Modern Information Technology Co., Ltd. (Attorney Gyeong-sik, Counsel for defendant-appellant)

The Head of the Central Regional Employment and Labor Office;

Suwon District Court Decision 2010Guhap3986 Decided August 19, 2010

January 26, 2011

1.The judgment of the first instance shall be modified as follows:

A. We dismiss the lawsuit concerning the revocation claim for revocation of a disposition No. 5 stated in the attached list of administrative dispositions.

B. On February 22, 2010, the Defendant’s disposition of restriction on consignment for three months among the disposition No. 1 stated in the “content of Disposition” in the attached Table No. 1 as to the Plaintiff on February 2, 2010, and the disposition of restriction on consignment for one year and three months regarding the pertinent training course among the disposition No. 2

C. The remaining claims of the plaintiff are dismissed.

2. Of the total litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. Purport of claim

Each disposition indicated in the “content of Disposition” list of the administrative disposition attached to the Plaintiff, which the Defendant rendered on February 22, 2010, shall be revoked.

2. Purport of appeal

A. The plaintiff: the part against the plaintiff among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revoked part is accepted.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

1. Details of disposition;

A. On March 2007, the Plaintiff entered into a contract on the entrustment of vocational training with the Defendant and the unemployed. The Plaintiff, in the “training courses” recorded in the attached administrative disposition, was absent from the training course for the period from October 4, 2007 to December 12, 2007 (except Saturdays and Sundays on June 7 of the same month), but the trainee was absent from the training course for the period from October 4, 2007 to June 12 of the same month, and was treated as having been present by holding the vocational training ticket and having the trainee attend the training course on his behalf

B. On February 22, 2010, the Defendant rendered the following administrative dispositions, etc. to the Plaintiff (as stated in the “content of Disposition” in the list of administrative dispositions in the attached Form, and the relevant applicable statutes are the same as stated in the relevant Acts and subordinate statutes; hereinafter “Disposition 1 through 5”).

(1) Termination of a contract and restriction on entrustment of three months: Article 16 (2) 2 and (3) of the former Act on the Development of Workplace Skills of Workers, and Article 6 (3) [Attachment Table 1] b of the Enforcement Rule thereof

(2) Restrictions on entrustment of one year and three months for termination of a contract and the relevant training course: Article 16(2)2, 3, and (3) of the former Act on the Development of Workplace Skills of Workers; Article 6(3) [Attachment 1] [Attachment 1] 1. b. 3] (c) of the Enforcement Rule thereof.

(3) Restrictions on the payment for one year vocational skills development projects, and refunds of expenses for vocational skills development training paid to employers who have already been paid due to such restrictions: Article 35 of the former Employment Insurance Act and Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act.

(4) Return of illegally received amount of KRW 1,093,480 and additional collection of KRW 1,093,480: Article 16 (5) and (6) of the former Act on the Development of Workplace Skills of Workers

(5) An expected revocation of designation of a designated occupational training establishment as a disposition of restrictions on commission: Main sentence of Article 31 (1) 3 of the former Act on the Development

【Ground for Recognition: Evidence Nos. 1, 2, and 3 (including each number), the whole purport of the pleading

2. Whether the request for revocation of a disposition No. 5 is legitimate;

ex officio deemed.

According to the Disposition No. 1-1 of this case (Evidence No. 1-1 of this case), the defendant, while taking an administrative disposition against the plaintiff, added a number to the Disposition No. 1 through No. 4 in the order of disposition, but without attaching a number to the Disposition No. 5, "*, the restriction on entrustment of which has become final and conclusive, was entered as "the scheduled cancellation of the designated vocational training facility".

The disposition No. 5 is merely the content that the defendant would revoke the training facility in the event that the disposition of restrictions on commission is finalized, and it is not an administrative disposition because it does not directly change the legal status of the plaintiff or other related persons.

A claim for revocation of a disposition No. 5 is unlawful.

3. Whether a disposition for termination of a contract is legitimate among dispositions referred to in subparagraphs 1 and 2;

(a) Relevant statutes;

The entries in the attached Table-related statutes are as follows.

B. Whether administrative dispositions are taken

1) At the time of the instant disposition, the Defendant indicated the title of “the notification of an administrative disposition against the violation of the Workers’ Vocational Skills Development Act, etc.” on the ground of Article 16 of the former Act on the Development of Workplace Skills of Workers, and stated that “an administrative disposition should be known to him/her,” with respect to the violation of the Act,” and stated the content of the disposition in Articles 1 and 2, 1, 1, and 2, with regard to the termination of the contract and the return of money, and stated other dispositions, such as restrictions on entrustment, etc., along with the return of money, the Defendant was able to file an administrative suit against the disposition under the first (Article 1, 1, and 1, and

2) An administrative disposition, which is subject to an appeal litigation, refers to an act by an administrative agency in an ancient status, which is an act under public law and directly related to the rights and obligations of citizens, such as ordering the establishment of rights or obligations pursuant to laws and regulations or giving rise to other legal effects with respect to a specific matter, not an administrative disposition that is subject to appeal litigation.

