(영문) 인천지방법원 2018.10.30.선고 2017구단50840 판결

The Defendant’s disposition of collecting KRW 3,644,60,600, which was made against the Plaintiff on October 26, 2016, as well as additionally collected amounting to KRW 3,644,60.

Reasons

1. Details of the disposition;

A. Details of the Plaintiff’s entrusted training

1) The Plaintiff is a business owner operating B child-care centers in Gyeyang-gu Incheon, and entered into an entrustment training contract with C(hereinafter referred to as “C”) with his child-care teachers, and then prepares a document that the child-care teachers met the requirements for the completion of the entrusted training and pre-paid the training expenses to C, and submits it to the Human Resources Development Service of Korea to the Human Resources Development Service of Korea, thereby being compensated for the training expenses in his account pursuant to Article 27 of the Employment Insurance Act, etc. (Article 8 of the Employment Insurance Act provides for workplace skill development training support for the business owner (the Ministry of Employment and Labor notice).

2) From March 15, 2013 to March 17, 2014, the Plaintiff received 39 business owners’ vocational skills development training courses, including “D,” from eight employees affiliated with the Plaintiff, and received total of KRW 6,348,780 as expenses for workplace skill development training.

B. The Incheon Bupyeong Police Station notified the Defendant that “A total of 488 childcare centers, including the Plaintiff, did not pre-paid training expenses,” and that “A false commission contract and tax account statement was prepared and issued as if the pre-paid childcare centers did not attend the training course by at least 80%, and even if the trainees did not attend the training course, they did not meet the completion standards, they would meet the completion standards and received training expenses.”

2) On October 26, 2016, the Defendant issued a disposition to return the illegally received amount of 3,644,600 won and to additionally collect 3,64,600 won (hereinafter “each disposition of this case”) after excluding the portion for which the extinctive prescription has lapsed among the illegally received amount received by the Plaintiff.

C. Criminal punishment for C representatives, etc.

1) On November 17, 2014, the representatives of C and other relevant persons were indicted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on the Management of Subsidies. On December 15, 2016, the part of the crime of fraud was pronounced guilty (the part of the violation of the Subsidy Management Act was acquitted on the grounds that the Defendants were not the recipient of subsidies since the two crimes were charged with ordinary concurrent crimes). The Seoul High Court appealed as 201759, but appealed as Seoul High Court 2017, but the appeal was dismissed on April 27, 2017, and again appealed as the Supreme Court 2017Do7147, but the first instance judgment became final and conclusive by dismissal of the appeal on August 18, 2017 (hereinafter referred to as the “criminal judgment”).

2) The main point of the criminal judgment is as follows.

The Defendants: (a) from May 6, 2012 to June 30, 2014, the facts as indicated in the separate list of crimes are as follows; (b) even if childcare teachers did not attend the training or attend the training, the Defendants provided training for 4 hours a day to 30 hours; (c) 50 hours a day a day to 13 hours a day; and (d) in the case of Sundays 8 hours a day a day to 80/100 of the training hours a day to 4 hours a day; (c) although the training hours a day to 13 hours a day, a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day, a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day as.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 12

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

A. The plaintiff's assertion

In the absence of any authority to investigate training hours, the Plaintiff is not obligated to trust C’s certificate of completion and apply for training allowances, and do not have the duty to verify the falsity of the certificate of completion. Rather, it is difficult to deem that the Plaintiff was intentional or gross negligence in the illegal receipt of the training hours.

B. Determination

1) Whether the attendance of less than 80% of the training courses was conducted

In full view of the following circumstances, comprehensively taking into account the evidence presented above and the purport of the entire pleadings, the Plaintiff’s infant care teacher may be deemed to have attended less than 80% of the training course.

A) First of all, even if a criminal trial is not bound by the fact-finding in a criminal trial, the fact that a criminal judgment already became final and conclusive in relation to the same fact-finding is valuable evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a criminal trial in light of other evidence submitted in the administrative trial, the facts opposed thereto cannot be recognized (see, e.g., Supreme Court Decision 2011-28240, May 24, 2012). However, the criminal trial held to the effect that, in the case of a 3-hour training for 4 hours a day by the Plaintiff’s consignment, a 3-hour training for 8 hours a day and a 5-hour training for 13 hours a day, and that, as a result, a 80-hour training for 8 hours a day was conducted and completed, a 488 business owner, including the Plaintiff, and a 1,531,577,419 won a total amount of subsidies paid to the Plaintiff and her child care teacher constitutes the probative value of this case.

B) In addition, C’s chapter E as well as C’s head of the branch office, and C’s instructors also agreed to provide a lecture for three hours a day, five hours a Saturday, and on Sundays, there was no lecture, and there was no infant care teacher who had completed all training courses normally (No. 7-1, 2, and 3).

C) Ultimately, according to the fact-finding conducted in each of the training courses, recognition training hours, and actual training hours in which the Plaintiff’s infant care teachers participated, the training hours are as listed below, and the training hours including Saturdays and Sundays are less than 80% as a matter of course, and it can be recognized that three of the training courses conducted in the field of play-based class production 3-1, etc. and the training conducted in the field of play-based class 3-1 are less than 9 hours out of total 12 hours and less than 80%.

A person shall be appointed.

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

Article 16 (2) 2 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316 of Dec. 31, 2008; hereinafter referred to as the "former Act on the Development of Workplace Skills") generally refers to the affirmative and passive act that may affect the decision-making on the payment of training fees by a person who is not eligible to receive training expenses, as if he/she were qualified or not able to conceal the fact that he/she is not qualified. Article 16 (1), (2), and (3) of the former Act on the Development of Workplace Skills and Article 16 (6) of the former Enforcement Decree of the former Act on the Development of Workplace Skills (amended by Presidential Decree No. 21398 of Mar. 31, 2009; hereinafter referred to as the "former Act on the Development of Workplace Skills"), and Article 13 (4) 1 of the former Act on the Development of Workplace Skills of Workers provides that the term "any intentional or gross negligence committed by a person who violated the Act shall be construed equally."

However, as seen earlier, the Plaintiff confirmed that C was responsible for its own infant care teachers to properly train C, and then paid C training fees in advance to C, and then applied for the grant to the Human Resources Development Service of Korea, accompanied by the receipt.

In addition, in relation to this, the Plaintiff is obligated to pay C the price after confirming whether the training has been normally conducted for the teachers under its jurisdiction. This is not attributable to the fact that the Plaintiff did not have the authority to investigate whether the certificate of completion issued by C was false. Therefore, if it is found that C has not properly conducted the training, the Plaintiff shall return training expenses received to the Human Resources Development Service of Korea, and the Defendant may issue a disposition to refund training expenses to the Plaintiff. Ultimately, as seen earlier, the attendance below 80% of the training course of childcare teachers

Of each disposition of this case, the part of the refund of training costs is justifiable.

Furthermore, in full view of the fact that the Plaintiff did not perform the obligation to verify the completion of trainees’ training expenses and the appropriateness of the application for training expenses in relation to the application for training expenses, and that the Plaintiff applied for the payment of training expenses in the manner of attaching false tax invoices, even though the Plaintiff did not have paid the training expenses, etc., it constitutes a case where the Plaintiff received subsidies by false or other unlawful means. Ultimately, it is justifiable to impose additional collection on the premise of the receipt of the payment by unlawful

3) Therefore, the instant disposition is lawful.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.