2011Guhap36746 Revocation of revocation of the decision to recover vocational ability development training costs

A Stock Company

The Head of Seoul Regional Employment and Labor Agency

January 13, 2012

February 3, 2012

1. The Defendant’s disposition to restrict payment of training expenses from September 23, 2008 to September 22, 2009 against the Plaintiff on August 8, 201 and disposition to recover KRW 44,127,83 of the subsidies for training expenses is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On March 6, 2008, the Plaintiff obtained recognition of vocational skills development training courses from the Defendant with respect to the project management process (the method of training: the method of training: total 35 hours from March 8, 2008 to March 29, 2008; hereinafter referred to as “instant training course”) to be conducted for the Plaintiff’s employees pursuant to the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same).

B. After implementing the instant training course for 58 employees belonging to the Plaintiff, on September 11, 2008, the Plaintiff filed an application with the Defendant for subsidies for training expenses for vocational skills development (hereinafter “training expenses”) with the Defendant on September 22, 2008, and received a total of KRW 45,195,641 for all kinds of training courses including the above amount for one year thereafter. The Defendant confirmed that, as a result of the examination by the Board of Audit and Inspection and the Ministry of Employment and Labor, the Plaintiff’s request for an investigation as to whether a trainee verified that he/she had improved abroad during the training period for vocational skills development, he/she was present on the date of departure, even though he/she had been abroad during the training period as shown below.

A person shall be appointed.

Table 1

D. Accordingly, on August 8, 2011, the Defendant rendered each of the following dispositions against the Plaintiff: (a) Disposition No. 2 as shown in Table 2: (b) Disposition No. 3 seeking revocation by the Plaintiff among each of the following dispositions:

A person shall be appointed.

Table 2

[Ground of recognition] Evidence No. 1, Evidence No. 2, Evidence No. 1, 2, 3, Evidence No. 1, 2, Eul No. 2, evidence No. 3-1, 3-8, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis for the instant disposition, provides that an order for the return of all subsidies, etc. paid during the period of restriction on payment for one year without relation to the amount of subsidies received by false or other unlawful means, shall be null and void in violation of the purport of delegation under Article 35(1) of the former Employment Insurance Act, which is a mother-based legal entity.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of the instant case”) provides that a disposition ordering the establishment of a restriction period for payment, and the return of subsidies, etc. paid during the restriction period constitutes a binding act. Therefore, the instant provision that stipulates that a person who received or attempted to receive vocational skills development training costs, etc. in a false or other unlawful manner (hereinafter “unlawful recipient”) shall be obliged to pay subsidies, etc. for one year from the person who received or attempted to receive vocational skills development training costs, etc. in accordance with the delegation under Article 35(1) of the former Employment Insurance Act, and shall order the full return of subsidies, etc. paid during the restriction period for payment, is against the purport of delegation by the mother law or the

2) On the other hand, the legislative purpose of the instant provision is to prevent unlawful acts related to the payment of subsidies, etc., to prevent unemployment, to promote employment, and to develop and improve the vocational ability of workers through the restriction on payment of subsidies, etc. for one-year period for the illegal recipient, and the order to return subsidies, etc. granted during the restriction period for the payment of subsidies, etc., and to ultimately promote the prevention of unemployment, to promote employment, and to promote the development and improvement of vocational ability of workers. In addition, the legislative purpose of the instant provision is justifiable in light of the fact that subsidies, etc. are made with limited public resources, which are the Employment Insurance Fund under the Employment Insurance Act. Furthermore, it appears that fraudulent acts related to the payment of subsidies, etc. are to be reduced through

However, in light of the various circumstances seen below, the content of the enforcement decree of this case is a provision that excessively infringes on the property rights of the other illegal recipients who lack the requirement of ‘minimum of damages' or ‘a balance of legal interests', and thus violates the delegation purport of the parent law or the principle of excessive prohibition under the Constitution.

A) Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount that was already paid by fraud or other improper means may be collected as a punitive sanction pursuant to Article 35(1) of the same Act. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act, Article 22-2 of the former Enforcement Decree of the Workers’ Vocational Skills Development Act, and Article 9(1) of the former Enforcement Rule of the Workers’ Vocational Skills Development Act provides that additional collection shall be made based on the amount of fraudulent payment and the number of applications for fraudulent payment during the past five years, etc. In addition to the aforementioned additional collection disposition, the provision of the Enforcement Decree of the same case provides that the amount of subsidies shall be mandatorily imposed for one year for the illegal recipient, regardless of whether the subsidies were paid during the period of restriction on payment, and that the amount of subsidies shall be returned to the Plaintiff and the business owner who received the subsidies shall be more than the basis for additional collection disposition, and that the amount of subsidies may be uniformly imposed than the amount of subsidies paid for the above 7 years.

B) In addition, the provision of this case provides that the initial date of the restriction on payment shall not be the date on which the application for the subsidy was received or made, rather than the date on which the application was made for the restriction on payment, and thus, the illegal recipient shall return retroactively the subsidy, etc. that he received prior to the restriction on payment. However, if the illegal recipient becomes aware of the fact that the payment of the subsidy, etc. would be restricted for one year, it may reduce losses by flexible implementation of vocational skills development projects during the restriction period, and it cannot be deemed unfair to operate such vocational skills development projects. Thus, even if the provision of the Enforcement Decree of this case provides that the date of commencement of the restriction on payment is bound by the act of binding restrictions on payment, the provision of this case does not comply with the principle of minimum damage by failing to make efforts to minimize damage suffered by the illegal recipient by prescribing the date on which the application was made for the restriction on payment, rather than the date on payment, the date on which the application was made or the date on which the application was made for the payment.

C) In addition, the instant enforcement decree provides that the payment restriction and the return order of subsidies paid during the payment restriction period shall be mandatory for one year from the date when the subsidies were received or the application was filed, and there is a problem that the status of an illegal recipient is unstable for a long time due to the absence of special restrictions within the time limit for the said sanctions.

D) Meanwhile, even if Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of delegation to Presidential Decree, the scope or limitation of inherent delegation by the legislative purport or purpose, etc. of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Nu6578, Jul. 22, 1997). In light of the fact that various types of violations, such as various kinds of subsidies granted under the former Employment Insurance Act, etc. are likely to occur, and the legislative purpose of the above provision, the principle of excessive prohibition under the Constitution, etc., the purport of delegation under Article 35(1) of the former Employment Insurance Act is to ensure that the competent administrative agency can increase and decrease the scope of delegation within a certain scope, regardless of the type of misconduct, its degree, motive, consequence, etc., or it is also consistent with the legislative purport of the above provision, and thus, to ensure that the provision can be uniformly imposed and applied within a certain period of delegation.

E) Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides for restrictions on the payment of subsidies for one-year period to illegal recipients: Provided, That the same shall not apply to cases where three years have elapsed since the date of receipt of subsidies or incentives, or where fraudulent acts have been discovered for less than three million won as the amount received or to be received by fraudulent or other illegal means, and Article 56(1) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) provides that "the return of subsidies already received by fraudulent or other illegal means shall be ordered for the period of one-year payment", and Article 56(2) of the Enforcement Decree of the Employment Insurance Act provides that "the Minister of Employment and Labor may order a person who has received or attempted to receive any of the subsidies under paragraph (1) by fraudulent or other illegal means to the extent that it constitutes a new one-year payment restriction under paragraph (1).

F) Therefore, in addition to Article 35(2) of the former Employment Insurance Act, which can impose an additional collection disposition against an illegal recipient as a disciplinary measure, the legislative purpose of this case can be more efficiently achieved by prescribing the provisions of the Enforcement Decree of this case in duplicate, but the provisions of the Enforcement Decree of this case stipulate the order to restrict the payment for one year and order to return the total amount of subsidies paid during the period of restriction on the payment to the illegal recipient, without reasonably subdividing and stipulating the standards according to the type of the illegal recipient’s act.

3) Sub-decisions

The instant disposition based on the provision of the Enforcement Decree of this case, which is null and void because it violates the purport of delegation of the mother law and the principle of excessive prohibition under the Constitution, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

the presiding judge and deputy judge

Judges Yang Yang-ju

Judges Lee Jae-soo

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.