After the conclusion of the contract, there may also be cases where the administrative agency cannot be deemed a public act in a high-ranking position after the termination of the contract. However, in light of the following, the termination of the contract of this case seems to be one of the sanctions imposed on the plaintiff by the defendant, who is an administrative agency, as the authority given to the administrative agency by law, on the ground that the plaintiff violated the contract terms, such as the plaintiff's non-performance of contractual obligations, etc., and thus, it appears to be an administrative disposition. This is true in light of the fact that the termination

① Article 16(1)1 and 2 of the former Act on the Development of Workplace Skills of Workers provides that an entrustment contract shall be terminated or terminated to a person who is entrusted with workplace skill development training in certain cases. Article 16(3) and (5) of the former Act on the Development of Workplace Skills of Workers does not recognize the workplace skill development training course for a person whose entrustment contract is terminated, and may order the refund of subsidies and the collection

② Article 13(4) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers provides for corrective measures, termination of consignment contracts, restriction on consignment, and restriction on taking courses, and Article 6 [Attachment Table 1] of the former Enforcement Rule of the Act on the Development of Workplace Skills of Workers provides for measures such as termination of consignment contracts. Article 6 [Attachment Table 1] of the former Enforcement Rule of the Act on the Development of Workplace Skills of Workers provides for termination of contracts as one of the “content of disposition,” and [Attachment Table 1] (b) provides for both termination of contracts and restriction on consignment

③ On February 22, 2010, the Defendant’s instant disposition on February 22, 2010, when the contract term expires, is for limiting consignment and returning and collecting training expenses, etc., both concurrently and concurrently imposed upon the termination of the contract (the Defendant, under the title of the notification of administrative disposition, notified that it was possible for the Defendant to file an appeal suit against the administrative disposition, and that the restriction on consignment is naturally concurrently and concurrently imposed upon the termination of the contract, is also desirable for the remedy of rights

C. Whether the disposition is lawful

1) Facts of recognition

A) On March 2007, the Plaintiff entered into an entrustment contract for vocational training of the unemployed on the training courses listed in the attached list of administrative dispositions based on the provision on vocational training between the Defendant and the unemployed (hereinafter “training provision”). According to the entrustment contract, “B (Plaintiff; hereinafter the same shall apply)” (Article 1(2) and “B” (the Defendant; hereinafter the same shall apply) shall comply with training regulations and shall guide and supervise the trainee so that the trainee does not escape (Article 1(2)), and “B (Article 4),” and “B (Article 4(4)) shall pay training fees to a person who is not eligible for training allowances due to wrongful attendance verification, etc. (Article 4), and “B shall refund the relevant amount to A (Article 8), and “B” shall accurately check and manage the status of trainees present (Article 8). In the event that “B violates the training regulations, measures under Article 36 of the Training Regulations may be taken (Article 9 subparag. 1). 1).

B) Meanwhile, Article 30(2) of the Training Regulations provides that where a trainee fails to undergo training by marriage, he/she shall be deemed to have received training by recognizing seven days of his/her attendance. Article 31(1)5 and (3) of the Training Regulations provides that where a trainee attends training by entrusting another trainee with a vocational training ticket, he/she shall be excluded from the training subject, and the training institution shall provide that the trainee who requested the training shall be informed at the time of his/her enrollment. Article 4-8(2) and (3) of the Operational Guidelines of the Vocational Training Table provides that the training institution shall provide that the training institution shall provide that the trainee shall be informed of his/her failure to attend the training, early retirement, or early absence, and that the training institution shall take ex officio measures to ensure that the trainee and the trainee who requested the attendance by proxy attend the training, and that the training institution shall be informed of the details of the above measures, such as giving notice to him/her, and that the training institution shall be informed of his/her failure to undergo the training.

C) Nonparty 1 was staying in Japan from October 3, 2007 to October 13, 2007, and married with Japan on October 5, 2007. Nonparty 1 did not appear for seven days from October 4, 2007 to October 12, 2007 (excluding Saturdays and Sundays). The Plaintiff, despite being aware of Nonparty 1’s departure, dealt with Nonparty 1’s departure by holding a vocational training ticket and having Nonparty 1 attend as his agent, and did not have been present due to marriage on the ex officio admission history management register. Nonparty 1 was present on October 15, 2007 (by day, October 13, 14) and did not complete the training course thereafter.

