(영문) 인천지방법원 2016.5.26.선고 2014구합30873 판결

A disposition that the Defendant returned 349,000 won to the Plaintiff on October 29, 2013, and additionally collects 349,000 won, which the Defendant issued to the Plaintiff on October 29, 2013, and the disposition that subsidies and loans are restricted for 270 days from October 29, 2013 to June 16, 2014, shall be revoked.

Reasons

1. Details of the disposition;

A. Entrustment of vocational skills development training by the plaintiff and subsidization of training expenses by the defendant

1) On March 23, 201, the Plaintiff, who operates the C Child Care Center located in Gyeyang-gu Incheon Metropolitan City, entered into an agreement on the commissioned education with the Defendant on June 9, 201, stating the outline of education operation and the result of education as follows, and submitted a tax invoice stating that the Plaintiff paid KRW 1,40,000 for each education course (hereinafter referred to as the “instant training course”) with D Co., Ltd. (hereinafter referred to as D”), which is a vocational skills development training institution, KRW 200,000 for each person, seven educational personnel, 1,40,000 for total educational expenses, and KRW 1,40,000 for each education.

○ Outline of education management

A person shall be appointed.

O Reporting on the result of education

A person shall be appointed.

3) On June 15, 201, the Defendant approved the payment of KRW 349,00 for subsidies applied for training costs incurred by the Plaintiff for the development of vocational abilities, and paid KRW 349,000 for subsidies to the Plaintiff on June 17, 2011.

(b) Disposition, etc.;

1) On January 29, 2013, the Gwangju Regional Police Agency announced the investigation results that two training institutions, including D, conducted the Internet workplace skill development training conducted by the Ministry of Employment and Labor from January 201 to October 201, 201, such as 1,114 educational consignment companies, 'prepaid support', 'full refund', 'repaid refund', 'free discount', and 'the amount of subsidies for workplace skill development training', and obtained the subsidies for workplace skill development training by fraudulent means, such as 'the amount of subsidies for workplace skill development training conducted by the Ministry of Employment and Labor,' and 'the amount of subsidies for workplace skill development training by fraudulent means, such as 'the amount of subsidies', 'the amount of full refund', and 'the amount of discount'

2) On February 19, 2013, the leisure earnings and expenses of the Gwangju Regional Employment Agency sent to the Defendant a list of illegal receipt and demand places of business, including the Plaintiff, and notified the Defendant of the measure to be taken in accordance with the relevant laws and regulations.

3) On October 29, 2013, the Defendant: (a) applied Article 55(2)1 and Article 56(2) and Article 56(3)2 of the Act on the Development of Workplace Skills of Workers (hereinafter “Vocational Skills Development Act”); (b) returned 349,00 won; and (c) additionally collected 349,00 won; and (c) imposed a restriction on loans for 270 days (from October 29, 2013 to July 25, 2014), on the ground that the Plaintiff received training expenses with false receipts.

4) After March 27, 2014, the Defendant issued a notice to the effect that the period of sanctions against the Plaintiff shall be limited to 270 days from the date of receiving the subsidy, and that the period of sanctions shall be corrected from October 29, 2013 to June 16, 2014 (hereinafter referred to as the “instant restriction disposition”) by limiting the period of sanctions to the extent of 270 days from the date of receiving the subsidy (hereinafter referred to as the “instant disposition”), and that “the instant restriction disposition” shall be referred to as “the instant restriction disposition” from October 29, 2013 to June 16, 2014 as the remainder of the correction as above.

[Ground of recognition] Facts without dispute, entry of Eul's evidence Nos. 1 through 8, purport of the whole pleadings

2. Whether the part concerning the claim for revocation of the restriction disposition in the lawsuit in this case is legitimate

As the period of sanction (from October 29, 2013 to June 16, 2014) of the instant restrictive disposition has already expired, the Defendant’s defense of safety that the Plaintiff had no legal interest in seeking revocation of the said restrictive disposition.

