(영문) 서울고등법원 2014.6.13. 선고 2013누17000 판결

1. Of the judgment of the first instance court, the part against the Plaintiff, which orders the revocation below, shall be revoked. On May 29, 2012, the part that the Defendant ordered the return of the internship subsidy among the dispositions related to the illegal receipt of the internship system for small and medium enterprises employed by small and medium enterprises and the part that prohibits the employment of new internships shall be revoked

2. The plaintiff's remaining appeal is dismissed.

3. The total cost of a lawsuit shall be borne individually by each party.

Purport of claim and appeal

The judgment of the first instance shall be revoked. On May 29, 2012, the defendant's disposition related to the illegal receipt of the youth employment internship system against the plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a corporation that manufactures and sells products related to environment and plants. The Korea Chamber of Commerce and Industry and the Korea Chamber of Commerce and Industry are both institutions that operate the youth internship system in small and medium enterprises, and institutions that perform affairs related to the youth internship system (hereinafter “instant business”) entrusted by the Minister of Employment and Labor pursuant to relevant statutes, including Article 25(1)3 of the Employment Insurance Act, Article 35 Subparag. 2 of the Enforcement Decree of the Employment Insurance Act and Article 36(1)3 of the Enforcement Decree of the Employment Insurance Act.

B. In order to receive subsidies under the instant project, the Plaintiff employed B after entering into the Korea Chamber of Commerce and Industry with the Korea Chamber of Commerce and Industry on July 22, 2009, and employed C after entering into the Korea Chamber of Commerce and Industry with the Korea Chamber of Commerce and Industry on April 2, 201, and entered into the Korea Chamber of Commerce and Industry with the Korea Chamber of Commerce and Industry on April 2, 201, and employed D after entering into the Korea Chamber of Commerce and Industry with the Korea Chamber of Commerce and Industry.

C. 1) The Plaintiff applied for the internship subsidy to the chamber of commerce and industry and the Korea Chamber of Commerce and Industry and the Korea Chamber of Commerce and Industry pursuant to the above internship support agreement from May 13, 2010 to December 23, 201, and received KRW 12,750,000 in total from the Korea Chamber of Commerce and Industry and the Korea Chamber of Commerce and Industry and the Korea Chamber of Commerce and Industry.

2) In addition, the Plaintiff converted B, C, and D to regular workers, and applied for a full-time conversion subsidy to the Defendant and received KRW 8,400,000 from the Defendant for the total amount of the full-time conversion subsidy for B, and C.

D. On May 29, 2012, the defendant: (a) on the ground that "the plaintiff was employed as an existing employee, C and D as an intern, the number of employees at the place of business at the time when the agreement on the internship support was concluded; (b) the detailed implementation guidelines for the youth internship system of small and medium enterprises in 2009 (hereinafter referred to as "209 guidelines") did not constitute "five or more regular employees at the place of business"; and (c) in 2010, the guidelines for the implementation of the youth internship system of small and medium enterprises in 2011 (hereinafter referred to as "the guidelines for the year 2010, 201"), although the plaintiff was employed as an existing employee, the government subsidy was illegally provided, the plaintiff shall return the total of KRW 12,750,000,000; (b) the sum of the regular conversion subsidies received at that time was returned to the 8,400,000,000 won; and (iii) the new subsidy was received for 21 to 31.21.

【Ground of recognition】 The fact that there has been no dispute, Gap’s 1, 7, 8, 9, 11, Eul’s evidence No. 17-1 through 3, the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The 2009 guideline which limits the internship practice company to 'five or more full-time workers' work places is not effective because it does not comply with the internal guidelines of the administrative agency or violates the mother law that served as the basis for delegation. Even if the guidelines were followed, the number of workers employed by the Plaintiff at the time of July 2009, six (E, F, G, H, I, and J). Thus, the Plaintiff did not receive unjust payment with respect to B.

2) The Plaintiff, at the Plaintiff’s place of business, expressed the fact that C and D had already worked as a part-time worker in the Plaintiff’s place of business before the agreement, and did not know that the application for subsidies for existing workers constitutes an illegal receipt without negligence, and thus, did not have a duty to return the Plaintiff’s illegal receipt.