【Ground for Recognition: Facts without dispute, Gap evidence 4, Eul evidence 1, 2, Eul evidence 2, non-party 2 witness of the first instance court, the whole purport of the pleading

2) Whether “the case of receiving training costs by false or other unlawful means” is “the case of receiving training costs”

Even if a trainee is married, he/she may lawfully enter the register of ex officio admission in accordance with the training rules, the Plaintiff may be allowed to attend a training course and confirmed his/her attendance differently from the fact, and was paid training expenses based thereon. Training expenses are paid according to whether he/she is present or not, and the accurate confirmation of withdrawal is requested, the training regulations clearly stipulate matters concerning prohibition of attendance by proxy, etc., and the matters concerning the decision management are provided to the trainee. Article 4(2) of the contract concluded with the Plaintiff and the Defendant provides that the Defendant shall pay training expenses to the “cases where he/she conducts training in accordance with the direction regulations.”

The Plaintiff confirmed his appearance differently from the fact, and the act affected the decision-making that the Defendant paid training costs to the Plaintiff. The act committed by the Plaintiff constitutes “the act of receiving training costs by false or other unlawful means.”

The Plaintiff asserts that the disposition for termination of the contract was an abuse of discretion in light of the content of the act of violation. Article 16(2)2 proviso of the former Act on the Development of Workplace Skills of Workers provides that the administrative agency should terminate the entrustment contract in cases where the Plaintiff received training expenses by fraud or other improper means. The foregoing assertion premised on the fact that the disposition for termination of the contract constitutes discretionary action is groundless.

4. Whether a disposition among dispositions Nos. 1 and 2 is legitimate, excluding termination of a contract;

A. Whether a disposition of restriction on entrustment for three months among dispositions 1 is legitimate

1) According to the statement in Gap evidence No. 2, the defendant calculated KRW 1,093,480 for training expenses paid to non-party 1 as training expenses in September 2007 and KRW 606,980 for October, 207 as training expenses paid by the plaintiff by false or other unlawful means. Based on Article 16(2)2 and (3) of the former Act on the Development of Workplace Skills of Workers, Article 6(3) [Attachment 1] b of the Enforcement Rule of the former Act, based on Article 6(2)2 and 16(2) [Attachment 1] 2] of the former Enforcement Rule, the plaintiff deemed that the expenses paid to non-party 1 for training expenses by false or other unlawful means are between KRW 1 million and KRW 5 million, and thus, the defendant imposed a restriction on entrustment for three months along with the termination

2) As seen earlier, Nonparty 1’s date of non-party 1’s illegal appearance is nothing more than seven days between October 4, 2007 and October 12, 2007. Only seven-day training costs equivalent to training costs may be recognized as costs for illegal payment (no amount of illegal payment is the amount of training costs of September 2007). According to Article 16(3) of the former Act on the Development of Workplace Skills of Workers and Article 13-2 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers, if the amount of illegal payment is less than one million won, the entrustment restriction may not be imposed.

3) The disposition imposing restrictions on consignment for three months, deeming that the Plaintiff’s illegal receipt amount exceeds one million won, is unlawful.

(b) Disposition on restrictions on entrustment for one year and three months for the relevant training courses among dispositions referred to in subparagraph 2;

The Defendant deemed that the Plaintiff’s act constitutes a overlap with Article 16(2)2 and 3 of the former Workers’ Vocational Skills Development Act, and thus, imposed a restriction on consignment for one year and three months on the relevant training course.

Article 16 (2) 3 and (3) of the former Act on the Development of Workplace Skills of Workers, Article 6 (3) [Attachment Table 1] of the Enforcement Rule thereof, Article 6 (3) [Attachment Table 1] 1. b. 3] (1) of the former Enforcement Rule provides that where training personnel are manipulatedd or managed by fraudulent or other illegal means in connection with the management of trainees, the restriction on entrustment of the relevant training courses may be imposed between one year and one year for the relevant training courses, and there is no provision that the restriction on entrustment of the relevant training courses may be imposed on the ground that training expenses are unlawfully received (Article 16 (2) 3 of the Act, and Article 16 (2) 2 of the Act provides that "where training expenses are received or intended to receive them by fraudulent or other illegal means, the restriction on entrustment may be imposed on the relevant training courses, and as a matter of course, the restriction on entrustment of the relevant training courses may not be applied to the plaintiff's entrustment of the relevant training courses for less than one year and 16 (2).

This part of the disposition is unlawful.

