201. Revocation of a restriction on payment, etc.

A Stock Company

Head of the Daegu Regional Labor Agency

October 19, 2011

November 16, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant revoked an order to restrict the payment of subsidies and an order to return KRW 75,785,520 for one year (from March 29, 2008 to March 28, 2009) against the Plaintiff on March 23, 201.

1. Details of the disposition;

A. From November 9, 2007 to 25 workers employed by the Plaintiff, the Plaintiff conducted a "protogram name program" recognized as a vocational skills development training course under Article 24 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") for 25 days from November 9, 2007, and received training fees from the Defendant.

B. Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter referred to as the "former Employment Insurance Act"), Article 56(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter referred to as the "former Enforcement Decree of the Employment Insurance Act"), and Article 25 of the former Enforcement Decree of the Employment Insurance Act (hereinafter referred to as the "former Enforcement Decree of the Employment Insurance Act"), on the ground that the Plaintiff’s worker B left Korea from Korea during the training period and was paid training expenses by false or other unlawful means.

On March 23, 2011, for one year (from March 29, 2008 to March 28, 2009) (from March 29, 2008 to March 28, 2009), ordered the Plaintiff to return KRW 75,785,520 of the subsidy paid within the period of restriction on payment (hereinafter collectively referred to as "the instant disposition").

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 7, the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

A. The Plaintiff was unaware of the Plaintiff’s substitute attendance at the time of filing the claim for training expenses, which is attributable to the minor negligence of the attendance manager. Thus, the Plaintiff cannot be deemed to have received training expenses by fraud or other improper means, and there is no ground for the instant disposition.

B. In interpreting the provision of the Enforcement Decree of the instant case to order the return of all subsidies paid during the period of restriction on payment, without relation to whether the provision was provided by false or other unlawful means, it is null and void as it does not have any delegation law or goes beyond the scope of delegation by the mother law, and thus, it shall be deemed null and void as it excessively infringes the Plaintiff’s property right. Therefore, the order to return subsidies based on the provision of

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Judgment on the Plaintiff’s assertion No. 2. A

"False or other fraudulent means" stipulated in Article 35 of the former Employment Insurance Act refers to all fraudulent acts conducted by an unqualified business owner in order to conceal the eligibility to receive or to conceal the eligibility of an unqualified business owner, which may affect the decision-making on the payment of new employment promotion grants (see Supreme Court Decision 2009Du4272, Jun. 11, 2009, etc.).

In light of the following circumstances revealed by the above evidence, i.e., (1) as if B did not participate in the training course of this case and entered differently from the facts as if B participated in the training course of this case; (2) as the subsidies for training expenses are paid depending on whether the Plaintiff was present, it is essential to confirm accurate attendance; (3) the training course of this case was conducted by the Plaintiff Company rather than entrusted to other companies; and (4) it is reasonable to deem that the Plaintiff Company was aware of the fact that B did not participate in the training course of this case due to business trip; and even if the Plaintiff was unaware of it, it was sufficiently known that the Plaintiff Company was negligent because B was not aware of the fact that he did not participate in the training course of this case; and (4) in light of the above, it is reasonable to deem that there was negligence on the Plaintiff Company. Accordingly, the Plaintiff’s assertion is without merit.

B. Judgment on the Plaintiff’s assertion No. 2.B.

(1) Whether the parent law is out of the scope of delegation

Article 35 (1) of the former Employment Insurance Act provides that the Minister of Labor may restrict support to a person who has received or intends to receive support from workplace skill development projects by fraud or other improper means, as prescribed by Presidential Decree, and may order him/her to return the support already provided. In light of the purpose and purpose of workplace skill development projects and the content thereof, it is reasonable to deem that the Minister of Labor delegates to the Presidential Decree whether the Minister of Labor should have to issue a restriction on support or an order to return the support, and therefore, the provision of the Enforcement Decree of the instant case does not exceed the scope of delegation under Article 56 of the former Employment Insurance Act (see, e.g., Supreme Court Decision 2004Du6105, Oct. 27, 2006).

(2) Whether it violates the principle of excessive prohibition

The enforcement decree of this case does not grant any kind of incentives, etc. to a person who has received or intended to receive incentives, etc. by fraud or other improper means, regardless of whether the person received or intended to receive the incentives, etc., for one year from the date when he/she received or intended to receive them by fraud or other improper means. If the amount was paid by mistake, the provision was prepared to order the return thereof to achieve the sanctions against the unjust recipients, such as incentives, and to achieve the purpose of preventing the unfair payment of future incentives, etc. (see, e.g., Supreme Court Decision 2009Du6476, Aug. 20, 209)

The enforcement decree of this case is just as above, and the period of restriction on payment was limited to one year, not to be a long-term period of time, in a way to achieve its purpose, and thus, the infringement of property rights was limited to a minimum. The necessity to strictly control and manage the payment of subsidies for the purpose of the establishment of employment insurance finance and the efficient and transparent operation of the support system is greater than the private interest infringed upon by the restriction on payment of subsidies. If the fact that the payment of subsidies was received through false or other unlawful means was discovered earlier and there was a prior disposition to restrict payment, the subsidy was not paid for one year in the restriction period, and if the above fact was discovered later and then there was a prior disposition to restrict payment, the restriction on the scope of return of the subsidy would be more favorable than the whole of the subsidies paid for one year in the restriction period, and thus, it does not violate the principle of excessive prohibition. In light of the above, it cannot be deemed that the enforcement decree of this case violates the principle of excessive prohibition.

Therefore, the plaintiff's assertion is without merit.

5. Conclusion

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

The presiding judge, judge and judicial police officer

Judges Civil Service Bureau

Judges Kim Yong-nam

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.