2016 Guest 51495 Order and revocation of a decision to return additional collection, etc.

1. A;

2. B

3. C.

4. D;

5. E.

6, F

7. G.

8. H;

9. I

10. J

Attorney Lee Dong-dong, Counsel for the plaintiffs

The Deputy Director General of the Central Regional Employment and Labor Office;

December 11, 2018

January 22, 2019

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

The Defendant issued an order to return KRW 2,57,920 to Plaintiff A on August 25, 2016; the order to return KRW 2,947,920 to Plaintiff B; the order to return KRW 2,947,290; the order to return KRW 5,008,230 to Plaintiff C; the order to additionally collect KRW 5,008,230; the order to additionally collect KRW 5,008,230; the order to return KRW 4,823,580; the order to return KRW 4,823,580; the order to return KRW 360; the order to return KRW 360; the order to return KRW 30; the order to return KRW 360; the order to return KRW 360; the order to additionally collect KRW 360; the order to return KRW 360; the order to return KRW 360; and the order to additionally collect KRW 39,296; the order to return KRW 396,20.5.

1. Details of the disposition;

A. Details of the plaintiffs' entrusted training

1) Plaintiff A is the Plaintiff’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children and children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children’s children

2) After concluding a contract with AO Co., Ltd. (hereinafter referred to as “AP”), the Plaintiffs received the workplace skill development training expenses from a business owner’s account pursuant to Article 27 of the Employment Insurance Act, etc. by submitting to the Human Resources Development Service of Korea documents that the childcare teachers met the requirements for completing entrusted training and pre-paid the training expenses to AP (Article 8 of the Employment Insurance Act notice of the Ministry of Employment and Labor).

B. (1) In the course of the investigation into AP, which is an entrusted training institution, the Bupyeong Police Station in Incheon Bupyeong-gu, prepared and issued a false commission contract and a tax invoice as if the business owner of 488 childcare centers, including the Plaintiff, did not pre-paid training expenses, and the trainee’s infant care teachers failed to attend the training course for at least 80%, thereby satisfying the completion standards, and received training expenses, and notified the Defendant.”

2) On April 22, 2016, the Defendant issued a voluntary report to the Plaintiffs on April 2, 2016, stating that, in the case of the investigation result of the Incheon Bupyeong Police Station, the details of illegal receipt of training expenses, the administrative disposition and possibility of requesting an investigation in the future, and the “voluntary report” under Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers, the Defendant may reduce all or part of the amount to be additionally collected in addition to the return of the amount of illegal receipt, and operated the voluntary report period from April 25, 2016 to May 10, 2016. However, the Plaintiffs did not comply therewith.

3) The Defendant, except for the portion for which the extinctive prescription has lapsed among the part received by the Plaintiffs, issued an order of return, additionally collecting, and restricting the loan of funds as stated in the purport of the claim (hereinafter “each of the instant dispositions”). The amount of unlawful receipt, excluding the training courses for each Plaintiff and the extinctive prescription and the part related to the extinctive prescription, and the total amount of unlawful receipt, are as listed below.

A person shall be appointed.

(c) Criminal punishment for the AP representative, etc.;

1) On November 17, 2014, relevant persons, including the representatives of AP, were indicted for violating the Act on the AP Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on the Management of Subsidies. On December 15, 2016, the part of fraud was pronounced guilty (the part of the violation of the Subsidy Management Act was acquitted on the grounds that the Defendants did not constitute the recipient of the subsidy even though the two crimes were charged for ordinary concurrent crimes), Seoul High Court 201759, but appealed as the Seoul High Court 2017, but the appeal was dismissed on April 27, 2017, and again appealed as the Supreme Court 2017Do7147, but the first instance judgment became final and conclusive by dismissal of the appeal on August 18, 2017 (hereinafter referred to as the “criminal judgment”).

2) The main point of criminal facts is as follows.

The Defendants, as indicated in the separate list of crimes from May 6, 2012 to June 30, 2014, submitted to the Corporation a false training report, training completion report, and training completion report as if childcare teachers were 80 to June 30, 2014, 30 hours for 4 hours a day, 5 hours a day, and 8 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day, a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day 8 hours a day a day a day a day a day a day a day a day a day a day a day a day.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 16, Eul evidence 1 to 16, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

Since the attendance rate of trainees is less than 80%, there is no ground for disposition, and there is no intention to make payment or suspicion during the investigation, so it is erroneous in the misapprehension of legal principle that the decision of additional collection is made even though the intention is not recognized.

The Ministry of Employment and Labor’s guidance on the criteria for the administrative disposition of the business owner in relation to the instant disposition provides that the business owner who has received a non-prosecution as a discretionary standard shall be excluded from the administrative disposition; however, in the case of a business owner who has filed a voluntary report, the disposition was not specified, and thus imposes an additional collection at a disadvantage against the Plaintiffs who did not file a voluntary report. Even if it is not so, each disposition for additional collection is excessive in light of whether the Plaintiffs are recognized or not, and the degree of accountability such as the fact-finding, etc., each disposition of the instant case is unlawful

B. Determination

1) Non-existence of the grounds for disposition (whether a person has attended less than 80% of the training course)

In full view of the following circumstances, comprehensively taking into account the evidence presented above and the overall purport of the arguments, Plaintiffs’ infant care teachers may be deemed to have attended less than 80% of the training courses.

