2018Nu59320 Order and revocation of a decision of additional collection, etc.

1. A;

2. B

3. C.

4. D;

5. E.

Attorney Lee Dong-dong, Counsel for the plaintiffs

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

Incheon District Court Decision 2017Gudan50192 Decided July 10, 2018

January 24, 2019

February 14, 2019

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

1. Purport of claim

Defendant’s 3,637,500 won payment order against Plaintiff A on August 11, 2016, 360 days support and loan restriction disposition against Plaintiff B, 5,340,120 won payment order against Plaintiff B, and 360 days support and loan restriction disposition against Plaintiff A;

The payment order of KRW 6,390,660 against Plaintiff C, the payment order of KRW 8,081,80 against Plaintiff D for 360, the payment order of KRW 8,081,80 against Plaintiff D for 360, the payment order of KRW 6,771,160 against Plaintiff E for 360, and the payment order of KRW 6,771,160 against Plaintiff E for 330, respectively.

2. Purport of appeal

Among the judgment of the first instance, the part against the plaintiffs falling under the order of cancellation shall be revoked.

On August 11, 2016, the Defendant revoked the payment order of KRW 3,637,50 against Plaintiff A, KRW 5,340,120 against Plaintiff B, KRW 6,390,660 against Plaintiff C, KRW 8,081,80 against Plaintiff D, KRW 6,71,160 against Plaintiff E, and KRW 6,71,60 against Plaintiff E (the Plaintiff appealed the part for the revocation of each of the Defendant’s respective restrictions on financing, but withdraw the appeal on that part).

1. Quotation of judgment of the first instance;

The reasons for this Court regarding this case are as follows, except for the part partially modified as follows and the allegations added by the plaintiffs in the trial, the reasons for the judgment of the court of first instance (excluding paragraph (2)) are as stated in Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

【Revisioned Part】

○ Under the table No. 4 of the judgment of the first instance court, the “this Court” is referred to as the “Incheon District Court”. In the judgment of the first instance court of ○○, the “judgment, etc.” of 20 pages 6 of the judgment of the first instance court is referred to as “see, e.g., judgment, etc.”

○ Judgment No. 8 of the first instance court No. 7 "The results of the investigation by a base station on the results of the investigation by the base station" is "as a result of the investigation by the base station".

Part 8 of the judgment of the first instance court, Nos. 10 to 9, 11, are as follows.

근로자직업능력 개발법 제55조, 제56조에서 각 제재처분의 사유로 규정하고 있는'거짓이나 그 밖의 부정한 방법'이라 함은 일반적으로 훈련비용을 지급받을 자격이없는 사람이 그 자격이 있는 것처럼 꾸미거나 그 자격 없는 사실을 감추려는 사회통념상 옳지 못한 모든 행위로서 훈련비용 지급에 관한 의사결정에 영향을 미칠 수있는 적극적 및 소극적 행위를 말한다(대법원 2014. 7. 24. 선고 2012두24764 판결참조). 또한, 행정법규 위반에 대하여 가하는 제재조치는 행정목적의 달성을 위하여행정법규 위반이라는 객관적 사실에 착안하여 가하는 제재이므로 반드시 현실적인행위자가 아니라도 법령상 책임자로 규정된 자에게 부과되고 특별한 사정이 없는한 위반자에게 고의나 과실이 없더라도 부과할 수 있다(대법원 2012. 5. 10. 선고2012두1297 판결 참조).이 사건에 관하여 보건대, 원고들은 앞서 본 바와 같이 각 소속 보육교사가 훈련과정을 제대로 이수하지 못하여 훈련비용을 청구할 수 없음에도 훈련생들의 수료 여|부, 훈련비용 지원신청의 적정성 여부를 확인하지 아니한 채 마치 각 소속 보육교사

A. As if the training courses have been completed properly, the application, etc. for the subsidization of training expenses was made. This constitutes an act that is not correct under the social norms because a person who is not qualified for training expenses takes care of the fact that he/she is qualified, or does not have any qualification. In such a case, even in such a case, it is difficult to secure the effectiveness of the regulations on sanctions if the plaintiffs demanded the intent. Therefore, it is reasonable to deem that the Plaintiffs were provided with training expenses by fraud or other improper means, and the circumstances that the Plaintiffs were subjected to a non-prosecution disposition

2. Additional matters to be determined;

A. The Plaintiffs, unlike the disposition guidelines of the Ministry of Employment and Labor, were subject to the Defendant’s disposition of non-prosecution, and the disposition of additional collection was made on the sole ground that the Plaintiffs did not file a voluntary report irrespective of the degree of their causes attributable to the Plaintiffs. The Plaintiffs asserted that it was unlawful by abusing and abusing discretion.

