(영문) 광주지방법원 2012.6.14. 선고 2011구합4114 판결

1. The Defendant’s order to return subsidies of KRW 2,330,630, which the Plaintiff rendered to the Plaintiff on September 1, 2011 is revoked. 2. The costs of lawsuit are assessed against the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On March 10, 2008, the Plaintiff was recognized as a vocational skills development training course pursuant to Article 24 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008; hereinafter referred to as “Occupational Development Act”) with respect to the “training period” (from March 11, 2008 to April 3, 2008; hereinafter referred to as “training period”).

B. After implementing the instant training course, on April 11, 2008, the Plaintiff applied for reimbursement of expenses for vocational skills development training to the head of the Daegu Regional Employment and Labor Office. On April 21, 2008, the head of the Daegu Regional Employment and Labor Office paid KRW 1,108,560 to the Plaintiff on April 21, 2008, which includes KRW 61,580 for trainees A.

C. On August 2010, the Board of Audit and Inspection and the Ministry of Employment and Labor: (a) notified the head of the Gyeonggi-gu Regional Employment and Labor branch of the list of trainees who entered and depart from Korea during the vocational skills development training period; (b) requested an investigation into whether the management of the illegal entry into and departure from Korea was conducted; (c) as a result of the investigation into whether the Plaintiff’s employee trainee A left Korea from Korea from March 25, 2008 to April 2, 2008; (d) during the total eight days of the implementation date of the above training course, it was verified that the Plaintiff was treated as having been absent on March 27, 2008; and (e) during the training period from March 21, 2008 to April 1, 208 (amended by Act No. 10558, Jun. 21, 201; 2005).

D. According to the instant disposition of restriction on payment, the Defendant ordered the Plaintiff on September 1, 201, and the Plaintiff to return KRW 2,330,630 of the subsidies paid to the Plaintiff-affiliated Gwangju Headquarters during the period of restriction on payment (from April 21, 2008 to April 20, 2009) (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) The fact that a trainee A was present without attending the instant training during the period of his departure from Korea and included in the person subject to the application for training costs is due to the number of actual work processes conducted by the employee B in charge of the pertinent work, and thus, it does not constitute “any false or other unlawful means” as provided by Article 25(1)2 of the Vocational Development Act and Article 35(1) of the former Employment Insurance Act.

2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same) (hereinafter “Enforcement Decree of the instant case”) (hereinafter “instant provision”) is unconstitutional or invalid by exceeding the bounds of delegation under Article 35(1) of the former Employment Insurance Act, or by excessively infringing the Plaintiff’s property right. 3) The scope of the instant disposition of return of the subsidy pursuant to the instant disposition of restriction on payment should be limited to the pertinent provision provided by false or other unlawful means or the relevant workplace.

4) In imposing sanctions against illegal receipt of subsidies, the Defendant’s instant disposition under the Employment Insurance Act, other than the Vocational Development Act, deviates from or abused the scope of discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether a person has received subsidies by fraud or other improper means or not) The sanctions imposed on a violation of administrative laws are sanctions based on the objective fact of violation of administrative laws in order to achieve administrative purposes, and thus, barring any special circumstance, such as where a failure to perform duties is not caused by an intentional act or negligence, it may be imposed even on the violator, unless there is a justifiable reason not to do so. "False or other unlawful means" under Article 35(1) and (2) of the former Employment Insurance Act and Article 56(1) and (2) of the Enforcement Decree of the same Act means any unlawful act conducted in order to estimate the eligibility for payment by an unqualified business owner or the lack of eligibility to receive training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

B) As to the instant case, the following circumstances that can be recognized by the overall purport of the statement of the above facts and evidence Nos. 1 through 3, namely, ① the Plaintiff, as the subject of the instant training, bears the duty to finally verify whether or not the trainees have participated in the training before applying for subsidies, ② However, as the subject of the instant training was notified by A that A would not participate in the training during the instant training period, it is well known that A would not participate in the said training during the period of departure from Korea. ③ Nevertheless, B would have been aware that the Plaintiff would not have participated in the training during the instant training period for the purpose of examining the Plaintiff’s attendance to the Administrator of the Daegu Regional Labor Agency, and that the Plaintiff would have been subject to the Plaintiff’s attendance at 8% of the total number of trainees without being signed by 18, and that the Plaintiff would have been subject to the Plaintiff’s attendance at 80% of the total number of trainees due to the lack of the Plaintiff’s signature during the instant training period.

