses for E, and the Plaintiff included KRW 58,290,00 received due to the Defendant’s failure to take the instant training course for three days from July 14, 2008 to the 16th day of the same month.

[Reasons for Recognition] Uncontentious Facts, Gap's 3, 6 evidence, Eul's 7 and 10 evidence, witness D's partial testimony, the purport of the whole pleadings

D. Determination

1) Whether it falls under Article 16(2)2 and 3 of the Act

A) Article 16(2)2 of the Act

(1) "False or other unlawful means" under Article 16 (2) 2 of the Act refers to active and passive acts that may affect the decision to pay training costs by deceptive means or other acts deemed unfair by social norms, even though they cannot be paid training costs according to normal procedures (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

(2) In the instant case, as seen earlier, it can be acknowledged that E has made an appearance by proxy with the attendance card for three days from July 14, 2008 to the 16th day of the same month with the request for the delivery of the processing of the attendance to D and D have been present by proxy with the attendance card for three days from July 14, 2008.

(1) The Plaintiff argues that the Plaintiff’s appearance is recognized in accordance with Article 30(2) [Attachment Table 1] of the Training Regulations, which constitutes a job screening test for employees, and even if it is not so, D is believed to constitute a ground for recognition of attendance and does not intentionally act on behalf of the Plaintiff without using an electronic data entry. The Plaintiff’s assertion that D intentionally attended as seen earlier is insufficient to recognize that E was absent from the job training test. Moreover, the release card is required to be used only by the trainee, but it is possible to process the entire five days of absence if E was left from the Republic of Korea. However, the Plaintiff’s assertion that D intentionally participated in the job as seen earlier can be accepted, taking account of the fact that D was treated as a ground for recognition of attendance.

Meanwhile, there is no evidence to prove that the plaintiff applied for training expenses for three days during which he/she was absent falsely, even though he/she could have prevented or discovered the above act if he/she had been thoroughly educated education, management and supervision of training teachers, so he/she may be deemed to have received training expenses by falsely treating the fact of attendance for three days during which he/she was absent. Thus, this constitutes "the case where he/she received training expenses by false or other unlawful means" under Article 16 (2) 2 of the Act.

(3) Furthermore, we examine whether the Plaintiff’s total amount of KRW 1,730,420 paid training costs to E constitutes “a case where training costs are received by false or other unlawful means.”

Although training expenses paid by the Plaintiff for three days from July 14, 2008 to the 16th day of the same month due to the Plaintiff’s absence of E shall be deemed to fall under training expenses paid as “any false or other unlawful means”, (1) it is difficult to recognize that the Plaintiff had intentionally committed such an act in light of the circumstances that it is difficult to conclude that the Plaintiff had intentionally committed such an act in order to receive training expenses with knowledge that E would be removed, and (2) it seems harsh to additionally collect training expenses paid by fraudulent or other unlawful means in addition to the refund of the training expenses paid by the Plaintiff, and to additionally collect them in excess of the refund of the actual training expenses paid by the Plaintiff for three days from the 1,730,420 to the 16th day of the same month. However, the portion of training expenses paid by the Plaintiff for three days from the 58,290 won of the training expenses paid by the Plaintiff shall not be included in “any other unlawful means”.

B) In light of Article 16(2)3 and Article 16(2)3 of the Act and the following circumstances revealed in light of the facts of evidence and recognition as seen earlier, i.e., ① management of entry into the training regulations of this case and the contents of the consignment contract for the training courses of this case is very important and essential matters in the vocational ability development training course, ② management of entry into the training course of the Plaintiff’s employees is conducted by the Plaintiff’s training teacher D’s attending the training course by the method of attending the training by proxy by using the training card of the trainee E; ③ although the Plaintiff was obligated to remove the E upon the request of the proxy, it is difficult for the Plaintiff to become aware of such circumstances and receive training fees after continuing the training for E without being aware of the fact due to negligence of management, etc., it constitutes a case where the Plaintiff neglected or implied the attendance of D’s proxy, and conducted training without removing E constitutes vocational ability development training in violation of Article 16(2)3 of the Act.

