(영문) 서울행정법원 2018.11.28. 선고 2017구단77179 판결

The Defendant’s support for 360 days (from August 9, 2017 to August 3, 2018) against the Plaintiff on August 8, 2017 is revoked both a restriction on loan and an order to return KRW 9,128,000, and an order to additionally collect KRW 9,128,000,00.

Reasons

1. Details of the disposition;

A. On September 24, 2014, the Plaintiff: (a) concluded a contract for workplace skill development training for 201 workers employed by the Plaintiff (the term: from October 1, 2014 to November 30, 2014; hereinafter referred to as “the instant training”); (b) concluded a contract with 164 trainees among the trainees (hereinafter referred to as “the instant trainees”) on December 24, 201, under the premise that the instant training was conducted in a normal manner and met the standards for completing postal training (hereinafter referred to as “standards”), and filed an application for subsidies from the Human Resources Development Service of Korea for subsidies for the completion of the training (hereinafter referred to as “subsidies”).

B. On August 8, 2017, the Defendant: (a) applied for subsidies to the Human Resources Development Service of Korea for the payment of KRW 9,128,00,00 on the ground that the instant trainees did not undergo the instant training and failed to meet the completion standards; and (b) ordered the Plaintiff to return KRW 9,128,00 pursuant to Article 5(2) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jan. 27, 2016; hereinafter referred to as the “Vocational Skills Development Act”); (c) Article 22 and [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter referred to as the “Enforcement Rule of the Vocational Skills Development Act”); (d) for subsidies and loans for 360 days (from August 9, 2017 to August 3, 2018; and (e) refund of KRW 9,128,000; and (c) additionally collected pursuant to Article 56(2)2)1.

[Ground of recognition] 1 to 5, 7, 1 to 5 of Gap's evidence 1 to 5 of Eul's evidence 1 to 5 (including various numbers; hereinafter the same shall apply), Gap's video and the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In most cases, trainees of this case were assisted by their employees, who experienced difficulties in learning using computers and preparing answers using computers, and completed the instant training course in a normal manner, and met the completion standards, and thus, the Plaintiff cannot be deemed to have received subsidies by fraud or other improper means (non-existence of grounds for disposition).

2) In light of the fact that the Plaintiff recruited the crime with B or did not participate in the crime, that the Plaintiff did not obtain any benefit in relation to the subsidies by paying all the subsidies received from the Human Resources Development Service of Korea as training expenses B, and that the instant training was conducted by commissioned education, the training course was directly managed by B, and does not have any obligation to manage whether or not the training was conducted by the Plaintiff. If the trainee was aware that the trainee was completed a normal training, and if the trainee did not meet the normal training standards and did not meet the completion standards, he was responsible for the failure of supervision to the Defendant, compared to the public interest to be achieved by the instant disposition, it shall be deemed that the disadvantage suffered by the Plaintiff is excessive (violation of the principle of no exception).

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination1

1) Whether there is a ground for disposition

A) Relevant legal principles

"False or any other fraudulent means" under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act means all acts that a person who is not eligible to receive subsidies generally leads to a person who is not eligible to do so, or who are not correct under the social norms in order to conceal the fact that he/she is not eligible to do so, and that may have an influence on decision-making with respect to subsidization of expenses, and "expenses" under each of the above provisions means expenses incurred in vocational skills development projects conducted by a business owner, etc. who is recognized as eligible to receive vocational skills development training courses, which are funds provided by the Minister of Employment and Labor depending on the number of trainees of training and the number of persons who completed training (see, e.g., Supreme Court Decision 2013Du1980

Meanwhile, Article 20(3) of the Vocational Skills Development Act, Article 19(3) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 27393, Jul. 26, 2016); Article 41(4) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 28160, Jun. 27, 2017); Article 60(1) of the former Enforcement Rule of the Employment Insurance Act provides that "the former Regulations on the Support of Workplace Skill Development Training for Business Operators" (amended by Presidential Decree No. 2015-14, Dec. 31, 2015) shall define "the remote training" as "the total number of days of training conducted using printed teaching materials and the total number of days of training conducted by those who participated in the training at least 10 days after the completion of the training (the evaluation period should be 10 days after the completion of the training)."

Therefore, if a trainee did not normally undergo vocational skills development training conducted by means of remote training, and an employer applied for subsidies as if the trainee satisfied the standards for completion even though the trainee failed to meet the standards for completion, and received subsidies, this would not be applied for subsidies. Therefore, even if the employer did not know the above circumstances, it shall be deemed that the case where the employer received subsidies by fraud or other improper means under Articles 55(2)1, 56(2), and 56(3) of the Vocational Skills Development Act constitutes “the case where the employer received subsidies by fraud or other improper means.”

