(영문) 서울행정법원 2017.1.25. 선고 2015구단15641 판결

2. On October 27, 2014, the Defendant’s order to return the 27,271,670 won subsidies to the Korea Local Economic Management Institute, an incorporated Plaintiff, to small and medium enterprises, the part of the 23,371,670 won subsidies, among the orders to return the 27,271,670 won subsidies to the

3. Each of the plaintiffs' remaining claims is dismissed.

4. Of the costs of lawsuit, 20% is borne by the Plaintiffs, and the remainder 80% is borne by the Defendant, respectively.

Purport of claim

On October 27, 2014, the Defendant issued an order to return the subsidy for the youth employment internship system of KRW 9,950,000 to the Korea Institute for Economic Management, Inc., Ltd. on October 27, 201, and issued an order to return the subsidy for the youth employment internship system of KRW 27,271,670 to the Korea Institute for Economic Management, an incorporated Plaintiff, respectively.

Reasons

1. Details of the disposition;

(a) The Korean Federation of Middle-Standing Enterprises (hereinafter referred to as the "Small-Large Companies") is an institution that is entrusted by the Minister of Employment and Labor with affairs concerning youth internship projects (hereinafter referred to as "the instant project") based on relevant statutes, such as Article 25 (1) 3 of the Employment Insurance Act, Article 35 (2) 2 of the Enforcement Decree of the Employment Insurance Act, and Article 36 (1) 3 of the Enforcement Decree of the Employment Insurance Act.

B. The Plaintiff Korea Economic Management Institute (hereinafter referred to as the “Plaintiff”) was paid KRW 1,950,00 for full-time conversion support from the Defendant on the ground that the Plaintiff participated in the instant project in 2012 and 2013 after concluding an internship support agreement with the Nonparty corporation, and employed KRW 8,00,00 for A and B as an intern in 2012, and in 2013, and the Plaintiff was converted into a full-time employee from the non-party corporation, and the above internship was converted into a full-time employee. The Plaintiff Korea Local Economic Management Institute (hereinafter referred to as the “Plaintiff”) was paid KRW 1,950,00 for the reason that the Plaintiff entered into the internship support agreement with the non-party corporation in 2012 and 2013, and participated in the instant project in 2012 and 2013, and received KRW 4,000 for 20,000 from the non-party corporation, 30,000 full-time employees.

D. On October 27, 2014, the Defendant: (a) issued an order to return KRW 8,00,000 paid to the Plaintiff Company on the ground that the Plaintiff Company, which is the implementing company of the instant business, submitted false application documents for internship and received subsidies in violation of the requirements for direct employment selection; and (b) Article 35 of the Employment Insurance Act and Article 56 of the Enforcement Decree of the same Act; (c) Articles 30 and 31, 31, 2012, and 2013 of the Subsidy Management Act (hereinafter “the Subsidy Act”); (d) and (c) Article 8,00,00,000 for the above full-time conversion subsidy received from the Defendant and the above full-time conversion subsidy received from the Defendant, to return KRW 9,950,000 in total (hereinafter “instant disposition”) and to prohibit the instant order for new employment for the next two years.

E. On October 27, 2014, the Defendant: (a) submitted false application documents for internship to the Plaintiff corporation; (b) violated the requirements for direct selection of employees; and (c) issued an order to return KRW 27,271,670, total of KRW 3,90,000 for full-time conversion subsidies received from the Defendant, based on Article 35 of the Employment Insurance Act and Article 56 of the Enforcement Decree of the same Act; (b) Articles 36 and 31 of the Subsidy Act; and (c) Articles 37, 371, 670 of the Subsidy Act; and (d) issued an order to return KRW 27,271,670 for full-time conversion subsidies received from the Defendant (hereinafter “second disposition of this case”); and (c) a disposition prohibiting new employment of an intern for the next two years, on the ground that the number of full-time employees did not meet the qualifications of an intern.

F. The Plaintiffs were dissatisfied with the instant disposition Nos. 1 and 2 and the instant disposition Nos. 1 and 2, and filed an administrative appeal on January 26, 2015, and the Central Administrative Appeals Commission revoked only the disposition prohibiting the employment of an intern for two years on June 23, 2015 and rendered a ruling dismissing the Plaintiffs’ claim seeking revocation of the instant disposition Nos. 1 and 2.

