[Judgment of the court below]

Head of the Seoul Regional Labor Agency site

June 17, 2011

1. The Defendant’s disposition of ordering the return of new employment promotion subsidy of KRW 29,040,280 against the Plaintiff on May 20, 2010 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts may be acknowledged in full view of the purport of the entire pleadings, or there is no dispute between the parties, or in the entries in Gap evidence Nos. 1 and 1 to 3.

A. The Plaintiff is a person operating a system software development and supply company, which is a system software development and supplier.

B. On August 29, 2008 and January 15, 2009, the Plaintiff applied for the payment of new employment promotion subsidy on the ground that he newly employed the Nonparty who was unemployed on two occasions.

C. Accordingly, the Defendant determined the period of subsidization from June 9, 2008 to July 8, 2008, the period of subsidization of KRW 450,000, the period of subsidization of KRW 450,000 from July 9, 2008 to August 8, 2008, and the period of subsidization of KRW 450,000 from February 6, 2009 to August 8, 2008, determined the period of subsidization of the same day from August 9, 2008 to August 31, 2008, and paid each subsidy of KRW 333,870 to the Plaintiff. Around that time, the Defendant paid the Plaintiff new employment promotion subsidy of KRW 1,23,870 to the Plaintiff.

D. However, around May 2010, the result of the investigation of the fraudulent receipt of the new employment promotion subsidy conducted by the Nonparty, and the Nonparty was confirmed on June 5, 2008 that the documents were prepared as if they were newly employed through the arrangement of the employment support center, even though they provided labor at the Plaintiff’s workplace from May 2008.

E. On May 20, 2010, the Defendant: (a) applied each provision of Article 35(1) of the former Employment Insurance Act (amended by Act No. 1037, May 31, 2010; hereinafter “former Employment Insurance Act”) and Article 56(2)(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter “former Enforcement Decree of the Employment Insurance Act”) to the Plaintiff, on the ground that “the Nonparty is deemed to have received ex post facto good offices for the supply and demand of incentives even if the job offering and job seeker became aware of mutual information without good offices, given that the job offering and job offer request was made through the Plaintiff’s PC; (b) thereby, the Defendant returned the instant disposition to the Plaintiff including the instant order for restriction on the payment from January 31, 2009 to 308, 2007.” (hereinafter “Enforcement Decree of the Employment Insurance Act”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) According to the provisions of the instant legal provision, the restriction on payment and the return order disposition may not be concurrently imposed as a selective one. However, the provisions of the instant Enforcement Decree stipulate that the restriction on payment and the return order disposition beyond the scope of delegation shall be concurrently imposed. Therefore, the instant provision is invalid as it goes beyond the scope of delegation, and the instant disposition, which is based on the invalid provision, is also unlawful.

2) The provisions of the Enforcement Decree of the instant case, which stipulate that all grants paid during a certain period of restriction on payment shall be subject to the principle of liability for act, and that the other party to the disposition shall bear expenses that are not anticipated at all, violates the principle of protection of trust, and also violates the principle of proportionality in that it orders the return of excessive amount, compared with the subsidies actually illegally received.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

We examine whether the contents of the enforcement decree of this case conflict with the contents of the legal provision of this case, which set the scope of restriction on support of new employment promotion incentives and the return of incentives, etc. accordingly, or exceeded the limits of delegation stipulated in the legal provision of this case.

Article 35(1) of the Enforcement Decree of the instant case provides that “No person who has received, or intends to receive, subsidies, incentives, or vocational skills development training expenses under each subparagraph of paragraph (1) by fraud or other improper means shall be paid subsidies, incentives, or vocational skills development training expenses for one year from the date he/she received or applied for payment of subsidies, incentives, or vocational skills development training expenses, and the Minister of Labor shall order the person to return subsidies, incentives, or vocational skills development training expenses paid during the period of restriction on payment shall order the person to return all subsidies, incentives, or vocational skills development training expenses paid during the period

However, Article 35 (1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008) provides that "the Minister of Labor may restrict or order a person who has received or intends to receive support for employment security and vocational skills development programs under the provisions of this Chapter by fraud or other improper means to return the amount of support received by such person, as prescribed by Presidential Decree," and provides that "The Minister of Labor may order a person who has received or has received support for employment security and vocational skills development programs under the provisions of this Chapter by fraud or other improper means, to return the amount of support received by such person by fraud or other improper means," and that Article 35 (1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008) limits the scope of the subsidy, etc. which the defendant may order the person who has received or will receive support by fraud or other improper means to return the amount of support received by such unlawful means, and thus, it does not correspond with the legislative or other legal liability of this case."

Therefore, the content of the provision of this case, which provides for ordering the return of all grants, etc. paid during the period of restriction on payment for one year, is invalid as it goes against the content of the provision of this case, which is the mother corporation, or goes beyond the scope of delegation under the provision of this case, and the disposition of this case, which is null and void, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment Form 5]

Judges Kim Hong-do (Presiding Judge)