(영문) 서울행정법원 2019.9.4. 선고 2019구단5093 판결

The Defendant’s order of return of 3,061,280 won or more to the Plaintiff on February 22, 2017: (a) the order of return of KRW 11,464,510 to B and C; (b) the additional collection of KRW 22,929,020 to B and C out of KRW 66,122,560; and (c) the additional collection of KRW 22,929,020 to the Plaintiff during the twelve-month period (from February 22, 2017 to February 21, 2018) is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff operated an online education institute (hereinafter referred to as the “instant establishment”) under the trade name of the Seoul Special Metropolitan City Gwangjin-gu D building and 'E' on the fourth floor.

B. Under the premise that six employees of the instant workplace (hereinafter “instant workers”) worked on a part-time basis and work on behalf of the Defendant, the Plaintiff applied for subsidies for work-time-time job creation support programs (hereinafter “instant work”) which seem to be contrary to the Defendant, and received subsidies from the Defendant in total of KRW 33,061,280 (hereinafter “the instant subsidies”) as indicated below.

A person shall be appointed.

C. On February 2, 2017, the Defendant: (a) issued an order to return KRW 33,061,280 to the Plaintiff pursuant to Article 35 of the Employment Insurance Act and Article 56 of the Enforcement Decree of the same Act; (b) additionally collect KRW 66,122,560, and (c) issued a disposition restricting the payment of various kinds of subsidies for the period from February 2, 2017 to December 12, 2017 (hereinafter referred to as “instant disposition”), on the grounds that the Plaintiff illegally received the instant subsidies, such as the Plaintiff prepared a false report on commuting to and from work, written a business operator’s confirmation, etc.; and (c) submitted it to the Defendant.

D. On May 18, 2017, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission, which was dissatisfied with the instant disposition, but the Central Administrative Appeals Commission dismissed the said request on August 21, 2018. [Grounds for recognition] The fact that there is no dispute, entries in the evidence Nos. 11 through 13, and the purport of the entire pleadings.

A. The plaintiff's assertion

1) Non-existence of the grounds for disposition

A) With respect to B, during the 12-month period in which he/she could receive subsidies, he/she had applied for subsidies for the remaining nine months except for subsidies for the three-month period in which he/she had already received subsidies. Accordingly, he/she applied for subsidies for the entire 12-month period in the number of the employees in charge. Therefore, the receipt of subsidies for the three-month period is by mistake, and thus, it is not illegal receipt, but it is improper to impose additional charges therefor.

B) With respect to C, additional work and home-based work have been conducted at the worker’s request, and additional benefits have been paid thereto, not illegal receipt.

2) Even if the Plaintiff did not know whether the Plaintiff was an illegal contractor, it is difficult to deem that the Plaintiff was a serious violation of the law to the extent that the Plaintiff did not additionally collect twice the subsidy.

3) Therefore, the instant disposition is unlawful and thus ought to be revoked.

B. Relevant statutes

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

C. Determination

1) Determination as to the non-existence of the grounds for disposition

A) Part concerning B

Sanction against violation of administrative laws is a sanction against a violation of administrative laws and regulations based on the objective fact that is, in order to achieve administrative purposes, a violation of administrative laws and regulations, and thus, a sanction may be imposed even if the violator has no intention or negligence, barring any special circumstance, such as where he/she does not cause any negligence due to his/her failure to perform his/her duties. "False or other unlawful means" refers to any unlawful act committed by an unqualified business owner in general in order to conceal the eligibility for payment or the lack of eligibility for payment, which may affect the decision-making on the payment of subsidies (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In light of the following circumstances, it is reasonable to view that the Plaintiff received the instant subsidy in relation to B by fraud or other improper means in light of the respective descriptions of evidence Nos. 1, 7, and 12, and the purport of the entire pleadings. Accordingly, the Plaintiff’s assertion on this part is rejected.

① From April 21, 2015 to August 20, 2015, the instant subsidy per se was paid on the basis of the false commuting register submitted at the time of application for the said subsidy. In other words, due to the fact that B worked in the Philippines from May 28, 2015 to January 26, 2016, it was clearly stated that the instant workplace made a false application for subsidies to B during the said period and that the Defendant issued the instant disposition based thereon.

② If an employee in charge simply files an application for a period of three months as stated by the Plaintiff’s assertion, it is difficult to explain the reasons why the employee files a false report on commuting to and from work.

