2017Gudan50147 Order and Revocation of Additional Collection, etc.

1. A;

2. B

3. C.

4. D;

5. E.

6, F

7. G.

8. H;

9. I

10. J

11. K;

12. L.

13. M;

14.N

15.O

Attorney Lee Dong-dong, Counsel for the plaintiffs

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

December 11, 2018

January 22, 2019

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On October 14, 2016, the Defendant issued an order to return KRW 2,71,170, KRW 2,71,170, KRW 30, KRW 30, KRW 30, KRW 300, KRW 3212,00, KRW 330, KRW 50, KRW 50, KRW 560, KRW 60, KRW 367,060, KRW 360, KRW 360, KRW 60, KRW 360, KRW 60, KRW 60, KRW 306, KRW 80, KRW 60, KRW 60, KRW 60, KRW 306, KRW 80, KRW 60, KRW 406, KRW 60, KRW 360, KRW 560, KRW 60, KRW 306, KRW 560, KRW 300, KRW 560, KRW 300, KRW 93, and 106.

1. Details of the disposition;

A. Details of the plaintiffs' entrusted training

1) Plaintiff A is a P apartment in Kimpo-si, Q apartment, R R apartment located in Qho-si, Plaintiff C is a U childcare center located in Kimpo-si, Plaintiff C is a V apartment W-si, Plaintiff D is a Zo-si located in Kimpo-si, Plaintiff E is a social welfare corporation located in Kimpo-si, Plaintiff E is a Za-si, Plaintiff F is a AD-based care center located in the P apartment AC-si, Plaintiff F is Kimpo-si, Plaintiff H AE AE apartment AF-si located in Kimpo-si, Plaintiff H is a AJ apartment-si located in Kimpo-si, Plaintiff 1 is a social welfare foundation located in Kimpo-si, Plaintiff 1 is a AJ-si located in Kimpo-si, Plaintiff KM apartment, V apartment, AP-si care center located in the city of Kimpo-si, Plaintiff C is a child care center located in the city of Kimpo-si, Plaintiff Kimpo-si located in the city of Kimpo-si, Plaintiff Kim Jong-si, Plaintiff AV AV apartment, AVM apartment, AV.

2) After concluding a contract with AZ (hereinafter referred to as “AZ”), the Plaintiffs submitted to the Human Resources Development Service of Korea documents that the workplace skill development training expenses were first paid to the AZ after completing the entrusted training and meeting the requirements, and received the expenses for workplace skill development training in accordance with Article 27 of the Employment Insurance Act, etc. (Article 8 of the Employment Insurance Act (Notice of the Ministry of Employment and Labor), the Plaintiffs must attend at least 80% of the training hours and complete the pertinent training course.

B. Disposition against the plaintiffs

1) In the course of the investigation into AZ, which is an entrusted training institution, the Incheon Bupyeong Police Station: (a) drafted and issued a false commission contract and a tax invoice as if the business owner of 488 childcare centers, including the Plaintiff, did not pre-paid training expenses; and (b) notified the Defendant that the trainee failed to attend the training course for at least 80% and failed to meet the completion standards and received training expenses, despite the failure of the trainee’s infant care teachers to attend the training course.”

2) On April 22, 2016, the Defendant: (a) stated that, as a result of the investigation by the Incheon Bupyeong Police Station on April 22, 2016, the details of the illegal receipt of training expenses, the details of administrative disposition and possibility of requesting an investigation in the future, and in the case of a self-report under Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers, the Defendant may reduce all or part of the amount to be additionally collected in addition to the return of the amount of the illegal receipt; and (b) operated the voluntary report period from April 25, 2016 to May 10, 2016, the Plaintiffs did not comply with

3) The Defendant, except for the portion for which the extinctive prescription has lapsed among the part received by the Plaintiffs, issued an order of return, additionally collecting, and restricting the loan of funds as stated in the purport of the claim (hereinafter “each of the instant dispositions”). The amount of unlawful receipt, excluding the training courses for each Plaintiff and the extinctive prescription and the part related to the extinctive prescription, and the total amount of unlawful receipt, are as listed below.

A person shall be appointed.

(4,088,095 won). criminal punishment for the representative, etc. of AZ shall be imposed.

