(영문) 인천지방법원 2016.5.26.선고 2014구합31654 판결

The Defendant’s disposition of returning KRW 58,400 to the Plaintiff on October 29, 2013, and additionally collecting KRW 558,400 to the Plaintiff, and each disposition of restricting subsidies and loans for 270 days from October 29, 2013 to June 9, 2014 is revoked.

Reasons

1. Details of the disposition;

A. Entrustment of vocational skills development training by the plaintiff and subsidization of training expenses by the defendant

1) On March 23, 2011, the Plaintiff operated the C Child Care Center in Gyeyang-gu Incheon Metropolitan City, and entered into a contract for commissioned education with D Co., Ltd. (hereinafter referred to as “D”), which is a vocational skills development training institution, on the training of D Co., Ltd. (hereinafter referred to as “D”), 200,000 won per person for education, 8 education personnel, 1,60,000 won for each education, and 1,000 won for total education expenses.

2) On June 2, 2011, the Plaintiff filed an application with the Defendant for subsidies by stating the outline of education operation and the report on the result of education regarding the training expenses for vocational skills development as follows, and submitted a tax invoice stating that the Plaintiff paid KRW 1,600,000 for total training expenses to D as evidentiary documents on March 30, 201 (hereinafter “tax invoice of this case”). An outline of the operation of ○ education is outlined.

A person shall be appointed.

○ Report on the result of education

A person shall be appointed.

3) On June 10, 201, the Defendant approved the payment of subsidies of KRW 558,400 to the Plaintiff’s vocational skills development training expenses incurred by the Plaintiff, and paid KRW 558,400 to the Plaintiff on June 10, 201.

(b) Disposition, etc.;

1) On January 29, 2013, the Gwangju Regional Police Agency announced the investigation results that two training institutions, including D, conducted the Internet workplace skill development training conducted by the Ministry of Employment and Labor from January 201 to October 201, 201, such as 1,114 educational consignment companies, 'prepaid support', 'full refund', 'repaid refund', 'free discount', and 'the amount of subsidies for workplace skill development training', and obtained the subsidies for workplace skill development training by fraudulent means, such as 'the amount of subsidies for workplace skill development training conducted by the Ministry of Employment and Labor,' and 'the amount of subsidies for workplace skill development training by fraudulent means, such as 'the amount of subsidies', 'the amount of full refund', and 'the amount of discount'

2) On February 19, 2013, the leisure earnings and expenses of the Gwangju Regional Employment Agency sent to the Defendant a list of illegal receipt and demand places of business, including the Plaintiff, and notified the Defendant of the measure to be taken in accordance with the relevant laws and regulations.

3) On October 29, 2013, the Defendant: (a) applied Article 55(2)1 and Article 56(2) and Article 56(3)2 of the Act on the Development of Workplace Skills of Workers (hereinafter “Vocational Skills Development Act”); (b) returned 558,400 won; and (c) additionally collected 558,40 won; and (c) imposed a restriction on loans for 270 days (from October 29, 2013 to July 25, 2014), on the ground that the Plaintiff received training expenses with false receipts.

4) After March 31, 2014, the Defendant issued a notice to the effect that the period of sanctions against the Plaintiff shall be limited to 270 days from the date of receiving the subsidy, and that the period of sanctions shall be corrected from October 29, 2013 to June 9, 2014 (hereinafter referred to as the “instant restriction disposition”) by limiting the period of sanctions to the extent of 270 days from the date of receiving the subsidy (hereinafter referred to as the “instant disposition”), and that “the instant restriction disposition” shall be referred to as “the instant restriction disposition” from October 29, 2013 to June 9, 2014 as the remainder of the correction as above, and both the instant restriction disposition, the amount of illegal payment, and the additional collection disposition.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 8, the purport of the whole pleadings

2. Whether the part concerning the claim for revocation of the restriction disposition in the lawsuit in this case is legitimate

As the period of sanction (from October 29, 2013 to June 9, 2014) of the instant restrictive disposition has already expired, the Defendant’s defense of safety that the Plaintiff had no legal interest in seeking revocation of the said restrictive disposition.

