2011Guhap 33976 Revocation of a restriction on payment of costs, etc.

A Stock Company

The Head of Seoul Regional Employment and Labor Agency

January 20, 2012

February 3, 2012

1. On July 18, 201, the Defendant’s disposition of restricting payment of expenses against the Plaintiff from July 26, 2008 to July 25, 2009 and the order of returning KRW 877,533,480 as a result of this disposition shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Order Nos. 1 and the Defendant’s order for return of KRW 214,230 against the Plaintiff on July 18, 201 and disposition for additional collection of KRW 214,230 shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in the entries in Gap evidence Nos. 2-4 and Eul evidence Nos. 1-6.

A. The Plaintiff entrusted the Plaintiff’s employees with the “business value-added (eventime) education” (hereinafter “instant training course”) in 2007 pursuant to the education and training consignment agreement concluded with B. B. The Plaintiff was recognized as vocational skills development training course for the instant training course by the Defendant.

B. From September 11, 2007 to November 20, 2007, the Plaintiff applied for reimbursement of training expenses for the instant training course conducted by 22 employees belonging to the Plaintiff and received reimbursement from the Defendant. Among them, training expenses for C, who are trainees of the instant training course, include KRW 214,230.

C. After that, the Defendant discovered that C was absent from the instant training course for four days conducted during that period after entering the Republic of Korea on November 4, 2007, while investigating whether the instant training course was illegal, and that C was treated as having been present during that period.

D. Accordingly, on July 18, 201, the Defendant issued an order to return KRW 214,230 of the illegally received amount of KRW 214,230 (hereinafter “instant order”), an order to additionally collect the same amount (hereinafter “instant order”) from July 26, 2008 to July 25, 2009, and an order to return KRW 87,533,480 of the training expenses subsidized during the instant period (hereinafter “instant third disposition”). 2. Whether the disposition is lawful

A. The plaintiff's assertion

1) In light of the fact that the Plaintiff entrusted all matters related to the instant training course to B, and the Plaintiff applied for subsidies to the Defendant by trusting the certificate of completion to C issued in B, etc., the Plaintiff cannot be deemed to have received subsidies for vocational skills development training for C by fraud or other improper means. Accordingly, each of the instant dispositions on different premise is unlawful.

2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides that an order for the return of condition with respect to training expenses paid for one year from the date of illegal receipt is null and void in violation of the principle of excessive prohibition. Therefore, the instant disposition based on the legal basis is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the first argument

Sanction against violation of administrative laws is a sanction against the objective fact that is contrary to the administrative laws and regulations in order to achieve administrative purposes. Inasmuch as such sanction is a sanction against the violator, barring any special circumstance, such as where there is no fault or negligence on the part of the violator, it may be imposed even if the violator does not cause any negligence, barring special circumstances, such as where there is a justifiable reason not to mislead him/her of his/her negligence, and "any false or other unlawful means" means any unlawful act conducted in order to conceal the eligibility for, or the absence of, eligibility for, the payment of training costs for vocational skills development by an unqualified business owner (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

However, in full view of the following circumstances, which can be recognized by the aforementioned evidence, Gap evidence No. 5 and the purport of the entire pleadings, it is reasonable to deem that the plaintiff was paid training expenses for vocational skills development by fraud or other improper means. Therefore, the plaintiff's allegation in this part is without merit.

① Although the Plaintiff was obligated to finally verify whether a trainee of the instant training course was actually present and trained, the Plaintiff failed to perform such duty and filed an application for the payment of subsidies, including C’s training expenses, without going through the verification process as to whether C was actually present. Furthermore, in light of the fact that C was unable to attend the instant training course due to an occupational business trip directed by the Plaintiff, the Plaintiff appears to have known or could have known that C was absent for 4 days during the instant training course, and it is difficult to deem that there was a justifiable reason for failure to verify whether C was present.

② Although C was unable to attend the instant training course for 4 days and did not meet the completion requirements, the Plaintiff applied for subsidies to C and received them from the Defendant as if the Defendant met the normal completion requirements. If the Defendant had known such fact in advance, the Plaintiff would not have paid subsidies to C. Therefore, the Plaintiff’s act was a fraudulent act committed by a business owner who was not entitled to receive subsidies to C and thus, affected the Defendant’s decision-making regarding the payment of subsidies.

2) Determination on the second argument

Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same) and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same) (hereinafter “Enforcement Decree of the instant case”) constitute a binding act of ordering a person who has received or attempted to receive vocational skills development training expenses, etc. by fraud or other improper means (hereinafter “unlawful recipients”) to refund training expenses, etc. paid during the period of restriction on payment, and the return of the subsidy paid during the period of restriction on payment is not a violation of the principle of excessive prohibition.

In light of the fact that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, etc., the legislative purpose of the instant provision is justifiable in light of the purpose of preventing misconduct in relation to the payment of training expenses, etc. through the restriction on the payment of training expenses, etc. for one year for illegal recipients and the order to refund subsidies paid within the restriction period, and ultimately, promoting the development and improvement of workplace skill development training of workers. Furthermore, the instant provision appears to have reduced misconduct in relation to the payment of training expenses, etc. through disciplinary sanctions prescribed under the Enforcement Decree of the instant case, and accordingly, the public resources, such as the Fund, etc., are deemed to have been further improved. Thus, the instant provision can be

However, as seen below, the enforcement decree of this case is in violation of the Constitution as a provision that excessively infringes on the property rights of illegal recipients by failing to meet the requirements of "minimum degree of damage" or "a balance of legal interests." Therefore, the third disposition based on the enforcement decree of this case which is null and void in violation of the Constitution is unlawful.

① Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount that would have been paid by fraud or other improper means may be collected as punitive means. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008); Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); and Article 9(1) of the Enforcement Rule of the same Act (amended by Presidential Decree No. 320, Apr. 1, 2009) provides that the amount of subsidies that would have been wrongfully paid for the period of 30 years may be deducted from the amount of subsidies that would have been wrongfully paid to the Plaintiff based on the number of times for which the Plaintiff applied for the payment of the subsidies for 4 years would have been subject to restriction on the payment of the subsidies. Meanwhile, the provision of the instant case provides that the amount of subsidies may be additionally collected or decreased.

③ Even if the provision of the Enforcement Decree of the instant case provides for “training expenses or an order to return subsidies already paid during the period of one year from the date of receipt of the training expenses or the application for payment restriction, there is a problem that the status of an illegal recipient becomes unstable for a long time due to the absence of special restrictions on the said restriction period. Therefore, even if the provision of the instant Enforcement Decree, which is a disciplinary measure, can more efficiently achieve the legislative purpose by stipulating the provision of the instant case, in addition to the additional collection disposition, for the illegal recipient, the provision of the Enforcement Decree of the instant case’s restriction on payment for one year and the order to return subsidies paid during the restriction period, without setting detailed standards in accordance with the patterns of the illegal recipient’s act, infringes upon the excessive restriction on property rights of the illegal recipient (see, e.g., Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010; however, Article 56(1) of the Enforcement Decree of the Employment Insurance Act provides for one year restriction on the illegal recipient.

3) Sub-decisions

Therefore, the third disposition of this case among each disposition of this case is unlawful, and the rest of the disposition is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, Kim Hong-do

Judges Hanwon-won

Judges Lee Sung-won

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.