(영문) 서울행정법원 2011.2.11. 선고 2010구합30994 판결

On May 4, 2010, each disposition taken by the Defendant against the Plaintiff to recover the grant and to additionally collect the grant and to restrict the payment shall be revoked.

Reasons

1. Details of the disposition;

A. On January 1, 2009, the Defendant applied for the payment of new employment promotion subsidy (hereinafter referred to as “subsidies”) to the Plaintiff on the ground that the Plaintiff had newly employed B in a unemployment condition exceeding three months. The Defendant paid a total of KRW 3,600,000 to the Plaintiff. Specific details are as follows:

A person shall be appointed.

B. On May 4, 2010, the Defendant issued an order to return KRW 3,60,000,000 already paid to the Plaintiff pursuant to Article 78 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter “Enforcement Rule of the Employment Insurance Act”) to return KRW 18,00,000,000 already paid to the Plaintiff pursuant to Article 35 of the Employment Insurance Act (hereinafter “Employment Insurance Act”), Article 35 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010); Article 56 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter “Enforcement Rule of the Employment Insurance Act”); and at the same time, additionally collects KRW 18,000,0000 which is five times the amount of fraudulent receipt.

[Ground of recognition] The fact that there is no dispute, Gap's evidence 1, Eul's evidence 1, and the purport of whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff did not have received the bounty unfairly. Accordingly, the instant disposition that was based on the premise that the Plaintiff was paid the bounty by “any false or other unlawful means” is unlawful.

(2) Even if there are grounds for the instant disposition, the instant disposition, which additionally collects five times the amount of incentives other than the incentives that the Plaintiff received, is against the principle of proportionality so that the disadvantage of the Plaintiff incurred therefrom is too large. Therefore, the instant disposition was deviates from and abused from discretion.

(b) Related statutes;

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

(1) The Seoul Southern General Employment Support Center established by the Defendant confirmed that the Plaintiff’s incentives were similar to the Plaintiff’s IP address and the IP address of B requesting the certification of job offers based on the current status of job offers and job seeking IP addresses on the Worknet, in the course of examining whether the incentives have been appropriately paid to the workplace including the Plaintiff. The detailed details are as follows.

A person shall be appointed.

(2) On November 6, 2009, the Seoul Southern Employment Support Center investigated the Plaintiff’s representative D with reasons similar to the IP address and the actual circumstances leading up to the employment of B as above. At the time, D was unaware of B before, but B was using the Plaintiff’s office (hereinafter “instant office”), but B was a member of one of the above businesses other than the Plaintiff, and entered the instant office and registered as a job-seeking with the said office computer. The Plaintiff visited the Plaintiff through the Worknet, and responded to B without having interview other job-seekings.

(3) On January 8, 2010, B prepared a written confirmation to the effect that “B entered the instant office with a view to drinking the lines of E organizations around December 8, 2010, and filed a job seeking registration with the said office computer,” and submitted it to the Seoul Southern General Employment Support Center. However, on April 2, 2010, H and I, working for the Plaintiff’s workplace, notified that there was a personal relationship between H and I, such as post-school vessels, and that he was a member of the Plaintiff’s workplace before entering the Plaintiff’s workplace.

【Reasons for Recognition】 Each entry in the evidence 2 through 7 (including each number), and the purport of the whole pleadings

D. Determination

(1) Whether the person has received grants by fraud or other improper means;

(A) According to Article 23 of the Act, Article 26(1) of the Enforcement Decree of the Act and Article 26(1) and [Attachment 1] 5 of the Act, an incentive is paid to an employer who takes measures necessary for employment security to prevent structural deterioration of unemployment by promoting employment of workers who are particularly difficult to find a job under the ordinary conditions of the labor market, and to facilitate entry of new unemployed into the labor market. According to Article 23 of the Act, Article 26(1) and [Attachment 1] 5 of the Enforcement Decree of the Act, an employer shall employ a person in a state of unemployment exceeding the unemployment period of three months (29 years or less) after calculating the date of job-seeking registration by an employment security office or any other agency prescribed by the Ordinance of the Ministry of Labor as the insured through the referral

As above, it is to prevent job seekers and job offerers from abusing the above system for the purpose of receiving only the incentives, which defines the "new employment through the intermediation of employment security offices, etc." as one of the requirements for granting incentives.