However, in a case where there is a concern that a subsequent disposition is practically subject to an aggravated cause or condition, the other party subject to the prior disposition should sufficiently protect the right to remove such disadvantage through a litigation seeking revocation of the prior disposition even if the period of sanctions prescribed in the prior disposition has expired, and therefore, there is a legal interest in seeking revocation of the prior disposition (see, e.g., Supreme Court en banc Decision 2003Du1684, Jun. 22, 2006).

In this case, Article 22 [Attachment 6-2] subparagraph 1 (a) (iii) of the Enforcement Rule of the Vocational Skills Development Act provides that "where a person subject to the restriction becomes subject to the restriction repeatedly according to the individual criteria of item (b), the restriction may be imposed within the extent of three years." Thus, the plaintiff has a legal interest in seeking the revocation of the restriction even if the restriction measure of this case becomes invalid due to the lapse of the period of the restriction prescribed in the relevant disposition. Therefore, the defendant's defense is without merit.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

After the plaintiff paid the full amount of training expenses to D, the defendant presumed that the plaintiff was paid part of training expenses from D only on the basis of the investigation results of D by the police, although there was no fact that part of the training expenses was refunded to D, and the disposition of this case was taken.

Even if the Plaintiff received refund of KRW 1,600,600, which was paid to D and paid KRW 558,400,000 as training expenses, the Plaintiff’s actual training expenses paid are identical to the amount of KRW 558,40,00 (per person 69,800), which is a subsidy that can be paid for training expenses of the instant training course, and still has the status of receiving KRW 558,40,00 from the Defendant. Therefore, it is difficult to deem that the Plaintiff’s above act affected the Defendant’s decision-making on the payment of subsidies, thereby infringing the State’s financial interest.

Therefore, the disposition of this case based on misunderstanding of facts is illegal by deviating from and abusing discretionary power.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Article 20(1) of the Vocational Skills Development Act provides that a business owner who conducts workplace skill development training may subsidize expenses incurred by the Minister of Employment and Labor. Article 55(2) of the same Act provides that a business owner may restrict subsidies or loans if he/she has received subsidies by fraud or other improper means. Article 56(2) and (3) of the same Act provides that a return of the amount of subsidies received by fraud or other improper means, out of the amount of subsidies already received by the business owner, may be ordered, and the amount of subsidies not exceeding the amount of subsidies can be additionally collected. The term "any fraudulent or other improper means" as provided in the above provision refers to all fraudulent acts conducted by a business owner who is not generally entitled to receive, pretends to be paid, or is ineligible to receive training costs (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

Meanwhile, Article 20(1) and (3) of the Vocational Skills Development Act and Article 19(3) of the Enforcement Decree of the same Act provide that the Minister of Employment and Labor may subsidize expenses incurred in conducting workplace skill development training (including cases where workplace skill development training is conducted on commission) by employers who conduct workplace skill development training. Article 41(4) of the Enforcement Decree of the Employment Insurance Act provides that the scope of subsidies, etc. for workplace skill development training expenses, etc., the upper limit of subsidies and support procedures, and other matters necessary for support shall be determined by Ordinance of the Ministry of Employment and Labor. Article 60(1) of the Enforcement Rule of the Employment Insurance Act delegated by the above provision provides that the amount equivalent to part of training expenses, etc. subsidized under Article 41 of the Enforcement Decree of the Employment Insurance Act shall be based on the amount calculated according to the support criteria determined and publicly notified by the Minister of Employment and Labor

According to the above provision, the former Regulations on Assistance for Vocational Skills Development (amended by the Ministry of Employment and Labor No. 201-73, Dec. 30, 201; hereinafter referred to as the "Rules on Assistance for Vocational Skills Development") provides that Article 4 shall apply to the requirements for recognition of vocational skills development courses in Article 5, and Article 5 shall apply to the examination of propriety of remote training courses, etc., and Article 11 (1) shall apply to the case where a business owner conducts distance training on commission to employed workers, etc., within the scope of the amount obtained by multiplying the amount by the evaluation grade (attached Table 4) under Article 5 (2) by the amount obtained by the completion of the relevant training course, the subsidy shall be 80/100 (10/100 for preferentially supported enterprises) of the training expenses paid to the entrusted training institution. In full view of the above provisions, subsidies for Internet training such as the training course in this case shall also be subject to examination on the appropriateness of the training course recognized after examination.