B. Relevant statutes

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

C. Determination

1) Order of determination

The defendant did not indicate in the written disposition of this case the statute on the basis of the disposition of this case. In determining the legitimacy of each disposition of this case, the defendant first judged the existence of each applicable statute, and further examined the existence of the grounds for the disposition, i.e., the illegality

2) Whether the instant disposition (the part on the return of the internship subsidy) is lawful

A) The underlying statutes of the disposition

(1) The Defendant asserts that the pertinent disposition-based law is ① Article 35(1) of the Employment Insurance Act, Article 56 of the Enforcement Decree of the Employment Insurance Act, or Article 30(1) and Article 31(1) of the Subsidy Management Act (hereinafter “Subsidy Management Act”).

(2) Article 25(1) of the Employment Insurance Act provides that "the Minister of Employment and Labor may directly carry out, or subsidize or lend to, the following activities to promote the employment security and promotion of the insured, etc." (Article 25(1)3 provides that "other activities to promote the employment security and promotion of the insured, etc., as prescribed by Presidential Decree." Article 35 of the Enforcement Decree of the Employment Insurance Act lists "projects prescribed by Presidential Decree," and lists "projects to promote the employment security and promotion of the insured, etc." (Article 35(2) of the Enforcement Decree of the Employment Insurance Act provides that "the Minister of Employment and Labor shall provide employment support activities, such as job placement, job-seeking guidance, employment of internships, and employment support activities to promote the employment of the insured, etc." (Article 25 of the Act

Article 25(1)3 of the Employment Insurance Act and Article 35 subparag. 2 and Article 36(1)3 of the Enforcement Decree of the Employment Insurance Act provide that “The Minister of Employment and Labor may limit the amount of the subsidy or return the amount of the subsidy received by the person who has received or intends to receive the subsidy under this Chapter by fraud or other improper means, as prescribed by Presidential Decree.” Article 35(1) of the Employment Insurance Act provides that “The Minister of Employment and Labor may order the person who has received or has received the subsidy under this Chapter to receive the subsidy by fraud or other improper means, or to return the subsidy received by the person who has received or has received the subsidy under this Chapter by the Minister of Employment and Labor.” Article 25(1)3 of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 23139, Sept. 15, 201; Presidential Decree No. 2415, Oct. 29, 2012; Presidential Decree No. 23620, Jan. 3, 2019).

Even if examining its history, Article 56(1) of the Enforcement Decree of the above Act included a subsidy under Article 35 on the subject of the refund before amendment by Presidential Decree No. 22026, Feb. 8, 2010, the portion of the subsidy under Article 35 was deleted due to the above amendment, and Article 35 was not re-inverted even after the amendment to change the scope of the subject of return several times thereafter. In light of this, it is clear that the subsidy under Article 35 was excluded from the subject of the above return. Moreover, as seen earlier, Article 56(1) of the amended Enforcement Decree of the above Act is applicable since the Plaintiff first received the subsidy on May 13, 2010, since Article 35 was deleted from the subject of the refund.

Therefore, the provision related to the return of subsidies under the Employment Insurance Act and the Enforcement Decree of the Employment Insurance Act cannot be the basis of the instant disposition.

(3) The term "subsidies" as referred to in the Subsidy Management Act means subsidies (Article 2 subparagraph 1 of the Subsidy Management Act), which are granted by the State to affairs or projects implemented by any person other than the State, and the term "subsidized projects" means affairs or projects eligible for subsidies (Article 2 subparagraph 2), the term "subsidized project operator" means a person who operates a subsidized project (Article 2 subparagraph 3), and the term "subsidized project recipient" means a person who has received subsidies from a subsidized project operator (Article 2 subparagraph 8).

According to the above facts and Gap evidence No. 12-1, the defendant first granted the internship subsidy and the expenses for entrusted operation to the operating institution upon the application of the operating institution, and the operating institution thereafter paid the internship subsidy to the implementing company upon the application of the Plaintiff. According to the Subsidy Management Act, the provision of the internship subsidy to the implementing company constitutes the subsidized business that is subject to the payment of the subsidy to the operating institution other than the State, such as the Korea Chamber of Commerce and Industry and the Yangyang Chamber of Commerce and Industry. The operating institution, such as the Korea Chamber of Commerce and Industry and the Yangyang Chamber of Commerce and Industry, etc., is the subsidized business operator, and the operating institution, such as the plaintiff, is

However, Articles 30 and 31 of the Subsidy Management Act provide for the cancellation of the decision to grant or order to return subsidies to a subsidized business operator by the State, Article 33-2 of the Subsidy Management Act provides that the State may order the recipient of subsidies to return the subsidy directly. Thus, the Korea Chamber of Commerce and Industry, etc. ordering the return of the internship subsidy to the Plaintiff, or ordering the Defendant to return the internship subsidy to the operating institution, separate from ordering the Defendant to return the internship subsidy, the Act on the Subsidy Management cannot be deemed as the basis for the Defendant to order the Plaintiff who directly received the subsidy (On the other hand, Article 9 and Article 10 of the 2010 Convention signed by the Plaintiff and the Goyang Chamber of Commerce and Industry, which entered into with the Plaintiff, and Article 9 and Article 10 of the 2011 Convention shall not be binding upon the Plaintiff’s local government office (the Plaintiff) or Gap (the Korea Chamber of Commerce and Industry).