1) On November 1, 2014, 17, related persons including the representatives of AZ were indicted for violating the Act on the Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on the Management of Subsidies. On December 15, 2016, the part of the crime of fraud was pronounced guilty (the part of the violation of the Subsidy Management Act, which was prosecuted for a commercial competition, was acquitted on the ground that the Defendants do not constitute the recipient of the subsidy). The Seoul High Court appealed as 2017No59 (Seoul High Court Decision 2017No59) but the appeal was dismissed on April 27, 2017, and again appealed as the Supreme Court Decision 2017Do7147, which became final and conclusive on August 18, 2017 (hereinafter referred to as “criminal judgment”).

2) The key point of criminal facts is as follows.

From May 6, 2012 to June 30, 2014, the Defendants submitted to the Corporation a false training report/training completion report/training completion report as if childcare teachers were able to attend a normal training course, or 4 hours training per day even if they did not attend the training, 30 hours per day, 50 hours training for 13 hours per day, and 8 hours per day, and in the case of Sundays 8 hours training, the actual training hours of childcare teachers do not fall short of 80/100 of the training hours per day, but the actual training hours of childcare teachers do not fall short of 4 hours per day, Saturdays, 13 hours per day, and Sundays, and 8 hours per day, and the attendance rate is 80 to 10 to 10%, and the victim paid 48 hours per day to the employer and 48 hours per day, 175, 175, 170 won per day as subsidies for workplace skill development training.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 15, Eul evidence 1 to 15, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

Since the attendance rate of trainees is less than 80%, there is no ground for disposition, and there is no intention to make payment or suspicion during the investigation, so it is erroneous in the misapprehension of legal principle that the decision of additional collection is made even though the intention is not recognized.

The Ministry of Employment and Labor’s guidance on the criteria for the administrative disposition of the business owner in relation to the instant disposition provides that the business owner who has received a non-prosecution as a discretionary standard shall be excluded from the administrative disposition; however, in the case of a business owner who has filed a voluntary report, the disposition was not specified, and thus imposes an additional collection at a disadvantage against the Plaintiffs who did not file a voluntary report. Even if it is not so, each disposition for additional collection is excessive in light of whether the Plaintiffs are recognized or not, and the degree of accountability such as the fact-finding, etc., each disposition of the instant case is unlawful

B. Determination

1) Non-existence of the grounds for disposition (whether a person has attended less than 80% of the training course)

In full view of the following circumstances, comprehensively taking into account the evidence presented above and the overall purport of the arguments, Plaintiffs’ infant care teachers may be deemed to have attended less than 80% of the training courses.

A) Above all, even if an administrative trial is not bound by the fact-finding in a criminal trial, the fact that a criminal judgment already finalized on the same factual basis was found guilty is a flexible evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a factual judgment in a criminal trial in light of other evidence submitted in the administrative trial, the facts opposed thereto cannot be recognized (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012).

However, the criminal judgment held to the effect that the AZ which provided education and training to infant care teachers at the request of the plaintiffs, provided 3 hours in the case of training for 4 hours a day and 5 hours in the case of training for 13 hours a day a day and 13 hours a Saturday training for 8 hours a day, and as a result, 80/10 of the total amount of subsidies paid to 488 child care teachers including the plaintiffs, provided that the total amount of subsidies paid to 1,531,577,419 won in the case of 4 hours a day and 5 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day

B) In addition, not only the BA in the chapter of the AZ but also the instructors belonging to the AZ have entered into a compulsory medical agreement at three hours a day, five hours a Saturday, and on Sundays, there was no lecture, and there was no infant care teacher who has normally completed all training courses (No. 11-3).

C) Ultimately, even in the case of each training course in which the Plaintiffs’ infant care teachers participated, it shall be less than 80% in the case of each training course including Saturdays and Sundays, and it may be recognized that the training course conducted three times a day-day is less than 9 hours out of 12 hours and less than 80% in total. Thus, the allegation that there is no reason to dispose of it is difficult to accept.

