(영문) 서울행정법원 2018.11.28. 선고 2017구단73443 판결

A. Both the plaintiffs (hereinafter referred to as "the plaintiffs' labeling") are companies engaged in taxi passenger vehicle transport business, and as shown in the attached table (hereinafter referred to as "mark") between E or F Co., Ltd. (hereinafter referred to as "G") which are companies recognized as workers' workplace skill development training courses, the "training personnel" among the workers belonging to the plaintiffs is a mail remote order for the number of workers. The plaintiffs dissatisfied with this order and filed the lawsuit in this Court on September 28, 2017. Further, the plaintiffs A, C, and D filed an administrative appeal with the Central Administrative Appeals Commission on September 29, 2017, which is the date following the date of filing the lawsuit, and the claims by plaintiffs C and D were dismissed on February 23, 2018, and their respective claims were dismissed on June 5, 2018.

【Ground of recognition】 The fact that there exists no dispute, Gap 1 through 12, Eul 1 through 32, Eul 1 through 22, Eul 1 through 22, Eul 1 through 22, the purport of the whole pleadings, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) The trainees of the instant case were most old and difficult to study using computers and prepare answers, and were provided with help from G employees on street, etc., and completed the instant training and met the completion standards. As such, the Plaintiffs cannot be deemed to have received subsidies by fraud or other improper means (non-existence of grounds for disposition).

2) In light of the fact that there was no contestation between the plaintiffs and the G, or there was no participation in the crime of fraud, and that there was no benefit in relation to subsidies by the Korea Industrial Manpower Agency as training fees, and that the instant training was conducted by the 'entrusted education’ method, the plaintiffs did not have a duty to manage the progress of training. In light of the fact that trainees were aware of the completion of normal training, and that if trainees did not complete normal training and do not meet the completed level, the defendant is also liable for negligence of supervision, the disadvantages suffered by the relevant plaintiffs are excessive compared to the purpose of public interest to be achieved by each of the instant dispositions (violation of the principle of proportionality).

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination2

1) Determination as to the existence of grounds for disposition

A) Relevant legal principles

“False or any other fraudulent means” provided for in Articles 55(2) and 56(2) and (3) of the Vocational Skills Development Act refers to all active and passive acts that may affect a decision-making with respect to subsidization of expenses, by a person who is not eligible to receive subsidization of expenses, in general, referring to any act that is not correct by social norms in order to see as if he/she is eligible or to conceal an unqualified fact (see, e.g., Supreme Court Decision 2013Du1980, Apr. 10, 2014).

Article 20(3) of the Vocational Skills Development Act, Article 19(3) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 27393, Jul. 26, 2016); 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 former Enforcement Rule of the Employment Insurance Act provides that workplace skill development training support for business owners (before the full revision by the Ministry of Employment and Labor No. 2015-14, Dec. 31, 2015) shall be provided for the same training program by using printed materials, and that “the total number of days of training conducted by those who participated in the training shall be at least 10 days after the completion of the training (the total number of days of training).”

Therefore, if a trainee did not receive vocational skills development training conducted in a normal way through distance training, and even if the trainee failed to meet the standards for completion, and received subsidies as if the trainee met the standards for completion of training, the employer applied for subsidies that should not be actually provided. Thus, even if the trainee was unaware of the above circumstances, the employer should be deemed to fall under “the case of receiving subsidies by fraud or other improper means” under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act or “the case of receiving subsidies by fraud or other improper means” (see Supreme Court Decision 2013Du1980, supra).

In addition, in an administrative litigation to which the provisions of the Civil Procedure Act apply mutatis mutandis, the burden of proof is, in principle, allocated between the parties in accordance with the general principles of civil procedure, and in the case of an appeal litigation, the defendant who asserts the legality of the disposition is obliged to bear the burden of proof as to the legitimacy of the disposition. However, if there is a reasonable and acceptable proof of the legitimacy of a certain disposition asserted by the defendant, the disposition is justifiable, and the assertion and proof contrary thereto return to the plaintiff, who is the other party (see, e.g., Supreme Court Decision 2015Du39156, Jun

In light of the following facts that can be acknowledged by comprehensively considering the purport of the entire pleadings, the trainee of this case did not undergo training in a normal condition, and it can be sufficiently recognized that the trainee applied for subsidies to the Korea Industrial Manpower Agency as if the trainee satisfied the completion standards, and there is no counter-proof, and thus, the plaintiffs' assertion disputing the existence of the grounds for disposition is without merit.

