2011Guhap37435 Revocation of orders to refund workplace skill development training fees

A Stock Company

The head of the following mountainous districts of the Gwangju Regional Employment and Labor Office

February 2, 2012

March 22, 2012

1. The Defendant’s order to return training costs of KRW 3,385,943 against the Plaintiff on August 16, 201 shall be 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. From November 1, 2007 to the next day (2, 16 hours in total), the Plaintiff entrusted the instant training course (hereinafter referred to as “instant training course”) to B University (hereinafter referred to as “B”) for 24 employees working at the Plaintiff’s Pyeongtaek-si workplace.

B. On May 21, 2008, the Plaintiff applied for the subsidization of training expenses for the instant training course to the head of the Bupyeong-gu Regional Employment and Labor Office (hereinafter referred to as the “head of the Pyeongtaek-gu Employment and Labor Office”). On May 21, 2008, the Plaintiff was provided with training expenses of KRW 1,416,912 (59,038 won per capita training expenses) (59,038 won per capita training expenses). Among them, 59,038 won was included in training expenses for C, who is the trainee of the instant training course. The head of the Pyeongtaek-gu Housing Site received a public notice from the Board of Audit and Inspection and the Ministry of Employment and Labor for the investigation as to whether the foreign trainees were illegally selected for entry into and departure from Korea. As a result, C confirmed that it was conducted on October 24, 2007 to November 24, 2007, and notified the Defendant of the date of the instant training course (59,037.

D. On August 16, 2011, the Defendant ordered the Plaintiff to refund KRW 3,385,943 of training expenses paid to the Plaintiff within the period of restriction on payment (from May 22, 2008 to May 21, 2009) pursuant to Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) and Article 56(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter the same shall apply) on the ground that training expenses paid to C were not unlawfully paid (hereinafter referred to as the “disposition in this case”). [Grounds for recognition] The purport of the entire pleadings is without dispute.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

① The Plaintiff entrusted all matters related to the instant training course to B and managed the withdrawal of trainees under the responsibility of B, and the Plaintiff was merely applying for subsidies by reliance on the performance management notified by B and including training expenses for C. Therefore, the Plaintiff cannot be deemed to have received subsidies for vocational skills development training costs by fraud or other improper means. Therefore, the instant disposition based on a different premise is unlawful (hereinafter referred to as “claim”).

② Although the pertinent disposition is deemed to be the current Act on the Development of Workers’ Vocational Skills, which is the law at the time of the disposition, the Defendant made the said disposition in accordance with the former Employment Insurance Act and the Enforcement Decree of the same Act. Therefore, the instant disposition was unlawful (hereinafter “B argument”).

③ Even if the former Employment Insurance Act and the Enforcement Decree of the same Act apply with respect to the instant disposition, Article 56(2) of the Enforcement Decree of the same Act stipulating that training expenses paid for one year from the date of illegal receipt shall be null and void in violation of the principle of excessive prohibition, such as the minimum of damage and the balance of legal interests. Therefore, the instant disposition based on the foregoing provision is unlawful (hereinafter referred to as “third assertion”).

④ Not only was the subsidy that the Plaintiff received during the period of restriction on payment was paid in a normal way, but also was paid in a way that is not a false or other unlawful manner, but also the amount of the above normal benefit after the enforcement of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008) is not the subject of return. Accordingly, the instant disposition taken on a different premise is unlawful (hereinafter referred to as “non-permanent assertion”).

⑤ The disposition in this case that the Plaintiff’s workplace is unlawful (hereinafter “I’n allegation”) that the Plaintiff’s workplace is separate from that of the workplace and received training costs from the workplace in the workplace in the workplace in which it was not related to one another, and that the Plaintiff’s workplace in the workplace in which it was paid training costs.