2) Whether there exist individual grounds for the instant disposition

A) As to termination of the contract

According to the provisions of Article 16 (2) (2) (3) of the Act, where anyone entrusted with vocational skills development training receives training costs or intends to receive training costs by fraudulent or other illegal means, the administrative agency shall terminate the entrustment contract, and where workplace skill development training is conducted in violation of the entrustment contract, the entrustment contract may be terminated.

In this case, as seen earlier, since Article 16 (2) 2 and 3 of the Act falls under the whole process of the defendant and the cancellation disposition of the entrustment contract on the training courses of this case is recognized as the grounds for the disposition.

[Disposition No. 1, No. 1, and No. 1) of this case separately state the termination of a contract for the entire process and the termination of a contract for the automobile maintenance process. However, as seen earlier, it is only recognized that the Plaintiff and the Defendant entered into the instant consignment contract for the automobile maintenance process, and there is no other evidence to deem that there exists any other consignment contract. Accordingly, the termination of a contract for the entire process and the termination of a contract for the instant consignment is the same disposition.

B) According to Article 16(2)2 and (3) of the Act with respect to restrictions on commission and recognition for 1.5 months for the entire course, where a person entrusted with workplace skill development training receives or intends to receive training costs by fraudulent or other illegal means, the pertinent entrustment contract may be terminated, and it may not be recognized as entrustment of workplace skill development training and workplace skill development training course within the scope of five years from the date of termination. However, Article 16(3) of the Act does not apply where training costs are less than one million won as provided in Article 13-2 of the Enforcement Decree of the Act.

As seen earlier, training costs that the Plaintiff received by fraudulent or other illegal means fall under less than KRW 58,290,000,000, and in this case, it does not constitute grounds for restrictions on entrustment or recognition under Article 16(3) of the Act, but it is unlawful for the Defendant to impose restrictions on entrustment or recognition for 1.5 months on the whole process by misunderstanding training costs as KRW 1,730,420.

C) As to the restriction on the entrustment and recognition of the instant training courses for one year and one half months

The Defendant issued a disposition to restrict the lawful entrustment and recognition of the training course of this case for 1.5 months in total after mitigation of the above three months, on the ground that the training course of this case was "where workplace skill development training was conducted in violation of the consignment agreement", Article 16 (2) 2 and (3) of the Enforcement Rule of the Act, and Article 6 (3) of the Enforcement Rule [Attachment Table 1] 1. (b) of the Act; 2.2.(b) the grounds for restricting entrustment for three months pursuant to the provisions of Article 16 (2) 3 and (3) of the Act, and Article 16 (3) of the Act, and Article 16 (1) of the Act, and Article 16 (1) 3 of the Act, and Article 16 (1) of the Act, and Article 16 (2) 1 of the Act, and Article 16 (2) 3 of the Act, and Article 6 (3) of the Enforcement Rule of the Act, are "where the training personnel was operated or managed by false or other unlawful means."

D) As to an order to refund KRW 1,730,420 of training expenses, Article 16(5) of the Act provides that “administrative agencies may order a person whose entrustment contract is terminated pursuant to the provisions of paragraph (2) to return all or part of the amount already paid.” Unlike the latter part of the same paragraph that provides the grounds and scope of additional collection, “amount paid by false or other unlawful means.” In this case, as seen earlier, as seen earlier, the Defendant terminated the entrustment contract for workplace skill development training with the Plaintiff on September 28, 2010 pursuant to Article 16(2) of the Act, the Defendant may order the Plaintiff to return all of the amount paid as training expenses for E, and thus, the Defendant’s order to refund KRW 1,730,420 of training expenses is recognized as grounds for disposition.

E) In full view of the provisions of the latter part of Article 16(5) of the Act, Article 13-2 of the Enforcement Decree of the Act, and Articles 6(1)1(a) and 6(2) of the Enforcement Rule of the Act, with respect to additional collection of KRW 1,730,420, it is required that the Plaintiff was paid training expenses by “any false or other unlawful means” unlike the case of an order to refund training fees. If the Plaintiff received the amount by false or other unlawful means, in accordance with the standards prescribed by the Enforcement Decree of the Act, an administrative agency may additionally collect an amount equivalent to five times the amount of the said amount (where there is no number of times an application for training expenses was illegally filed within five years before the date of the detection of the violation, it shall be three times the amount equivalent to the said amount.