On January 5, 2018, the prosecutor of the Seoul Central District Prosecutors' Office prosecuted H, I, and J as a crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the Seoul Central District Court of Seoul Central District Court on the following facts: (a) on the ground that he/she conspireds with inside directors H, I, and director J, the representative of G, and had G workers visit the place of business of transportation business entities without providing training teaching materials to provide trainees with a IDdy by making them use of personal information of trainees; and (b) he/she obtained a total of KRW 1,788,460,90 from the Republic of Korea by creating the appearance of trainees who met the requirements for completing a remote training course by going through the method of going through a proxy lottery and obtained the appearance of trainees at the same time as they met the requirements for completing a remote training course; and (c) obtained a subsidy granted to the Plaintiffs in the content of the above facts charged.3)

In the instant case, the Defendants led to the confession of all the facts charged, and the said court found Defendant H guilty of the facts charged on April 6, 2018 and sentenced Defendant H to four years of imprisonment, Defendant I, and the J to one year and six months of probation, respectively.

Of the judgment of the first instance court, Defendant I and the J part are confirmed as they are because both the Defendants and the prosecutor did not appeal, and Defendant H part appealed to the Seoul High Court on April 11, 2018 (No. 2018No1112), but only asserted unfair sentencing on the grounds of appeal (No. 2018No112), and was sentenced on September 20, 2018.

O G employee made a statement to the effect that he visited G of the Seoul Regional Employment and Labor Office and the investigative agency of the Seoul Regional Employment and Labor Office prior to the aforementioned indictment to the effect that he/she carried out a proxy lecture and an acting test by creating a ID with the personal information of trainees, and that he/she carried out a so-called interview training to ask questions about some of the trainees in the form of one OX problem in order to be off the image of the agent lecture and the agent exam once, and that he/she did not carry out a so-called interview training to ask questions about some of the trainees formally, and that some trainees do not have any one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - one - another

○ Around June 9, 2015, the J requested removal of the system for the prevention of Maternal Madal Madal Madal Madal Madal Madal Madal Madal Madal Madal Madal Madal Madal Madal.

O G stated that the publishing company was entrusted with the production of training materials (the traffic accident prevention note, the theory of the practice of safe driving, the practice of safe driving, and the introduction of traffic accident prevention theory), but the publishing company confirmed that there was no production of the above teaching materials in the investigation process on December 14, 2016 and December 2016.O G prepared a document stating the response method when the Ministry of Employment and Labor implements a field investigation.

○ The following circumstances have also been confirmed through the result of Lms analysis on the instant training, which can serve as a typical feature of the represented lecture and represented test:

- The training learning management system in the names of the trainees of this case (hereinafter referred to as "rogs") focuses on a specific day and specific time period. • Plaintiff A

- The time required for the evaluation of the progress stage for each trainee is less than 14-25 seconds average, and in the case of some Jindo learning, the result of all trainees is submitted only once a day. - The plaintiff B

Although the training has been conducted at the workplace of the plaintiff B, he/she is working in the name of the non-party worker and the worker who operates the taxi.

- Of the total number of logs, the average time required for learning 'the degree of dust' consisting of logs in a certain trainees' name in the same computer IP address (intern Adres) and the rate at which logs take place within 10 minutes in the name of other trainees (hereinafter referred to as 'within 10 minutes') is high as set out in the following No. 1, and the average time required for learning 'the degree of dust' in the name of a particular trainee (hereinafter referred to as 'the average time required for learning') is shorter as set out in the following No. 2.

A person shall be appointed.

• Plaintiffs C.

- The percentage of 10 minutes is higher than the sequence 1 below, and the average time required for Jindo learning is shorter as the sequence 2 below.

A person shall be appointed.

There are many cases where the name of a retired worker was entered, and the contents of the written answer for the subjective descriptive evaluation of the trainees are entirely identical or almost similar. In particular, the content of the 17 IP address submitted by the 40 trainees of the 1st training is equal or almost similar. The 1st training total is submitted from 12 IP address to 11 days, the total 91 learning records of the 2nd training are submitted from 20 IP address to 80,000 days, the total 992 learning records of the 3th training are submitted from 18 IP address, and the total 852 learning records of the 4th training are submitted from 17 IP address to 15 days. The average 16.0,224,42, 399, and 199,000.

