(영문) 인천지방법원 2019.1.22.선고 2017구단50161 판결

The Defendant’s order to return KRW 1,936,00 to Plaintiff A on October 18, 2016, the decision to additionally collect KRW 1,936,00, the decision to additionally collect KRW 1,936,000, the decision to restrict loans for 330 days from the date of the disposition, and the decision to additionally collect KRW 1,596,30 on December 14, 2016 against Plaintiff B, and the decision to restrict loans for 330 days from the date of disposition, respectively.

Reasons

1. Details of the disposition;

A. Details of the Plaintiff’s entrusted training

1) According to Article 27 of the Employment Insurance Act, the Plaintiff, A, and Plaintiff B, each of the business owners operating C Child Care Centers, and Plaintiff B, each of which is a D Child Care Centers, concluded a consignment training contract with E Co., Ltd. (hereinafter “E”), and submitted to the Human Resources Development Service of Korea a document that the childcare teachers first paid training expenses to E, satisfying the requirements for the consignment training, and received the training expenses for vocational skills development training from the business owner’s account pursuant to Article 27 of the Employment Insurance Act, etc. (Article 8 of the Regulations on the Support for Workplace Skill Development Training (Public Notice of Employment Labor Union).

2) The costs of workplace skill development training that the Plaintiffs received are KRW 1,596,300 for three infant care teachers (one total of 27 students per year) belonging to the 13 training courses including Plaintiff A, which were conducted from May 14, 2012 to March 3, 2014, including 2,935,611 won, and 2,935,611 won in the case of Plaintiff B, and 1,596,300 in the total of four training courses including the production of school districts, etc., conducted from December 7, 2013 to March 29, 2014.

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,” which was the entrusted training institution, prepared and issued a false commission contract and a tax invoice as if the pre-paid childcare teachers did not attend the training course by at least 80%, and even if the trainee’s infant care teachers 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 April 22, 2016, the Defendant issued a voluntary report to the Plaintiffs on April 2, 2016, stating that, in the case of the investigation result of the Incheon Bupyeong Police Station, the details of illegal receipt of training expenses, the administrative disposition and possibility of requesting an investigation in the future, and the “voluntary report” under Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers, the Defendant may reduce all or part of the amount to be additionally collected in addition to the return of the amount of illegal receipt, and operated the voluntary report period from April 25, 2016 to May 10, 2016. However, the Plaintiffs did not comply therewith.

3) On October 18, 2016, the Defendant issued an order to return KRW 1,936,00 to Plaintiff A, a decision to additionally collect KRW 1,936,00,000, a disposition to restrict loans for 330 days from the date of the disposition, an order to return KRW 1,596,30 with respect to Plaintiff B on December 14, 2016, an order to additionally collect KRW 1,596,30, an additional collection of KRW 1,596,30, and a disposition to restrict loans for 330 days from the date of the disposition (hereinafter “each of the instant dispositions”).

1) On November 17, 2014, related persons, including the representatives of E, 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 fraud was convicted (the part of the violation of the Subsidy Management Act was acquitted on the grounds that the Defendants were not the recipient of the subsidy even though the two crimes were charged with ordinary concurrent crimes). The Seoul High Court appealed as 2017No59, but appealed as Seoul High Court 2017No59, but the appeal was dismissed on April 27, 2017, and again appealed as the Supreme Court 201757147, 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 criminal facts is as follows.

From May 6, 2012 to June 30, 2014, the Defendants submitted to the Corporation a false training report/training completion report/training completion report as if childcare teachers were able to attend a normal training course, or 4 hours training per day even if they did not attend the training, 30 hours per day, 50 hours training per day, and 8 hours training per day per day. In the case of Sundays 8 hours training, in fact, the training hours of childcare teachers do not fall short of 80/100 of the training hours per day, but the actual training hours of childcare teachers do not fall short of 4 hours per day, Saturdays, 13 hours per day, and Sundays, and 8 hours per day, and their attendance rate falls short of 80 to 10%, to the Corporation, and the victim paid 48 hours per day to the employer, 48 hours per day, 175 hours per day, 47, 197, and 70 won per day.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 15, the purport of the whole pleadings

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

A. The plaintiffs' assertion

Since the attendance rate of trainees is less than 80%, there is no ground for disposition, and there is no intention to make payment or suspicion during the investigation, so it is erroneous in the misapprehension of legal principle that the decision of additional collection is made even though the intention is not recognized.

The Ministry of Employment and Labor’s guidance on the criteria for the administrative disposition of the business owner in relation to the instant disposition provides that the business owner who has received a non-prosecution as a discretionary standard shall be excluded from the administrative disposition; however, in the case of a business owner who has filed a voluntary report, the disposition was not specified, and thus imposes an additional collection at a disadvantage against the Plaintiffs who did not file a voluntary report. Even if it is not so, each disposition for additional collection is excessive in light of whether the Plaintiffs are recognized or not, and the degree of accountability such as the fact-finding, etc., each disposition of the instant case is unlawful

B. Determination

1) Non-existence of the grounds for disposition (whether a person has attended less than 80% of the training course)

In full view of the following circumstances, comprehensively taking into account the evidence presented above and the overall purport of the arguments, Plaintiffs’ infant care teachers may be deemed to have attended less than 80% of the training courses.

