(영문) 서울행정법원 2018.10.11.선고 2017구합86750 판결

On September 1, 2017, the Defendant’s order to return KRW 11,760,000 of the amount of vocational skills development training illegally received by the Plaintiff and the disposition to restrict subsidies and loans for 360 days (from September 2, 2017 to August 27, 2018) shall be revoked.

Reasons

1. Details of the disposition;

A. On September 24, 2014, the Plaintiff entered into a contract with B Co., Ltd. (hereinafter referred to as “D”) and the Plaintiff’s employees to entrust workplace skill development training (hereinafter referred to as “vocational training”) to D by means of postal remote training and pay the price for such training, regardless of whether the trade name was changed to C around July 2015.) and the workplace skill development training for workers belonging to the Plaintiff (hereinafter referred to as “vocational training”) as follows.

Name of the training course: Improvement of Duties of taxi workers and administration;

· Training schedule: From October 13, 2014 to December 12, 2014

·training personnel: 119 persons;

· Total training costs: 6,64,000 won per capita (56,000 won per capita)

B. On December 29, 2014, the Plaintiff asserted that 105 trainees, who are the Plaintiff’s employees, received vocational training from D and met the completion standards, and applied for the payment of vocational education expenses (hereinafter “subsidies”) of KRW 5,880,00 (56,00 per capita x 105) to the Seoul Southern Vice Governor of the Human Resources Development Service of Korea. Accordingly, on January 12, 2015, the Human Resources Development Service of Korea paid KRW 5,880,00 to the Plaintiff on January 14, 2015, and the Plaintiff transferred the same to D on January 14, 2015. On September 1, 2017, the Defendant: (a) returned the amount of subsidies of KRW 56,80,000 to the Plaintiff; (b) returned the amount of subsidies of KRW 30,000 based on the Enforcement Rule of the Act on the Development of Workplace Skills of Workers; and (c) 20,520,2,28,2, etc.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 6, 10, and Eul evidence No. 1 and the purport of the whole pleadings

2. The plaintiff's assertion

A. In the case of trainees who are not familiar with the use of a part of a computer, the Plaintiff’s employees merely received the help from D and received education, and actually completed vocational training from D. Therefore, the instant disposition ordering the return, etc. of subsidies is unlawful, even though the Plaintiff cannot be deemed to have received subsidies by fraud or other improper means.

B. The Plaintiff did not agree with D to receive subsidies unfairly, and there is no fact that the Plaintiff received money and valuables from D. Vocational training entrusted to D is conducted by means of mail remote training. The Plaintiff, a truster, cannot verify a remote training course conducted on the Internet, except for verifying the progress of training courses at the site or encouraging trainees to participate in training. Considering these circumstances, the Plaintiff cannot be deemed as a cause attributable to the illegal receipt of subsidies.

3. Whether the instant disposition is lawful

(a) Relevant statutes;

It is as shown in the attached Form.

(b) Fact of recognition;

The following facts may be found either in dispute between the parties or in full view of the overall purport of each entry and pleading of evidence Nos. 2, 3, 8, 11, 14, 15, 21, 30, 32, 34, 35 (including branch numbers; hereinafter the same shall apply), and each entry of evidence Nos. 8, 16, and 18 shall not interfere with the above recognition:

1) On October 29, 2016, E, which was a D employee, informed of the D’s misconduct related to the vocational training, and accordingly, the investigation and investigation of D-related persons was initiated.

2) The Seoul Western Employment and Labor Office’s Vocational Training Team under the Seoul Western Employment and Labor Office established under the Seoul Western Employment and Labor Office has examined whether there was an unlawful act against the Plaintiff’s workplace, and it was confirmed that many trainees had taught in the same IP during a specific period of time, and the average time was measured at 21.3 seconds of 21.3 of the three-day training period, which is conducted for the purpose of the study evaluation by the trainees, on the part of the training management system. In addition, at the same time in the training management system, it was confirmed that there was a majority of the number of trainees with learning in the same IP, and the number of the status where the IP addresses are inconsistent with the IP address in the course of the learning evaluation.