- Cases involving multiple trainees at the same computer IP address at the same time are found in the first to fourth exercises.

- In training Nos. 2, 3, and 4, the number of trainees has been formed in the order of their names or in the reverse order.

2) Determination as to whether the principle of proportionality has been violated

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant disposition, by objectively examining the content of the offense as the ground for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances. In this case, even if the criteria for punitive administrative disposition are prescribed in the Enforcement Rule, it is nothing more than that prescribed in the administrative agency’s internal rules for handling affairs, and thus, it is not effective externally to the public or the court. Thus, the legality of the relevant disposition is determined not only by the above criteria for disposition but also by the relevant Acts and subordinate statutes. Thus, the relevant disposition cannot be deemed legitimate immediately in conformity with the criteria for disposition. However, unless the above criteria for disposition do not conform with the Constitution or laws, or unless there are reasonable grounds to believe that the application of the said criteria is considerably unreasonable in light of the content of the offense as the ground for disposition, and the relevant Acts and subordinate statutes and the purport thereof, it shall not be determined that the pre-paid disposition in accordance with the criteria has deviates from or abused discretion (see, etc.

B) In light of the following circumstances revealed through the facts acknowledged as above and the purport of the entire pleadings, it cannot be deemed that there is a significant disadvantage that the relevant Plaintiffs suffered, compared to the public interest intended to achieve by each of the dispositions of this case. The Plaintiffs’ assertion on this part is without merit.

The purpose of workplace skill development training is to contribute to the development of society and economy by facilitating and supporting the development of workplace skill development through the life of workers. The act of receiving workplace skill development training subsidies by fraudulent or other illegal means is to contribute to the stabilization of employment of workers and the improvement of social and economic status, and the improvement of the productivity of enterprises. Since the act of receiving workplace skill development training subsidies by fraudulent or other illegal means causes the insolvency of the employment insurance fund and may inflict damage on the insured who have paid the employment insurance premium in good faith, it

It is necessary for public interest to promote the employment stability of workers, improvement of social and economic status, and establishment of the Employment Insurance Fund by operating the workplace skill development training support system fairly and transparently, which is not disadvantageous to the relevant plaintiffs due to each disposition of this case.

It seems necessary to do so.

The Act on the Development of Vocational Skills stipulates that employers shall conduct workplace skill development training for workers, have many workers participate in workplace skill development training, and make efforts to create conditions for workplace skill development training by selecting workers and persons in charge of workplace skill development training (Article 4(2)). The Minister of Employment and Labor stipulates that employers who conduct workplace skill development training (including cases where workplace skill development training is conducted on commission) may provide subsidies or loans for expenses incurred in the business (Article 20(1)1). The same applies to workplace skill development training conducted in the manner of "entrusted vocational training". Accordingly, the same applies to workplace skill development training conducted by employers. Accordingly, the plaintiffs are responsible for self-verification of whether trainees meet the standards for completing workplace skill development training prior to applying for subsidies to the Human Resources Development Service of Korea.

Since the instant training was conducted on the part of the Plaintiffs’ employees at the workplace, the Plaintiffs could easily understand the training process by observing the training process or directly checking the employees. The Plaintiffs seem to have known that at least dolusium trainees failed to meet the completion standards.

Even if the plaintiffs did not receive full refund of the difference between the training fees paid by the plaintiffs to G and the subsidies paid by the Human Resources Development Service of Korea, the plaintiffs, employers, are obligated to conduct workplace skill development training for workers (Article 4(2) of the Vocational Skills Development Act). The plaintiffs' own profits by improving workers' vocational abilities through the workplace skill development training conducted as above, and the defendant only subsidized the necessary expenses. Considering these circumstances, it is difficult to assess the damages equivalent to the difference between the training fees and subsidies not refunded to the plaintiffs, on the ground that the damages equivalent to the difference between the training expenses and the subsidies not refunded to the plaintiffs have been incurred, due

○ Of the instant dispositions, the part relating to the restriction on subsidies and loans prescribed in Article 22 and attached Table 6-2 of the Enforcement Rule of the Vocational Skills Development Act, and the part additionally collected is consistent with the criteria for disposition prescribed in Article 22-2(1)2 of the same Enforcement Rule, and the aforementioned criteria are not in itself inconsistent with the Constitution or laws, or the result of the application thereof is considerably unreasonable in light of the content of the act done by the Plaintiffs and the purport of the relevant statutes.