[Reasons for Recognition] Facts without dispute, Eul evidence Nos. 1, 2, Eul evidence No. 2-1, 2, Eul evidence No. 7, 11, Eul evidence No. 12-1 and 2, and the purport of the whole pleadings

2. Whether the dispositions Nos. 1 and 2 of this case are legitimate

A. The plaintiffs' assertion

The first and second dispositions of this case are unlawful for the following reasons.

① The first and second dispositions in this case are disciplinary dispositions conducted without legal basis.

② The Plaintiff foundation is a place of business with at least five full-time workers when concluding the agreement on the support for internship in 2013, and thus meets the qualification requirements for an internship implementation company.

③ Disposition Nos. 1 and 2 of the instant case violates the principle of proportionality as follows, and infringe on the Plaintiffs’ legitimate trust, thereby significantly deviating from and abusing discretionary power.

① The non-party corporation, an operating agency, actively accepted the selection of an intern through miscellaneous Korea without notifying the Plaintiffs of the requirements for direct selection, and actively accepted the selection of an intern through miscellaneous Korea. On the wind that the Defendant breached the supervisory duty on the operating agency, the Plaintiffs did not know that the employment of an intern through miscellaneous Korea was in violation of the requirements for direct selection of an intern.

Although the Plaintiffs believed to legally receive subsidies for several years and paid the full amount of subsidies to the U.S., the Defendant, upon the lapse of several years, issued a disposition of this case No. 1 and No. 2 ordering the full return of the subsidies. According to the implementation guidelines of this case, the Plaintiffs, a executing company, issued a warning to take corrective measures within 10 days of the first violation of the implementation guidelines of this case, the Kinton Convention, and the Sinton Agreement, etc., and issued a warning to take corrective measures within 10 days of the first violation, and agreed to terminate if the same violation occurred and the warning is not implemented within 10 days of the same violation. However, the Defendant violated this provision, and immediately issued a disposition of this case No. 1 and No. 2 ordering the return of the subsidies of this case.

B. Determination

1) Article 25(1) of the Employment Insurance Act provides that “The Minister of Employment and Labor may directly carry out, or subsidize or lend expenses incurred by, the following activities to stabilize and promote employment of insured workers, etc.” under subparagraph 3 of Article 25(1) of the Employment Insurance Act provides that “other activities to promote employment stability and employment of insured workers, etc., as prescribed by Presidential Decree.” Article 35 of the Enforcement Decree of the Employment Insurance Act provides that “other activities to promote employment security and employment of insured workers, etc., as prescribed by Presidential Decree” under subparagraph 2 of Article 25(1) of the Enforcement Decree of the Employment Insurance Act provides that “projects to promote employment of insured workers, etc., such as job placement, job-seeking guidance, employment of interns, and employment support programs,” and Article 36(1) of the Enforcement Decree of the Employment Insurance Act provides that “the Minister of Employment and Labor shall provide employment support programs, such as employment

Article 35(1) of the former Employment Insurance Act (amended by Act No. 1304, Jan. 20, 2015); Article 35(1) of the Enforcement Decree of the Employment Insurance Act (amended by Act No. 1304, Jan. 20, 2015); Article 25(2)3 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 1305, Dec. 3, 2014; hereinafter “the former Enforcement Decree of the Employment Insurance Act”) provides that “The Minister of Employment and Labor may order a person who has received or intends to receive the subsidy under this Chapter by fraud or other improper means to restrict such subsidy or to return the amount of subsidy received by the Minister of Employment and Labor,” and Article 25(1)3 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2515, Dec. 31, 2014; hereinafter “the former Enforcement Decree”) provides that “the person who has received or received the subsidy shall not be returned.”

Therefore, the provision related to the return of subsidies under the Enforcement Decree of the Employment Insurance Act and the Employment Insurance Act cannot be a basis for the part concerning the internship subsidy among the dispositions No. 1 and 2 of this case.

