(영문) 서울고등법원 2013.12.19. 선고 2012누24414 판결

1. The part of the judgment of the first instance against the plaintiff falling under the subsequent part of the order of revocation shall be revoked.

The part of the order issued by the Defendant to return 1,162,650 won which exceeds 18,690 won among the orders issued by the Plaintiff on January 12, 2009 shall be revoked.

2. The defendant's appeal is dismissed.

3. Of the total litigation costs, 40% is borne by the Plaintiff, and 60% is borne by the Defendant, respectively.

4. The order of the court of first instance shall be corrected on December 21, 2010 in paragraph (1) of this Article by "the date on which December 21, 201".

Purport of appeal and incidental appeal

1. Purport of claim

The Defendant’s disposition against the Plaintiff on December 21, 2009: ① the disposition of March restriction on the consignment of the entire course of a vocational technical school (from September 9, 2010 to December 8, 2010) on behalf of the Plaintiff; ② the disposition of one year restriction on consignment of the entire course of a vocational technical school (from November 13, 2010 to November 12, 201) instead of a vocational technical school; ③ the disposition of one year restriction on restriction on the payment of subsidies under an employment insurance premium support program (from May 15, 200, from August 15, 209 to August 6, 200); and ④ the disposition of additional collection equivalent to the unjust demand amount of one,162,650 won, and the disposition of additional collection equivalent to the same amount.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

3. Purport of incidental appeal;

The text of paragraph (1) is as follows.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as stated in the reasoning of the first instance court’s decision, in addition to the addition or dismissal under Paragraph (2) below. Thus, this Court’s reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. A part concerning addition or height;

Then, “The spring in Part 8 of the judgment of the court of first instance is reasonable” (the defendant is not sufficient to acknowledge that the plaintiff or training teacher intentionally handled the plaintiff or training teacher with knowledge of the absence or removal from school on April 25, 2008, and caused the removal from school on purpose although he or she was well aware of the occurrence of the removal from school on April 25, 2008, so he or she intentionally disposed of the removal from school, and thus, the full amount of the subsequent payment should be deemed to be an illegal payment amount. However, each statement in the evidence in subparagraphs 3 through 7 submitted by the defendant is insufficient to support that the plaintiff or training teacher intentionally handled the removal from school on his or her part,

○ The first instance court’s judgment on the 9th instance court’s first instance judgment should be deemed unlawful” (see, e.g., Supreme Court Decision 2011Du7564, Jun. 13, 2013) is added.

Part 17 of the judgment of the first instance court from 9th to 17th of the same page ("(1)" difficult to recognize the workplace skill development law") are as follows.

(1) Article 16(5) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same shall apply) which was in force on April 25, 2008, the date of the instant violation, provides that "the State, local governments, or the Minister of Labor may order a person whose entrustment contract is terminated pursuant to paragraph (2) or a worker whose provision of workplace skill development training is restricted pursuant to paragraph (4) to return all or part of the amount of subsidies already paid or subsidized. In this case, as regards the amount of subsidies already paid or subsidized by fraud or other improper means, an additional amount may be collected according to the following classification." Unlike additional collection based on the latter sentence, an order to return a full amount of subsidies by other improper means is not indicated as "the scope of the amount returned" or "the amount of subsidies received by other improper means" from the date on which the Act was amended or amended by Act No. 931, Dec. 12, 2008 or from the date on which was terminated.

However, since the termination of the consignment contract, which is the reason for the disposition of the instant return order, occurred on December 21, 2009, after the enforcement of the amended Act, it is reasonable to deem that the Act applicable to the instant return order, even if it was performed at the time of the enforcement of the former Act, is Article 16(5) of the amended Act (see Supreme Court Decision 2012Du2115, Sept. 26, 2013).

Therefore, the amount that the Defendant may order the return is KRW 18,690, which is recognized as the amount of illegal receipt prior to the amendment pursuant to Article 16(5) of the amended Act, and thus, the part exceeding the above amount among the instant return orders is unlawful.

3. Conclusion

Thus, the plaintiff's incidental appeal seeking the cancellation of the above part of the return order of this case exceeding the above 18,690 won is with merit, and the defendant's appeal is dismissed as it is without merit, and the decision of the court of first instance is delivered with the decision of the court of first instance to correct the error in writing.