(4) Therefore, the Employment Insurance Act and the Subsidy Management Act cannot serve as the basis for the instant disposition against the Plaintiff by the Defendant, and there is no other statute that can serve as the basis for the disposition.

B) Sub-determination

Therefore, the disposition of this case (1) is unlawful because it was conducted without any ground statute.

3) Whether the disposition of this case (the part concerning the return of regular conversion subsidy) is legitimate

A) Relevant statutes and relevant legal principles on the disposition

(1) As examined earlier (2)(a), the provision pertaining to the return of subsidies under the Enforcement Decree of the Employment Insurance Act and the Employment Insurance Act does not include the instant business in the business subject to the refund of subsidies due to illegal receipt. As such, the instant disposition also cannot be the basis of the Employment Insurance Act.

(2) In addition, the term "subsidies" under the Subsidy Management Act is a subsidy granted by the State to the affairs or projects performed by a non-State entity (Article 2 subparagraph 1 of the Subsidy Management Act). According to the above recognition facts, the full-time conversion subsidy was received by the Plaintiff directly from the Defendant. Unlike the internship subsidy, the Defendant directly performs its affairs or projects without being entrusted to the operating agency, so there is no room to apply the Subsidy Management Act to the return of the full-time conversion subsidy.

(3) However, a disposition agency which has conducted an administrative act may cancel it on its own, even without a separate legal basis, if there is a defect in the act. However, when the disposition agency which has conducted the administrative act, it may cancel it only when it has compared and compared the necessity of the public interest to cancel it with the disadvantage that the party may suffer, such as the protection of trust and the infringement of the stability of legal life, etc., and only when it is strong enough to justify the disadvantage that the public interest needs to sustain. However, if the defect in the administrative disposition was due to the party's act of application by means of concealment or other fraudulent methods, the party could have known that the benefit from the disposition was illegally acquired. Thus, it is not possible to invoke the trust interest in the disposition, but even if the administrative agency did not consider it, it does not change because it did not abuse its discretionary power, and in this case, the party's fact was passive through a third party (see Supreme Court Decision 208Du8628, Nov. 13, 2008).

(4) Therefore, even if there is no applicable law on the disposition of the instant case (B) disposition, the Defendant may cancel the disposition of the payment of the regular subsidy for return, which is a beneficial administrative disposition, and order the return thereof.

B) Whether an application was filed by concealment or fraudulent means

(1) Article 25(2) of the Employment Insurance Act delegates matters necessary for the implementation of the instant business and subsidization and lending of expenses to the Presidential Decree. Article 36(2) of the Enforcement Decree of the Employment Insurance Act provides that “The Minister of Employment and Labor intends to provide support pursuant to paragraph (1), he/she shall publicly notify the type and content of the pertinent business, the scope of the insured, etc. subject to the support, the details and level of the support, the method of application, etc., in advance.” Accordingly, the Minister of Employment and Labor (the Minister of Labor as at 2009, 2010, and 2011) prescribed the contents, degree, and scope of the support in advance, and publicly notified in advance, the requirements for a company

Meanwhile, the Plaintiff asserts that the enforcement decree of the Employment Insurance Act violates the parent law by citing the exclusion provisions of the Enforcement Decree of the Employment Insurance Act, but the scope of application of the Enforcement Decree of the Employment Insurance Act and the Enforcement Decree of the Employment Insurance Act and the scope of delegation of the matters concerning the implementation of the instant business is separately determined, so the above argument that the scope of delegation

Therefore, if the Plaintiff received the subsidy by concealing it even though it does not fall under the above guidelines, it constitutes an application by means of concealment or fraudulent means, and the Defendant may revoke the disposition of the subsidy and order the Plaintiff to return the subsidy.

(2) Therefore, first, we examine whether the application for the full-time conversion subsidy with respect to B is based on the closure of facts or fraudulent methods.

The guidelines in 2009 stipulate that "five or more regular workers shall be eligible companies" and "regular workers shall be all workers who are actually employed except for those employed for a period of less than one month," and the number of regular workers shall be the number of the insured workers."