However, in a case where there is a concern that a subsequent disposition is practically subject to an aggravated cause or condition, the other party subject to the prior disposition should sufficiently protect the right to remove such disadvantage through a litigation seeking revocation of the prior disposition even if the period of sanctions prescribed in the prior disposition has expired, and thus, there is a legal interest in seeking revocation of the prior disposition (see, e.g., Supreme Court en banc Decision 2003Du1684, Jun. 22, 2006).

In this case, Article 22 [Attachment 62] subparagraph 1 (a) (iii) of the Enforcement Rule of the Vocational Skills Development Act provides that "where a person subject to the restriction becomes subject to the restriction repeatedly in accordance with the individual criteria of item (b), the restriction may be imposed within the extent of three years," and thus, the plaintiff has a provision on the restriction of the preceding disposition. Therefore, even if the effect of the restriction has ceased to exist due to the lapse of the period of the restriction prescribed in the relevant disposition, there is a legal interest in seeking

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

After the plaintiff paid the full amount of training expenses to D, the defendant presumed that the plaintiff was paid part of training expenses from D only on the basis of the investigation results of D by the police, although there was no fact that part of the training expenses was refunded to D, and the disposition of this case was taken.

Even if the Plaintiff received refund of KRW 91,400,00,000 for the training expenses paid to D and paid KRW 488,60,000 for the training expenses, since the training expenses actually paid exceeds KRW 349,00,000 for the training expenses of this case (per person 34,90,000), it is difficult to deem that the Plaintiff’s act affected the Defendant’s decision-making on the payment of subsidies and infringed the State’s financial interest.

Therefore, the disposition of this case based on misunderstanding of facts is illegal by deviating from and abusing discretionary power.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Article 20(1) of the Vocational Skills Development Act provides that a business owner who conducts workplace skill development training may subsidize expenses incurred by the Minister of Employment and Labor. Article 55(2) of the same Act provides that a business owner may restrict subsidies or loans if he/she has received subsidies by fraud or other improper means. Article 56(2) and (3) of the same Act provides that a return of the amount of subsidies received by fraud or other improper means, out of the amount of subsidies already received by the business owner, may be ordered, and the amount of subsidies not exceeding the amount of subsidies can be additionally collected. The term "any fraudulent or other improper means" as provided in the above provision refers to all fraudulent acts conducted by a business owner who is not generally entitled to receive, pretends to be paid, or is ineligible to receive training costs (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

Meanwhile, Article 20(1) and (3) of the Vocational Skills Development Act and Article 19(3) of the Enforcement Decree of the same Act provide that the Minister of Employment and Labor may subsidize expenses incurred in conducting workplace skill development training (including cases where workplace skill development training is conducted on commission) by employers who conduct workplace skill development training. Article 41(4) of the Enforcement Decree of the Employment Insurance Act provides that the scope of subsidies, etc. for workplace skill development training expenses, etc., the upper limit of subsidies and support procedures, and other matters necessary for support shall be determined by Ordinance of the Ministry of Employment and Labor. Article 60(1) of the Enforcement Rule of the Employment Insurance Act delegated by the above provision provides that the amount equivalent to part of training expenses, etc. subsidized under Article 41 of the Enforcement Decree of the Employment Insurance Act shall be based on the amount calculated according to the support criteria determined and publicly notified by the Minister of Employment and Labor

According to the above provision, the former Regulations on Assistance in the Development of Vocational Skills (amended by the Ministry of Employment and Labor No. 2011-73, Dec. 30, 201; hereinafter referred to as the "Rules on Assistance in the Development of Vocational Skills") for business owners who determine and publicly notify the standards for subsidization of training expenses, etc. pursuant to the above provision provides that Article 4 shall apply to the requirements for recognition of vocational skills development training courses in Article 5, and Article 5 shall apply to the examination of the appropriateness of remote training courses, etc., and Article 11 (1) shall apply to the case where a business owner conducts distance training on behalf of employed workers, etc. by entrusting them to the Internet training for each evaluation grade under Article 5 (2) (attached Table 4) within the scope of the amount obtained by multiplying the relevant training course by the number of trainees who completed the relevant training course. In light of the above provisions, the subsidy for the training course in this case as well as the subsidy for the training is also subject to examination and operation.

