(영문) 대구지방법원 2011.12.23. 선고 2011구합2752 판결

The order of return of subsidy indicated in the "amount of collection decision" column of attached Table 2, which the Defendant (Appointed Party) and the designated parties agreed to the Plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. On June 16, 2008, the Plaintiff entered into a contract for workplace skill development training with Nonparty B’s campus (hereinafter “Non-Party B’s college”), and conducted the process of improving the Plaintiff’s activities and promoting the organization (hereinafter “instant training course”) for 717 employees as follows.

A person shall be appointed.

B. On August 25, 2008, the Plaintiff applied for expenses for vocational skills development training to the Defendant (appointed party; hereinafter referred to as the “Defendant”) and received subsidies of KRW 38,679,280 on August 29, 2008. The above training expenses included KRW 215,780 for Nonparty C, D, E, and F, who are the Plaintiff’s employees. The Defendant was an overseas business trip; Nonparty C, E, and F were present at the meeting even if Nonparty D did not participate in the instant training course due to light leave, and was paid with subsidies by falsity or other unlawful means (amended by Act No. 9315, Jan. 2, 2008; hereinafter referred to as the “former Enforcement Decree of the Employment Insurance Act”) and the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2516, Sep. 16, 2008; hereinafter referred to as the “former Enforcement Decree of the Employment Insurance Act”).

[Reasons for Recognition] Facts without dispute, Gap evidence 2-1 to 5, Gap evidence 3-1 and 2-2, the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

A. Since the Plaintiff fully entrusted the instant training course to the instant university, the Plaintiff is not responsible for the erroneous management of attendance at the entrusted training institution, and it cannot be deemed that the Plaintiff could have known if he/she knew of, or paid considerable attention to, such circumstances. Therefore, the Plaintiff did not receive “a false or other unlawful means” and the instant disposition did not exist.

(b) violates the principle of proportionality in that the subsidized training costs during the period of restriction on payment should be returned at least one year after the end of the training course.

3. Related Acts and subordinate statutes.

Attached 3 is as shown in the "related Acts and subordinate statutes".

4. Facts of recognition;

A. Although C, D, E, and F included in the list of trainees of the instant training course did not appear on the instant training course for the following reasons, the signature of C, D, E, and F is written as if C, E, and F were present on the list of trainees of the instant training course (Evidence A 4).

A person shall be appointed.

B. After implementing the instant training course, the Plaintiff received a certificate of completion from the non-party university.

On August 25, 2008, along with the above completion certificate, the Defendant filed an application for the cost of workplace skill development training with the Defendant. The certificate of completion as above is written that C, D, E, and F completed the instant training course (Evidence 1).

C. The Plaintiff’s overseas travelr shall report the goods internally related to the business trip before the business trip, enter the part of the goods into the company travel resources management system (ERP System), submit a business trip plan to obtain advance payment for the travel equipment (provisional payment). After the business trip has been completed, the Plaintiff’s advance payment must be settled by making an overseas travel name and report. On the other hand, the Plaintiff’s ordinary holiday user must apply for the holiday leave and holiday payment before the cause occurs.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 4, Eul evidence 1 and 4, and the purport of the whole pleadings

5. Determination

A. Judgment on the Plaintiff’s assertion No. 2. A

(1) Sanction against violation of administrative regulations is a sanction against the objective fact that is a violation of administrative regulations to achieve administrative purposes, and thus, barring any special circumstance, such as where a failure to perform his/her duties is not caused by an intentional act or negligence, it may be imposed even on the violator (see, e.g., Supreme Court Decisions 98Du5972, May 26, 2000; 2002Du5177, Sept. 2, 2003; 2002Du5177, Sept. 2, 2003). "False or other unlawful means" refers to any unlawful act conducted by an unqualified business owner in order to conceal the eligibility to receive payment or to decrease the eligibility to receive payment of incentives for promotion of new employment (see, e.g., Supreme Court Decisions 200Du4272, Jun. 11, 2009; 200Du727, Feb. 7, 2005).

In light of the following circumstances, i.e., ① as if C, D, E, and F did not participate in the instant training course, it is stated differently from the facts that they participated in the training course; ② subsidies for training expenses are needed to accurately verify their attendance because they are paid depending on whether they were present; ③ even if the Plaintiff entrusted the instant training course to Nonparty University, the Plaintiff directly applied for subsidies; ④ the Plaintiff’s failure of the Plaintiff’s employees C, D, E, and F to participate in the instant training course due to overseas trip or holiday leave is due to overseas travel or holiday leave; thus, it is reasonable to view that the Plaintiff was well aware that he did not participate in the instant training course even if he did not know of it, he was negligent in the Plaintiff; ⑤ the Plaintiff was present in the training course other than C, D, and E, and the Plaintiff asserted that the Plaintiff was present in the training course, but there is no reason to acknowledge that the Plaintiff did not participate in the training course, in light of the Plaintiff’s assertion that the Plaintiff did not have any other evidence as to the training course.

B. Judgment on the Plaintiff’s assertion No. 2.B.

According to Article 35 (1) of the former Employment Insurance Act, the Minister of Labor may 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 restrict such support or return the amount already provided, as prescribed by Presidential Decree. According to Article 56 (2) of the former Employment Insurance Act, for a person who has received or intends to receive subsidies, incentives, or vocational skills development training expenses referred to in the subparagraphs of paragraph (1) by fraud or other improper means pursuant to Article 35 (1) of the Act, he/she shall not be paid subsidies, incentives, or vocational skills development training expenses for one year from the date he/she received or applied for subsidies, incentives, or vocational skills development training expenses, and the Minister of Labor shall order the person

The enforcement decree of this case does not grant any kind of incentives, etc. to a person who has received or intended to receive incentives, etc. by fraud or other improper means, regardless of whether they are related to false or other improper means, and if they have been paid by mistake, it is reasonable to deem that the provision of this case is a provision that has been prepared to achieve the purpose of sanctions against unjust recipients of incentives, etc., by ordering the return thereof if they were paid by mistake, and to achieve the purpose of preventing unjust payments of future incentives, etc. (see, e.g., Supreme Court Decision 2009Du6476, Aug. 20, 2009).

The enforcement decree of this case is just as above, and its purpose was limited to one year, not for a long period of restriction on payment, in a way to achieve its purpose, and thus, the infringement of property rights was limited to a minimum limit. The necessity of the public interest to strictly control and manage the payment of subsidies for the establishment of employment insurance finance and for the efficient and transparent operation of the support system is greater than the private interest infringed upon by the restriction on payment of subsidies. If the fact that the payment of subsidies was received through false or other unlawful means was discovered, the subsidy was not paid for one year of restriction on payment if it was found that the fact was found that it was delayed, and the restriction on the scope of return of the subsidy is more favorable than the entire subsidy paid for one year of restriction on payment or its part because it was found that the fact was delayed, and thus, it does not violate the principle of excessive prohibition or proportionality. In light of the above, the enforcement decree of this case does not violate the principle of equity.

Therefore, the plaintiff's assertion is without merit.

6. Conclusion

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