However, in full view of the following facts, the Plaintiff, even though the number of the insured workers at the time of entering into the internship Support Agreement with respect to B falls short of five persons and is not an enterprise eligible for the support of the instant project, was determined to have entered into an agreement on the internship Support with concealing it, and to have received a subsidy by applying for a full-time conversion support, even if it was found that the Plaintiff did not fall under the enterprise eligible for support of the instant project.

① At the time when the Plaintiff entered into the internship Support Agreement on July 2, 2009, the number of the Plaintiff’s insured workers was not only two persons E and H, F was on June 2, 2009, and G was already disqualified on July 10, 2009.

② On December 22, 2009, the Plaintiff filed a correction on August 2, 2009, both F and G’s disqualified date of the insured on December 22, 2009. However, the number of the insured employees at the time of the conclusion of the agreement after the ex post facto correction was limited to two, and the number of insured employees was limited to four even if F and G are included.

On July 22, 2009, the Plaintiff entered the Korea Chamber of Commerce and Industry in the notification of the list of internship candidates submitted to the Korea Chamber of Commerce and Industry, and entered the number of insured workers in five.

(3) Next, we examine whether the application for full-time conversion subsidy with respect to C is based on closure or fraudulent methods.

Each guideline in 2010 and 2011 limits a person who had been engaged in training, employment, or special service under the Military Service Act in a company to be employed as an intern before the date of application for an internship to participate in the relevant company as an intern.

However, the above facts, Gap evidence Nos. 14, 19, Eul evidence Nos. 5, Eul evidence No. 9-2, Eul evidence Nos. 13-1, 2, Eul evidence No. 14-16, Eul evidence No. 18-4, Eul evidence No. 19-2, Eul evidence No. 20-1, 2, Eul evidence No. 21-2, Eul evidence No. 21-1, 2, and Eul No. 28-1, 28-3, or the court can not employ an existing worker as an intern, and the plaintiff can be found to have entered into an internship support agreement without notifying Eul that Eul had already worked in its workplace, even though he/she is aware that the plaintiff could not employ an existing worker as an intern, it is determined that he/she had already concluded an internship support agreement without notifying Eul and Eul of the fact that Eul had already worked in its workplace.

① On March 21, 2013, the Plaintiff and its representative director were sentenced to a fine of KRW 50,000 and KRW 1,000,00,00,000, by recognizing the facts constituting a crime that the principal of the government was received by illegal means upon application of C and DI, an existing employee, as a youth employment intern in the Jung-gu District Court Goyang Branch, and the said judgment became final and conclusive upon dismissal.

② Although the Plaintiff had already employed C around the end of February 2010 and D around March 6, 2011, the Plaintiff did not subscribe to employment insurance with respect to the said two persons. As such, as the Plaintiff selected and employed a new intern on April 2, 2010 and June 2, 2011, which was after the date of actual employment, the Plaintiff entered into an agreement with the Goyang Chamber of Commerce and Industry by submitting a written notification of the list of the selection of an intern and a written agreement for internship support.

3. The notice of the list of internships selected by the Plaintiff shall be written in a large language at the center of the upper group, stating, “The following persons who are employed or scheduled to be employed before being arranged as an operating institution shall not be supported.”

④ On April 2, 2012, 2012, the date when the Plaintiff’s representative director M entered into the internship support agreement with C, the Plaintiff’s letter of confirmation for the internship implementation company (including an intern and a person who has worked for training, employment, or special case under the Military Service Act) is written as follows: “To confirm that the business establishment does not fall under any of the following items, and to return the total amount of government subsidies, regardless of motive, and to be punished strictly in accordance with relevant laws and regulations.” However, M excluded items indicate “X” and “X” as “the person who has worked for training, employment, or special case under the Military Service Act, who is the pertinent business entity”.

⑤ Also, in the written confirmation for internship participants submitted on the date of concluding the internship support agreement, C indicated “not in the way to confirm whether a person who had been engaged in training, employment, or special cases under the Military Service Act in the company scheduled to employ internships prior to the date of application for internships” as “not in the way to confirm whether the person had been engaged in training, employment, or employment

④ On January 18, 2012, the Defendant: (a) visited the Plaintiff’s workplace, and asked the Plaintiff’s representative director M and D whether D had worked in the Plaintiff’s workplace prior to the date of employment of an internship; (b) however, the two persons asserted that D had worked in advance since June 201, who was employed as an intern, without having worked in advance; and (c) drafted a false confirmation document.

