2010Nu32459 Revocation of new employment promotion subsidy, restriction, disposition, etc.

A Stock Company

The Head of the Seoul Regional Labor Administration's Republic of Korea

Seoul Administrative Court Decision 2010Guhap18727 decided September 2, 2010

March 22, 2011

April 19, 2011

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On January 26, 2010, the order issued by the Defendant against the Plaintiff to return KRW 2,250,000 as well as to additionally collect KRW 9,450,00.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as stated in the reasoning of the judgment of the court of first instance, in addition to the following parts concerning the assertion that the collection order of additional collection is excessive among the dispositions of this case 6 pages of the judgment of the court of first instance (3). Thus, this part is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

(3) As to the assertion that an order to collect additional collection is excessive among the instant disposition

(A) Relevant statutes

Article 35 of the former Employment Insurance Act (wholly amended by Act No. 1037, May 31, 2010; hereinafter the same shall apply) provides that the Minister of Labor may order a person who has received or intends to receive support for employment security and vocational skills development activities by fraud or other improper means to return the amount of support received, as prescribed by Presidential Decree. In addition, the Minister of Labor may collect an amount not exceeding five times the amount received by fraud or other improper means in accordance with the standards prescribed by Ordinance of the Ministry of Labor (Article 1 and 2). Article 78(1)3 of the former Enforcement Rule of the Employment Insurance Act (wholly amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter the Enforcement Rule of the Act) upon delegation by the above Act provides that where the number of times requested to receive or intend to receive support by fraud or other improper means during the last five years prior to the detection of misconduct exceeds twice, the amount additionally collected at least five times the amount received by fraud or other improper means.

(B) The meaning of the frequency of fraudulent power under each subparagraph of Article 78(1) of the Enforcement Rule of the Act

On March 31, 2009, the Defendant additionally collected the amount equivalent to one of the incentives for the Plaintiff’s illegal applications and illegal receipt and demand on the other hand, while additionally collecting one of the incentives for the Plaintiff’s illegal receipt and demand on the other hand, from April 16, 2009 to June 8, 2009, and additionally collecting five times the five times the incentives for the illegal receipt and demand on the other hand. This seems to be due to the fact that: (a) the Plaintiff applied for the incentives on five occasions and received the incentives on five occasions; (b) deeming the Plaintiff’s illegal receipt and demand on the first to the third to the third; and (c) deeming the Plaintiff’s illegal receipt and demand on the other hand as two times for the last five years prior to the date of detection of the fraudulent act as prescribed in Article 78(1)3 of the Enforcement Rule of the Act as constituting “where two or more times or more”.

However, in accordance with the above relevant Acts and subordinate statutes, the Minister of Labor may additionally collect double, three, and five times the amount of incentives received by false or other unlawful means in accordance with the frequency of such application (hereinafter “the frequency of unlawful electricity”) for the preceding five years prior to the date of detection with respect to a person who received incentives by false or other unlawful means, in addition to ordering the return of such incentives, and the number of times such person applied for such fraudulent acts. In light of the purport of each subparagraph of Article 78(1) of the Enforcement Rule of the Act differently stipulating the amount of additional collection due to such fraudulent acts according to the frequency of illegal electricity within a certain period of five years, it is reasonable to deem that the above fraudulent power constitutes a separate fraudulent act committed prior to detection. ② Since Article 78(1)1 of the Enforcement Rule of the Act clearly provides that if the number of fraudulent power to be discovered is interpreted to include the frequency of fraudulent acts subject to detection, the above provision cannot be applied to the case where there is no number of such fraudulent power to be found to include such unlawful acts in the number of times of such unlawful acts.

(C) Whether the discretion is deviates or abused or abused

In light of the aforementioned legal principles and facts, and the following circumstances revealed in the argument, i.e., (i) even according to the criteria for the additional collection disposition as stipulated under Article 78(1) of the Enforcement Rule of the Act, the Defendant’s unlawful acts from April 16, 2009 to June 8, 2009 should be deemed double the amount that the Defendant received from the Plaintiff. (ii) In order to additionally collect five times the upper limit of the additional collection under the Employment Insurance Act, the Defendant’s additional collection should be deemed to be more serious, such as the case where the Plaintiff received several sanctions related to the illegal receipt of the incentives from the administrative agency, even if he had already received several sanctions related to the illegal receipt of the incentives, and thus, the disposition should be deemed to have been more serious. (iii) The Plaintiff did not have received sanctions such as the return order, etc. on the ground of the illegal receipt of the incentives from the Defendant before the instant disposition, and the circumstance and consequence leading up to the Plaintiff, the Defendant’s unlawful imposition of the additional collection amount to the Plaintiff pursuant to Article 78(1).

(4) The theory of lawsuit

Therefore, the order of return of the instant disposition is lawful, and the disposition of additional collection is unlawful by abusing discretion.

3.Consultations

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed.

Judges of the presiding judge, Judges

Judges Yoon Jong-dae

Judges Kim Dong-dong

1) The reasons are the previous amount that can be additionally collected upon the amendment of Article 35(2) of the Employment Insurance Act by Act No. 9315 on 2008, 12,31.

was changed to the amount less than the amount equivalent to the amount received, not more than five times the amount received, and the delegation of the said statutory provisions.

Article 78(1) of the Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 319 of April 1, 2009, and additionally collected amount under the former Act shall be paid.

The amount equivalent to the amount recognized as the "amount of 2, 3, and 5 times" was changed to the "amount of 2, 3, and 5 times according to the "illegal power", and the plaintiff's rejection on March 31, 200

It seems that the application and fraudulent receipt are immediately before the amendment of the above Enforcement Rule.

A person shall be appointed.