2011Guhap38537 Revocation of a restriction on subsidization, etc.

A Stock Company

1. The Commissioner of the Gwangju Regional Employment Agency;

2. The head of Seoul Regional Employment and Labor Agency;

March 30, 2012

April 20, 2012

1. From September 3, 2008 to September 2, 2009, Defendant Gwangju Regional Employment and Labor Commissioner issued an order to restrict expenses support and to refund KRW 235,732,330 to the Plaintiff for one year from September 3, 201, and the head of the Seoul Regional Employment and Labor Office issued an order to refund KRW 48,649,106 to the Plaintiff on September 1, 201, respectively.

2. The plaintiff's remaining claims against the head of the defendant Gwangju Gwangju Regional Employment Agency are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the head of the Defendant Gwangju Regional Labor Office shall be borne by the Plaintiff; the remainder by the said Defendant; and the part arising between the Plaintiff and the head of the Defendant Seoul Regional Labor Office shall be borne by the said Defendant.

The order of Paragraph 1 of this Article and the order of the Commissioner of the Regional Employment and Labor Agency of the defendant Gwangju metropolitan City to return KRW 439,740 to the plaintiff on August 30, 201 and additionally collect KRW 439,740 shall be revoked.

1. Details of the disposition;

(a) Recognition of curricula and payment of training expenses;

1) On January 24, 2008, the Plaintiff was recognized as a training course for vocational skills development for each of the training courses listed in the table 1 and 2 of the training courses listed in the table 3 and 4 of the same table on February 21, 2008 (hereinafter referred to as “the training course in sequence”) from the head of the Suwon District Employment and Labor Office (the name of the head of the Gyeonggi District Employment and Labor Office was changed; hereinafter referred to as the “head of the Gyeonggi District Employment and Labor Office”). The Plaintiff was recognized as a training course for vocational skills development for each of the training courses listed in the table 1 and 2 of the training courses listed in the table 3 and 4 of the same table on February 21, 2008 (hereinafter referred to as “the training course in sequence”).

2) On September 2, 2008, the Plaintiff received training for each of the instant training courses (hereinafter referred to as “each of the instant training courses”) from the head of Gwangju Regional Employment and Labor Office for the total amount of KRW 20,689,423 (hereinafter referred to as “training costs”) as subsidies for vocational skills development training costs (for each of the instant training courses, KRW 5,524,200 for training costs, KRW 4,780,03 for the instant training courses, KRW 4,861,020 for the instant training courses, and KRW 4,861,020 for the training costs of the instant 4 training courses, and KRW 4,861,00 for the instant training courses). The total amount of the training costs of KRW 1 training courses as Plaintiff’s employees, including KRW 92,570 for D who are trainees of the instant training courses, KRW 470 for each of the instant training courses, KRW 30 for each of the instant training courses, KRW 471,5797 and 307 for each of the training courses.

B. Details of the disposition

1) On August 27, 2010, the Administrator of the Gyeonggi-do Office for the Employment and Labor of Small and Medium Local Governments requested the Board of Audit and Inspection to investigate whether the training period of each of the instant training courses entered into and out of the Republic of Korea, along with the list of trainees who entered and depart from the Republic of Korea, should investigate the Plaintiff.

2) As a result of the above investigation, even though B left Korea from January 27, 2008 to January 31, 2008, the head of the Gyeonggi District Labor Agency confirmed that D was treated as being present at each of the training periods of this case, even though C left Korea from January 30, 2008 to January 31, 2008 and January 31, 2008 during the first training period of this case, C left Korea from January 26, 2008 to February 1, 2008, it was confirmed that the first training period of this case, and D was treated as being present at each of the training periods of this case from February 3, 2008 to August 5, 2008. Moreover, even though the head of the Jungbubu District Labor Agency was present at the second training period from February 25, 2008 to March 26, 2008 to March 208, 2008.