(A) In light of the aforementioned circumstances, it is reasonable to view that the Plaintiff’s restriction on consignment pursuant to Article 1(1) of the former Enforcement Rule of the Act on the Development of Workplace Skills of Workers on January 1, 2008, when there is no intention or gross negligence, or when the degree of violation is insignificant, it is possible to take measures to reduce the restriction on consignment by up to 1/2 of the individual standards. Although the Plaintiff violated the consignment contract as it was impossible for the Plaintiff to properly manage the entry, and thereby, constitutes a case where the number of trainees was fabricated or out-of-the-job management was conducted by fraud or other wrongful means, but Nonparty 1 was absent for marriage for seven days, and the marriage leave was possible, there is room to regard the case as minor. However, it is difficult to view that the Plaintiff did not have any prior control or detection of the above acts with respect to one person, and thus, there is a reason to reduce the restriction on consignment. In such cases, it is reasonable to deem that the Defendant’s restriction on consignment of the relevant training course to be too mitigated within one year.

5. Whether the third disposition is lawful.

A. Based on Article 35(1) of the former Employment Insurance Act and Article 56 of the Enforcement Decree of the same Act, the Defendant issued a disposition that orders the Plaintiff to restrict the payment between one year for the vocational ability development project and to refund KRW 127,716,260 for the vocational ability development expenses already paid during that period (Evidence 1-3 of the Evidence A).

B. According to Article 35(1) of the former Employment Insurance Act, the Minister of Labor provides that a person who has received or intends to receive support for employment security and vocational skills development programs under Chapter III of the Employment Insurance Act by fraud or other improper means shall restrict such support as prescribed by Presidential Decree, and return the amount of support received by other improper means. Article 27 of the former Employment Insurance Act provides that the Minister of Labor may, as prescribed by Presidential Decree, provide that an employer who conducts vocational skills development training prescribed by Presidential Decree in order to develop and improve the vocational ability of the insured, etc.

Here, a person who has received support for employment security and vocational skills development programs refers only to a business owner or local government who implements a project for employment security or vocational skills development program prescribed in Chapter 3 of the same Act, and there is no room for a training institution entrusted by the State or local government as the plaintiff

Since the Plaintiff’s act was paid training expenses by false or other unlawful means while training trainees according to an entrustment contract concluded pursuant to the former Act on the Development of Workplace Skills of Workers, it does not receive training expenses paid to employers pursuant to Article 27 of the former Employment Insurance Act.

This part of the disposition is unlawful.

6. Whether a disposition 4 is lawful.

A. Whether a disposition to return the illegally received amount is lawful

1) According to Article 16(5) of the former Act on the Development of Workplace Skills of Workers, the State or a local government may order a person whose entrustment contract is terminated pursuant to Article 16(2) to return all or part of the amount already paid or subsidized. In such cases, the amount that can be ordered to be returned shall be deemed as a violation that constitutes the ground for termination of the entrustment contract

2) The Defendant deemed the amount of the Plaintiff’s illegal receipt as KRW 1,093,480 and ordered the return thereof. However, as seen earlier, the amount of the illegal receipt to Nonparty 1 is merely the amount corresponding to seven days. The disposition to return the amount of the illegal receipt to Nonparty 1 is an administrative agency’s discretion to revoke the disposition (in addition, there is no document to determine the amount corresponding to seven days, and the determination of the amount is an administrative agency’s discretion. The amount of the illegal receipt is a small amount and the amount to be considered for the Plaintiff’s act

B. Whether the additional collection disposition is legitimate

1) Under the latter part of Article 16(6) of the former Act on the Development of Workplace Skills of Workers, the State or a local government may additionally collect the amount subsidized by false or other unlawful means in accordance with the standards prescribed by Ordinance of the Ministry of Labor when ordering a return pursuant to paragraph (5). Accordingly, according to Article 13-2 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers, and Article 6(1) of the former Enforcement Rule of the Act on the Development of Workplace Skills of Workers, where the amount already received by false or other unlawful means out of the amount already received by the Plaintiff is less than one million won, the Minister of Labor shall additionally collect the amount equivalent to three or five times according to the number of offenses committed before the date of detection of the past violation within the extent not exceeding five times the amount.

2) The Defendant deemed the amount of the Plaintiff’s illegal receipt as KRW 1,093,480 and ordered the return thereof. However, as seen earlier, the amount of the illegal receipt to Nonparty 1 is merely the amount corresponding to seven days. The additional collection disposition should be revoked due to its illegality (in addition, there is no data to determine the amount corresponding to seven days, and the additional collection disposition is a discretionary act, and the administrative agency should take into account the number of past violations, etc., and the relevant administrative agency should not revoke part

7. Conclusion

A lawsuit for the revocation of a disposition shall be dismissed, among dispositions 1 and 2, a disposition for restrictions on entrustment, a disposition for restrictions on entrustment of the relevant training course, and a disposition for restriction on entrustment of the relevant training course shall be revoked, and the remaining claims shall be dismissed

The judgment of the first instance court is unfair in conclusion with different conclusions. Thus, the decision of the first instance court is accepted in parts of both appeals and it is modified as such.

[Attachment Form 5]

Judges Kim Jong-dae (Presiding Judge)