3) In the course of the aforementioned wrongful investigation, the Plaintiff’s employee F visited D’s workplace to educate trainees and one unit of training, and the education was conducted on a shift-time basis. The problem pool is that the trainee was concentrated, and D’s part-time trainee was trying to enter the computer, but the worker’s part-time data was provided to D in order to enhance educational effectiveness and efficiency. D’s employee G stated that the trainee was the trainee, who was educated directly in an extracurricular manner, and that the trainee was the trainee’s employee, and that the trainee was the trainee’s employee, and that the trainee was the trainee’s production of teaching materials during his service period, and that the trainee E stated that the date of receiving teaching materials from the website manager’s part-time worker was entered. Meanwhile, D’s part-time employee’s part-time worker was ordered by H to receive work instructions from H, and that the trainee’s part-time trainee’s part-time trainee’s part-time trainee’s part-time worker was presented by directly preparing an answer and directly given his part-time.

4) According to the business owner vocational ability development training manual issued by the Human Resources Development Training Agency of Korea, training for commissioned trainees is in principle consistent with those who bear training costs, and if a business owner bears training costs, he/she is required to apply for subsidies for each place of business.

5) On July 20, 2017, the Seoul Western District Employment and Labor Office requested the Defendant to take administrative measures on July 20, 2017, as the Plaintiff was found to have received training expenses by fraud or other improper means, based on the result of the examination of misconduct in the Plaintiff’s workplace.

6) On January 5, 2018, the Prosecutor I of the Seoul Central District Prosecutors’ Office conspired with inside directors J, chief H and chief K, who are representatives of D, and caused D workers under its jurisdiction to visit the place of business of transportation business entities without providing training materials and conduct a proxy lecture and proxy test by making them use of personal information of the instant trainees, and then acquired the instant trainees a total of KRW 1,78,460,905 from the Republic of Korea by creating the appearance of “the instant trainees meet the standard for completing the remote training course by driving the proxy lottery,” which was charged as a crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the Seoul Central District Court. The content of the aforementioned charge of obtaining subsidies includes the content that the Plaintiff received KRW 5,80,00 as training expenses.

7) In the above criminal case, the witness statement of D's daily workers was submitted as evidence. Among them, L, M, N, andO's major statements during the period of vocational training conducted for the Plaintiff workers belonging to the Plaintiff are as follows.

• The computer input work was carried out by the transportation company designated in D. • The first quisition or the mobile phone identification number is entered after one time a week is allowed to be certified as a mobile phone immediately before the beginning of the training. Once the list of trainees is found in the workplace, it is going through an interview against the local worker who has worked at the workplace, who is informed of the fact that sick, retired, etc., and who will be excluded from the list. • Although an interview is actually an interview, it was done, the number of trainees' learning progress and the answer draft are written in lieu of the answer. In case of each parking process, three trainees answer the problem, but if there is time, the most of the trainees did not receive the answer at will but did not receive the answer or answer at will. The objective of the interview is that the most of the trainees did not receive the answer or answer at will, but they did not receive the answer or answer.

(i) there is no person who, among trainees, directly conducts learning, prepares and submits a subject matter, prepares and submits a test answer, or prepares and submits a test answer, and there is no person who, among part-time trainees, directly enters as an agent only when they enter normally.

8) The relevant persons of D led to the confession of all the facts of the crime in the above criminal case, and the Seoul Central District Court found them guilty on April 6, 2018, and sentenced the J to four years of imprisonment and one year and six months of suspension of execution and three years of suspension of execution, respectively, in the case of the Seoul Central District Court (Seoul Central District Court). While the J appealed, the Seoul High Court sentenced the dismissal of the appeal in the case of No. 2018No112, Sept. 2018.

First, it is reasonable to view the Plaintiff’s assertion that there is no ground for the instant disposition, because the trainees employed by the Plaintiff actually received vocational training from D and completed normal education.

1) Relevant legal principles

Article 55(2) and Article 56(2) and (3) of the Act on the Development of Workplace Skills of Workers refers to any act that a person who is not eligible to receive expenses makes as if he/she is qualified or is unable to discover an unqualified fact, and which may affect the decision-making on subsidization of expenses, as an affirmative and passive act (see, e.g., Supreme Court Decision 2013Du1980, Oct. 30, 2014). Article 20(3) of the Act on the Development of Workplace Skills of Workers; Article 19(3) of the Enforcement Decree of the Act on the Development of Workplace Skills of Workers; Article 41(4) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 28160, Jun. 27, 2017); Article 60(1) of the Enforcement Rule of the Employment Insurance Act provides that subsidies for vocational training shall not be granted to the former employer for vocational skills development training delegated by the Ministry of Employment and Labor for at least 10 percent of training courses.