3) Based on the foregoing findings, on August 30, 201, the head of the Defendant Gwangju Regional Employment Agency issued each administrative disposition on September 1, 201, as indicated below Nos. 1 through 3, on the ground that training expenses were illegally paid to the Plaintiff based on the foregoing findings. The head of the Defendant Gwangju Regional Employment and Labor Administration issued each administrative disposition on September 1, 201, as indicated in the same subparagraph No. 4

[Contents of Administrative Disposition]

A person shall be appointed.

A person shall be appointed.

Facts without dispute over the basis of recognition, Gap evidence 1 through 5, Gap evidence 2 through 5, Eul evidence 1-1, 2, Eul evidence 6, 10, Eul evidence 1, and the purport of the whole pleadings.

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

A. The plaintiff's assertion

1) Non-existence of "a false or other fraudulent means" under Article 35 (1) of the former Employment Insurance Act

B. In full view of the fact that C. D, E, and F (hereinafter referred to as “B, etc.”) was unable to attend a training course inevitably reported for reasons of duty, and that even though the number of vehicles reported was not a number of training courses, the Plaintiff participated in the other number of vehicles, and that the Plaintiff did not have any intention to deceive the administrative agency of the instant training course, it cannot be deemed that the Plaintiff was paid training expenses by fraud or other improper means. Accordingly, each of the dispositions of subparagraphs 1 through 4 (hereinafter referred to as “each disposition of this case”) that applied the provisions of Article 35(1) of the former Employment Insurance Act on different premise is unlawful.

2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of the Employment Insurance Act”) which provides that the payment of training expenses shall be restricted for one year from the date of illegal receipt and payment, and the order for refund of conditions for training expenses already paid shall not be deemed to be contrary to the purport of delegation of the former Employment Insurance Act, which is the mother, and shall not be effective as against the principle of excessive prohibition under the Constitution. Ultimately, the third and fourth dispositions of this case applying the invalid provision of the Enforcement Decree of the Employment Insurance Act are unlawful.

(iii) the deviation and abuse of discretionary authority;

Taking account of all the circumstances, including the fact that the number of trainees who participated in the training courses of this case was only five, and that the amount of illegal receipt received by the plaintiff is about 439,740, while the total amount of training expenses that the plaintiff must return to the defendants is about 285,260,916, and that B, C, D, and E are only different training periods, and they are faithfully engaged in the training courses, each disposition of this case Nos. 3 and 4 of this case is an illegal disposition that deviates from and abused the discretionary power by being excessively harsh to the plaintiff.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

C. Determination

1) Determination as to the non-existence of grounds for disposition

Sanction against violation of administrative laws is a sanction against the objective fact of violation of administrative laws and regulations in order to achieve administrative purposes. Thus, a sanction may be imposed even if the violator has no intention or negligence, barring any special circumstance, such as where he/she does not cause any negligence on the part of his/her duty, and "any false or other unlawful means" means any unlawful act conducted in order to conceal the eligibility to be paid by an unqualified business owner or the lack of eligibility to receive training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In full view of the following circumstances, it is reasonable to view that the Plaintiff was paid training expenses by fraud or other improper means, taking into account the facts acknowledged earlier, the entry of No. 6-5, and the purport of the entire pleadings. Accordingly, the Plaintiff’s assertion on this part is without merit.

A) The Plaintiff, as an executor of each of the instant training courses, was obligated to verify whether the trainees of each of the instant training courses were actually present and trained before filing an application for subsidies. Nevertheless, the Plaintiff neglected such duty and received subsidies including training expenses for B, etc. without undergoing verification procedures as to whether trainees B, etc. were actually present at each of the instant training courses. Furthermore, it is difficult to deem that the Plaintiff was not present at each of the instant training courses from February 21, 2008 to December 25, 2007, when the Plaintiff was working at the airport control tower from February 21, 2008, which was recognized as the training course for the instant 4th training course. In light of the fact that the Plaintiff was not present at each of the instant training courses, it is difficult to deem that there was a justifiable reason for the Plaintiff to have known, or could have known, that the Plaintiff was absent at each of the instant training courses, and that the Plaintiff was not present at each of the instant training courses.

