(영문) 수원지방법원 2011.12.14. 선고 2011구합3785 판결

1. The Defendant’s disposition of refunding the amount of KRW 56,920,000 against the Plaintiff on December 28, 2010 shall be revoked to the extent that the amount exceeds KRW 48,360,00, and the disposition of additionally collecting KRW 284,60,000 shall be revoked to the extent that the amount exceeds KRW 96,720,00.

2. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

The primary purport of the claim is as stated in the text.

Preliminary claim: The Defendant’s disposition of returning subsidies for maintaining employment of KRW 56,920,00 against the Plaintiff on December 28, 2010 shall be revoked to the extent that the amount exceeds KRW 49,560,00, and the disposition of additionally collecting KRW 284,60,000 shall be revoked to the extent that the amount exceeds KRW 241,80,000.

Reasons

1. Details of the disposition;

A. The Plaintiff, a company running the manufacture and sales business of the electric equipment for vehicles, applied for employment maintenance support payment to the Defendant from June 2009 to December 2, 2009, and received support of KRW 71,400,000 in total on seven occasions from September 17, 2009 to February 8, 2010. The specific details are as follows:

Table 1

A person shall be appointed.

B. On December 28, 2010, the Defendant issued a return of KRW 56,920,000 in total, and an additional collection of KRW 284,60,000 in total, as five times the amount of the employment support payment already paid, on the ground that “the Plaintiff was staying in China for eight workers, including Plaintiff P, etc. during the period of employment maintenance measures from June 2009 to December 2, 2009, while four employees, including F, etc. worked at work, even if they did not suspend business according to the plan, such as working at work, and applied for subsidies by fraud or other improper means.” The specific details are as follows:

Table 2

A person shall be appointed.

C. Before the instant disposition, the Plaintiff was not subject to sanctions on the ground of fraudulent receipt of employment maintenance support payment etc. from the related agencies such as the Defendant, etc.

[Ground of recognition] A without dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1 through 7 (including branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's primary assertion

(1) In the relevant criminal case, the Plaintiff’s representative director Q has been determined as KRW 48,360,000 in the amount of employment maintenance support payment obtained by deception from the victim’s Ministry of Employment and Labor, and thus, the disposition to refund the employment maintenance support payment amount of KRW 56,920,000 is unlawful within the scope exceeding the amount determined

(2) In applying Article 78(1) of the Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter referred to as the “Enforcement Rule of this case”), a disposition that additionally collects five times the amount of subsidies, not twice the subsidies, even though the Plaintiff was not found to have committed a fraudulent act prior to the instant disposition, is unlawful by abusing and abusing discretion.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

(1) Whether the disposition to refund the employment maintenance support payment is legitimate

The facts established in a criminal judgment that became final and conclusive on the same factual basis are valuable evidence, and thus, the facts inconsistent with the facts cannot be recognized unless there are special circumstances that are deemed difficult to adopt a judgment on the facts in the criminal trial, and the same applies to administrative litigation (see, e.g., Supreme Court Decisions 2008Do10096, Jun. 25, 2009; 98Du10424, Nov. 26, 199).

The plaintiff's representative director Q is charged with KRW 56,920,00 as stated on January 2, 1, 201 with KRW 56,00,00 for the reason that the defendant acquired n from the victim's Ministry of Employment and Labor. The court of first instance found the defendant not guilty of the fraud of KRW 1,20,00 for the amount paid on September 2009 and the remaining amount of KRW 5,720,000 for KRW 5,920,000 for KRW 56,00 for - KRW 1,20,000 for - KRW 20,000 for - KRW 30,00 for the above fraud of KRW 56,920 for - KRW 1,20,000 for - KRW 200 for the total amount paid on May 26, 201 x 200 for Q20,000 for the appeal court of KRW 200 for the above amount paid on KRW 20012520.

Therefore, the disposition ordering the full amount of KRW 56,920,000 out of the instant disposition is unlawful within the scope of exceeding KRW 48,360,000 that the Defendant illegally received.

(2) Whether the discretionary authority of the additional collection disposition is deviates or abused

(A) According to Article 35(2) of the Employment Insurance Act (amended by Act No. 1039, Jun. 4, 2010) and Article 78(1)3 of the Enforcement Rule of the instant case, the Minister of Labor may additionally collect double, three, five times the amount of the non-payment subsidy according to the number of times he/she requested to receive or intend to receive the subsidy by false or other unlawful means (hereinafter “illegal means”) for the last five years prior to the date of detection of the fraudulent act, in addition to ordering the return of the subsidy, in addition to the number of times he/she requested to receive or intend to receive the subsidy by fraudulent or other unlawful means (hereinafter “number of illegal power”). However, considering the following circumstances, it is reasonable to view that the illegal act discovered in the frequency of unlawful power is not included in the number of unlawful power prior to the date of detection even if the number of applications is multiple times, and thus, in this case, the amount additionally collected pursuant to Article 78(1)12 of the Enforcement Rule of the instant case should be equivalent to the amount of the non-payment.

① In light of the purport of Article 78(1) of the Enforcement Rule of the instant case differently stipulating the amount additionally collected due to an illegal act that is the subject of detection according to the frequency of illegal power within a certain period, it is reasonable to deem that the “number of illegal power” refers to a separate illegal act committed prior to the detection of the relevant illegal act.

② If it is interpreted that the frequency of fraudulent acts is included in the frequency of illegal power under Article 78(1)1 of the Enforcement Rule of the instant case, the case where there is no frequency of illegal power can not be presented, and therefore, the said provision may not be applied.

③ On February 9, 2010, Article 338 of the Enforcement Rule of the instant case, the phrase “the number of times an application was filed or intended to be filed by fraudulent or other unlawful means during the latest five years prior to the date of detection of the fraudulent act” under Article 78(1) of the Enforcement Rule of the instant case was revised to the number of times when the Minister of Labor received or received the order of restriction on payment or return from the Minister of Labor pursuant to Article 35(1) of the Act for the five years prior to the date of detection of the fraudulent act. This seems to be aimed at resolving the issue

(B) Therefore, the disposition of additional collection of KRW 284,60,000 among the instant disposition is erroneous in the misapprehension of discretionary authority within the scope exceeding KRW 96,720,00 ( = KRW 48,360,000) (=200).

3. Conclusion

Therefore, the plaintiff's primary claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.