As seen earlier, 58,290 won is paid in the instant case by false or other unlawful means. In such a case, 174,870 won is additionally collected as KRW 174,870 equivalent to three times the amount received by false or other unlawful means in accordance with the relevant provisions and Article 6(1)1 (a) of the Enforcement Rule. As such, the Defendant’s additional collection disposition is lawful within the said scope, and the exceeding portion should be revoked by unlawful means.

F) According to the proviso of Article 31(1) and Article 29 subparag. 9 of the Act, if a person entrusted with workplace skill development training is subject to restrictions on commission pursuant to Article 16 of the Act, the Minister of Labor shall revoke the designation of a vocational training facility. In the instant case, the Defendant issued a disposition to restrict the commission and designation of the entire course for 1.5 months and the instant training course for 1.5 months, and to restrict the commission and designation of the instant training course for 1 year and 1.5 months, and the disposition to restrict the commission and designation of the instant training course is lawful. As seen earlier, the instant disposition to restrict the commission and designation of one year for the instant training course constitutes grounds for revoking the necessary revocation of designation of a vocational training facility pursuant to the proviso of

3) Whether it violates the principle of trust protection, etc. or deviates from or abused discretionary power

A) The disposition of cancellation of a contract and cancellation of designation of a workplace skill development training establishment during the instant disposition are in accordance with the proviso of Article 16(2) and the proviso of Article 31(1) of the Act that stipulate the pertinent disposition as necessary. Thus, the circumstance asserted by the Plaintiff cannot be deemed that the Defendant violated the principle of trust protection, etc. or abused discretion.

B) We examine the remainder of the disposition of this case (one-year entrustment restriction on training courses of this case, one-year order for refund of training costs, 1,730,420 won, 174,870 won additional collection disposition). In this case, 10 occupational ability development training is conducted with limited financial resources, such as budget and employment insurance fund under the Employment Insurance Act, and public interest is considerably high due to the disposition of this case, 200, management of withdrawal for trainees should be thoroughly conducted in order to achieve the purpose of occupational ability development training and prevent unfair claim for training costs. In particular, trust and fairness in withdrawal management is likely to undermine the foundation of the occupational ability development training system itself, and 3) the Plaintiff’s act of training instructors’ proxy attendance is due to the Plaintiff’s neglect of duty of withdrawal management, and the Defendant’s act of denying the payment of training costs until training costs on the date of absence of training is a serious act, and thus, the Defendant’s disposition of this case cannot be deemed to violate the aforementioned principle of proportion within the scope of its own discretion.

C) Therefore, the Plaintiff’s assertion on this part is rejected.

4) Sub-committee

Of the instant dispositions taken by the Defendant against the Plaintiff on September 28, 2010, the part in excess of one year from October 16, 2010 to November 30, 2010, which exceeds one year from the restriction on entrustment and recognition of the instant training course from November 30, 201 to one year 1.5 months from November 30, 201, which exceeds one year from the restriction on entrustment and recognition of the instant training course, (3) 1,730,420, among the additional collection of KRW 174,870, out of the total collection of KRW 174,870, among the instant dispositions, shall be revoked. The remainder of the instant disposition (the termination of a contract for workplace skill development training and the instant training course, one year entrustment and recognition restriction, 1,730, 420, 420, 1784, 708, 308).

Therefore, the part exceeding one year from November 16, 201 to November 30, 201, among the dispositions in this case made by the Defendant against the Plaintiff on September 28, 2010, which exceeds 174,870 won of the additional collection of KRW 31,730,420 from November 30, 209 to January 13, 201, should be revoked in an unlawful manner. Thus, the Plaintiff’s claim in this case is justified within the scope of the above recognition, and the remainder of the Plaintiff’s claim in this case is dismissed, and by applying Article 23(2) of the Administrative Litigation Act, the disposition in this case should be revoked ex officio until the judgment in this case becomes final and conclusive.

The presiding judge shall be the highest judge.

Judge Choi Gyeong-hoon

Judges Kim Gin-dong

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.