2) Meritorious legal principles (related to intentional receipt and intentional collection and additional collection)

Article 16 (2) 2 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316 of Dec. 31, 2008; hereinafter referred to as the "former Act on the Development of Workplace Skills") generally refers to the affirmative and passive act that may affect the decision-making on the payment of training expenses as an act that is not justifiable in social norms with an intention to see that a person who is not entitled to training expenses has such qualifications as if he/she were qualified, or to conceal the fact that he/she is not qualified. Article 16 (1), (2) and (3) of the former Act and Article 16 (6) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 9316 of Mar. 31, 2008; hereinafter referred to as the "former Act"), and Article 13 (4) 1 of the former Act on the Development of Workplace Skills of Workers does not apply the same legal principle as the case concerning the act of intentional or gross negligence.

Therefore, the allegation that the disposition of additional collection is unlawful because the plaintiffs received a decision on payment or suspicion during the investigation process and the intent to illegally receive the payment is not recognized. Furthermore, as seen earlier, the plaintiffs confirmed their responsibility whether the AZ has properly trained the affiliated infant care teachers, and then the plaintiffs should pay training expenses beforehand to the AZ, and then can receive subsidies from the Human Resources Development Service of Korea along with the receipt.

However, in full view of the fact that only a part of the daily and Saturdays were implemented, and in particular, on Sundays, it was not confirmed whether the training course was properly implemented even though the training was not conducted, and that training expenses were not paid in advance to AZ, and the training expenses were paid by issuing false tax invoices and transferred them to AZ, etc., at least the Plaintiffs’ gross negligence is recognized, and thus, the additional collection disposition among each of the dispositions of this case is legitimate.

3) A deviation from and abuse of discretionary power

A) Claim on violation of discretionary rules

The discretionary rule on the administration of the internal affairs of an administrative agency prepared as a basis for the exercise of discretionary power is a discretionary rule, and such discretionary rule is generally effective only within the administrative organization, but does not have external binding power. Thus, the administrative disposition is not immediately unlawful merely because it is in violation of such rule. However, if the administrative practice is implemented after a pooling as prescribed by the discretionary rule, the administrative agency is placed under self-detained in relation to the other party in accordance with the principle of equality or the principle of protection of trust. In such a case, barring any special circumstance, a disposition contrary thereto is an illegal disposition that deviatess from and abuses the discretionary authority contrary to the principle of equality or the principle of protection of trust (see Supreme Court Decision 2011Du28783, Nov. 14, 2013).

On the other hand, the Ministry of Employment and Labor, on April 12, 2016, sent "in relation to the result of the investigation into the illegal receipt of training fees by the business owner of the Bupyeong Police Station in Incheon, the competent administrative agency including the defendant, including the defendant, guidance on the administrative disposition guidelines, etc. for the business owner's illegal training. The above disposition guidelines only state the opinion of the superior agency in relation to a specific case, but cannot be said to be a discretionary rule that states the general guidelines for handling the case, and it cannot be said that the defendant is detained or violated, and it does not immediately constitute a deviation or abuse of discretionary power. Therefore, this part of the plaintiffs' assertion is without merit without the need to examine whether the above administrative disposition

B) Claim regarding voluntary declaration

As seen earlier, the Defendant issued each of the instant dispositions with respect to the Plaintiffs who did not file a voluntary report, including additional collection and disposition with respect to the return order, on the other hand, the amount of illegal receipt should be returned only. Such disposition criteria have been clearly announced in advance. Moreover, it is reasonable in light of Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers as it conforms to the content of Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers and it is difficult to view that the content

C) Claim regarding additional collection disposition

The Act on the Development of Workplace Skills of Workers stipulates that a business owner, etc. who engages in a workplace skill development project shall, in order to promote and support workplace skill development throughout his/her life and train technical and skilled human resources needed in the industrial field, subsidize expenses necessary for the project, and if the expenses are subsidized by unlawful means, a certain disciplinary measure may be imposed. However, in light of the following: (a) in the case of training expenses paid by the Plaintiffs by unlawful means, the extinctive prescription for a considerable portion of the training expenses has expired; (b) the unfair payment period is short; and (c) in the case of Sundays, the claim for additional collection is filed without the training course; and (d) the disadvantage caused by the additional collection among each of the dispositions of this case is deemed excessive in light of the purpose or intent to achieve

4) Accordingly, each of the instant dispositions is lawful.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-sik