A) Above all, even if a criminal judgment is not bound by the fact-finding in a criminal trial, the fact that a criminal judgment already became final and conclusive was guilty on the same factual basis is significant evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a factual judgment in the criminal trial in light of other evidence submitted in the administrative trial (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012). However, the criminal judgment held to the effect that, under the premise that the AP which provided education and training to childcare teachers entrusted by the plaintiffs for four hours a day and three hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day assss day a day a day a day a day a day a day a day a day a.

B) In addition, the head of AP branch office, as well as the AP branch office AP branch office, entered into an agreement on lectures at 3 hours a day and 5 hours a Saturday, and on Sundays, there was no lectures, and there was no infant care teacher who has completed all the training courses normally (No. 12-1, 2, and 3). (C) Ultimately, even in the case of each training course in which the Plaintiffs’ infant care teachers participated, the training hours including Saturdays and Sundays are less than 80%, and it can be recognized that the training hours including Saturdays and Sundays are less than 9 hours a total of 12 hours and less than 80%, so it is difficult to accept the allegation that there was no grounds for disposition since the attendance rate falls short of 80%.

2) Meritorious legal principles (related to intentional receipt and intentional collection and additional collection)

Article 16 (2) 2 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316 of Dec. 31, 2008; hereinafter referred to as the "former Act on the Development of Workplace Skills") generally refers to the affirmative and passive act that may affect the decision-making on the payment of training fees by a person who is not entitled to training expenses in accordance with social norms with intent to see that he/she is qualified, or that he/she is not qualified to do so. Article 16 (1), (2), and (3) of the former Act and Article 16 (6) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Act No. 9316 of Mar. 31, 2009; hereinafter referred to as the "former Act"), and Article 13 (4) 1 of the former Act on the Development of Workplace Skills of Workers means all acts that are not justifiable in terms of social norms, and thus, it is difficult to apply the same legal principles as the Supreme Court’s ruling concerning the act of negligence.

Therefore, the allegation that the disposition of additional collection is unlawful because the Plaintiffs received a decision on payment or non-guilty suspicion in the course of investigation and the intent to illegally receive the training fees is not recognized. Furthermore, as seen earlier, the Plaintiffs are recognized as gross negligence and transfer the training fees to AP by receiving a false tax invoice without advance payment even though they did not pay the training fees to the AP. Furthermore, the Plaintiffs’ additional collection disposition of each of the dispositions of this case is legitimate as it is also lawful, in full view of the following: (a) checking whether the AP had properly trained childcare teachers under their responsibility; and (b) then, (c) applying for subsidies to the Human Resources Development Service of Korea, along with a receipt. However, only a part of the AP was conducted on the Triday and Saturdays; and (d) in particular, on Sundays, even if the AP did not have properly conducted the training, it did not confirm whether the training course was appropriately conducted; and (e) in

3) A deviation from and abuse of discretionary power

A) Claim on violation of discretionary rules

The discretionary rule on the administration of the internal affairs of an administrative agency prepared as a basis for the exercise of discretionary power is a discretionary rule, and such discretionary rule is generally effective only within the administrative organization, but does not have external binding power. Thus, the administrative disposition is not immediately unlawful merely because it is in violation of such rule. However, if the administrative practice is implemented after a pooling as prescribed by the discretionary rule, the administrative agency is placed under self-detained in relation to the other party in accordance with the principle of equality or the principle of protection of trust. In such a case, barring any special circumstance, any disposition contrary thereto is an illegal disposition that deviatess from and abuses the discretionary authority contrary to the principle of equality or the principle of protection of trust (see Supreme Court Decision 2011Du28783, Nov. 14, 2013).

On the other hand, on April 12, 2016, the Ministry of Employment and Labor recognizes that the business owner of the Incheon Bupyeong Police Station sent guidance, including the defendant, to the competent administrative agency including the defendant in relation to the result of the investigation into the illegal receipt of training fees. The above disposition standards merely state the opinion of the superior agency in relation to a specific case, and cannot be said to be a discretionary rule that states the general guidelines for handling the case, and therefore, it cannot be said that the defendant is detained or violated, and it is not immediately a deviation from or abuse of discretionary power. Accordingly, this part of the plaintiffs' assertion is without merit without any need to examine whether the above administrative disposition standards of each

B) Claim regarding voluntary declaration

As seen earlier, the Defendant issued each of the instant dispositions with respect to the Plaintiffs who did not file a voluntary report, including additional collection and disposition with respect to the return order, on the other hand, the amount of illegal receipt should be returned only. Such disposition criteria have been clearly announced in advance. Moreover, it is reasonable in light of Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers as it conforms to the content of Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers and it is difficult to view that the content

C) Claim regarding additional collection disposition

The Act on the Development of Workplace Skills of Workers stipulates that a business owner, etc. who engages in a workplace skill development project shall, in order to promote and support workplace skill development throughout his/her life and train technical and skilled human resources needed in the industrial field, subsidize expenses necessary for the project, and if the expenses are subsidized by unlawful means, a certain disciplinary measure may be imposed. However, in light of the following: (a) in the case of training expenses paid by the Plaintiffs by unlawful means, the extinctive prescription for a considerable portion of the training expenses has expired; (b) the unfair payment period is short; and (c) in the case of Sundays, the claim for additional collection is filed without the training course; and (d) the disadvantage caused by the additional collection among each of the dispositions of this case cannot be deemed excessive in light of the purpose or intent to achieve

4) Accordingly, each of the instant dispositions is lawful.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-sik