(영문) 부산고등법원 2011.10.26. 선고 2011누1139 판결

On March 9, 2010, the Defendant revoked the order to return the new employment promotion subsidy and the additional collection disposition of KRW 27,52,550, which the Plaintiff rendered to the Plaintiff on March 9, 2010 (the Plaintiff sought revocation of the order to return the said new employment promotion subsidy and the additional collection disposition at the first instance court. The court of first instance accepted the part of the claim to revoke the aforementioned additional collection disposition and dismissed the part of the claim to revoke the above order to return the new employment promotion subsidy. Since the Defendant appealed against this, the subject of the judgment at this court

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

Reasons

1. Details of the disposition;

A. The Plaintiff is operating a child welfare facility C center in Kimhae-si, a child welfare facility C center (hereinafter “instant center”). The Plaintiff applied for a new employment promotion subsidy for workers D and E belonging to the instant center (hereinafter “subsidies”) on the date indicated in attached Table 1, and received the grants from the Defendant, respectively, on the date indicated in Table 2 of the same Table.

B. On March 9, 2010, the Defendant: (a) applied Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008); and (b) Article 78(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 319, Apr. 1, 2009; hereinafter referred to as the “Enforcement Rule of 2008”), with regard to the Plaintiff’s incentives 6 through 11, 13, or 16 of the same Table; and (b) applied Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter referred to as the “Enforcement Rule of the same Act”) with respect to the amount of incentives 1 through 5, and 12, additionally collected under Article 35 of the same Act (amended by Ordinance of the Ministry of Labor No. 539, Jun. 4, 20108).

[Ground for recognition] Unsatisfy

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff received each new employment promotion subsidy from the Defendant over 11 times in relation to D, and received each new employment promotion subsidy by false or other unlawful means five times in relation to D and E. Thus, the aforementioned 11-time unfair employment promotion subsidy act should be comprehensively considered as a single unfair employment payment act against D, and the above 5-time unfair employment promotion subsidy act should be considered as a single unfair employment payment act against E, including the above 5-time unfair employment promotion subsidy act. In light of the above, the enforcement rule applicable to the instant disposition is "Enforcement Rule of 2008, which was enforced at the time when the Plaintiff first applied for the new employment promotion subsidy to the Defendant." Thus, the instant disposition that applied the "Enforcement Rule of 2009

(2) The Enforcement Rule of 2008, which was in force at the time when the Plaintiff first applied for the new employment promotion subsidy to the Defendant, was the additional collection of an amount equivalent to the amount of the subsidy that the Plaintiff received or intended to receive. In light of the fact that, at the time of the Plaintiff’s application for the new employment promotion subsidy, the business owner’s confirmation, which was the Defendant’s form, stated that the Plaintiff would additionally collect an amount equivalent to 100% of the amount of the fraudulent payment, and that, at the time of the Plaintiff’s application for the new employment promotion subsidy, the Enforcement Rule of 2009, the “Enforcement Rule of 2009” determined the additional collection on the basis of the recovery that the Plaintiff received or claimed to receive by fraudulent or illegal means, the enforcement Rule amended on July 12, 20

(b) Related statutes;

It is as shown in the attached Table related statutes.

(1) Although the facts related to D's new employment promotion subsidy were employed at the center of this case operated by the Plaintiff on May 15, 2008, the Plaintiff, on May 19, 2008, had D registered job seeking with the Ministry of Labor using a computer installed at the center of this case on May 19, 2008, and on October 17, 2008, D applied for the payment of new employment promotion subsidy as if D had been employed at the center of this case on September 8, 2008 with a false employment contract document attached as of September 2008, and received new employment promotion subsidy from the Defendant on November 11, 2008 through additional collection of KRW 450,000,000 from September 8, 2008 to October 7, 2008, as well as additional collection of KRW 40,000,000,000,00.

(2) The facts related to the subsidy for the promotion of new employment of E were served as a living welfare worker at the instant center operated by the Plaintiff on September 1, 2008, while the Plaintiff was registered as a job in the Ministry of Labor on August 29, 2008, attached with a false employment contract document with the Defendant on December 15, 2008 that the labor contract date was as of December 15, 2008, and received a new subsidy for the promotion of new employment from the Defendant on March 2, 2009 to KRW 450,000,000 from January 14, 2009, as stated in the attached Table 5, together with additional collection subsidy for the Defendant on December 15, 2008.

(3) On the other hand, on November 6, 2008, the Plaintiff prepared and submitted a business owner’s certificate to the Defendant, and the said business owner’s certificate states that “In the event that he received a subsidy by false or other unlawful means, he/she shall return the subsidy and be notified the Defendant that he/she would be subject to additional collection of 10% of the amount of illegal receipt.”

