(영문) 대구지방법원 2015.9.23. 선고 2015구합22129 판결

On August 6, 2014, the Defendant revoked the return disposition of KRW 72,747,770 for the Plaintiff on August 6, 2014, and the additional collection of KRW 145,495,540 for the Plaintiff, and the restriction on the payment of the new employment stabilization subsidy.

Reasons

1. Details of the disposition;

A. On April 16, 2013, the Plaintiff engaged in the taxi transport business entered into a management consulting agreement with the Korean Enterprise Diagnosis Co., Ltd. (hereinafter “Korean Enterprise Promotion Association”) on government subsidies.

B. On July 25, 2013, the Plaintiff filed an application with the Defendant for the subsidies for extension of the retirement age for the elderly in the quarter of 2010 to the first quarter of 2013 (hereinafter “instant application”), and received KRW 72,747,70 from the Defendant on August 19, 2013 and August 23, 2013. On April 25, 2014, the Defendant investigated whether the Plaintiff’s subsidies for extension of the retirement age for the elderly were unlawfully received. Although the Plaintiff had extended the retirement age from around 600 to September 3, 209 under the collective agreement of the Korea Taxi Workers’ Union, the lower court determined that the Defendant induced the Defendant as if he were to have extended the retirement age from around 200 to September 3, 209, the Defendant issued a prior notice of disposition on June 12, 2014, and returned the subsidies to the Plaintiff under Article 57 of the Enforcement Decree of the Employment Insurance Act (hereinafter “the Enforcement Decree of the Employment Insurance Act”).

(m) Notice of the decision on the illegal receipt of the subsidy for extension of the retirement age of the aged (Evidence 8) : The details of the disposition of the subsidy for extension of the retirement age of the aged in the first quarter of 2010 to the first quarter of 2013 - Restriction on the payment: 72,747,70 won for the job security program site payment newly incurred within 12 months from the date of the disposition, and 145,495,540 won for the return of the subsidy for extension of the retirement age

D. The Plaintiff filed an administrative appeal on October 2, 2014, but the Central Administrative Appeals Commission dismissed the decision on March 3, 2015.

[Reasons for Recognition] Facts without dispute, Gap's statements in Gap's 1 to 3, 8, 9 (including each number), the purport of the whole pleadings

2. Whether each disposition of this case is lawful

A. The plaintiff's assertion

Each disposition of this case is unlawful for the following reasons.

1) The Plaintiff does not receive a subsidy for extension of the retirement age for the aged by fraud or other improper means. In a case where the retirement age has been extended formally after receiving advice inappropriate from the Korean corporate diagnosis, the Plaintiff filed an application for a subsidy by mistake in legal judgment as to whether it was eligible for a subsidy, or did not intend to disguise or conceal it with the knowledge that it was not eligible for a subsidy, and thus, it is not paid a subsidy by fraud or other improper means under Article 35 of the Employment Insurance Act. The Plaintiff submitted a collective agreement at issue to the Defendant, and the Plaintiff was able to verify and determine whether the Plaintiff’s payment requirements were met through the documents submitted by the Defendant during the examination process, and thus

2) According to Article 35(1) of the former Employment Insurance Act (amended by Act No. 13041, Jan. 20, 2015; hereinafter the same), in the event of an illegal receipt of benefits, either the return disposition and the restriction on payment may be selected and may not be concurrently imposed. This is apparent in light of the fact that Article 35(1) of the former Employment Insurance Act provides that both dispositions may be concurrently imposed by amending Article 35(1).

3) In light of the aforementioned circumstances and the following: (a) the Plaintiff had been employed by senior workers who had exceeded the retirement age at the time of filing the instant application, and thus, even if not receiving the subsidies for extension of the retirement age for the aged; (b) did not commit active misconduct by forging or amending the rules of employment in the process of filing the instant application; (c) used the instant subsidies as monthly pay and retirement allowances for the employees; and (d) the Plaintiff was in the crisis of bankruptcy due to each of the instant dispositions, each of the instant dispositions was deemed to have been excessively harsh to the Plaintiff, thereby abusing and abusing the discretionary power.

B. Relevant legislation

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the first argument

A) Relevant regulations and legal principles

According to Article 35(1) and (2) of the former Employment Insurance Act, the Minister of Employment and Labor may restrict the payment of subsidies to a person who has received subsidies by fraud or other improper means, as prescribed by Presidential Decree, or order him/her to return the amount of subsidies received by fraud or other improper means. In addition, in cases of an order to return the amount of subsidies, he/she may additionally collect an amount not exceeding five times the amount received by fraud or other improper means. In such cases, the term "false or other improper means" generally refers to all fraudulent acts conducted by an unqualified business owner in order to conceal the eligibility for payment or to conceal the non-qualified business owner, which may affect the decision-making on the payment of subsidies (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009);

B) Determination

In full view of the following facts and circumstances acknowledged as a whole in the statements Nos. 11, 18 (including paper numbers), and Nos. 16 through 18, the Plaintiff may fully recognize that the Plaintiff received the subsidy for extension of the age limit for the aged by fraud or other improper means. The Plaintiff’s assertion on this part is without merit.

(1) At the time of the Plaintiff’s filing of the instant application, the retirement age was set at 55 years of age under the Rules of Employment (198, 1998, 2002, and 2007) at the time of the Plaintiff’s filing of the instant application, but the retirement age was set at 60 years of age from around 200 pursuant to a collective agreement with the National taxi industry trade union, and the retirement age was set at 55 to 60 years of age.

