(영문) 광주고등법원 2013.9.5. 선고 2013누1040 판결

On May 8, 2012, the order issued by the Defendant to return the illegal amount of subsidies for maintaining employment granted to the Plaintiff on May 8, 2012, the disposition of additional collection, and the disposition of correction of restrictions on

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

A. The plaintiff's improper receipt of employment maintenance support payment

The Plaintiff was an enterprise that manufactures and sells food in Jeonnam-gun, Jeonnam-gun, and reported that the dietitians belonging to the Plaintiff was falsely suspended even though they had worked normally in August 2009, January 201, February, and August 201, and received KRW 84,659,880 in total as subsidies for maintenance of employment from the Defendant.

B. The Defendant’s order to return, additional collection, and restriction on payment of subsidies

(1) On April 18, 2012, the Defendant issued an order to return illegal subsidies of KRW 84,659,880, additional collection of KRW 84,659,880, and a disposition to restrict payment of subsidies from April 18, 2012 to April 17, 2013 (hereinafter “prior disposition”).

(2) However, on May 8, 2012, the Defendant issued a disposition to additionally collect twice the amount of subsidies received in a false or other unlawful manner as provided by Article 35(2) of the former Employment Insurance Act (amended by Act No. 9792, Oct. 8, 2009; hereinafter “former Employment Insurance Act”) and Article 78(1)1 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 335, Jan. 6, 2010; hereinafter “former Enforcement Rule of the Employment Insurance Act”). If the Defendant erred in calculating additional collection twice the amount of subsidies received in a false or other unlawful manner, then the Defendant issued a disposition to additionally collect KRW 84,659,880 from 11498, Oct. 22, 2012 (hereinafter “former Enforcement Rule of the Employment Insurance Act”) 】 2084, 2085, 2089, 209.

C. On July 10, 2012, the Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Central Administrative Appeals Commission, but the Central Administrative Appeals Commission dismissed the Plaintiff’s request on September 11, 2012.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 3, Eul evidence Nos. 2, 3, 5, and 6 (including paper numbers, hereinafter the same), the purport of the whole pleadings

2. Whether the disposition of this case is unlawful

A. Summary of the plaintiff's assertion

(1) The Defendant erroneously interpreted Article 78(1)1 of the former Enforcement Rule of the Employment Insurance Act, thereby making the instant preceding disposition. The mistake in interpreting the aforementioned statutes does not constitute grounds for correction under Article 25 of the former Administrative Procedures Act.

(2) The revocation of the preceding disposition of this case, which was already conducted by the Defendant on the same ground as that of the preceding disposition to the Plaintiff, for the same reason, would seriously undermine the Plaintiff’s trust and legal stability as to the preceding disposition, and thus, is not permissible.

(3) In addition, the Defendant did not undergo prior notification under Article 21 of the former Administrative Procedures Act at the time of the instant disposition, and thus, the instant disposition is procedural defect.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Nature of the instant disposition

First, as to whether the disposition in this case is merely a mere correction of the previous disposition, and it cannot be deemed that the previous disposition was actually modified, Article 25 of the former Administrative Procedures Act, as to whether it was a mere correction of the previous disposition. "Correction of the previous disposition" under Article 25 of the former Administrative Procedures Act does not obstruct the execution of the disposition by voluntarily correcting or supplementing errors in entries, calculations, or other similar errors within the extent that does not substantially alter the contents of the order. If it is apparent that both the administrative agency and the other party are a simple error in entry or calculation, and there is no dispute as to the substantive contents, the purport of the previous disposition is to avoid repeated acts such as cancelling the same disposition for reasons of minor defects. Thus, it is difficult to view that the defendant's new disposition as to the previous disposition in this case's previous disposition was unlawful, for reasons that it was not identical to the previous disposition in this case's previous disposition's previous disposition's previous disposition's 6th,000,000 won for reasons that it did not change the contents of the previous disposition.

(2) Whether the principle of trust protection is violated

First of all, the defendant's revocation ex officio on the ground that there is a defect in violation of the statutes in the initial preceding disposition, and the administrative agency may revoke the administrative disposition, even if an administrative disposition is rendered, if there is a defect in the administrative disposition, if there is a defect in the provisions of the statutes, the existence of the administrative disposition is in violation of the public interest, or the consent of the other party, etc. (see, e.g., Supreme Court Decision 9Du10520, Feb. 25, 2000). (1) In principle, the administrative agency that has committed an administrative act has the authority to revoke it even if there is a defect in the act, and (2) Article 35 (2) of the former Employment Insurance Act provides that the amount not exceeding five times the amount of the subsidy received by false or other unlawful means in accordance with the standards prescribed by Ordinance of the Ministry of Labor may be collected. Thus, Article 78 (1) 1 of the former Enforcement Rule of the Employment Insurance Act, which is the Ordinance of the Ministry of Labor, which provides for additional collection in the amount of the above administrative disposition.

(3) If an ex officio revocation and re-disposition is rendered against the Plaintiff, the other party, even if there is any defect in the administrative disposition after the Defendant issued the administrative disposition, then it would result in the conclusion that the amount to be additionally collected can not be considered to be consistent with the equity with the other party of the other administrative disposition. In light of the following: (a) the Defendant, without any special reason, may ex officio revoke the preceding disposition and make a re-disposition to supplement the defect for the purpose of achieving the administrative purpose of legitimate and appropriate operation, even if the employment insurance business is lawful and appropriate.

Furthermore, in order to apply the principle of protection of trust to an administrative agency's act in public health and legal relations as to whether the disposition of this case violates the principle of protection of trust, first, an administrative agency's public opinion that is subject to trust to an individual; second, an administrative agency's opinion that is justifiable and trusted does not cause to an individual; third, an administrative agency should have trusted and trusted its opinion name; fourth, an administrative agency's opinion that is contrary to the above opinion name may infringe an individual's interest in trust; fourth, an administrative agency's disposition is unlawful as it goes against the principle of protection of trust (see, e.g., Supreme Court Decisions 2007Du7741, Oct. 10, 29; 2007Du741, Apr. 29, 2007; 2007Du7741, etc.); second, the plaintiff's opinion that the plaintiff's initial decision of this case cannot be seen as being contrary to the principle of protection of trust and good faith of the defendant; second, the plaintiff's act of this case's trust cannot be seen to exist.

(3) Whether the prior notice procedure has been in violation

According to Articles 21(1), 21(4), and 22(1) through (4) of the former Administrative Procedures Act, where an administrative agency imposes an obligation on the party concerned or imposes a restriction on his/her rights and interests, it shall notify the party concerned of the facts constituting the grounds for such disposition and legal grounds thereof, the method of handling such opinion if the administrative agency does not present an opinion. In cases where a hearing is not required in other Acts and subordinate statutes, etc., the administrative agency shall be given an opportunity to present his/her opinion to the party concerned. However, if it is deemed that hearing is considerably difficult or unnecessary due to the nature of the pertinent disposition, the administrative agency shall not give the Plaintiff an opportunity to present his/her opinion. Thus, the administrative agency may not be exempt from the revocation of the previous disposition because it does not constitute an exceptional case where the administrative agency does not provide the Plaintiff with an opportunity to present his/her opinion or an opportunity to present his/her opinion, even if it does not correspond to the foregoing prior disposition’s improper prior disposition that is not an opportunity to present his/her opinion.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.