(see Supreme Court Decision 2013Du1980, supra)

In addition, in an administrative litigation to which the provisions of the Civil Procedure Act apply mutatis mutandis, the burden of proof is, in principle, allocated between the parties in accordance with the general principles of civil procedure, and in the case of an appeal litigation, the defendant who asserts the legality of the disposition is obliged to bear the burden of proof as to the legitimacy of the disposition. However, if there is a reasonable and acceptable proof of the legitimacy of a certain disposition asserted by the defendant, the disposition is justifiable, and the assertion and proof contrary thereto return to the plaintiff, who is the other party (see, e.g., Supreme Court Decision 2015Du39156, Jun

In light of the following facts, which can be acknowledged by comprehensively considering the purport of the entire arguments in the statement of evidence Nos. 1 and 5 as to the instant case, the trainee of the instant case did not undergo the instant training, and failed to meet the completion standards, and it can be sufficiently recognized that the Plaintiff applied to the Human Resources Development Service of Korea for subsidies on a different premise, and there is no other counter-proof, and thus, the Plaintiff’s assertion disputing the existence of the instant disposition grounds is without merit.

On January 5, 2018, the prosecutor of the Seoul Central District Public Prosecutor's Office (hereinafter "Seoul Central Public Prosecutor's Office") indicted C, D, and E for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in Seoul Central District Public Prosecutor's Office (hereinafter "B") on the following facts: (a) in collusion with inside directors C, head D, and director E, who are the representatives of B, visited trainees at the place of a gold transportation business entity and made trainees visit the place of a gold transportation business entity to create a ID with personal information of trainees and conduct an agency test; and (b) obtained the appearance of trainees as if they meet the completion standards by driving a proxy lottery, and then acquired the total amount of KRW 1,78,460,90 from the Republic of Korea by taking the same appearance as they meet the completion standards; and (c) was charged with the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) (Fraud).

In the instant case, the Defendants led to the confession of all the facts charged, and the above court found Defendant C guilty of the facts charged on April 6, 2018 and sentenced Defendant C to four years of imprisonment, Defendant D and E imprisonment with prison labor for each of the four years, Defendant D and E, and three years of suspended execution (Evidence No. 5 of the first instance court judgment (Evidence No. 5) (the part relating to the instant disposition is No. 123).

Of the judgment of the first instance court, Defendant D and E were confirmed as they were not appealed by both the Defendants and the prosecutor, and Defendant C appealed to the Seoul High Court on April 11, 2018 (No. 2018No1112), but only argued unfair sentencing grounds for appeal.2) O B’s employees visited the company that entrusted workplace skill development training to B under the direction of the Seoul District Office of Employment and Labor, Seoul District Office and the investigative agency, “C et al. before filing the prosecution, and carried out a proxy lecture and proxy test by creating a ID with the personal information of trainees, and only one kind of trainees were allowed to be off from the image of proxy lecture and proxy examination.”

The following circumstances have also been confirmed through the result of the analysis of the system for managing the learning of trainees of this case, which can be a typical feature of the training of this case and the training of this case.In order of the name of the trainees of this case, the system for managing the learning of trainees of this case (hereinafter referred to as "rogator") has been implemented.

- The average study hours consisting of the names of the instant trainees do not exceed 20.6 seconds.

- In the name of the employee who already retired from the company of the Plaintiff, there are cases where there were several trainees in the same computer IP address (IPS) at the same time in the name of the trainees.

2) Whether the principle of proportionality is violated

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 suffered by an individual due to the relevant disposition, by objectively examining the content of the act of violation as the grounds for the disposition, the public interest to be achieved by the relevant act of disposal, and all relevant circumstances. In this case, even if the criteria for a punitive administrative disposition are provided in the Enforcement Rule, it is nothing more than that prescribed in the internal rules of the secretariat of an administrative agency, and it is externally binding upon citizens or courts, and thus, the pertinent disposition is lawful, not only the above criteria for disposition but also in accordance with the provisions and purport of the relevant Acts and subordinate statutes. Thus, the pertinent disposition cannot be deemed legitimate merely because it conforms to the criteria for disposition, unless there is a reasonable ground to believe that the above criteria do not conform with the Constitution or laws, or that the result of the application of the criteria is significantly unreasonable in light of the content of the act of violation and the purport of the relevant Acts and subordinate statutes (see, e.g., Supreme Court Decision 2007Du6966).

