(영문) 서울고등법원 2019.10.24. 선고 2019누36515 판결

1. Of the judgment of the court of first instance, the part against the Plaintiff regarding the original payment order issued by the Defendant against the Plaintiff on September 12, 2016 and the claim for revocation of the disposition of additional collection disposition of KRW 1980,000,000,000,000

2. The Defendant’s order to pay KRW 1.98 million against the Plaintiff on September 12, 2016 and the disposition to additionally collect KRW 1.98 million against the Plaintiff shall be revoked.

3. 70% of the total litigation cost shall be borne by the Defendant, and 30% by the Plaintiff, respectively.

Purport of claim and appeal

1. Purport of claim

The Defendant’s order to pay KRW 1980,00 to the Plaintiff on September 12, 2016, disposition to additionally collect KRW 1980,000,000, and disposition to restrict loans for 330 days, respectively, shall be revoked.

2. Purport of appeal

As stated in the disposition Nos. 1 and 2 of this Decree (as stated in the original purport of the claim, the plaintiff filed a claim against the plaintiff on September 12, 2016 that "the revocation of the restriction on the grant of subsidies and loans for 330 days" against the plaintiff, but the court of first instance dismissed the above claim, and the plaintiff also filed an appeal against the part against the above claim, but then dismissed the appeal. Accordingly, the part against the plaintiff in the judgment of the court of first instance against the above claim is excluded from the scope of the judgment of this court, and only the remaining claims belong to the subject of the judgment of this

Reasons

1. Details of the disposition;

The reasoning for this part is as follows: (a) except that the first instance court’s judgment Nos. 3, 8, and 9 (hereinafter referred to as “each of the dispositions in this case”) provides that “an order for return of KRW 1980,000 and a disposition for additional collection of KRW 1980,000 shall be referred to as “each of the dispositions in this case” and “each of the dispositions in this case”; (b) the relevant part of the judgment in the first instance (as the second instance judgment No. 4 through No. 7 of the judgment in the first instance court), and therefore, (c) refers to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the

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

A. Summary of the plaintiff's assertion

1) The assertion on procedural illegality grounds

Since the Plaintiff did not receive prior notification under Article 21 of the Administrative Procedures Act concerning each of the dispositions of this case from the Defendant, it is unlawful as procedural defect.

2) The assertion on substantial illegal grounds

A) Although the Plaintiff’s attendance rate is less than 80%, the Defendant did not properly verify the cause of the instant disposition against the Plaintiff’s representative, etc. on the sole basis of the criminal punishment against the Plaintiff, and concluded that “the Plaintiff received subsidies for training expenses by fraud or other improper means” and issued each of the instant dispositions. Accordingly, each of the instant dispositions was erroneous in matters of law.

B) The Defendant did not intend to receive subsidies for training costs to the Plaintiff, and thus, the instant disposition is unlawful.

C) The Defendant’s act of making the Plaintiff’s failure to comply with the request for submission of a written investigation, voluntary report, and statement of opinion without confirming individual facts against the Plaintiff is unlawful as the ground or motive for the instant disposition.

D) According to the Ministry of Employment and Labor’s disposition standards, which are discretionary rules, the disposition of this case was not taken when the defendant was subject to the disposition that was against the above disposition standards, and thus, the disposition of this case against the above disposition standards is unlawful.

E) On the other hand, the Defendant did not decide to additionally collect additional dues from the business owners who reported, but did not recognize the grounds for disposition and did not report to the Plaintiff on the ground that they failed to perform their voluntary report was unfair discrimination, and there was no intention to receive training expenses subsidies. Therefore, the instant disposition is unlawful by going against the principle of equity or by abusing and abusing discretion.

B. Determination as to the assertion of procedural illegality

According to Article 21(1) and (4) of the Administrative Procedures Act, in cases where an administrative agency imposes an obligation on a party or imposes a disposition restricting his/her rights and interests, it shall notify the party of the facts and details of the disposition, legal grounds therefor, and the method of processing in cases of failure to present his/her opinion, and the nature of the relevant disposition.

In cases where a reasonable ground exists to deem that hearing of opinions is considerably difficult or clearly unnecessary, etc., a disposition may not be subject to prior notice of a disposition. Therefore, unless an administrative agency did not give such prior notice to the relevant party while rendering an infringing administrative disposition, such disposition may not be subject to revocation due to its illegality, unless it falls under exceptional cases where no prior notice is given to the relevant party (see, e.g., Supreme Court Decision 2011Du30687, Jan. 16, 2013).

According to the statements in the Evidence Nos. 11 and 25 and 26, the defendant sent a prior notice of disposition (notice of presentation of opinions) to "Mayang-gu, U.S. B apartment C" at the plaintiff's domicile, which includes the facts of the cause for each disposition of this case and the legal basis for the disposition of this case, the purport that submission of opinions can be made, and the method of disposal when failing to submit opinions, etc., on August 30, 2016. On August 31, 2016, the defendant sent a prior notice of submission of opinions to "Mayang-gu, U.S., B apartment C" at the plaintiff's domicile. On September 2, 2016, Article 31 of the Postal Service Act provides that "H's delivery of mail to a place other than delivery to the plaintiff (the same shall not apply where the mail is delivered to a place indicated on the surface thereof, and Article 30 of the Enforcement Decree of the Postal Service Act provides that "the delivery to a place other than delivery to the beneficiary" (the address).

However, there is no evidence to acknowledge that the Plaintiff reported the transfer of residence to the delivering post office or claimed the transfer of residence to a place other than the place indicated on the surface of mail (i.e., the Plaintiff is recognized as not having applied for the transfer of residence to the Goyangsan post office, which is the delivering office, up to now according to the written evidence No. 30). Furthermore, there is no evidence to support that the “H” who received the above prior notice of disposition is the Plaintiff’s workplace club fee or otherwise is a person with legitimate right to receive under Articles 42 and 43 of the Enforcement Decree of the Postal Service Act. Thus, it is difficult to view that the above prior notice of disposition sent by the Defendant was lawful and effective to the Plaintiff, and there is no other evidence to support that the Defendant gave the Plaintiff notice under Article 21 of the Administrative Procedures Act regarding each of the dispositions of this case. Ultimately, each of the dispositions of this case is unlawful.

3. Conclusion

Therefore, even if the plaintiff's argument on the remaining substantive illegal grounds is not examined, each of the dispositions of this case cannot be exempted from the revocation. Thus, the plaintiff's claim will be accepted for the reasons.

Of the judgment of the first instance court, the part against the Plaintiff regarding the claim of this case seeking revocation of each of the dispositions of this case is unfair in conclusion, and thus, the Plaintiff’s appeal is cited.