(영문) 서울고등법원 2013.12.18. 선고 2011누28860 판결

On December 21, 2010, the Human Resources Development Service of Korea revokes a disposition of one year (from December 21, 2010 to December 20, 201) that is imposed on the landscaping and construction of A Vocational Professional Schools and the consignment of training courses for household design production conducted on the Plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

A. In accordance with the Seoul Special Metropolitan City Ordinance on the Establishment and Operation of a Specialized School, the Plaintiff: (a) entrusted the operation of a Specialized Vocational Training Institution from Seoul Special Metropolitan City to conduct vocational education and training programs; (b) conducted about 30 education and training courses, including the process of landscaping construction on February 27, 2008; and (c) on March 24, 2009, a training consignment contract for the production process of household design (hereinafter “instant consignment contract”). On April 25, 2008, the Plaintiff participated in the training course for landscaping construction (from March 3, 2008 to February 24, 2009) which was entrusted by the Republic of Korea while staying abroad during the training period (from February 25, 2008 to February 24, 2009).

D. On December 2, 2010, the Human Resources Development Service of Korea entrusted with its authority by the Republic of Korea, on the ground that the attendance process in the above sub-paragraph (c) constitutes "in the case of conducting workplace skill development training in violation of a consignment agreement under Article 16 (2) Item 3 of the Workers' Vocational Skills Development Act (hereinafter referred to as "Occupational Ability Development Act") and "in the case of manipulating training personnel or managing the site by fraudulent or other illegal means", the termination of the contract for landscaping construction and household design production training courses (hereinafter referred to as "in the case of this case") and one-year consignment restriction on the relevant training course (hereinafter referred to as "disposition of this case") were imposed on the Plaintiff.

E. The Plaintiff initially filed the instant lawsuit against the Human Resources Development Service of Korea, but thereafter, delegated the right to impose restrictions on the entrustment of workplace skill development training pursuant to Article 52(1)1 of the Enforcement Decree of the current Vocational Development Act (amended by Presidential Decree No. 23467, Jan. 1, 201) (amended by Presidential Decree No. 23467, Jan. 12, 201) to the Defendant, who is the head of the local employment and labor office, the instant termination of the contract and the instant disposition taken by the Human Resources Development

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

1) False attendance process, which caused the instant disposition, is merely a mere negligence of the teacher in charge of the pertinent training course, and thus cannot be deemed as having received training expenses by fraud or other improper means.

2) Unless otherwise, the instant disposition that restricts the entrustment of the pertinent training course for one year is unlawful as it deviates from and abused discretion, even though the Plaintiff did not intentionally or by gross negligence with respect to the false attendance and treatment, which caused the instant disposition, and is only two days in total, and thus, is minor.

B. Relevant statutes

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

1) A trainee B prepared a on-site training certificate (written evidence 1-1) stating the trainee’s name in advance to receive the E’s signature on April 28, 2008, the date of the on-the-spot training (on April 25, 2008, the date of the training) and completed the on-the-spot training program from April 18, 2008 to April 27, 2008. B entered the results of the on-the-spot training program from April 25, 2008 to 50 trainees on April 25, 2008. The on-the-spot training certificate (written evidence 1-1) in which the trainee’s name was written. After completing the on-the-spot training program, the teacher F entered the results of the on-the-spot training in the electronic form of obtaining the signature of the trainee on April 28, 2008.

2) Although trainees C submitted a leave of absence one week before departure from Hong Kong during the training period from April 12, 2009 to April 14, 2009 during the training period, G was erroneous that the above leave of absence is recognized, and C was treated as having attended the training of April 13, 2009. G was at issue, and G retired on August 27, 2010.

[Reasons for Recognition] Facts without dispute, entry of Eul Nos. 1, 3 through 5, 7 through 9 (including additional numbers), the purport of the whole pleadings

D. Determination

(i) the existence of the reasons for the measure

A) Article 16(1) of the Vocational Development Act provides that "the State or a local government which intends to conduct workplace skill development training under Articles 12 and 15 may conduct workplace skill development training by entering into an entrustment contract with a person prescribed by Presidential Decree." Article 16(2) provides that "a person who entrusts workplace skill development training may request correction or terminate an entrustment contract if the entrusted person falls under any of the following subparagraphs." Article 16(3) provides that "the State or a local government may not entrust workplace skill development training under paragraph (1) within five years from the date the entrustment contract is terminated (excluding where training fees are less than those prescribed by Presidential Decree from among those whose entrustment contract is terminated due to falling under subparagraph 2 of paragraph (2))" (Article 16(7) of the Vocational Development Act and Article 13(4) of the Enforcement Decree of the same Act provides that "the person who entrusts workplace skill development training may, if the entrusted person falls under any of the following subparagraphs, request correction or terminate the entrustment contract or manage the relevant workplace skill development training in violation of the former Act."