B) In light of the following circumstances revealed by the purport of the entire facts of recognition and pleadings in the instant case, the instant disposition, compared to the public interest intended to be achieved by the instant disposition, cannot be deemed to constitute a case where the Plaintiff was excessively harshly harsh to the Plaintiff. The Plaintiff’s assertion on this part is without merit.

The purpose of workplace skill development training is to contribute to the development of society and economy by facilitating and supporting the development of workplace skill development through the life of workers. The act of receiving workplace skill development training subsidies by fraudulent or other illegal means is to contribute to the stabilization of employment of workers and the improvement of social and economic status, and the improvement of the productivity of enterprises. Since the act of receiving workplace skill development training subsidies by fraudulent or other illegal means causes the insolvency of the employment insurance fund and may inflict damage on the insured who have paid the employment insurance premium in good faith, it

In order to promote the employment security of workers and the improvement of social and economic status, and the establishment of the Employment Insurance Fund by operating the workplace skill development training system fairly and transparently, it seems important for the Plaintiff to be disadvantaged due to the instant disposition. The Act on the Development of Vocational Skills stipulates that an employer shall conduct workplace skill development training for workers, have many workers participate in workplace skill development training, and endeavor to create the conditions of workplace skill development training by appointing a person in charge of workplace skill development training (Article 4(2)). The Minister of Employment and Labor provides that an employer who conducts workplace skill development training (including a case where workplace skill development training is conducted on commission) may provide subsidies or loans to an employer who conducts workplace skill development training (Article 20(1)1), and that workplace skill development training for workers is a business owner who conducts workplace skill development training (Article 20(1). The same applies to the case where workplace skill development training is conducted in the manner of "entrusted training". Accordingly, the Plaintiff was responsible for performing the instant training, as a person who received subsidies, prior to applying for subsidies to the Human Resources Development Service of Korea.

Since the instant training was conducted on the part of the Plaintiff’s employees at the Plaintiff’s workplace, the Plaintiff could easily understand the process of training by observing the training course or directly checking the employees. The Plaintiff appears to have been aware that at least the Plaintiff did not meet the completion standards.

Even if the difference between the training fees paid by the Plaintiff to B and the subsidies paid by the Human Resources Development Service of Korea was not refunded to B, the Plaintiff, a business owner, is obligated to conduct workplace skill development training for workers (Article 4(2) of the Vocational Skills Development Act), and the Plaintiff’s own benefit by improving the workers’ vocational ability through the workplace skill development training conducted as above, thereby enjoying the benefits therefrom. The Defendant only subsidized the necessary expenses. Considering the above circumstances, it is difficult to assess that the Plaintiff suffered a loss equivalent to the difference between the training fees and subsidies not refunded, on the ground that it was the basis of deviation from and abuse of discretionary power.

○ Of the instant disposition, the part on loan restriction is in conformity with the criteria prescribed in Article 22 and attached Table 6-2 of the Enforcement Rule of the Vocational Skills Development Act, and the part on additional collection pursuant to Article 22-2(1)2 of the Enforcement Rule of the same Act, and the said criteria are not in itself consistent with the Constitution or laws, or the application of the said standards is considerably unreasonable in light of the contents of the Plaintiff’s act and the purport of the relevant statutes

The proviso to Article 6-2 of the Enforcement Rule of the Act on the Development of Vocational Skills (Attachment Table 6-2) provides that "if there is no intention or gross negligence, or if the degree of violation is minor, a disposition of support and restriction on loans may be taken by reducing the amount of support and restriction within the limit of 1/2 of the standard set by the individual standard." However, the above provision is not only a discretionary mitigation provision, but also a voluntary reduction provision, and as seen earlier, the Plaintiff had the intent to receive illegal payments, and it cannot be deemed that the amount of illegal receipt is less than the amount of money, so there

3. Conclusion

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

Judges

Judges Kang Jae-soo

Note tin

1) The period of sanctions (from August 9, 2017 to August 3, 2018) set forth in a disposition restricting subsidies and loans is limited, but Article 22 of the Enforcement Rule of the Vocational Skills Development Act is limited.

Article 6-2 [Attachment 6-2] 1. A.3] of the [Attachment 6-2] provides that the records of the subsidized and restricted amount of loans shall be the basis of aggravating the future unfavorable disposition.

We also decide on the legitimacy of the disposition (see, e.g., Supreme Court Decision 2006Du13312, Jan. 11, 2007).

2) On September 20, 2018, after the closing of the instant argument, the judgment dismissing the appeal was rendered.