(영문) 서울고등법원 2019.7.19. 선고 2018누72927 판결

The judgment of the first instance is revoked. The Defendant’s disposition of return of KRW 2240,000 against the Plaintiff on October 31, 2016 and additional collection of KRW 2240,000 shall be revoked.

Reasons

1. Details of the disposition;

The court's explanation on this part is identical to the statement on the grounds of the judgment of the court of first instance No. 2, No. 3, No. 20, No. 3, and No. 420, respectively. Thus, this part of the judgment is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420

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

A. The plaintiff's assertion

1) First argument

Although the Plaintiff did not compete with the representative of the training institution, the Defendant notified the Plaintiff that “the Plaintiff recruited with the training institution.” Therefore, the Defendant violated the duty to present the reasons for the disposition based on erroneous facts under Article 23 of the Administrative Procedures Act, and thus, each of the dispositions of this case is unlawful.

2) Second argument

The Plaintiff made efforts in advance, such as adjusting working hours so that infant care teachers may attend the training instead of training. In addition, the Plaintiff confirmed that infant care teachers had teaching materials and tools produced in the training, and confirmed the attendance at the training course at a normal time with the above teaching materials, and subsequently, shared the law to make the above teaching materials through Ttata, etc. Furthermore, the Plaintiff confirmed the completion of training sent by the training institution, and confirmed the curriculum and amount of the training courses, and paid the training fees by using a child care center card. The Plaintiff issued a receipt after paying the training fees with the card, and issued the Plaintiff’s child care center with the fact that the training institution assisted the Plaintiff’s child care center to apply for the training expenses, it cannot be readily concluded that the Plaintiff did not confirm that there was any reason for the Plaintiff to apply for the training expenses on behalf of the training institution. Furthermore, the Plaintiff’s obligation to apply for the training fees cannot be seen as unlawful since it was found that there was no reason for the Plaintiff to apply for the training program to be unlawful prior to the Plaintiff’s performance of the training.

3) The third argument

The Defendant issued each of the instant dispositions on the premise that the Plaintiff recruited with the training institution without sufficient verification of facts. In addition, as the Ministry of Employment and Labor and the Korea Industrial Manpower Agency, which is a supervisory institution, has an effect on the occurrence of the instant dispositions, such as insufficient administrative inspection, etc., the Defendant’s gross mistakes should be taken into account in each of the instant dispositions. The instant case is a case where the Plaintiff was unaware of the fact that the training institution had failed to meet the requirements for training expenses, and thus, there is a justifiable reason that could not be any misunderstanding of the obligation of the offender. Accordingly, the Defendant’s deviation or abuse of discretionary authority, and thus, each of the instant dispositions is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the first argument

When an administrative agency takes a disposition, it shall, in principle, present the basis and reasons for the disposition to the party concerned (Article 23(1) of the Administrative Procedures Act). In such cases, the administrative agency shall clearly state the facts causing the disposition and the relevant statutes or municipal ordinances and rules (Article 14-2 of the Enforcement Decree of the Administrative Procedures Act): Provided, That in light of the administrative agency’s arbitrary decision-making and the basis and purpose of the administrative remedy system allowing the party concerned to properly cope with the administrative remedy procedure, the disposition shall not be deemed unlawful even if the grounds and reasons for the disposition were not specified in the disposition, unless it specifically states the grounds and reasons for the disposition to the extent that the party concerned can be aware of (see, e.g., Supreme Court Decision 2016Du64975, Jan. 31, 2019).

According to the purport of the evidence Nos. 9 and 10 of Eul and the whole arguments, the defendant stated C Child Care Center as "the fact that it is the cause of the administrative disposition (Evidence No. 9) while notifying C Child Care Center of the prior notice of administrative disposition and the submission of opinions," which is the cause of the disposition (Evidence No. 9) and stated as "the payment of training costs is made in an unlawful manner for trainees who have completed training by failing to participate in training and less than 80% and failed to meet the standards for completion," and stated as "the payment of training costs is made in an unlawful manner," and the legal basis and contents thereof, Article 5 (2) of the Act on the Development of Workplace Skills of Workers and Article 22 [Attachment No. 6-2] of the Enforcement Rule of the same Act, Article 56 of the Act on the Development of Workplace Skills of Workers, and Article 22-2 of the Enforcement Rule of the same Act as "the defendant, on October 31, 2016, was found to have violated each of this case 10%.