(2) Nevertheless, the Plaintiff filed the instant application with the intent to extend the retirement age on September 2009. The Plaintiff did not submit only a collective agreement in 2009, which set the rules of employment and retirement age in 1987, which set the retirement age as 55, and the collective agreement in 2009, which set the retirement age as 60, and did not submit a collective agreement before 2009, which set the retirement age as 60.

(3) Even if the Plaintiff entrusted the instant application to a Korean corporate diagnosis, the instant application is a requirement that the Plaintiff had extended the retirement age from 55 to 60 on 2009, and the Plaintiff had set the retirement age from 2000 to 60 on 20. Thus, it was readily known that the instant application was false.

(4) On April 9, 2015, the Plaintiff’s representative director B was prosecuted for committing a crime that “the Plaintiff acquired the subsidy for extension of the age limit for the aged in this case by deceptioning KRW 72,747,770 and received the subsidy illegally,” and was sentenced to the judgment of conviction on April 9, 2015 (Seoul District Court 2014Dadan8972), but the appeal was dismissed on July 2, 2015, but the collective agreement was submitted to the Defendant on another case before the instant application was filed, which became final and conclusive around that time. (5) Even if the Plaintiff was found to meet the requirements for receiving the subsidy for extension of the age limit for the aged, the Defendant determined that the Plaintiff satisfies the requirements for receiving the subsidy for extension of the age limit for the aged in this case and the documents attached thereto, so long as the Plaintiff did not submit a false application and omitted the submission of a collective agreement, etc., which was extended to the previous retirement age, it constitutes a passive act that may affect the Defendant’s decision making.

(6) The Plaintiff asserted that the omission of the collective agreement in the application of this case was erroneous in the business group of Korea, and thus, the Plaintiff cannot be held liable to the Plaintiff. However, as seen earlier, it is deemed that the Plaintiff could sufficiently have known that the application of this case was false. Even if the Plaintiff requested a Korean corporate diagnosis, the Plaintiff applied for the instant subsidy and received it under the Plaintiff’s responsibility and calculation, so the Plaintiff shall be held responsible for the illegal receipt of the instant subsidy, and the Plaintiff cannot avoid the instant disposition on the ground that the Plaintiff was also responsible for the Korean corporate diagnosis.

2) Judgment on the second argument

Article 35 (1) of the former Employment Insurance Act provides that the Minister of Employment and Labor may restrict support or order a person who has received or intends to receive support for employment security and vocational skills development projects by fraud or other improper means to return the amount of support received by fraud or other improper means, as prescribed by Presidential Decree.

In light of the fact that the contents of the above provision, especially the support may be restricted to the person who has already received the support, the support of the restriction on the support, rather than the pertinent subsidy, is interpreted to mean a new support in the future. In light of the fact that the new restriction on the support in the future and the return of the subsidy already received are different at the same time from the point of application, it cannot be deemed that the above provision provides that the restriction on the payment and the return order should be taken by choice among the suspension order.

Article 56 (1) and (2) of the Enforcement Decree of the same Act provides that a person who has received or intends to receive a subsidy pursuant to Article 35 (1) of the same Act shall not be paid the unpaid amount of the subsidy or the subsidy he/she intends to receive, order the return of the subsidy already received, and limit the payment of any of the subsidy under paragraph (1) which is newly provided within one year from the date of issuing an order for return or restriction under paragraph (1) shall be limited to the period specified in attached Table 2, and the provision that a restriction on payment and return order may be imposed concurrently shall be valid within the delegation scope under Article 35 (1) of the former Employment Insurance Act.

The amendment of Article 35(1) of the former Employment Insurance Act provides that both values may be imposed concurrently by amending Article 35(1) of the former Employment Insurance Act is merely clear, and this part of the provision cannot be viewed otherwise on the ground of the amendment. The Plaintiff’s above assertion is with merit.

3) Judgment on the third argument

A) Relevant legal principles

Even if the criteria for the inquiry of a punitive administrative office are prescribed in the form of tending, the pertinent disposition is not immediately deemed lawful because it does not have any external speed (see, e.g., Supreme Court en banc Decision 2003Du1684, Jun. 22, 2006). However, barring any reasonable ground to believe that the said disposition does not in itself conform with the Constitution or laws, or that a punitive administrative disposition in accordance with the said disposition criteria is considerably unreasonable in light of the substance of the offense constituting the grounds for the disposition, and the content and purport of the relevant statutes, it shall not be determined that the disposition has deviates from the scope of discretion or has abused discretion (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 2007).

B) Determination

The following circumstances revealed pursuant to the above facts and relevant Acts and subordinate statutes, i.e., (i) the Plaintiff has already been aware of the retirement age of 60 years from 200 to 60; (ii) the Plaintiff prepared a false application as if he had already been granted 60 years of age; (iii) the Plaintiff received the instant subsidies; and (iv) the extent of denial is very heavy; and (iii) the purpose of this case’s subsidies is to contribute to the economic and social development by inducing the extension of the retirement age for the aged; (iv) the purpose of this case’s subsidies is to contribute to job security by inducing the extension of the retirement age for the aged; (iii) the State’s subsidies should be executed in a transparent and proper manner; (iv) it is necessary to secure the effectiveness of sanctions against violations; and (iv) the Defendant issued an order to return the illegally received amount of subsidies pursuant to Article 35(2) of the Employment Insurance Act and Article 78(1)1 of the Enforcement Decree of the Enforcement Decree of the Employment Insurance Act or to additionally collect the amount equivalent to the amount of discretionary authority’s.

The plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.