As such, a business owner is entitled to receive some of the training costs paid only when he/she satisfies the standard of completion after undergoing a certified internet distance training. As such, if a business owner applies for the subsidization of training costs by stating that he/she has completed the training, even though he/she paid a less than the amount of the designated training costs, he/she shall be deemed to be eligible for the payment of the full amount of the designated training costs, as if he/she were

(ii) the facts of recognition

The following facts can be acknowledged in full view of the aforementioned evidence as stated in the evidence Nos. 9 through 13 and the purport of the whole pleadings. The only of the evidence Nos. 1 and 2 is insufficient to reverse the above recognition.

(1) D provided workplace skill development training services to employers who subscribed to employment insurance by means of distance training on the Internet, and provided employers with the amount of subsidies from the Employment Insurance Fund for workplace skill development training compared to the expenses of workplace skill development training by employers, which are less than the cost of workplace skill development training and attempted not to receive workplace skill training.

② Accordingly, G, director H, president of I branch, etc., who is D representative director, obtained a certain amount of money in the way of ‘pre-paid assistance', ‘pre-paid payment', ‘repaid refund', and ‘pro rata’, which would result in the employer’s payment of only the amount of money to be received in the future from the Ministry of Employment and Labor as educational expenses, since the employer can obtain higher points in the part of education and training for employees when conducting workplace skill development training by means of Internet remote training.

D around March 23, 2011, between the Plaintiff and the Plaintiff, entered into a contract for the entrusted education of KRW 1,400,000 for the total education expenses for seven trainees with respect to the instant training course, and on March 23, 2011, paid KRW 1,400,000 to the Plaintiff on March 23, 201, and repaid KRW 91,400 among the Plaintiff around March 24, 201.

④ Nevertheless, D issued the instant tax invoice to the Plaintiff on March 30, 201, stating that it was paid KRW 1,400,000 for the instant training course as total education expenses. On June 9, 2011, the Plaintiff, based on the instant tax invoice, requested KRW 349,000 for subsidies for the business owner’s vocational skills development training expenses, and received KRW 349,000 from the Defendant on June 17, 201.

⑤ G, H, and J were indicted for committing the crime of fraud by the aforementioned act. G from the Gwangju District Court (2015Dadan2149) to March 24, 2016, G was sentenced to one year and two months of imprisonment, two years of suspended execution in August, and two years of suspended execution in June, and the J was sentenced to two years of suspended execution. G, H and prosecutor appealed, and currently pending in the appellate court (Seoul District Court 2016No1014).

3) Determination on the instant case

Based on the aforementioned legal principles, the following circumstances are revealed by the purport of the entire argument and facts, namely, ① the Plaintiff did not receive refund of KRW 911,400 out of the total education expenses 1,400,000 paid from D with respect to the instant training course; ② the Plaintiff appealed the first instance judgment against J related to the Plaintiff (which only was the prosecutor), ② the Plaintiff paid KRW 91,400 out of the total education expenses 1,400,000 to D and actually paid KRW 488,60,000, but the Plaintiff applied for subsidies to the Defendant, along with the tax invoice of this case to the effect that the Plaintiff paid KRW 1,40,000 for the instant training course with KRW 50,000,000 for the total education expenses of KRW 1,50,000 for the instant training course, ③ the Plaintiff did not notify the Plaintiff of the fact that the Plaintiff did not actually paid the training expenses of KRW 20 for each person, as stated in the application for the instant training expenses.

It cannot be said that there is an error of deviation or abuse of discretion due to mistake of facts, etc. in the disposition of this case.

Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.