6) The instant disposition (amounting to KRW 3,385,943) that the Plaintiff paid the full amount of subsidies received for one year from the date of the payment of training expenses for C solely on the ground that the Plaintiff illegally received training expenses of KRW 59,038,00,000 from the date of the payment, is excessively harsh to the Plaintiff, and is in violation of the law by abusing and abusing discretionary power (hereinafter “claim

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Judgment as to the Plaintiff’s assertion

Sanction against violation of administrative laws is a sanction against the objective fact of violation of administrative laws in order to achieve administrative purposes, and thus, there is no intention or negligence on the part of the violator, unless there is a justifiable reason not to cause any negligence on the part of the violator. In addition, the term "false or other unlawful means" under Article 35 (1) and (2) of the former Employment Insurance Act and Article 56 (1) and (2) of the Enforcement Decree of the same Act means all unlawful acts conducted by an unqualified business owner in general in order to conceal the eligibility for payment or the lack of eligibility to receive training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 200).

However, the following circumstances are revealed in addition to the purport of the entire argument as seen earlier. ① Although the Plaintiff was obligated to finally verify whether the trainee was present before applying for the instant training course as the principal agent of the training course, the Plaintiff appears to have applied for the payment of subsidies, including training expenses for C, to the head of Pyeongtaek Housing Site Administrator without properly ascertaining whether C was present at the instant training course due to neglecting such duty. Furthermore, upon the Plaintiff’s instruction, C had already left Korea prior to the commencement of the training course, and the instant training course was conducted for a short period (2 days, total 16 hours) and the training student was merely 24, it appears that C was sufficiently aware of the fact that the Plaintiff did not attend the instant training course, and the head of Pyeongtaek Housing Site, as the principal agent of the training course, could not be seen to have been aware of the fact that C was not present at the instant training course, and the Plaintiff’s act of receiving the Plaintiff’s payment of subsidies due to the Plaintiff’s mistake or negligence, and thus, it is difficult to view that C’s aforementioned act was justified.

(2) Judgment on the Plaintiff’s assertion

In imposing a punitive administrative disposition on the ground of an offense, in principle, the relevant laws and regulations at the time of the act shall govern, and the amended laws and regulations after the act shall not govern (see Supreme Court Decision 82Nu1, Dec. 28, 1982).

However, Article 35 (1) of the former Employment Insurance Act provides that "the Minister of Labor may order a person who has received or attempted to receive support, etc. for employment security and vocational skills development projects under this Chapter (Chapter III) by fraud or other improper means, or a person who has received or attempted to receive support, to return the subsidy, etc., as prescribed by Presidential Decree." Article 56 (1) of the Enforcement Decree of the same Act provides that "the Minister of Labor shall not order a person who has received or intends to receive the subsidy, etc., by fraud or other improper means pursuant to Article 35 (1) of the former Employment Insurance Act, to return the subsidy, etc., which has already been paid, and Article 56 (2) of the former Employment Insurance Act provides that "the Minister of Labor shall not order a person who has received or attempted to receive the subsidy, etc., under paragraph (1) by fraud or other improper means, for one year from the date of receiving or applying for the subsidy, etc., and the Minister of Labor shall order the person

On the other hand, Article 35 (3) of the former Employment Insurance Act, amended on December 31, 2008, provides that "Article 16 (4) and (5) and Article 25 (3) and (4) of the Workers' Vocational Ability Development Act shall apply mutatis mutandis to restrictions on support, return, and additional collection for those who have received or intend to receive support for workplace skill development projects by fraud or other improper means," while integrating the sanctions into the Workers' Vocational Ability Development Act, Article 4 of the Addenda of the Act provides that "Article 35 of the same Act shall apply to restrictions on support for those who have received or attempted to receive support by fraud or other improper means prior to the enforcement of this Act, notwithstanding the amended provisions of Article 35 of the same Act."