2) Whether the provisions of the Enforcement Decree of the instant case are unconstitutional or invalid

In light of the contents, form, and system of Article 35(1) of the former Employment Insurance Act and the Enforcement Decree of this case, the disposition ordering the establishment of the period of restriction on vocational skills development training expenses and the return of subsidies, etc. paid during the period of restriction on subsidies shall be deemed to constitute a binding act. However, it is problematic whether the enforcement decree of this case, which stipulates that the person who received or attempted to receive vocational skills development training expenses, etc. by fraudulent or other illegal means (hereinafter referred to as "unlawful recipients") shall be obliged to return subsidies, etc. paid during the period of restriction on payment, without granting subsidies, etc. for one year for which the person was granted or attempted to receive vocational skills development training expenses by fraudulent or other illegal means, is in violation of the purpose

A) Whether it exceeds the purport of delegation of the parent law

First, in light of the following circumstances, the provision of the Enforcement Decree of the instant case is invalid because it goes beyond the purpose of delegation under Article 35(1) of the former Employment Insurance Act, which provides for the restriction on subsidies for vocational skills development training costs and the refund of subsidies, etc. resulting therefrom, the provision of the Enforcement Decree of the instant case is invalid because it exceeds the purport of delegation under Article 35(1) of the former Employment Insurance Act, a mother corporation.

① Even if Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of matters delegated to Presidential Decree, the scope or limitation of inherent delegation pursuant to the legislative intent or purpose, etc. of the said provision may be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Nu6578, Jul. 22, 1997); and the former Employment Insurance Act.

Considering the fact that various types of violations are expected in light of the nature of various kinds of subsidies, etc. and the form of the above provision or legislative purpose, it is reasonable to view that the purpose of delegation under Article 35(1) of the former Employment Insurance Act is to reasonably subdivide and regulate the standards for the restriction of support or the return of subsidies, etc. according to the type of fraudulent act, its degree of violation, its contents, motive, seriousness of the result, etc., or to provide for the competent administrative agency to increase or reduce the amount within a certain scope if it is not so. However, as seen earlier, the enforcement decree of this case upon delegation of the above provision is compelling to uniformly order the suspension of payment and the return of subsidies, etc. granted during the period of restriction of payment for one year without setting detailed standards according to the contents and degree of the violation as seen earlier, and there is no room for the mitigation of the amount of discretion, and thus, it would result in a conclusion that a lump-sum

② In addition, Article 56(2) of the Enforcement Decree of the Employment Insurance Act, amended by Presidential Decree No. 22026, Feb. 8, 2010, provides for restrictions on the payment of subsidies, etc. for one year to illegal recipients: Provided, That the same shall not apply to cases where three years have passed since the date of receipt of subsidies or incentives, or where fraudulent acts have been discovered as the amount of subsidies received or to be received by fraudulent or other illegal means, which is less than three million won, and Article 56(2) of the Enforcement Decree of the Employment Insurance Act currently in force after the amendment by Presidential Decree No. 22603, Dec. 31, 2010, the Minister of Employment and Labor reduced the amount of subsidies under paragraph (1) to any person who received or intends to receive any one of the subsidies under paragraph (1) within the scope of one year from the date of the return order or payment restriction under paragraph (1).

B) Whether it violates the principle of excessive prohibition

The principle of excessive prohibition refers to the limit of the basic principles or legislative activities to be observed by the State in carrying out legislative activities that limit the fundamental rights of the people. The legislative purpose of restricting the fundamental rights of the people is to recognize legitimacy in accordance with the Constitution and laws, and the method should be effective and appropriate in order to achieve the purpose (grounded on legitimacy of the purpose), and even if the measure of restricting the fundamental rights chosen by the legislative authority is appropriate in order to achieve the legislative purpose, the restriction on the fundamental rights should be limited to the minimum necessary range (minimum degree of damage), and the public interest protected in balancing comparison and balancing the public interest to be protected by the legislation is the constitutional principle, and any laws or regulations that violate the principle of excessive prohibition, or regulations that violate such principle, are null and void as their own.