In full view of the above facts, since the defendant recognized that he did not take each of the dispositions of this case on the basis of the facts constituting the grounds for the dispositions stated in the prior notice, it should be deemed that there was no particular obstacle to the plaintiff's objection to the procedure of administrative remedy because he could sufficiently know the grounds for the dispositions of this case in itself.

As to this, the Plaintiff asserts to the effect that, although the Plaintiff and the training institution did not publicly recruited, the Defendant notified the Plaintiff of the grounds for the disposition different from the fact at the time of notifying the Plaintiff of the illegal receipt of the voluntary report, it did not properly perform the obligation to present the reason. However, the guidance on illegal receipt of the voluntary report does not constitute the prior notification on each of the dispositions of this case. Even if the above guidance on voluntary report is deemed to have the same nature as prior notification, the Defendant stated in the above voluntary report as follows: “In accordance with the investigation report, it is confirmed that the Plaintiff and the affiliated infant care teacher who returned to the Plaintiff did not participate in the training or did not complete the training for at least 80%, it is confirmed that the Plaintiff was subsidized with the completion of the training standard and was paid training expenses in an unlawful manner, and thus, each of the dispositions of this case is still based on the failure to participate in the training and failure to meet the training

Therefore, this part of the plaintiff's assertion is without merit.

2) Determination as to the second argument

A) The reasoning of the judgment on this part is as follows, and the part of the judgment on whether the Plaintiff’s infant care teacher was present at less than 80% is as to whether the Plaintiff’s attendance at a training course of less than 80%, i.e., 9 to 5, 14 (including the table below 14), i., e., 4, 14 (including the table below 14), i.e., 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

○, No. 4 of the first instance judgment, No. 9 of the 1st instance judgment, “Evidence No. 16-1 through No. 4” is added next to “Evidence No. 16-1.

G, which took place on the 5th to 6th of the first instance judgment, stated to the effect that “D is subject to lectures due to the difference of hours from each infant care teacher,” and that “If there are five or more infant care teachers, more than two or more teachers are placed at the end of each week, and more than two or more infant care teachers were placed at the end of each week,” or that “where there are more than two students are present at each time, more than 7-8 students were unable to properly give lectures due to their absence of attendance at the lecture, and most of them were not present at the bar.”

D) He also stated to the effect that “I put the lecture time table in D on the date on which I did not go through the lecture,” and that “D applied for the recognition of subjects to the Human Resources Development Service of Korea and applied for the recognition of false subjects without complying with the lecture time table that I applied for the recognition of subjects,” and that “I would like to teach 30,000 hours when I would not attend the school or the head of the child care center, and attend the school for 4 hours during the day, and that “I would like to teach 13 hours during the Saturday, and that I would like to teach 50,000 hours during the Saturday, and that I would not normally have completed the training for 80 percent or more because I would like to teach 13 hours during the Saturday.”

○ The 5th 6th 6th c) of the first instance judgment shall be read as “ma,” and the 10th c) of the same c) shall be read as “F.”

B) Whether the plaintiffs received subsidies for training costs with "any false or other fraudulent means"

Article 55 and Article 56 of the Act on the Development of Workplace Skills of Workers refers to all acts that are not correct under social norms in order to encourage a person who is not eligible to receive training costs as if he/she were qualified or to conceal an unqualified fact (see, e.g., Supreme Court Decisions 2011Du3777, Jun. 13, 2013; 201Du7175, Jun. 13, 2013; 201Du24764, Jul. 24, 2014). In addition, sanctions against administrative regulations are sanctions against a violation of administrative regulations by admitting the objective fact of violation of administrative regulations to achieve administrative purposes, and thus, are always imposed on a person who is not a real offender, but a person who is legally responsible for training, and may be imposed on a person who has committed an intentional act or a passive act that may affect the decision-making on the payment of training costs (see, e.g., Supreme Court Decision 2005Du7579, Jul. 29, 2009, 2006.