2) Determination

In full view of the facts acknowledged earlier, the following facts and circumstances are acknowledged in light of the overall purport of the evidence and arguments as seen earlier.

① The purpose is to prepare a process and an evaluation answer to D workers on behalf of trainees in the course of investigating the trainees in the workplace of vocational training, and the trainees stated that there are no trainees who directly conducted learning, preparation and submission of task, preparation and submission of an examination answer among the trainees. ② As a result of the vocational training review of D’s Plaintiffs, which are vocational training entrusting companies, there have been many trainees in the same IP at the same time in the same time, and there is no difference between the IP address and the result of the study evaluation, and the average time spent to log out 21.3 second of all, it was confirmed that the aforementioned results are the statements of D’s daily workers who entered work at the workplace and the opinion of all of the workers who entered work at the workplace.

③ The Plaintiff asserts to the effect that a normal vocational training was conducted for trainees belonging to the Plaintiff based on the photo (Evidence A-1 through 47) taken by the Plaintiff’s employees for vocational training. However, upon examining the aforementioned pictures, it is consistent with the outcome that other trainees are receiving vocational training at intervals of approximately 2 to 5 minutes. As such, it is true that other trainees are undergoing vocational training at intervals of approximately 2 to 5 minutes. As such, as seen above, the situation where the face-to-face hours between the trainees’ D employees are short and the trainees, and that the answer was actually reported during the interview and the answer was directly written on behalf of the trainees.

④ If the trainees employed by the Plaintiff receive normal education and training as alleged by the Plaintiff, the trainees employed by the Plaintiff should memory such exceptional circumstances. However, the trainees employed by D are stated to the effect that there are no trainees who directly conducted daily learning, preparation and submission of tasks, preparation and submission of a written answer, and submission of a written test, among the trainees, and that they do not have any person who would be represented only by the normal input of part-time trainees.

⑤ Relevant persons were both led to the confession of all crimes in the criminal cases of Seoul Central District Court 2018Gohap30, and the facts charged by D related persons were found guilty, and the above facts charged also include the subsidies paid to the Plaintiff.

In light of the aforementioned legal principles, in light of the process of vocational training for trainees belonging to the Plaintiff, the statement of relevant persons and the result of confirmation of the system for managing trainees, the result of relevant criminal cases, etc., it is sufficient to recognize that the trainees belonging to the Plaintiff did not normally receive vocational training conducted by means of postal remote training, and that they failed to meet the standards for completing postal training courses. Therefore, the Plaintiff’s assertion that the instant disposition does not exist

D. Judgment on the non-existence of a cause attributable to the defendant

Next, the Plaintiff’s assertion that there is no cause attributable to the illegal receipt of subsidies shall be viewed as a matter of course.

1) Relevant legal principles

Sanction against violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws and regulations in order to achieve administrative purposes. Thus, barring any special circumstance, such as where a failure to perform the duty of the violator is not caused due to a justifiable reason, barring any special circumstance, such as where a failure to perform the duty of the violator is not caused by intention or negligence, a sanction may be imposed (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2,

2) Determination

The facts acknowledged earlier, the whole evidence and the purport of oral argument are as follows. ① According to the business owner vocational ability development training manual, the training costs are borne first by the business owner and then applied for subsidies to the Human Resources Development Service of Korea after the vocational training was conducted. There is no evidence to deem that the Plaintiff first paid training costs to D. The Plaintiff appears to have been in the process of applying for vocational training costs by means of receiving subsidies from the Human Resources Development Service of Korea and remitting them to D. ② As seen earlier, the Plaintiff’s photographs taken the vocational training course were confirmed to be very short of the training hours of the trainees. In light of such curricula, it is deemed that the Plaintiff could have sufficiently known the circumstances that the trainees did not normally receive the vocational training. ③ Even if the Plaintiff was obligated to verify whether the vocational training was faithfully conducted as a business owner entrusted with the vocational training, it is reasonable to deem that the Plaintiff was responsible for completing the remote training course or failing to meet the standards for vocational training due to mail that was conducted normally.

Therefore, there is no reason for the plaintiff to be responsible for the illegal receipt of subsidies.

4. Conclusion

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