B) Although the Plaintiff did not appear in the training courses of this case, the Plaintiff applied for training expenses as if he were present, and received them. If the Minister of Gwangju Regional Employment and Labor had known such fact in advance, the Plaintiff would not be entitled to subsidies for B, etc. Therefore, the Plaintiff’s act should be deemed to have influenced the decision-making of the administrative agency with regard to the payment of subsidies, which was the fraudulent act committed by the business owner who was not entitled to subsidies for B, etc., by pretending

2) Determination on the assertion of invalidation under the provision of the Enforcement Decree of the instant case

A) According to Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, Article 35(1) of the former Enforcement Decree of the Employment Insurance Act provides that a person who has received, or intended to receive, training costs, etc. for vocational skills development by fraud or other improper means (hereinafter referred to as "unlawful recipients") shall be obligated to pay training costs, etc. for one year, and shall be fully refunded to the training costs, etc. paid during the period of restriction on payment. The disposition ordering the establishment of a period of restriction on payment and the return of subsidies granted during the period of restriction on payment is a binding act

B) First, we examine whether the provision of the Enforcement Decree of this case satisfies the legitimacy of the legislative purpose and the requirements for the appropriateness of the means. The purpose of the provision of this case is to prevent misconduct in relation to the payment of training expenses, etc. and ultimately to promote the development and improvement of workers’ vocational ability through the restriction on payment of training expenses, etc. for one year for illegal recipients and the order to refund subsidies paid within the restriction period. In addition, considering that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, the purpose of the provision of this case is justifiable. Furthermore, it appears that misconduct in relation to the payment of training expenses, etc. is reduced through punitive sanctions stipulated in the Enforcement Decree of this case, and accordingly, it is possible to further increase public resources such as

C) Next, we examine whether the provision of the Enforcement Decree of this case satisfies the minimum requirements for damage. It is reasonable to view that the administrative agency has broad discretion in the choice of the means to impose sanctions against the violation of statutes. If the method of choice is not clearly erroneous in prediction or evaluation, it cannot be deemed that the provision of this case does not impose additional obligations on the illegal recipient, but rather recover training expenses paid to the illegal recipient, etc., and thus, it is difficult to view that the choice of the means of sanctions is clearly erroneous.