B. In full view of the evidence No. 1-2, evidence No. 2-2, evidence No. 2-2, evidence No. 3-2, evidence No. 4-2, evidence No. 9-1 through 5, evidence No. 12-1, and evidence No. 3, No. 5, No. 6, and No. 25, the prosecutor indicted the relevant persons, such as the F’s representative on Nov. 17, 2014, on suspicion of fraud, etc., the Plaintiffs were subject to each of the charges regarding the illegal receipt of F-related training expenses, and the Ministry of Employment and Labor, on April 12, 2016, sent the competent administrative agency including the Defendant, including the Defendant, with respect to the investigation into the illegal receipt of training expenses, and the fact that the Plaintiffs failed to submit a written notification, such as guidance on the illegal receipt of training expenses, etc. (hereinafter “the instant standard”), despite having received a written request from the Defendant for the submission of an opinion on voluntary report, etc.

[1] Guidance on the criteria for administrative disposition on the case of the termination of the prosecution investigation / [1] Guidance on the disposition of the business owner's illegal receipt and confirmation of the suspicion of illegal receipt and receipt in cooperation with the investigation results by the prosecutor's office 0 (including the case of indictment) / If the suspicion of illegal receipt and receipt is unclear as a result of the prosecutor's investigation / the case is excluded from the administrative disposition where it is not clearly confirmed that the illegal act is not clearly confirmed, such as 'the fact that the reason for the non-prosecution of the prosecutor's office is confirmed' in accordance with the case of 'the suspension of prosecution or the investigation in the course of the investigation' / [2] In case of the case of the suspension of prosecution or investigation in the course of separate investigation by the employment center / the business owner who is confirmed to have the illegal receipt and payment after the investigation by the employment center / (the case of the voluntary report) / (the case of the business owner who fails to file a voluntary report / the voluntary report / written investigation and confirmation documents (including evidence documents).

C. In light of the following circumstances, each of the instant dispositions cannot be deemed to have violated the instant standards, and further, it cannot be deemed to have violated the discretionary authority, by abusing and abusing discretionary power, in light of the overall purport of the pleadings. Accordingly, the Plaintiffs’ above assertion is without merit.

1) According to the instant standard, in a case where a prosecutor’s investigation was completed and prosecuted, the administrative agency may proceed with the business owner’s disposition procedures upon confirmation of the business owner’s suspicion of illegal receipt by verifying the investigation results by the prosecutor’s office. However, in a case where the suspicion of illegal receipt by the prosecutor’s investigation results alone is unclear, the investigation results by the prosecutor’s office can confirm whether the illegal receipt was made through the business owner’s written investigation and confirmation, etc., and, if the business owner fails to submit the investigation results, the business owner’s additional investigation, such as attendance, etc. was conducted to determine whether the administrative disposition was taken. As seen earlier, the Defendant was indicted by the relevant parties, such as F, etc., and the Defendant provided the Plaintiffs, who were the business owner, with an opportunity to send a written investigation and confirmation document, on the ground that the Plaintiffs’ infant care teacher was supported by less than 80% of the training course, based on the data transmitted by the investigative agency, but did not present any opinion. Accordingly, the

2) In the event that the Defendant voluntarily filed a report in accordance with the instant standard, the Defendant took measures to return only the amount of illegal receipt; however, each of the instant dispositions against the Plaintiffs who did not file a voluntary report, including additional collection and disposition with respect to an order for return; the instant standard and each of the instant dispositions based thereon conforms to Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workers’ Vocational Skills, and it is difficult to view that the content thereof is considerably unreasonable

3) The Act on the Development of Workplace Skills of Workers stipulates that a business owner, etc. who engages in a development project of workplace skills shall, in order to support the promotion of workplace skill development through the workers’ life and to train skills and skilled human resources needed in the industrial field, provide that certain sanctions may be imposed on the business owner, etc. who performs the development project of workplace skill. However, in the case of training expenses provided by the Plaintiffs by unlawful means, it is impossible for the Plaintiffs to issue an order for return and to additionally collect additional collection due to the lapse of the extinctive prescription period in the case of training expenses provided by unlawful means. Considering the above circumstances, the disadvantages the Plaintiffs received by each disposition of this case cannot be deemed excessive in light of the purpose or intent of

3. Conclusion

Therefore, the plaintiffs' respective claims except for the part of the defendant's claim seeking revocation of the loan restriction disposition among the claims of this case are dismissed. The judgment of the court of first instance is just in conclusion, and the plaintiffs' appeal is dismissed in its entirety as it is without merit.

The presiding judge, the whole judge;

Judges Min Il-young

Judges Lee Jae-in