[Reasons for Recognition] Facts without dispute, entry of Eul evidence 1 to 6 (including the relevant branch numbers), the purport of the whole pleadings

D. Determination

(1) Determination on the first argument

In light of the fact that Article 3 (1) of the Addenda of the Enforcement Rule of 2009 provides that when a business owner applied for a new employment promotion subsidy and actually received it, the application act and the supply and demand act shall be deemed to be a single fraudulent act rather than a means of receiving and demand, respectively, and as a result, if the law was amended between the application act and the time of receiving and demand, the law shall apply at the time of receiving and demand. Article 3 (1) of the Addenda of the Enforcement Rule of 2009 provides that the additional collection for a person who received subsidies by fraudulent or other wrongful means prior to the enforcement of this Rule shall be in accordance with the previous provision, and Article 78 (2) provides that the same provision shall apply to the number of applications received or to the number of applications applied after the enforcement of the Enforcement Rule of 2009, even if the subsidy was received after the enforcement of the Enforcement Rule of the Enforcement Rule of 209, the plaintiff's assertion that this part of the above provision shall not be justified.

(2) Judgment on the second argument

(A) According to the above circumstances, the Defendant issued the instant disposition to additionally collect five times the amount of each new employment promotion subsidy granted by applying Article 78(1)3 of the Enforcement Rule of 2009, with respect to the incentives listed in the annexed sheet Nos. 6 through 11, 13, and 16, respectively. This is because: (a) the Plaintiff received each of the above incentives by fraud or other improper means; and (b) the Plaintiff was subsequently discovered at once; and (c) the number of times the Plaintiff applied to receive or intended to receive each of the above incentives by fraud or other improper means during the last five years prior to the date of detection of the fraudulent act constitutes more than twice, respectively, as prescribed in Article 78(1)3 of the Enforcement Rule of 209.

(B) According to Article 78(1) of the Enforcement Rule of the 2009 Act, the Minister of Labor may additionally collect double, three, and five times the amount of the bounty paid in a false or other unlawful manner in accordance with the frequency of an application to be received or filed by a person who received the bounty by fraud or other improper means for the last five years prior to the date of detection, in addition to ordering the return of the bounty, from the person who received the bounty by fraud or other improper means.

However, in full view of the following circumstances, as long as the Defendant had committed an illegal power under each subparagraph of Article 78(1) of the Enforcement Rule of 2009, in the same case as the instant case in which an unlawful act listed in the table of Additional Collection Nos. 6 through 11, 13 through 16 was discovered in the first detection at least once, the following circumstances cannot be interpreted and applied to the effect that: (a) the number of the illegal power under each subparagraph of Article 78(1) of the Enforcement Rule of 2009 was calculated in total; and (b) the same shall not apply to both the aforementioned unlawful power and the imposition of the additional collection amount of the same multiple in a lump sum (the Prime Minister Administrative Appeals Committee has lodged an administrative appeal similar to the foregoing on May 11, 2010; and (c) thereafter, the Enforcement Rule of 209 was amended. However, the amended Enforcement Rule shall be determined on the basis of the amount of additional collection ordered by a fraudulent act, not the recovery of unlawful act.

1) In a case where one or more fraudulent acts are discovered at one time, such fraudulent acts are likely to be committed prior to the date of detection. Thus, in a case where such acts are interpreted as illegal power even if they are committed on the one or the nearest day of the detection date, the cases where Article 78(1)1 of the Enforcement Rule of 2009, which is a case where there is no number of times of fraudulent power can not be presented.

2) In a case of multiple unlawful acts being discovered at one time, construing that the amount additionally collected is not differentiated depending on the frequency of unlawful power committed prior to each such unlawful act, rather than having different amounts of additional collection based on the number of unlawful power committed prior to each such unlawful act, and that the amount additionally collected as a whole should be imposed based on the same number of such unlawful acts, as the case where several unlawful acts are individually discovered, the amount additionally collected exceeds the amount additionally collected when compared with the case where the

3) The legislative intent of Article 78(1) of the Enforcement Rule of 2009 is to gradually increase the level of punishment for unlawful acts in compliance with the liability of such unlawful acts. It is reasonable to deem that the liability of such unlawful acts is aggravated by the recovery of such unlawful acts despite the detection of such unlawful acts. The determination of additional collection including the amount of such unlawful acts discovered in the recovery of such unlawful acts, which is the criteria for the calculation of additional collection, goes against the legislative intent of which the degree of punishment is to be aggravated gradually depending on the degree of repetition of such unlawful acts.

4) As stipulated in each subparagraph of Article 78(1) of the Enforcement Rule of 2009, the phrase “for the last five years prior to the date on which the illegal act is discovered” is not purporting to stipulate the period of calculating the recovery of the illegal act, and to uniformly apply the same to all the illegal acts subject to the disposition of additionally collecting the total recovery of the illegal act committed

(C) Therefore, there is a defect that erroneously interpreted and applied Article 78(1)3 of the Enforcement Rule of 2009. In full view of the above recognized facts and various circumstances revealed in the pleading, such as the fact that the Plaintiff received a limited order or a return order by illegal means prior to the instant disposition, etc., and the Plaintiff did not receive a limited order or a return order by illegal means, etc., the scope of sanctions against the degree of the violation is considered to be harsh enough to lose the proportionality, and thus, there is a defect that deviates from and abused discretionary power. The Plaintiff’s assertion on this part is with merit.

3. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.