As such, a business owner is entitled to receive some of the training expenses paid only when he/she has received accredited Internet remote training and meets the standards for completion thereof. As such, even if a business owner paid a less amount than the designated training expenses to an entrusted training institution, he/she shall be deemed to be eligible to receive the full amount of the designated training expenses, and where he/she applied for the subsidization of training expenses by stating as if he/she was able to receive the training, and

(ii) the facts of recognition

The following facts can be acknowledged in full view of the aforementioned evidence as stated in the evidence Nos. 9 through 13 and the purport of the whole pleadings. The only of the evidence Nos. 2 and 3 is insufficient to reverse the above recognition.

(1) D provided workplace skill development training services to employers who subscribed to employment insurance by means of distance training via Internet, and provided employers with the amount of subsidies from the Employment Insurance Fund for workplace skill development training compared to the expenses of workplace skill development training by employers, which are less than the expenses of workplace skill development training and try not to receive workplace skill training by employers.

② Accordingly, G, director H, president of I branch, etc., who is D representative director, obtained a certain amount of money in the way of ‘pre-paid assistance', ‘pre-paid payment', ‘repaid refund', and ‘pro rata’, which would result in the employer’s payment of only the amount of money to be received in the future from the Ministry of Employment and Labor as educational expenses, since the employer can obtain higher points in the part of education and training for employees when conducting workplace skill development training by means of Internet remote training.

③ Around March 23, 2011, D entered into a contract with the Plaintiff for the commissioned education of KRW 1,600,000 for the total education expenses for eight trainees with respect to the instant training course, and received KRW 1,600,000 through account transfer on March 23, 201 and March 24, 201, and repaid KRW 1,60,600 among the Plaintiff around March 24, 201.

④ Nevertheless, on March 30, 201, D issued the instant tax invoice to the Plaintiff to the effect that it received KRW 1,600,000 as total education expenses for the instant training course. On June 2, 2011, the Plaintiff, based on the instant tax invoice, filed an application with the Defendant for subsidies of KRW 558,400 for subsidies for training expenses for the vocational skills development of the business owner, and received KRW 558,400 from the Defendant on June 10, 201.

⑤ G, H, and J were indicted for committing the crime of fraud by the aforementioned act. G from the Gwangju District Court (2015Dadan2149) to March 24, 2016, G was sentenced to one year and two months of imprisonment, two years of suspended execution in August, and two years of suspended execution in June, and the J was sentenced to two years of suspended execution. G, H and prosecutor appealed, and currently pending in the appellate court (Seoul District Court 2016No1014).

3) Determination on the instant case

Based on the aforementioned legal principles, the following facts are revealed by the purport of the entire argument and facts, namely, ① the Plaintiff did not receive refund of KRW 1,600,600 out of the total education expenses paid from D with respect to the instant training course, ② the Plaintiff was convicted of committing a fraudulent act by J related to the Plaintiff (the first instance judgment against J was appealed only), ② the Plaintiff did not actually receive a refund of KRW 1,600 out of KRW 1,60,600 out of the total education expenses and KRW 1,58,400 out of KRW 1,60,000 from D and actually paid KRW 50,000,000 for KRW 60,000 for the instant training course, and the Plaintiff did not appear to have been aware of the fact that the Plaintiff did not actually receive a refund of KRW 1,60,000 from D and KRW 20 for each applicant, ③ the Plaintiff did not appear to have actually paid the training fee out of KRW 60,000,000.

It cannot be said that there is an error of deviation or abuse of discretion due to mistake of facts, etc. in the disposition of this case.

4. Conclusion

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

Judges

The presiding judge, appointed judge and appointed judge

Judges Hongnn

Judges Suh Sung-soo

Note tin

1) The Plaintiff stated “2013, 28 October 29, 2013” in the purport of the claim, but in light of the description of evidence No. 7, it was October 29, 2013.

Since it is a clerical error in the register, it shall be corrected.