As seen earlier, it is evident that training expenses for childcare teachers belonging to C childcare centers operated by the Plaintiff are in violation of the relevant administrative laws and regulations by receiving subsidies under the circumstance that a person who is not eligible for payment by D is presumed to have been eligible for payment by D, or is concealed in the fact that the Plaintiff was found to have worked for D to apply for training expenses. As long as the Plaintiff is recognized to have worked for D, the Plaintiff may not be exempted from liability under the relevant administrative laws and regulations for training expenses received by D by fraud or other improper means, regardless of whether he/she was a person who is a legal manager, not a real offender. Accordingly, the Plaintiff’s assertion on this issue cannot be accepted.

[Attachment, Article 13(4) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 25840, Dec. 9, 2014; hereinafter “former Enforcement Decree of the Act”) provides that “The specific criteria for requesting the correction of workplace skill development training under Article 16(2) and (3) shall be prescribed by Ordinance of the Ministry of Employment and Labor in consideration of whether the person who has entrusted workplace skill development training had intention or gross negligence, the degree and frequency of the violation, etc.” Article 16(2) of the Act provides that “The Commission shall be determined by Ordinance of the Ministry of Employment and Labor,” and Article 50 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 25840, Dec. 9, 2014; hereinafter referred to as “former Enforcement Decree of the Act”) provides that “The amount of money determined by Presidential Decree of the Act on the Development of Workplace Skills of Workers to be additionally collected is one million won.”

Article 13(4) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers is a provision on whether to terminate an entrustment contract where the State or a local government concludes an entrustment contract in conducting workplace skill development training, whereas Article 50 of the Enforcement Decree of the same Act and Article 22-2 of the Enforcement Rule of the same Enforcement Rule provide for the return of illegal receipt and additional collection, and accordingly, the purpose, character, and the offender of the relevant sanctions are different. The provisions of the Enforcement Decree and the Enforcement Rule of the same Act concerning the return of illegal receipt and additional collection do not separately stipulate that “whether there is any intention or gross negligence” should be considered in interpreting “any false or other unlawful means.” Therefore, the decision of the court of first instance (the decision of the court of first instance

C) Sub-determination

Therefore, this part of the plaintiff's assertion is without merit.

3) In full view of the following circumstances acknowledged by the respective text of the evidence Nos. 2 and 3 as well as the purport of the entire pleadings, it cannot be deemed that the Defendant’s respective disposition of this case is an unlawful act of deviating from or abusing the discretion. Accordingly, the Plaintiff’s assertion on this part is without merit.

① In addition to the fact that an investigation into a training institution of the Indones Police Station was conducted around October 2014, and that the Defendant sent a voluntary report on the illegal receipt of demand and supply of materials after around April 22, 2016, the Defendant was subject to each of the dispositions of this case according to the notification of investigation results by the Incheon Bupyeong Police Station, and the Defendant did not take each of the dispositions of this case without sufficient confirmation of facts.

② Considering that the workplace skill development training system and the subsidies for training costs therefrom are basically mutually advantageous provisions, it is insufficient to deem that the Plaintiff’s performance of duty of care, circumstances, and Defendant’s negligence as a supervisory body is insufficient to consider the circumstances alone as justifiable grounds for revoking each of the dispositions of this case.

3. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal shall be dismissed as it is without merit.

Judges

presiding judge's accident management

Judges Lee Jae-won

Judges Kang Jin-han

Note tin

1) For the same reason, Supreme Court Decision 2011Du7175 Decided June 13, 2013 is inappropriate to apply to the instant case. The former Vocational Skills Development Act

56 Article 56 provides for the return of unlawful receipt and additional collection as discretionary actions, and the employer's decision is made in determining whether there is deviation or abuse of discretionary power.

"False or gross negligence", aside from the fact that it may be considered whether it is intentional or gross negligence, is a requirement for the return of the amount of unlawful receipt and additional collection.

Other improper means should be determined on the basis of whether there was an objective fact, and such consideration should be determined.

In doing so, it is difficult to secure the effectiveness of sanctions if the plaintiff's intention is required.