A) Above all, even if a criminal judgment is not bound by the fact-finding in a criminal trial, the fact that a criminal judgment already became final and conclusive was guilty of the same factual basis is significant evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a factual judgment in the criminal trial in light of other evidence submitted in the administrative trial (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012). However, the criminal judgment held to the effect that, in the case of E who provided education and training to childcare teachers entrusted by the plaintiffs for 4 hours a day, 3 hours a day and 5 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 assss day a day a day a day a day.

B) In addition, E’s head of E’s chapter F as well as E’s leader, and E’s instructors have entered into a lecture agreement at three hours a day, five hours a Saturday, and on Sundays, there was no lecture, and there was no infant care teacher who has completed all training courses normally (No. 11-2, 3).

C) Ultimately, even in the case of each training course in which the Plaintiffs’ infant care teachers participated, it shall be less than 80% in the case of each training course including Saturdays and Sundays, and it may be recognized that the training course conducted three times a day-day is less than 9 hours out of 12 hours and less than 80% in total. Thus, the allegation that there is no reason to dispose of it is difficult to accept.

2) Meritorious legal principles (related to intentional receipt and intentional collection and additional collection)

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 expenses as an act that is not justifiable in social norms with an intention to see that a person who is not entitled to training expenses has such qualifications as if he/she were qualified, or to conceal the fact that he/she is not qualified. Article 16 (1), (2) and (3) of the former Act and Article 16 (6) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 9316 of Mar. 31, 2009; hereinafter referred to as the "former Act"), and Article 13 (4) 1 of the former Act on the Development of Workplace Skills of Workers provides for the same legal principle as the Supreme Court's rulings related to the same act.

Therefore, the allegation that the disposition of additional collection is unlawful because the Plaintiffs received a decision on payment or suspicion during the investigation process and the intent to illegally receive the training fees is not recognized. Furthermore, as seen earlier, the Plaintiffs confirmed that E was responsible for their infant care teachers, and then applied for subsidies to the Human Resources Development Service of Korea with receipts attached thereto. However, only a part of the training course was conducted on the ordinary daily and Saturdays, and in particular on Sundays, it was not confirmed whether the training was properly conducted, and it was transferred to E by receiving training fees by attaching false tax invoices even though it was not paid in advance to E. As such, the additional collection disposition of each of the dispositions of this case is legitimate.

3) A deviation from and abuse of discretionary power

A) Claim on violation of discretionary rules

The discretionary rule of administrative affairs established as the basis for the exercise of discretionary power is a discretionary rule, and such discretionary rule is generally effective only within an administrative organization and does not have external binding power. Thus, an administrative disposition is not immediately unlawful solely on the ground that it has violated it. However, if administrative practice is performed by being implemented in accordance with such discretionary rule as set forth in the principle of equality or the principle of protection of trust, an administrative agency is placed under self-detained in relation to the other party. In such a case, barring any special circumstance, a disposition contrary thereto is an illegal disposition that deviates from or abused discretion contrary to the principle of equality or the principle of protection of trust (see, e.g., Supreme Court Decision 2011Du28783, Nov. 14, 2013).

Meanwhile, according to the evidence No. 3, the Ministry of Employment and Labor may recognize the fact that the Ministry of Employment and Labor sent "in relation to the result of the investigation into the illegal receipt of training fees for the business owner of the Incheon Bupyeong Police Station" to the competent administrative agency including the defendant, including the defendant, a guidance on the administrative disposition guidelines, etc. for the business owner's illegal training. The above disposition guidelines only state the opinion of the superior agency in relation to a specific case, but cannot be said to be a discretionary rule that states the general guidelines for handling the case, and it cannot be said that the defendant is detained or violated, and it is not immediately a deviation from or abuse of discretionary power. Therefore, this part of the plaintiffs' claim is without merit.

B) Claim regarding voluntary declaration

As seen earlier, the Defendant issued each of the instant dispositions with respect to the Plaintiffs who did not file a voluntary report, including additional collection and disposition with respect to the return order, on the other hand, the amount of illegal receipt should be returned only. Such disposition criteria have been clearly announced in advance. Moreover, it is reasonable in light of Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers as it conforms to the content of Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers and it is difficult to view that the content

C) Claim regarding additional collection disposition

The Act on the Development of Workplace Skills of Workers stipulates that a business owner, etc. who engages in a workplace skill development project shall, in order to promote and support workplace skill development throughout his/her life and train technical and skilled human resources needed in the industrial field, subsidize expenses necessary for the project, and if the expenses are subsidized by unlawful means, a certain disciplinary measure may be imposed. However, in light of the following: (a) in the case of training expenses paid by the Plaintiffs by unlawful means, the extinctive prescription for a considerable portion of the training expenses has expired; (b) the unfair payment period is short; and (c) in the case of Sundays, the claim for additional collection is filed without the training course; and (d) the disadvantage caused by the additional collection among each of the dispositions of this case cannot be deemed excessive in light of the purpose or intent to achieve

4) Therefore, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.