라) 마지막으로, 이 사건 시행령 조항이 법익의 균형성 요건을 갖추었는지 여부에 관하여 살펴본다. 관계 법령의 문언 내용과 앞서 인정된 사실 및 변론 전체의 취지에 의하여 알 수 있는 다음과 같은 사정들, 즉 ① 구 고용보험법 제35조 제2항은 징벌적인 의미로서 거짓이나 그 밖의 부정한 방법으로 지급받은 금액에 상당하는 액수 이하의 금액을 징수할 수 있도록 규정하고 있고, 이에 따라 구 근로자직업능력개발법 제25조 제4항 제1호, 구 근로자직업능력개발법 시행령 제22조의2, 구 근로자직업능력개발법 시행규칙 제9조 제1항은 과거 5년 동안 거짓 그 밖의 부정한 방법으로 비용을 신청한 횟수 등을 기준으로 추가로 징수할 금액을 세분하여 정하고 있는 점, ② 이 사건 시행령 조항은 위 추가징수처분과는 별도로 부정수급자에 대하여 의무적으로 1년간 지원을 제한하도록 규정하는 동시에 위 지급제한기간 내에 지급된 지원금에 대하여 반환하도록 규정하고 있어 위 추가징수처분과 마찬가지로 징벌적 제재의 성격을 가지고 있는 한편, 위 추가징 수처분과는 달리 위반행위의 내용이나 정도에 따른 가중, 감경 등의 세부적인 기준을 정함이 없이 일률적으로 1년간의 지급제한 및 그 지급제한기간에 지급된 지원금 전액의 반환만을 규정하고 있는 점, ③ 그로 인해 통상 반환명령의 대상이 되는 지원금은 부정수급액에 비하여 매우 큰 금액이 될 수 있고 이 경우 부정수급자가 예상할 수 있는 범위를 현저히 초과함으로써 그 위반행위의 내용, 정도 등에 비추어 지나치게 가혹한 결과를 초래할 수 있는 점[실제로 원고의 경우 부정수급액은 439,744원에 불과함에도 지급제한기간 중 급받은 지원금은 285,260,916원( = 236,611,810원 + 48,649,106원)에 달한다], ④ 또한, 이 사건 시행령 조항은 지급제한의 기산일을 제재처분일이 아닌 '훈련비용을 받거나 지급 신청을 한 날'로 명시하고 있어 부정수급자로서는 제재처분을 받기 이전에 이미 지급받았던 지원금을 소급하여 반환하게 되는 경우가 많은데, 부정수급자가 1년간 훈련비용 등에 대한 지급이 제한될 것이라는 사정을 미리 알았더라면 그 기간 중 훈련과정을 탄력적으로 실시하여 반환대상이 되는 금액을 줄일 수도 있었을 것으로 보이는 점, ⑤ 나아가 이 사건 시행령 조항은 '훈련비용을 받거나 지급 신청을 한 날'로부터 1년간의 지급제한 및 지급제한기간에 이미 지급된 지원금에 대한 의무적인 반환명령을 규정하면서도 위 제재처분을 할 수 있는 기간에 특별히 제한을 두고 있지 않아 부정수급자의 지위가 장기간 불안정해지는 문제가 발생하는 점, ⑥ 한편, 구 고용보험법에 따라 사업자에게 지원되는 직업능력개발 훈련비용은 직접적으로 근로자의 직업능력의 개발과 향상 등을 위해 사용되고 그 결과 사업자가 간접적으로 숙련된 근로의 제공이라는 혜택을 누리게 되므로 그 전액의 환수가 의심의 여지 없이 정당화된다고 보기는 어려운 점 등에 비추어 보면, 부정수급자에 대하여 추가징수처분 외에 징벌적 제재를 중복하여 규정함으로써 그 입법목적을 보다 효율적으로 달성할 수 있다고 하더라도 이 사건 시행령 조항은 그로써 달성하고자 하는 공익과 그로 인하여 원고가 입게 되는 사익 사이에 현저하게 균형을 잃어 무효라고 봄이 상당하다 (2010. 2. 8. 대통령령 제22026호로 개정된 구 고용보험법 시행령 제56조 제2항은 부정수급자에 대한 1년간의 지급제한을 규정하면서도 '다만, 지원금이나 장려금을 받은 날부터 3년이 지난 경우와 거짓이나 그 밖의 부정한 방법으로 지급받거나 받으려고 하는 금액이 300만 원 미만으로서 최초로 부정행위가 적발된 경우에는 1년 동안의 지급제한을 적용하지 아니한다'라는 제한을 두었고, 2010. 12. 31. 대통령령 제22603호로 개정되어 현재 시행 중인 고용보험법 시행령 제56조 제2항은 '제35조 제1항에 따라 거짓이나 그 밖의 부정한 방법으로 제1항에 따른 각 지원금 중 어느 하나의 지원금을 받거나 받으려 한 자에 대하여 고용노동부장관은 제1항에 따른 반환명령 또는 지급제한을 한 날부터 1년의 범위에서 새로 지원하게 되는 제1항에 따른 각 지원금 중 어느 하나에 해당하는 지원금에 대해서는 별표 1에 따른 기간 동안 지급을 제한한다. 다만 그 부정한 방법의 정도, 동기 및 결과 등을 고려하여 그 지급제한기간의 3분의 1까지 감경할 수 있다'고 규정하고 있는바, 이는 이 사건 시행령 조항의 문제점에 대한 반성적 고려의 결과로 보인다). 따라서 무효인 이 사건 시행령 조항에 근거한 피고의 이 사건 제3, 4 각 처분은 위법하다.

3) Sub-decisions

Therefore, the dispositions Nos. 3 and 4 among the dispositions of this case are unlawful without having to further examine the remaining arguments of the plaintiff, and each of the remaining dispositions is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Awards and decorations for judges;

Judges Hanwon-won

Judges Kim Tae-hee

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.