(B) According to the above facts, even though B was already determined or scheduled to be employed as the Plaintiff’s member before receiving job seeking mediation from the Worknet, it is reasonable to deem that B had B use the Plaintiff’s computer located in the Plaintiff’s office to register job seeking with the Worknet for the purpose of receiving the grant money, and had it completed the form of mediation of the Worknet. Therefore, the Plaintiff received the grant money by fraud or other improper means. The Plaintiff’s assertion is without merit.

(2) Whether the discretion is deviates or abused

(A) Article 35 of the Act provides that the Minister of Labor may restrict support or order a person who has received or intends to receive support for employment security and vocational skills development programs by fraud or other improper means to return the amount of support received by fraud or other improper means, as prescribed by Presidential Decree. In addition, Article 35(1) of the Act provides that an amount not exceeding five times the amount of support received by fraud or other improper means may be collected in accordance with the standards prescribed by Ordinance of the Ministry of Labor (Article 1 and 2). Article 56(1) of the Enforcement Decree of the Act provides that an order shall be issued to return a subsidy under Article 26 of the Enforcement Decree of the Act paid by fraud or other improper means pursuant to Article 35(1) of the Act. Article 56(2) of the Enforcement Decree of the Act provides that a person who has received or intends to receive subsidies, incentives, or vocational skills development training expenses shall not be paid for one year from the date he/she received or attempted to receive subsidies, incentives, or vocational skills development training expenses.

On the other hand, Article 78(1)3 of the Enforcement Rule of the Act provides that the amount additionally collected pursuant to Article 35(2) of the Act shall be five times the amount already received by fraud or other improper means in cases where the number of applications filed, or filed, by fraud or other improper means, is at least twice in the last five years prior to the date of detection of unlawful acts.

(B) Order of return of incentives and restriction on payment

As long as the Plaintiff received the subsidy by fraud or other improper means, the disposition that ordered the Plaintiff to return the subsidy and the disposition that restricted the payment of the subsidy for one year from the date of receiving the subsidy that the Defendant received pursuant to the above relevant Acts and subordinate statutes shall not be deemed to have exceeded the discretionary power or to have abused it.

The Defendant issued a disposition to additionally collect five times the amount of incentives paid to the Plaintiff pursuant to Article 78(1)3 of the Enforcement Rule of the Act, which seems to be due to the fact that the Plaintiff’s receipt of incentives by false or other unlawful means twice (the July 17, 2009, July 28, 2009, and July 28, 2009) constituted “cases where the Plaintiff received or intended to receive incentives by false or other unlawful means during the last five years prior to the date of detection of the “act of misconduct” under Article 78(1) of the Enforcement Rule of the Act, or where the number of applications filed by the Plaintiff,

1) Interpretation of the frequency of illegal electricity under each subparagraph of Article 78(1) of the Enforcement Rule of the Act

According to the above relevant Acts and subordinate statutes, the Minister of Labor may additionally collect double, three and five times the amount of incentives paid by false or other unlawful means in accordance with the number of times he/she applied to receive or intend to receive the incentives in a false or other unlawful manner (hereinafter referred to as "illegal power frequency") for the last five years prior to the date of detection, in addition to ordering the return of the incentives by fraudulent or other unlawful means. In full view of the following various points, it is reasonable to view that the number of fraudulent power under each subparagraph of Article 78(1) of the Enforcement Rule of the Act does not include the number of times of fraudulent power to be discovered (unlawful supply or demand or fraudulent request).