In full view of the above legal principles and the contents of each provision, the applicable law of the instant disposition is deemed to be Article 35(1) of the former Employment Insurance Act and Article 56(2) of the Enforcement Decree of the same Act at the time of fraudulent receipt (amended by May 21, 2008). Thus, the Plaintiff’s assertion based on different premise is without merit (this cannot be deemed to exclude the application of the former Employment Insurance Act to the Plaintiff solely on the ground that the application of the Act on the Promotion of Workers’ Vocational Skills is favorable to the Plaintiff unless the Act on the Promotion of Workers’ Vocational Skills does not

(3) Judgment on the Plaintiff’s assertion

(A) According to Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of the Employment Insurance Act”), Article 35(1) of the former Employment Insurance Act provides that a person who has received, or intended to receive, vocational skills development training costs, etc. by false or other unlawful means (hereinafter “unlawful recipients”) shall be obligated to pay training costs, etc. for one year, and shall be returned in full with respect to training costs, etc. paid during the period of restriction on payment. The disposition ordering the establishment of the restriction period and the return of subsidies granted during the restriction period is a binding act.

(B) First, we examine whether the provision of the Enforcement Decree of this case satisfies the legitimacy of the legislative purpose and the appropriateness of the means. The provision of this case aims to prevent misconduct in relation to the payment of training expenses, etc. and ultimately to promote the development and improvement of workers’ vocational ability through the restriction on payment of training expenses, etc. for one year for the illegal recipient and the order to refund subsidies paid within the restriction period. In addition, considering that vocational ability development training is conducted with limited public resources, such as employment insurance fund under the Employment Insurance Act, etc., the purpose of this case is justifiable. In addition, it appears that misconduct related to the payment of training expenses, etc. is reduced through punitive sanctions stipulated in the Enforcement Decree of this case, and accordingly, the above sanctions constitute a means suitable for accomplishing the legislative purpose.

(C) Next, it is reasonable to view that the provisions of the Enforcement Decree of this case recognize broad discretion to the administrative agency in the selection of the means to impose sanctions against the violation of laws and regulations, and if the method of choice is not obviously erroneous in prediction or evaluation, it cannot be deemed that it violated the minimum principle of damage. The provisions of the Enforcement Decree of this case do not impose additional duties on the illegal recipient, but merely recover training expenses paid to the illegal recipient and restore it to its original state, so it is difficult to see that the choice of the means of sanctions is clearly erroneous.

(D) Finally, as to whether the provision of this case satisfies the requirements for balance of legal interests, the following circumstances are determined: ① Article 35(2) of the former Employment Insurance Act provides that a person may collect an amount not exceeding an amount equivalent to the amount received by false or other unlawful means as a punitive meaning; accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act and Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); Article 9(1) of the Enforcement Rule of the same Act provides that the amount to be additionally collected shall be calculated based on the number of times of filing a claim for expenses by false or other unlawful means during the past five years; ① the provision of the Enforcement Rule of the same case provides that a person who received subsidies should be obliged to receive subsidies for one year, separate from the aforementioned additional collection disposition, and at the same time, the provision of the said additional collection disposition provides that the subsidy shall be returned within the period of one year, unlike the above additional collection disposition.

(4) The provision on the restriction on the payment of subsidies under the former Enforcement Decree of the Employment Insurance Act provides that if a person receives or is not subject to the restriction on the payment of subsidies under Article 2 of the former Enforcement Decree of the Employment Insurance Act for a certain period of less than 10 years, such subsidies may be excessively harsh in light of the content, degree, etc. of the relevant violation. (In fact, the amount of subsidies received during the restriction on the payment of subsidies under Article 242, 627,521 + KRW 10,960,200 + KRW 10,385,943). (2) The provision on the restriction on the payment of subsidies under Article 2 of the former Enforcement Decree of the Employment Insurance Act provides that if a person receives or is subject to the restriction on the payment of subsidies under Article 2 of the former Enforcement Decree of the Act for a certain period of less than 10 years because the provision on the restriction on the payment of subsidies under Article 2 of the former Enforcement Decree of the Act provides that the person would have been subject to the restriction on the payment for more than 1 year.

3. Conclusion

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

The presiding judge and the senior judge;

Judges, a full-time interference, whose name and seal are impossible;

The presiding judge

Judges Hong-seok

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.

A person shall be appointed.

A person shall be appointed.