B) The term "subsidies" as referred to in the Subsidy Act means subsidies, charges, and other installment payments (Article 2 subparagraph 1 of the Subsidy Act) granted by the State to create or provide financial assistance to affairs or projects conducted by a non-State entity; "subsidized projects" means affairs or projects (Article 2 subparagraph 2 of the Subsidy Act); "subsidized project operator" means a person who implements a subsidized project (Article 2 subparagraph 3); and "subsidized project operator" means a person who has received subsidies from a subsidized project operator (Article 2 subparagraph 8 of the Subsidy Act). Considering the overall arguments in each of the items in subparagraph 2-1, 2-2, No. 12-1, and 2-1, and 2, the Defendant first granted the internship subsidy and its consignment operation expenses at the request of the non-party corporation and the operating institution thereafter constitutes a subsidized project operator; according to the application of the Plaintiffs and the subsidized project operator of the non-party corporation or the subsidized project operator of the non-party corporation, the subsidized project constitutes an entity that received the subsidy from the non-party corporation.

However, Articles 30 and 31 of the Subsidy Act provide for the revocation of the decision to grant or order to return subsidies to a subsidized business operator by the State, and Article 3-2 of the former Subsidy Act (amended by Act No. 13931, Jan. 28, 2016) provides for the order to return subsidies to a subsidized business operator, and the State does not provide for the order to return subsidies to a subsidized business operator. Thus, the non-party corporation, the operating institution, ordering the Plaintiffs to return the internship subsidy, or ordering the Defendant to return the internship subsidy to the operating institution, shall not be considered as the basis for ordering the Plaintiffs, who are the direct subsidy recipient by the Defendant, to return the internship subsidy.

C) We examine whether the instant enforcement guidelines can be the basis for the part regarding the internship subsidy among the dispositions Nos. 1 and 2 of this case.

Article 25(1)3 of the Employment Insurance Act and Article 25(2) of the Enforcement Decree of the Employment Insurance Act stipulate matters necessary for the implementation of employment support projects, such as support for employment of internships to promote employment, and subsidization of expenses, as prescribed by the Presidential Decree. Article 36(2) of the Enforcement Decree of the Employment Insurance Act delegated thereto delegates matters concerning the type and content of the target project, the scope of the target insured, etc., the details and level of the support, and the method of application, etc., and do not delegate matters concerning sanctions arising from illegal receipt. Furthermore, as seen earlier, the provision on the return of subsidies under the former Enforcement Decree of the Employment Insurance Act does not include the instant project based on Article 35(2) of the Enforcement Decree in the business subject to the return of subsidies due to illegal receipt. Therefore, even if the implementation guidelines of the instant case determined by the Minister of Employment and Labor stipulate the return of internship subsidies as matters concerning sanctions arising from illegal receipt, it cannot be deemed within the scope of the Employment Insurance Act’s regulation, and therefore, the enforcement guidelines of the instant case cannot be the basis provision for the portion of the subsidy.

D) In addition, the contents of each internship support agreement concluded between the plaintiffs and the non-party corporation are not externally binding laws, and thus, it cannot be the grounds for administrative agencies’ disposition.

E) Therefore, the Employment Insurance Act, the Subsidy Act, the implementation guidelines of this case, and the internship support agreement cannot be a basis provision for the part concerning the internship support fund among the dispositions Nos. 1 and 2 of this case, and there is no other statute that may otherwise serve as the basis. Thus, the part concerning the internship support fund of KRW 8,00,000 among the dispositions No. 1 of this case committed against the Plaintiff Company and the part concerning KRW 23,371,670 among the dispositions No. 2 of this case committed against the Plaintiff Company is unlawful as it is without any ground and is unlawful. Ultimately, as long as the part concerning the internship support fund of the disposition No. 1 and 2 of this case should be revoked due to the Plaintiff’s ground, the remainder of the assertion is not examined separately.

2) As seen earlier, the provision related to the return of subsidies under the Employment Insurance Act and the Enforcement Decree of the Employment Insurance Act does not include the instant business in the business subject to the return of subsidies due to illegal receipt of subsidies. As such, the part concerning the regular conversion subsidy among the dispositions Nos. 1 and 2 of the instant case cannot be the basis of the Employment Insurance Act. Moreover, the term “subsidies” under the Subsidy Act refers to the subsidies (Article 2 subparag. 1 of the Subsidy Act) granted by the State for the business or business conducted by a non-State, as seen earlier, in full view of the overall purport of the arguments in the statement No. 2-1, 2, and 12-1 and 2 of the evidence No. 2, the Plaintiffs, who received the full-time conversion subsidy, applied directly to the Defendant. Unlike the internship subsidy, since the Defendant directly performs the business or business without being entrusted to the operating agency, there is no room to apply the Subsidy Act to the return of the full-time conversion subsidy.