The legislative purpose of this case is to prevent fraudulent acts related to the payment of subsidies, etc. through restrictions on payment of subsidies, etc. for one year to illegal recipients and orders to return subsidies, etc. paid during the suspension period of payment, and ultimately to promote the prevention of unemployment, the promotion of employment, and the development and improvement of workers’ vocational abilities. In addition, the legislative purpose of this case is justifiable in light of the fact that subsidies, etc. are made with limited public resources of employment insurance fund under the Employment Insurance Act. Furthermore, it appears that fraudulent acts related to the payment of subsidies, etc. are to be reduced through punitive sanctions under the Enforcement Decree of this case, and accordingly, the Employment Insurance Fund will be seen as a means suitable for the achievement of its legislative purpose. However, in light of the various circumstances seen below, the enforcement decree of this case can be seen as a means suitable for the achievement of its legislative purpose. However, in light of the contents of the provision of this case, it is excessively infringing on the property rights of the illegal recipients who lack the requirements of "minimum damages" or "a balance of legal interests", and thus it violates the provision of excessive prohibition.

① Article 35(2) of the former Employment Insurance Act provides that an amount not exceeding an amount equivalent to the amount received by false or other unlawful means may be collected from a punitive point of view. Accordingly, Article 25(4)1 of the Vocational Development Act, Article 22-2 of the Enforcement Decree of the Vocational Development Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); Article 9(1) of the Enforcement Rule of the Vocational Development Act (amended by Ordinance No. 320, Apr. 1, 2009) provides that “The amount to be additionally collected based on the number of times applied for the payment in the past five years shall be calculated separately from the aforesaid additional collection disposition.” Meanwhile, Article 35(2) of the Enforcement Decree of the same Act provides that “The amount of subsidies granted during the period of restriction on payment shall be uniformly returned to a beneficiary of unjust payment for one year, regardless of whether the subsidies were granted by false or other unlawful means,” and that provision provides that the amount of subsidies may be additionally collected compared to the above provision of a disciplinary measure may be more than the aforementioned provision.

(In the case of the plaintiff, the amount of improper receipt is KRW 61,586, and the subsidy to be returned by the plaintiff to the disposition of this case is KRW 2,330,630,000, which is about 38 times the amount of such improper receipt).

② In addition, the provision of the Enforcement Decree of this case provides that the initial date of the restriction on payment shall not be the date on which the application for the payment was received or made, rather than the date on which the application for the payment was made. Thus, if the illegal recipient becomes aware of the fact that the payment of the subsidy would be restricted for one year, he/she may flexibly conduct workplace skill development projects during the restriction period and reduce the loss, and it cannot be deemed unfair to operate workplace skill development projects as such. Thus, even if the provision of the Enforcement Decree of this case provides for the restriction on payment as a binding act, it cannot be deemed that he/she complied with the principle of "minimum damage suffered by the illegal recipient" in light of the fact that the base date may be reduced by prescribing the date on which the application for the payment was made.

③ In addition, the instant provision provides for the suspension of payment and the order to return subsidies paid during the period of restriction on payment for one year from the date of receiving or applying for the payment of subsidies, etc., but does not impose any special restrictions on the period of such restriction, thereby creating a problem that the status of an illegal recipient is unstable for a long time.

④ As seen earlier, Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; Presidential Decree No. 22603, Dec. 31, 2010); or Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010; Inasmuch as it is possible to restrict support taking into account the content, degree, etc. of the violation, and to return subsidies, etc. accordingly, can be seen as a result

3) Sub-decisions

Ultimately, the provision of the enforcement decree of this case only deviates from the purpose of delegation of the mother law, and thus is null and void as it violates the principle of excessive prohibition under the Constitution, and as long as the disposition of this case was based on the invalid provision, it shall be deemed unlawful without any need to further examine the remaining arguments of the plaintiff.

3. Conclusion

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