Meanwhile, "False or other unlawful means" under Article 16 (2) 2 of the Vocational Development Act refers to all acts that are not correct under the social norms in order to presume that a person who is not eligible to receive training costs is qualified or to conceal the fact that he/she is not qualified, and active and passive acts that may affect the decision-making on the payment of training costs. Even if a trainee has not received training, if a trustee claims training costs differently from the fact that he/she has received training, in violation of the statutory or contractual obligations on the management of the attendance of a trainee, etc., and if a trainee has failed to do so, he/she is entitled to the training, and thus, he/she should be viewed as "false or other unlawful methods" (see, e.g., Supreme Court Decisions 201Du7175, Jun. 13, 2013; 2011Du7175, Jun. 13, 201); Article 6 [Attachment 1](b) of the former Enforcement Rule of the Vocational Development Act or other unlawful methods.

B) Based on the above legal principles, the following circumstances revealed by the facts and evidence revealed earlier, i.e., subsidization of vocational ability development training costs, which are determined depending on whether a trainee attends the training course, the amount of support is calculated according to the training hours, and the purpose of vocational ability development training is achieved, and the operator of the training course is required to manage strict participation in the training course to prevent the unfair claim for training costs, and the plaintiff's training course is required as a basic duty to manage participation in the training. ② The plaintiff's teacher in charge of the training course neglected such basic duty to manage participation in the training after the training is entrusted to the trainee. ③ Even if the plaintiff or the teacher in charge did not participate in the false attendance, if he paid considerable attention such as maintaining the attendance management system and establishing internal guidelines for the management of participation in the training, it is deemed that the plaintiff might have been able to prevent the attendance in advance due to such false attendance or mistake. In light of the above, the plaintiff's act of submitting attendance different from the facts to the Human Resources Development Service of Korea and receiving training expenses accordingly constitutes a consignment agreement.

Therefore, the termination of the instant contract was lawfully conducted in accordance with Article 16(2)3 of the Vocational Development Act. Moreover, as long as the Plaintiff claims reimbursement of training expenses differently from the fact by managing the attendance site as if the trainee B or C had been trained, it constitutes “a case where the Plaintiff was unaware of the fact that the Plaintiff had not undergone training by fraud or other improper means.”

Therefore, the instant disposition shall be deemed to meet the criteria for the cancellation, etc. of the consignment agreement under Article 6 [Attachment 1] of the Enforcement Rule of the former Vocational Development Act. This part of the Plaintiff’s assertion cannot be accepted.

2) Whether the discretion is deviates or abused

According to Article 6 [Attachment Table 1]. A. 1 of the Enforcement Rule of the former Act on the Development of Functions, the entrusted system shall be imposed in accordance with individual standards, but if there is no intention or gross negligence or if the degree of violation is insignificant, it may be reduced by up to 1/2 of the standards set by individual standards.

Although the Plaintiff violated the consignment contract due to the failure of the trainee to properly manage the attendance site, and as a result, the Plaintiff fell under the case of the attendance site management by false or other unlawful means, the following circumstances revealed by the facts and evidence acknowledged earlier, i.e., (i) the violation of the violation is merely a total of 2 days per day for two trainees; (ii) the trainee B signed as if the trainee were present in the on-site training confirmation document; and (iii) the teacher prepared the on-site training confirmation certificate in advance and received the signature of the E on the day is merely for the convenience of the on-site training site training site training site management, and does not seem to have attempted to manage the improper attendance site management in a planned manner; (iii) the occurrence of the error of the teacher in charge related to the submission of the leave report in the case of C; and (iv) the course and degree of the violation of the on-site training program; and (iv) the Plaintiff or the teacher in charge is deemed to have gross negligence.

Therefore, the disposition of this case, which did not consider the above room for mitigation, is an error of law that deviates from and abused discretion.

3. Conclusion

Although the judgment of the first instance differs from some reasons, the conclusion that accepted the claim of the plaintiff is justifiable. The defendant's appeal is dismissed.