(영문) 서울고등법원 2019.6.14. 선고 2019누30227 판결

The Defendant’s order to restrict loans for 360 days (from May 23, 2017 to May 17, 2018) provided to the Plaintiff on May 22, 2017, and revoke all orders to return KRW 17,609,300, the amount of illegal loans, and to additionally collect KRW 17,609,30,00.

Reasons

1. Quotation of judgment of the first instance;

The grounds for this court's judgment shall be added to the following matters, citing the judgment of the first instance under Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Additional matters;

(1) Even if a civil or administrative trial is not bound by the finding of facts in a criminal trial, the fact that a criminal judgment already became final and conclusive on the same factual basis is a flexible evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a judgment on the facts in a criminal trial in light of other evidence submitted in the civil or administrative trial, the facts opposed thereto cannot be recognized (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012).

D’s representative E was sentenced to the dismissal of an appeal on September 20, 2018, and appealed on September 21, 2018 (Supreme Court Decision 2018Do16257). However, on November 23, 2018, the final appeal was dismissed and the judgment of conviction against E became final and conclusive. There is no evidence to deem that there is any special circumstance deemed difficult to employ a judgment of facts in the above criminal trial in this case.

(2) The Plaintiff asserts to the effect that it is unlawful to dispose of the entire subsidy received by the Plaintiff in consideration of the amount of illegal receipt, since some of the instant trainees satisfied the completion standards by properly implementing training courses, and it is difficult to identify those trainees at present.

However, there is no evidence to deem that some of the instant trainees satisfied the standards for completion by properly implementing the training courses. Rather, the instant training was conducted by means of mail remote training; it was conducted by means of creating a ID of the instant trainees according to D’s representative E, etc.; and it was conducted by means of acting as an agent and acting as an agent; and in light of the circumstances where the Plaintiff did not perform its duty to confirm whether the training satisfies the standards for completion, etc., the instant training was conducted according to D’s plan.

It seems that the whole trainee was done in a similar way as a whole.

(3) According to the Plaintiff’s assertion, E is responsible for and implemented all curriculum so that the Plaintiff would not use any pathy, and the Plaintiff was aware that D beliefed the horses of E and faithfully carried out all training courses. D did not notify the Plaintiff of the details of the training course, thereby actively encouraging the instant trainees to participate in the training course without knowing the details of the training course.

According to the plaintiff's assertion, the plaintiff did not confirm whether the training was normally conducted for the trainees of this case, such as the progress of the training in this case and the fulfillment of the completion standards. In addition, the mere fact that the plaintiff trusted that he was fully responsible for the training in this case and that he would implement the training course, it is difficult to deem that there was a justifiable reason for the plaintiff to have difficulty in performing the duty to verify whether the trainee satisfies the completion standards, and there is no other evidence to acknowledge

(4) The Plaintiff asserts to the effect that D’s crime of fraud was committed by the Plaintiff, which was the victim, and that the instant disposition against the Plaintiff was excessively harsh.

However, inasmuch as the subject of workplace skill development training under the Vocational Skills Development Act and the subject of subsidies therefrom are the Plaintiff, separate from whether the Plaintiff may be liable for tort against D or its representative E, etc., it cannot be deemed that the instant disposition against the Plaintiff was deviating from the scope of discretion or abused discretion solely on the ground that E, etc. was convicted of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud).

3. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case shall be dismissed as it is without merit.

Since the judgment of the first instance court is consistent with this conclusion, the plaintiff's appeal is dismissed without any reasons.