The proviso of Article 6-2 of the Enforcement Rule of the Act on the Development of Vocational Skills (Attachment Table 6-2) provides that if there is no intention or gross negligence, or if the degree of violation is minor, a disposition to restrict loans may be taken by reducing the measure within the limit of 1/2 of the standard set by the individual standard. However, as seen earlier, the above provision is not only a discretionary reduction provision, but also a voluntary reduction provision, and as such, there is no possibility for the plaintiffs to apply the above provision to the plaintiffs.

3. Conclusion

Since the plaintiffs' claims are without merit, all of them are dismissed. It is so decided as per Disposition.

Judges

Judges Kang Jae-soo

Note tin

When training is conducted in the form of training (hereinafter referred to as "training in this case"), and some of the training is indicated.

An entrustment contract by each plaintiff shall be concluded by 'the first training', etc. by the sequences No. 1.

Then, the number of trainees who completed the "mark" among the trainees (hereinafter referred to as the "training trainees of this case") will admonish them.

Completion for the payment of subsidies for remote training (hereinafter referred to as "subsidies") in a normal manner;

Subsidies shall be granted to the Human Resources Development Service of Korea as if the criteria for completion (hereinafter referred to as the "standards for completion") are satisfied.

The subsidy was paid in the same manner as the "mark subsidy" was applied for.

B. The Defendants did not receive training from the Plaintiffs in a normal manner. The Defendants did not receive training from the instant trainees.

J. The plaintiffs failed to meet the completion standards, and they applied for subsidies to the Human Resources Development Service of Korea.

For the reason that the payment was made, as indicated in the “Disposition” column, ① the Act on the Development of Workplace Skills of Workers (1 January 2016)

27. Vocational skills, which was amended by Act No. 13902 and was enforced on July 28, 2016; hereinafter referred to as "vocational abilities");

Article 5 (2) of the Act on the Development of Workplace Skills of Workers, Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter referred to as "Act");

In accordance with Article 22 and attached Table 6-2 of the Enforcement Rule (hereinafter referred to as the "Enforcement Rule"), a loan for 360 days shall be restricted, and 2

Pursuant to Article 56 (2) of the same Act, the Plaintiffs shall order the return of the amount equivalent to the subsidies received;

(3) Article 56 (3) 2 and (5) of the same Act, and Article 22-2 (1) 2 of the Enforcement Rule of the same Act shall apply.

D. An order to additionally collect the same amount (hereinafter referred to as "each disposition of this case") .1

1) Of each of the dispositions in this case, the applicable laws and regulations regarding subsidies granted after July 27, 2016 among the dispositions in this case shall be in the sequence of dispositions in the column of disposition 1.

Article 55 (2) and (2) of the Act on the Development of Workplace Skills of Workers, which was amended by Act No. 13902 on January 27, 2016 and came into force on July 28, 2016, and Article 56 (2) and (2) of the same Act

Paragraph 2(1) and (3) of the same Act, Article 56(3)2 and (5) of the same Act, or provisions thereof shall be substantially caused by those prescribed by the Vocational Skills Development Act.

Since it is identical to the other, it shall not be indicated separately. The same shall also apply hereinafter.

2) Although the period of sanctions set forth in the disposition of support and restriction on loans to the Plaintiffs is all the same, Article 22 [Attachment Table 6-2] of the Enforcement Rule of the Vocational Skills Development Act is limited.

1.1.(a)3) Since the power of receiving a restriction on a loan is the basis of the increase of subsequent unfavorable measures, whether this part of the disposition is legitimate.

I also decide on the merits (see Supreme Court Decision 2006Du13312 delivered on January 11, 2007, etc.).

3) A: 7,616,00 won, B: 22,086,170 won, C: 22,283,160 won, D: 34,392,40 won.

4) The parts relating to each of the dispositions of this case in the sequences of crime sights (No. 21, No. 5, No. 5, No. 10) in the first instance court rulings (No. 21, No. 5, No. 10) are