(영문) 대법원 2013.8.22. 선고 2013두3610 판결

The plaintiff's appeal against the defendant Republic of Korea, the remaining appeals against the head of the Seoul Northern District Office, and all appeals by the head of the Seoul Northern District Office are dismissed.

The costs of appeal against the Defendant are assessed against the Plaintiff.

Reasons

1. As to the grounds of appeal by the head of the Seoul Regional Employment Union and the Plaintiff regarding the disposition of restriction on entrustment and additional collection for three months for the entire process

A. Article 16 (1) 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") provides that "the State, local governments, or the Minister of Labor may conduct workplace skill development training upon entering into an entrustment contract with a person prescribed by Presidential Decree." Paragraph (2) provides that "If a commissioned person falls under any of subparagraphs 1 and 2, the commissioned person shall terminate the entrustment contract." In addition, Article 16 (3) of the former Act provides that "the State, local governments, or the Minister of Labor shall not allow the commissioned person to receive training costs or receive such training costs by fraudulent or other illegal means."

"False or other unlawful means" under Article 16 (2) 2 of the former Vocational Development Act refers to all acts that are not correct by social norms in order for a person who is not eligible to receive training costs to see as if he/she is qualified or to conceal the fact that he/she is not qualified, and the "training costs" refers to the costs that are paid by a person entrusted with workplace skill development training (hereinafter referred to as "trustee") in compensation for training.

Article 13(4)1 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 21398, Mar. 31, 2009) provides that "whether a violator has intention or gross negligence" is one of the matters to be considered in establishing the specific guidelines for sanctions pursuant to the delegation of Article 16(6) of the former Act on the Development of Vocational Skills of Workers (amended by Presidential Decree No. 21398, Mar. 31, 2009). In full view of the contents, form and structure of the relevant statutes, and the meaning and nature of training costs as mentioned above, where a trainee did not undergo training but requests the payment of training costs differently from the fact that the trainee was trained, it is reasonable to interpret that the trustee would not be actually paid training costs if he/she requested the payment of training costs in violation of the legal or contractual obligations on the management of the trainee's attendance, etc. (see, e.g., Supreme Court Decision 1007Da161060, supra.

B. citing the reasoning of the first instance judgment, the lower court determined that the Plaintiff’s failure to provide training fees for less than KRW 30 on September 28, 2008 and December 10, 207 for less than KRW 40 on the ground that the Plaintiff’s failure to provide training fees for less than KRW 1,463,940 corresponding to all training expenses for B and C were not paid for less than KRW 30 on the ground that the Plaintiff’s failure to provide training fees for less than KRW 30 on November 19, 2010 and the Plaintiff’s failure to provide training fees for less than KRW 1,463,940 on the ground that the Plaintiff’s failure to provide training fees for less than KRW 97 on December 19, 2010 and the Plaintiff’s failure to provide training fees for less than KRW 1,463,940 on the ground that the Plaintiff’s failure to provide training for less than KRW 97 on the ground that the Plaintiff’s failure to provide training is unlawful.

In light of the aforementioned facts and the reasoning of the lower judgment and the records, the Plaintiff appears not to have received training expenses as above with knowledge of the attendance of the said substitute, and there is no other evidence to deem that the training instructor was aware of the aforementioned substitute attendance. In addition, in light of the aforementioned legal principles, the lower court’s aforementioned determination is justifiable and did not err in the misapprehension of legal principles as to the scope of application of “any false or other unlawful means” under Article 16(2)2 of the former Vocational Development Act and the scope of additional collection, as otherwise alleged in the grounds of appeal by the Defendant North Korea Site

2. As to the Plaintiff’s ground of appeal regarding an order to return the illegally received amount

In light of the relevant legal principles and records, the lower court determined that it is difficult to view that the issuing of an order to return KRW 1,436,940 equivalent to training expenses for two trainees who had the head of the Seoul Northern Site Office attend by proxy as above was a deviation or abuse of discretion, based on the circumstances indicated in its holding. In so doing, the lower court’s aforementioned determination is justifiable, and there is no error of misapprehending the legal principles as otherwise alleged in the

3. As to the grounds of appeal by the head of Seoul Northern Site Office regarding the disposition of one year restriction on the payment of subsidies under the Employment Insurance Fund Support Project

A. Administrative laws and regulations, which serve as the basis for sanctions, shall be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the party against whom the sanctions are imposed. Even if the teleological interpretation that takes into account the legislative intent and purpose, etc. is not entirely excluded, such interpretation shall not go beyond the ordinary meaning of the text and text (see, e.g., Supreme Court Decision 2007Du13791, 13807, Feb. 28, 2008).

B. Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same) provides that "the Minister of Labor may order a person who has received or intends to receive support for employment security and vocational skills development activities under the provisions of this Chapter by fraud or other improper means to restrict such support or to return already provided support, as prescribed by Presidential Decree (Paragraph 1); and "the Minister of Labor may order a person who has received or has received an order to return pursuant to paragraph 1, to which he/she has received or has received such support by fraud or other improper means, additionally collect an amount not exceeding an amount equivalent to the amount that he/she has received by fraud or other improper means in accordance with the guidelines prescribed by Ordinance of the Ministry of Labor: Provided, That Article 16 (5) 1 and Article 25 (4) 1 (paragraph 2) of the Act on the Development of Workplace Skills

Article 35 (1) of the former Employment Insurance Act stipulates that "a person who has received or intends to receive support for employment security and vocational skills development projects under this Chapter by fraud or other improper means" and Paragraph (2) stipulates that "a person who conducts vocational skills development training under Article 2 (1) of the Act on the Development of Workplace Skills of Workers" under the proviso to paragraph (2) refers to a person who conducts vocational skills development training under Article 2 (1) of the former Act on the Development of Workplace Skills of Workers among "a person who has received or intends to receive support for employment security and vocational skills development projects under the provisions of this Chapter" and "a person who conducts vocational skills development training under Article 2 (1) 1 of the former Act on the Development of Workplace Skills of Workers" shall be construed as "a person who conducts vocational skills development training under Article 35 (1) of the former Employment Insurance Act" and "a person who is entrusted with vocational skills development training by the State, a local government, or the Minister of Labor" shall not be subject to sanctions under Article 16 (1) of the former Act (see, 2013).

C. In the same purport, the lower court is justifiable to have determined that a disposition imposing a restriction on the payment to the support project of the Employment Insurance Fund against the Plaintiff, which was not subject to sanctions under Article 35(1) of the former Employment Insurance Act, was unlawful. In so doing, it did not err by misapprehending the legal doctrine on the scope of application under Article 3

4. Plaintiff’s ground of appeal on revocation of designation

A. According to Article 31(1)3 and Article 29 subparag. 9 of the former Vocational Development Act, the lower court determined that the grounds for revocation of the designation of the instant vocational training facility on November 19, 2010 were recognized, on the ground that the instant training institution was subject to the restriction on the entrustment of each of the instant training courses according to the one-year restriction on the entrustment of each of the instant training courses.

B. However, such determination by the lower court is difficult to accept for the following reasons. According to Articles 31(1)3 and 29 subparag. 9 of the former Vocational Development Act, where a designated occupational training establishment is subject to restrictions on the commission of workplace skill development training pursuant to Article 16 of the former Vocational Development Act, the Minister of Employment and Labor must revoke such designation; however, Articles 31 and 29 of the former Vocational Development Act was amended by Act No. 10339 on Jun. 4, 2010, and only some training courses entrusted are subject to restrictions on commission, the designation may not be revoked (hereinafter referred to as the “former Vocational Development Act”).

On the other hand, a disposition to revoke the designation of a designated vocational training facility is subject to restrictions on the entrustment of training for the development of vocational skills as above. Thus, the disposition to revoke the designation of a designated vocational training facility was taken on November 9, 2010 when the revised Vocational Development Act was enforced, and the one-year restriction on the entrustment of each of the training courses in this case. On the same day, the disposition to revoke the designation of a designated vocational training facility in this case should be based on the revised Vocational Development Act and the criteria prescribed therein.

However, as seen earlier, the restriction on commission for three months on the whole process is illegal as there is no ground for the restriction on commission, and the restriction on commission following the one-year restriction on commission for each of the training courses of this case is merely a restriction on commission for a part of the training courses, and thus, the revocation of the designation of this case is also unlawful as there is no ground

C. Nevertheless, the lower court determined that the revocation of the instant disposition was lawful on the grounds that each of the instant training courses, which are merely a part of the training courses, was subject to restrictions on entrustment, by applying the former Vocational Development Act. In so doing, the lower court erred by misapprehending the legal doctrine on the criteria for determining the legality of the disposition,

5. The Plaintiff’s ground of appeal as to the Plaintiff’s claim against Defendant Republic of Korea does not indicate the grounds of appeal as to this part, and the petition of appeal does not indicate the grounds of appeal.

6. Conclusion

Therefore, the part of the judgment of the court below regarding the disposition revoking the designation of this case shall be reversed, and that part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's appeal against the Republic of Korea, the remaining appeal against the head of the Seoul Northern Site and the appeal by the head of the Seoul Northern Site Office are all dismissed. The costs of appeal against the defendant Republic of Korea shall be borne by the losing party.