In light of the purport that each subparagraph of Article 78(1) of the Enforcement Rule of the Act differently prescribes the amount of the refund of incentives due to fraudulent acts subject to detection according to the frequency of illegal electricity within a certain period, it is reasonable to view that the number of such illegal electricity means a separate illegal act committed prior to such illegal acts subject to

If it is interpreted that the frequency of fraudulent acts is included in the frequency of illegal power under Article 78 (1) 1 of the Enforcement Rule of the Act, there is no room for application of the above provision, since there is no frequency of illegal power to be discovered.

○ Illegal power under Article 78(1)2 of the Enforcement Rule of the Act shall be construed as including the frequency of fraudulent acts that are the subject of detection in the case of such fraudulent power.

If the application and the illegal supply and demand are considered as separate power frequency, the number of illegal electricity caused by the illegal act subject to the detection in question reaches two times immediately, so there is no room for application of the above provision.

Article 78(1) of the Enforcement Rule of the Act amended the phrase "the number of times the person received or applied to receive by fraudulent or other unlawful means during the past five years prior to the date of detection of the fraudulent act" as the Labor Ordinance No. 338 of February 9, 2010 to "the number of times the person received or applied to receive by fraudulent or other unlawful means during the past five years prior to the date of detection of the fraudulent act" as "the number of times the person received or was ordered to receive a restriction on payment or return from the Minister of Labor in accordance with Article 35(1) of the Act". The above amendment seems to be more clearly defined as mentioned above

2) Whether the discretion has been exceeded and abused

In full view of the legal principles as seen earlier, the factual relations acknowledged as well as the following circumstances revealed in the instant argument, it is reasonable to deem that the Defendant’s disposition of additionally collecting five times the amount of incentives paid to the Plaintiff pursuant to Article 78(1)3 of the Enforcement Rule of the Act is excessively harsh to the Plaintiff to the extent that the scope of sanctions against the degree of the violation would lose proportionality. Accordingly, the instant disposition of additional collection is unlawful by abusing and abusing discretion

According to the criteria for the additional collection disposition under Article 78(1)1 of the Enforcement Rule of the Act, the amount that the Defendant is additionally collected from the Plaintiff shall be double the amount that the Defendant received.

In order to additionally collect five times the upper limit of the additionally collected amount under the Employment Insurance Act, it is reasonable to view that the above upper limit of five times the additionally collected amount should be serious, such as a case where a person receives a subsidy again due to the same unlawful act despite having already received several sanctions related to the illegal receipt of subsidy from an administrative agency.

In light of the fact that the Plaintiff did not have been subject to sanctions such as an order to return grants from the Defendant on the ground of unfair supply and demand prior to the instant disposition, and that there was only one person subject to the application of incentives B, and that the Plaintiff caused the instant case, it is reasonable to view that imposing additional collection on the Plaintiff by applying five times the maximum scope of the incentives illegally received by the Plaintiff to the extent that the scope of sanctions against the degree of the violation would lose proportionality is excessively harsh to the Plaintiff.

(3) Sub-determination

Since the part concerning the order to return grants and the restriction on payment among the dispositions of this case is legitimate, the Plaintiff’s assertion seeking revocation is without merit, and the part concerning additional collection is unlawful because it deviates from and abused discretion.

3. Conclusion

The plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as there is no ground.

Judges

For the presiding judge and judge;

Judges Eck-type Intervention

Judges Lee Jae-soo

Note tin

1) The Ministry of Labor provides various kinds of employment information, such as job offers, job offers, job information, employment trends, and other services such as employment information and employment applications, and each employment security office, etc. establishes a worknet, which is an employment evasion system, to enhance the efficiency of the work by electronically processing employment support affairs. The employment support center under the defendant-affiliated manages employment information, job offers, job offers, job placements, job seeking assistance, self-support assistance, job guidance, and vocational guidance.

Attached Form

A person shall be appointed.

참조조문

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