(영문) 서울행정법원 2012.4.5. 선고 2011구합36623 판결

On January 20, 201, the remaining nine million won of the disposition of additional collection following the Plaintiff’s illegal receipt of new employment promotion subsidy shall also be revoked.

Reasons

1. Details of the disposition;

A. On October 9, 2008, the Plaintiff Company employed C as a training employee, and C retired from the Plaintiff Company on December 2008.

B. On July 21, 2009, the Plaintiff Company applied for a new employment promotion subsidy to the Defendant on the ground that the Defendant was newly employed as of April 1, 2009 through the arrangement of the Employment Security Office (the Worknet site). Accordingly, on or around July 29, 2009, the Defendant’s employee visited the Plaintiff Company to verify the eligibility requirements for the above incentives, and at the time, the representative director of the Plaintiff Company at the time: (a) prepared a business owner’s certificate of new employment promotion subsidy; (b) indicated “whether the Plaintiff was employed through good offices arranged by an agency available for employment promotion under the Employment Insurance Act, such as the Employment Security Office”; (c) indicated the “for example, whether the Plaintiff had applied for a new employment promotion subsidy after the lapse of the period of time due to the employment of an employee who was not registered for employment promotion?” (d) accepted the Plaintiff Company’s new employment promotion subsidy from 00 to 40 minutes, and then expressed the Plaintiff’s new amount of subsidy to 200 minutes.”

D. On the other hand, on September 14, 2010, the Defendant received a request from the Board of Audit and Inspection to verify whether the Plaintiff company would pay the Plaintiff company new employment promotion subsidy for two months, and conducted an investigation, based on the fact that the Plaintiff company had already employed C again for two months, it was deemed that it received new employment promotion subsidy by submitting false data as if it had been newly employed through formal arrangement even though it was able to employ the Plaintiff company again without the placement of employment security office. On January 20, 2011, the Defendant issued an order to return the new employment promotion subsidy for KRW 4,500,000 which was illegally received by the Plaintiff company, and issued an order to additionally collect KRW 19,800,000 based on the fraudulent receipt of the said subsidy, and issued a disposition to restrict the payment

E. On April 18, 201, Plaintiff Company filed an administrative appeal with the Central Administrative Appeals Commission on the ground that it was dissatisfied with the aforementioned additional collection disposition. The Central Administrative Appeals Commission rendered a ruling on July 26, 201 as follows: “The details of the payment of the new employment promotion subsidy and the amount of additional collection on July 26, 2011,” as indicated in the “amount of additional collection following the instant disposition,” the amount of KRW 9,00,000,000, which is twice the amount of the grants that received the said fraudulent payment (4,500,000,000, which is more than KRW 19,800,000,000, out of the amount of the additional collection based on the illegal receipt of the new employment promotion subsidy granted to the Plaintiff on January 20, 2011, is revoked.” The remaining claim of the Plaintiff is dismissed (hereinafter referred to as “the instant disposition”).

[Ground of recognition] The fact that there is no dispute, Gap's 1, 2, Eul's 1 through 12 (including various numbers, if any) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff Company applied for a new and promotion subsidy to C without fully understanding the content of the relevant statutes. After applying for a subsidy, the Defendant misleads the Plaintiff that the application satisfies the payment requirements under the relevant statutes at the time of normal payment of the subsidy, and did not intend to receive the said subsidy by hiding the fact that C was employed for two months in the Plaintiff Company. Accordingly, the instant disposition is unlawful on the grounds that the grounds for the disposition are not recognized.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Sanction against violation of administrative regulations is a sanction against the objective fact that is a violation of administrative regulations to achieve administrative purposes, and thus, it may be imposed even if there is no intentional or negligent act on the part of the violator, barring any special circumstance, such as where the violator does not cause any negligence (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). “False or other unlawful means, which is the requirement for orders for return and sanctions for additional collection under Article 35 of the Employment Insurance Act,” refers to any unlawful act conducted by an unqualified business owner in general in order to conceal the eligibility to receive payment or the lack of eligibility to receive payment (see, e.g., Supreme Court Decision 2009Du4272, Nov. 2, 2009).

2) As acknowledged earlier, in light of the circumstances such as the fact-finding indicating the Plaintiff Company’s representative director, even though the Plaintiff Company had been working for the Plaintiff Company, in applying for a new employment promotion subsidy with respect to the Plaintiff Company, the Plaintiff Company has the power to employ C for the past two months, and thus, the Plaintiff Company is able to re-employed the Plaintiff without any need to offer the employment security office. Therefore, even if it is well aware that it is not eligible to receive the above incentive, it is reasonable to deem that the Plaintiff Company received a new employment promotion subsidy from the Defendant by submitting a false document after undergoing a formal brokerage procedure as if it was employed by the employment security office through the employment security office while concealing the above fact, and submitting a false document as if it were to newly employ C through the employment security office. Even if it is erroneous that even if such case satisfies the payment requirements under relevant Acts and subordinate statutes even as alleged by the Plaintiff Company, such circumstance is merely merely

3) Therefore, the Plaintiff Company filed an application for the payment of the above incentives by pretending that it is not eligible to receive the new employment promotion incentive even without being eligible to receive the above incentives, and as a result, it shall be deemed to fall under “a person who received support for employment security and vocational skills development programs by fraud or other improper means” as stipulated in Article 35 of the Employment Insurance Act by allowing illegal receipt of the above incentives. Therefore, the instant disposition is lawful. Accordingly, the Plaintiff

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.