③ According to the statement of the informant who informed the Defendant of the illegal receipt of the instant workplace, the fact that the Plaintiff, a business owner, made a false document, such as commuting records, at the instant workplace, and applied for subsidies to the Defendant is also recognized.

④ Even if not, it was caused by the loss of an employee in charge, the preparation and submission of documents that do not correspond to the actual employment relationship should be deemed to have been ultimately conducted as the employer who is the party to the employment relationship and was managing and operating the employment relationship, such as working hours, etc. of the instant workers.

2) Part as to C

The purpose of the instant project is to ensure that a flexible-time worker who intends to support the instant project may choose some of the contractual work hours of ordinary workers and work in order to create more diverse and more opportunities for work. If an employer who has obtained approval of the instant project employs a flexible-time worker and then allows a flexible-time worker to work in the form of overtime work, the purpose of the instant project, such as job creation through a flexible-time worker, can be mitigated, and thus, whether a part-time worker who is eligible for support of the instant project is a flexible-time worker should be determined more strictly.

If evidence Nos. 2, 7, 8, 10, 11, and 12 included the purport of the entire pleadings, the Plaintiff is recognized as having received the instant subsidy by falsely setting up a record of probation as if he worked for 30 hours a week, even though C had worked for 40 hours much more than 30 hours a week due to home-based work, additional work, etc., and is not a person entitled to receive the subsidy. Accordingly, according to the above facts, C cannot be deemed as a part-time worker eligible for support for the instant project.

The Plaintiff asserts that, at the request of an employee, additional work and selective work were conducted on a short-time basis, and thus, it is not illegal. However, while the Labor Standards Act permits overtime work under an agreement between the parties concerned, it cannot be deemed permissible overtime work for a part-time worker to have workers work to the extent that it does not significantly differ from ordinary workers by providing such overtime work with respect to a part-time worker whose scope of working hours is strictly limited. As seen earlier, it is recognized that C’s work type, such as re-elective work and additional work, was conducted to the extent that it would not significantly differ from ordinary workers, and therefore, it cannot be deemed as a part of the Plaintiff’s assertion on this part.

2) Determination on the assertion of deviation or abuse of discretionary power

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages that an individual may be seen as an individual by objectively examining the content of the relevant disposition, which is the reason for the disposition, and the public interest to be achieved through the relevant disposition, as well as the various circumstances (see, e.g., Supreme Court Decision 98Du11779, Apr. 7, 200; 200; 98Du11779, Apr. 7, 200). In addition, where the disposition standards are prescribed by Presidential Decree or Ordinance of the Ministry, the disposition standards per se do not conform to the Constitution or laws, and unless there are reasonable grounds to believe that the relevant disposition is considerably unreasonable in light of the content of the offense for which the disposition is based, and the content and purport of the relevant statutes, the disposition should not be readily determined that the relevant disposition deviates from the scope of discretion or abused its discretionary power

B) Comprehensively taking account of the following circumstances revealed in addition to the purport of the entire pleadings, the instant disposition cannot be deemed as deviation from or abuse of discretion. The Plaintiff’s assertion on this part is without merit.

① The amount of the instant subsidy received by the Plaintiff by unlawful means reaches KRW 33,061,280, and the Plaintiff was granted subsidies by deceiving the Defendant by active unlawful means, such as preparing false management records, in order to receive the instant subsidy.

② The instant project is designed to create jobs on a flexible basis through the reorganization of a work system or the development of new flexible-time work. It is necessary to strictly punish the instant project by abusing the subsidy system by abusing the same external appearance as creating jobs on a flexible basis.

③ The instant disposition conforms to the criteria prescribed by Article 35(1) and (2) of the Employment Insurance Act, Article 56(2) [Attachment 2] of the Enforcement Decree of the Employment Insurance Act, and Article 78(1) of the Enforcement Rule of the Employment Insurance Act, and it is difficult to deem that the instant disposition does not conform to the Constitution or laws, or that the instant disposition is significantly unreasonable.

3) Sub-committee

Therefore, all of the plaintiff's assertions cannot be accepted, and the defendant's disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed in entirety as it is without merit. It is so decided as per Disposition.

Judges

Judges Lee Jae-hoon

Note tin

1) Although the part of the Plaintiff’s assertion is not explicitly asserted, the Plaintiff’s assertion is regarded as a deviation or abuse of discretionary power.