2017Gudan50154 Order for return and revocation of a decision for additional collection, etc.

1. A;

2. B

3. C

Attorney Lee Dong-dong, Counsel for the plaintiffs

The Deputy Director General of the Central Regional Employment and Labor Office;

Government Law Firm Corporation, Attorney Han-soo et al.

May 29, 2018

July 10, 2018

1. Each of the plaintiffs' claims is dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

The Defendant’s order to pay KRW 1,626,260 to the Plaintiff on August 20, 2016 (related to D Child Care Centers), order to return KRW 1,626,260, order to additionally collect KRW 330,00, order to return KRW 921,410, order to additionally collect KRW 921,41, 410, order to additionally collect KRW 921,41, and order to restrict loan for 360 days from the date of disposition, order to return KRW 2,494,470, order to return KRW 2,494,494, 470, order to additionally collect KRW 360, order to return KRW 1,098,210, order to additionally collect KRW 1,098,210, order to limit additional collection of KRW 210, and disposition to restrict loan for 360 days from the date of disposition is revoked.

1. Details of the disposition;

A. Details of the plaintiffs' entrusted training

1) The Plaintiffs are all representatives of child-care centers, who are employers, and enter into a consignment training contract with F Co., Ltd. (hereinafter referred to as “F”), and submit to the Human Resources Development Service of Korea a document that the child-care teachers met the requirements for completing the consignment training and pre-paid the training expenses to F, and thereby, receive the compensation for the training expenses from their own account pursuant to Article 27 of the Employment Insurance Act, etc. (Article 8 of the Regulations on the Assistance to Workplace Skill Development (Public Notice of the Ministry of Employment and Labor).

2) Specifically, the Plaintiff (“EM”) and D childcare centers are operated at the same time, and the Plaintiff (“EG childcare centers prior to the change”) conducted from June 2, 2012 to July 22, 2013; the Plaintiff’s total number of 31 childcare teachers affiliated with E childcare centers, including five (97 total number of students per year); the total number of 29 teachers affiliated with E childcare centers, including 20-16 teachers affiliated with D childcare centers, were conducted on a total of 29 training courses including D childcare centers, from September 15, 2012 to September 22, 2013; the total number of 20-16 teachers affiliated with D childcare centers, including 20-16 teachers affiliated with D childcare centers, and the total number of 27-14 teachers affiliated with the Plaintiff (“H childcare center representative”) up to 270-17.7.7.

B. During the investigation into F, which is an entrusted training institution, the Incheon Bupyeong Police Station: (a) prepared and published a false commission contract and tax invoice as if the business owner of 488 childcare centers, including the Plaintiff, did not preferentially pay training expenses; and (b) notified the Defendant that the trainee failed to attend the training course for at least 80% and failed to meet the completion standards, even if the trainee’s infant care teacher failed to meet the completion standards, he/she would have satisfied the completion standards, and received training expenses.”

2) Accordingly, as indicated below, the Defendant classified the Plaintiffs’ actual illegal receipt amount and the amount of supply and demand, excluding the portion for which the extinctive prescription has lapsed. On August 20, 2016, as indicated in the purport of the claim, the Defendant issued a disposition of additional collection of the same amount as the amount of the order of return (hereinafter “each disposition of this case”).

A person shall be appointed.

(c) Criminal punishment against the F representative, etc.;

1) On November 17, 2014, related persons, including the representatives of F, were indicted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on the Management of Subsidies. On December 15, 2016, the part of fraud was pronounced guilty (the part of the violation of the Subsidy Management Act was prosecuted for the mere fact that the Defendants were not the recipient of the subsidy), Seoul High Court 201759, but appealed as the Seoul High Court 201759, but the appeal was dismissed on April 27, 2017, and again appealed as the Supreme Court 2017Do7147, but the first instance judgment became final and conclusive by dismissal of the appeal on August 18, 2017 (hereinafter referred to as the “criminal judgment”).

2) The main point of the criminal judgment is as follows.

The Defendants: (a) from June 2012, 5, to June 2014, 6, 2014, 6, and 30. From June 201, the following facts: (b) even if childcare teachers did not attend the training or attend the training, 30 hours in the case of childcare teachers for 4 hours a day and 5 hours in the case of a group of 13 hours a day; and (c) in the case of Sundays 8 hours training, the actual training hours of childcare teachers do not fall short of 80/100 of the training hours certification; (d) although the training hours of childcare teachers do not fall short of 4 hours a day, Saturdays, 13 hours a day, and Sundays 8 hours a day, and the attendance rate falls short of 80 to 100% a normal training course, the Defendants submitted a false report on implementation and completion of training to the Service; and (e) the victims paid 48 hours a total of 13 hours a day to the Service as subsidies for workplace skill development training expenses.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1 to 11

2. Determination on the defense prior to the merits

The defendant asserts that each of the dispositions of this case against the plaintiffs of this case is unlawful because the period of the plaintiff B's end on April 4, 2017 is the same as the whole.

According to the Enforcement Rule of the Act on the Development of Workplace Skills of Workers [Attachment 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers [Attachment 6-2] 1-A, 3 of the period of support, financing, and restriction on taking lectures (related to Article 22), where a person subject to the restriction is subject to the restriction repeatedly, the restriction may be imposed within the extent of three years.”

Even after the expiration of the period of a restrictive measure, there is a disadvantage in the provisional arbitration system on the basis of the past record of violation of the law, so the plaintiffs still have a benefit to seek the cancellation of such restrictive measure.

Therefore, this part of the defendant's assertion that there is no benefit of lawsuit even after the actual cancellation is without merit.

3. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

The defendant did not properly confirm the facts leading to the disposition by each plaintiff on the basis of the criminal punishment against F representative, etc. and concluded that the defendant constitutes a attendance under conditions of less than 80% without any proper verification. In the receipt of training expenses, the criminal judgment against F representative, etc. was revealed. The plaintiff B and C were investigated as a suspect, and even after they received the decision of non-guilty charges, the plaintiff B and C received the support by fraudulent or other unlawful means, thereby concluding that the plaintiffs were provided with the support, loan restriction, return order, and additional collection. Each disposition of this case was made on the basis of the erroneous facts and is unlawful.

B. Determination

1) Whether the attendance of less than 80% of the training courses was conducted

Considering the following circumstances comprehensively, the Plaintiffs’ infant care teachers may be deemed to have attended less than 80% of the training courses.

A) Above all, even if a criminal judgment is not bound by the fact-finding in a criminal trial, the fact that a criminal judgment already became final and conclusive was guilty on the same factual basis is significant evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a factual judgment in the criminal trial in light of other evidence submitted in the administrative trial (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012). However, the criminal judgment held that: (a) the F, who provided education and training to childcare teachers upon entrustment by the plaintiffs, did not do so for 3 hours in the case of 4 hours a day, 5 hours in the case of 13 hours a day and 13 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a week a day a day a day a day a day a day a day a day asss.

B) Each of the training courses of the plaintiffs' infant care teachers belonging to the plaintiffs shall be composed of a total of 13 hours per day (1, evaluation index education-4), a total of 14 hours per day (five hours of franchising C, Tolin2-11, etc.), and a total of 40 hours per ten days (franchising A, franchising R&DI., etc.). The shortest case is about 13 hours per day and the shortest case is about 40 hours per day, and the rest is about 14 hours per two days. However, the total of 13 hours per day is less than 13 hours per day, 14 hours per day, 14 hours per day per day, 10 hours per day, 10 days per day, and 40 days per day, 10 hours per day, and 3 hours per day per day, respectively, and 4 hours per day per day during the shortest case is less than 13 hours per day.

C) In addition, F’s head of F’s branch, as well as F’s J, have entered into a lecture agreement for three hours a day, five hours a Saturday, and on Sundays, there was no lecture, and there was no infant care teacher who has completed all training courses normally (No. 12-3).

D) In addition, it was found that Plaintiff A’s childcare teacher K, Plaintiff B’s childcare teacher L, Plaintiff C’s childcare teacher M was not F during the training hours as a result of the investigation conducted by the base station of the Plaintiff C (Evidence B No. 18).

마) 한편 원고 B의 H어린이집의 보육교사 N는 이 법원에 증인으로 출석하여, 교구제작1, 리폼&DIY1;, 머쉰을 이용한 교구제작 10-1, 컨츄리인형 10일 - 3기, 톨페인팅 2-11, 톨페인팅 2-12, 톨페인팅 2-14, 펠트교구제작 2일 4기, 평가인증지표교육-4 훈련참석과 관련하여, 사실상 일요일은 참석하지 않았고, 토요일에는 9시부터 오후 5시까지 훈련을 하였지만 강사들은 1~2시경에 퇴근하였으며, 평일에는 강사가 없어도 실습을 하면서 4시간을 채웠다고 증언하였다.

그러나 우선 일요일에 훈련을 하지 않았고, 토요일에도 규정된 13시간에는 훨씬 미치지 못하였음을 인정하였으므로 총 13시간, 14시간인 훈련과정은 당연히 80%에 미달하고, 다만 10일 총 40시간에 해당하는 리폼&DIY1;, 머쉰을 이용한 교구제작10-1의 경우 훈련시간을 충족하였는지 여부가 문제되는바, 이 부분 역시 N는 2013. 9. 1.과 그 다음날 톨페인팅 2-14 훈련을 받아야하나 평일에 해당하는 2013. 9. 2.에 F에 있지 않았음이 통신조회 사실조회결과(을 제18호증의 1)이 확인되는 점, 앞서 본 바와 같이 강사들 이 평일에는 3시간만 훈련을 하였다고 진술한 점 등에 비추어 증인 N의 증언은 믿기 어렵다.

2) Whether the contractor is an illegal contractor

Article 16 (2) 2 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316 of Dec. 31, 2008; hereinafter referred to as the "former Act on the Development of Workplace Skills") generally refers to the affirmative and passive act that may affect the decision-making on the payment of training fees by a person who is not eligible to receive training expenses, as if he/she were qualified or not able to conceal the fact that he/she is not qualified. Article 16 (1), (2), and (3) of the former Act on the Development of Workplace Skills and Article 16 (6) of the former Enforcement Decree of the former Act on the Development of Workplace Skills (amended by Presidential Decree No. 21398 of Mar. 31, 2009; hereinafter referred to as the "former Act on the Development of Workplace Skills") provides that Article 13 (4) 1 of the former Act on the Development of Workplace Skills of Workers shall be construed equally as one of the matters to be considered when determining the specific criteria for disciplinary measures, and thus, the same provision shall not apply to the same person who committed an intentional act.

However, as seen earlier, the Plaintiffs received subsidies by fraudulent or other unlawful means, inasmuch as they were unable to claim training expenses because they failed to complete the training course properly, they can be deemed to have received subsidies. This does not necessarily change to the extent that they were not required for intention. Furthermore, in full view of the fact that the Plaintiffs did not perform the obligation to verify the completion of trainees in relation to the application for training expenses and the appropriateness of the application for training expenses, and that they applied for subsidies for training expenses in the manner of attaching false tax invoices, even though they did not have paid advance payment to F, it is reasonable to deem that the Plaintiffs received subsidies by fraudulent or other unlawful means.

3) Therefore, the instant disposition is lawful.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Yong-sik