(No. (No.) The Plaintiff received a prosecutor’s investigation on the illegal receipt of subsidies for D, and demanded the submission of the details of passbook transactions and the bonus and ledger. The Plaintiff submitted each of the above documents from March 201 to May 201, 201, which is the pre-service period of D, by removing the details of remittance and the details of bonus and bonus from March 201 to May 201. However, the Speaker’s office, the prosecutor’s office and the senior director, confirmed that the Plaintiff and the M were employed as an existing employee, and the Plaintiff and M were convicted as seen earlier, but the above judgment became final and conclusive.

③ According to the recording on March 31, 2012, which the Plaintiff submitted a recording of the conversation with K and L, a person in charge of the Goyang Chamber of Commerce and Industry (Evidence A No. 19), it is recognized that the Plaintiff and K, a person in charge in the year 2009, told K to the effect that they were unaware of the fact that they were working in advance, and that L, a person in charge of the Plaintiff’s work in 2010, also told K to the purport that they were aware of the fact that they were working in advance.

C) Sub-decision

Therefore, inasmuch as the Plaintiff entered into an agreement on full-time conversion support with respect to B and C by means of abolition of facts or fraud, and applied for the payment of the full-time conversion support fund, which is a beneficial administrative disposition, and received the payment thereof, the instant disposition to the Plaintiff is lawful.

4) Whether the disposition of this case (the prohibition of new internship employment) is legitimate

A) Article 56(2) of the Enforcement Decree of the Employment Insurance Act provides that “a person who has received, or attempted to receive, any of the subsidies under paragraph (1) by fraud or other improper means pursuant to Article 35(1) of the Employment Insurance Act shall be limited to the payment of subsidies. However, as seen earlier 2). As such, the subsidy for the instant project does not fall under the subsidy under Article 56(1) of the Enforcement Decree of the Employment Insurance Act, and accordingly, Article 56(2) of the Enforcement Decree of the Employment Insurance Act does not constitute the grounds for the instant disposition.

B) The Defendant, based on each of the guidelines in 2009, 2010, and 2011, took the instant disposition, and asserts that each of the above guidelines was enacted upon delegation under Article 25(2) of the Employment Insurance Act and Article 36(2) of the Enforcement Decree of the Employment Insurance Act, and thus, it is an external binding law.

According to the evidence No. 12-1 to No. 3, it is recognized that each of the above guidelines provides that "government subsidies shall be illegally applied for, or received by, a licensee, for one year from the date of application or receipt, shall be prohibited from being newly employed for, one year from the date of application or receipt, and subsidies for, an intern employed during the prohibition period of hiring an intern in accordance with a fraudulent application or supply and demand shall not be paid, and the subsidies already paid shall be returned or returned."

However, as seen earlier, Article 25(2) of the Employment Insurance Act delegates matters necessary for implementing the pertinent project and subsidizing expenses to the Presidential Decree. Article 36(2) of the Enforcement Decree of the Employment Insurance Act only delegates matters concerning the type and content of the pertinent project, the scope of the insured, etc. subject to the application, the details and level of the support, and the method of application to the Minister of Employment and Labor, and does not delegate matters concerning sanctions following illegal receipt. Accordingly, the Defendant’

C) Ultimately, the instant disposition: (a) the instant disposition limits the payment of all subsidies to the Plaintiff during the period of prohibition of new employment; and (b) is unlawful on the grounds that all subsidies already paid are subject to sanctions on the premise that they should be returned retroactively.

5) Sub-decisions

Therefore, the disposition of this case (1) and (3) is unlawful as it is conducted without any legal basis, and thus, the disposition of this case (2) is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, the plaintiff's appeal partially accepted the plaintiff's appeal and the part against the plaintiff with respect to the return of the internship subsidy and the prohibition of new internship employment among the judgment of the court of first instance against the plaintiff is revoked, and the part ordering the return of the internship subsidy among the disposition of this case and the part prohibiting new internship employment is revoked. The plaintiff's remaining appeal is dismissed as it is so decided as per Disposition.

Judges

The presiding judge, the senior judge;

Judges Nown Korea

Judge Lee Ro-man

Note tin

1) In the case of D as seen earlier 1.C. (2), whether the subsidy was granted even though the Plaintiff applied for the full-time conversion subsidy

Although the application was not received as soon as possible, it appears that it was based on the closure of facts or fraudulent methods, and it was a full-time worker in C.

Inasmuch as the application for a conversion subsidy may be a factor to be considered in determining whether the application was made by concealment or fraud, the following may be the following factors:

In addition, this paper also examines.