B) However, a disposition agency which has conducted an administrative act may cancel it on its own, even without a separate legal basis, even if there is a defect in the act. However, when cancelling a disposition of beneficial nature, it may cancel it only where the necessity of the public interest, which should be cancelled, the right to obtain trust, and the infringement of the stability of legal life, etc. which would be borne by the parties due to the cancellation, and where the necessity of the public interest is strong enough to justify the disadvantage that the parties need to sustain. However, if the defect in the disposition of beneficial nature is due to the party's act of concealment or other fraudulent means, the party could have known that the profit from the disposition was illegally acquired. Thus, even if the administrative agency did not consider it, it does not abuse its discretion, and in this case, the party's fact is not considered to have been passive through a third party. Therefore, if the defendant paid a subsidy of permanent conversion to the plaintiffs and there is a defect in the payment of a subsidy of permanent nature, and if it is due to the party's concealment of facts or other fraudulent methods, the defendant can order to return it to regular administrative position.

C) Article 25(2) of the Employment Insurance Act delegates matters necessary for the implementation of the instant project and subsidization and lending of expenses to the Presidential Decree. Article 36(2) of the Enforcement Decree of the Employment Insurance Act provides that “The Minister of Employment and Labor intends to provide support pursuant to paragraph (1), the Minister of Employment and Labor shall give prior notice of the type and content of the pertinent project, the scope of the insured, etc. subject to the support, the contents and level of the support, and the method of application, etc.” In full view of the entire arguments in each of the statements No. 12-1 and No. 2, the Minister of Employment and Labor prescribed the implementation guidelines of the instant case and publicly announced the contents, degree, scope, etc. of the support in advance. The requirements for the designated company subject to support under the implementation guidelines of the instant case are external binding. Accordingly, if the Plaintiffs received the support without hiding the requirements, it constitutes an application by abolition or fraudulent method, and the Defendant may cancel the disposition of the support and order the Plaintiffs to return the subsidy

d) Eul evidence 1-1, 2, Eul evidence 2-1, 2-2, and Eul evidence 3-1, 2, 3-2, Eul evidence 4-7, Eul evidence 8-1, 2, 3, Eul evidence 9-1, 12-2, Eul evidence 14, Eul evidence 16-1, 2, Eul evidence 19, 20-1, 21-1, and 21-1 of evidence 2. The execution guidelines of this case include the defendant's 1-2, 1-2, 3-2, 3-2, 3-2, and 10-2, 6-2, 10-2, 3-2, 100, 6-1, 6-2, 10-2, 6-2, which were employed by the defendant as a full-time intern, and 1-3,000,000-2,000,000.

E) According to the above facts, although the Plaintiff failed to meet the requirements stipulated in the implementation guidelines of this case, it was paid with the Defendant by concealing the same fact and applying for the payment of the subsidy for full-time conversion to the Defendant. Thus, the Defendant’s revocation of the payment of the subsidy for full-time conversion to the Plaintiff, which is a beneficial administrative disposition, and the part of the above regular conversion subsidy of KRW 3,900,00 among the disposition No. 1 of this case ordering the Plaintiffs to return the subsidy is legitimate (the Plaintiff’s above assertion is legitimate (the Plaintiff’s above 2013 subsidy for full-time conversion to E which was converted to the full-time employee before the Plaintiff’s 2013 subsidy for the above regular employment conversion to the above regular employment conversion to the Defendant. According to the Plaintiff’s statement No. 11, the Plaintiff’s 2 disposition of this case also did not include the elements of the Plaintiff’s qualification for full-time employee conversion to the above regular employment conversion to the Defendant, and it cannot be viewed that the Defendant violated the above corrective measures guidelines and abuse of discretionary power.

3) Therefore, since the part concerning the internship subsidy among the dispositions Nos. 1 and 2 of the instant case is unlawful, it should be revoked, and the part concerning the subsidy for full-time conversion among the dispositions Nos. 1 and 2 of the instant case is lawful.

3. Conclusion

Therefore, the plaintiffs' claims are justified within the scope of the above recognition, and each of the remaining claims is dismissed as it is without merit. It is so decided as per Disposition.