2017Gudan50130 Order and revocation of Additional Collection, etc.

1. A;

2. B

3. C

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

Attorney Lee Dong-dong, Counsel for the plaintiff

The Deputy Director General of the Central Regional Employment and Labor Office;

December 11, 2018

January 22, 2019

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

The Defendant issued an order to return KRW 2,5,80, KRW 2,565,80 to Plaintiff A on November 7, 2016, KRW 360, KRW 360, KRW 368,50 from the date of the disposition, order to return KRW 3,638,50, KRW 360, KRW 360, KRW 360 from the date of the disposition, order to return KRW 1,58,00, KRW 1,584,00, KRW 00, KRW 360, KRW 360, KRW 360, KRW 460, KRW 360, KRW 360, KRW 460, KRW 360, KRW 360, KRW 360, KRW 460, KRW 360, KRW 460, KRW 360, KRW 460, KRW 360, KRW 360, KRW 460, KRW 364, and

1. Details of the disposition;

A. Details of the plaintiffs' entrusted training

1) Plaintiff A: (a) Lcare Center located in Kimpo-si J apartment K; (b) N Care Center located in Kimpo-si in Kimpo-si; (c) Plaintiff B N Care Center located in Kimpo-si; (d) Plaintiff C N Care Center located in Kimpo-si; (e) Plaintiff D’s U Care Center located in Kimpo-si; (e) Plaintiff E-N Care Center located in Kimpo-si; (c) Plaintiff C Care Center located in the Y Building Management Dong located in Kimpo-si; (d) Plaintiff G Child Care Center located in Kimpo-si; (e) Plaintiff Lpo-si located in Kimpo-si; (e) Plaintiff Lpo-si located in Kimpo-si; (e) Plaintiff H is a child care center located in Kimpo-si; (e) Plaintiff C’s child care center located in Kimpo-si; and (e) Plaintiff C should submit to the Human Resources Development Training Center of Korea at least 80% of the cost of vocational skills development training (which shall be paid to the Human Resources Development Training Center of Korea).

B. 1) During the investigation into AJ, which is an entrusted training institution, the Incheon Bupyeong Police Station: (a) prepared and issued a false commission contract and a tax invoice as if the employer of 488 childcare centers, including the Plaintiff, did not pre-paid training expenses; and (b) notified the Defendant that the trainee’s infant care teachers failed to attend the training course at least 80% and failed to meet the completion standards; (c) as if they meet the completion standards and received training expenses.”

2) On April 22, 2016, the Defendant issued a voluntary report to the Plaintiffs on April 2, 2016, stating that, in the case of the investigation result of the Incheon Bupyeong Police Station, the details of the illegal receipt of training expenses, the administrative disposition and possibility of requesting an investigation in the future, and the “voluntary report” under Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers, the Defendant may reduce all or part of the amount to be additionally collected in addition to the return of the amount of the illegal receipt, and operated the voluntary report period from April 25, 2016 to May 10, 2016. However, the Plaintiffs did not comply therewith.

3) The Defendant, except for the portion for which the extinctive prescription has lapsed among the part received by the Plaintiffs, issued an order of return, additionally collecting, and restricting the loan of funds as stated in the purport of the claim (hereinafter “each of the instant dispositions”). The amount of unlawful receipt, excluding the training courses for each Plaintiff and the extinctive prescription and the part related to the extinctive prescription, and the total amount of unlawful receipt, are as listed below.

A person shall be appointed.

C. Criminal punishment against the AJ representative, etc.

1) On November 17, 2014, relevant persons, including the representative of AJ, were indicted as a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on the Management of Subsidies. On December 15, 2016, the part of the crime of fraud was pronounced guilty (the part of the violation of the Subsidy Management Act was acquitted on the grounds that the Defendants did not constitute the recipient of the subsidy), Seoul High Court 201759, but appealed as the Seoul High Court 2017, but the appeal was dismissed on April 27, 2017, and again appealed as the Supreme Court 2017Do7147, but the first instance court became final and conclusive by dismissal of the appeal on August 18, 2017 (hereinafter referred to as the “criminal judgment”).

2) The main point of criminal facts is as follows.

The Defendants, as indicated in the separate list of crimes from May 6, 2012 to June 30, 2014, submitted to the Corporation a false training report, training completion report, training completion report, and training completion report as if childcare teachers were 80 to June 30, 2014, 30 hours in the case of 4 hours training per day, 5 hours in the case of 13 hours training per day, and 13 hours training per day, and 80/100 in the case of Sundays 8 hours training, in fact, the training hours of childcare teachers are less than 4 hours per day, 13 hours per day, and Sundays, and the training hours of childcare teachers are normally conducted and the attendance rate of 8 hours per day is 80 to 100%, and submitted to the Corporation a false training completion report, training completion report, and the victim on June 1, 200 to the Corporation together with the employer 48,157,17,17

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 9, Eul evidence Nos. 1 through 15, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

Since the attendance rate of trainees is less than 80%, there is no ground for disposition, and there is no intention to make payment or suspicion during the investigation, so it is erroneous in the misapprehension of legal principle that the decision of additional collection is made even though the intention is not recognized.

The Ministry of Employment and Labor’s guidance on the criteria for the administrative disposition of the business owner in relation to the instant disposition provides that the business owner who has received a non-prosecution as a discretionary standard shall be excluded from the administrative disposition; however, in the case of a business owner who has filed a voluntary report, the disposition was not specified, and thus imposes an additional collection at a disadvantage against the Plaintiffs who did not file a voluntary report. Even if it is not so, each disposition for additional collection is excessive in light of whether the Plaintiffs are recognized or not, and the degree of accountability such as the fact-finding, etc., each disposition of the instant case is unlawful

B. Determination

1) Non-existence of the grounds for disposition (whether a person has attended less than 80% of the training course)

In full view of the following circumstances, comprehensively taking into account the evidence presented above and the overall purport of the arguments, Plaintiffs’ infant care teachers may be deemed to have attended less than 80% of the training courses.

A) Above all, even if a criminal judgment is not bound by the fact-finding in a criminal trial, the fact that a criminal judgment already became final and conclusive was guilty on the same factual basis is significant evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a factual judgment in the criminal trial in light of other evidence submitted in the administrative trial (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012). However, the criminal judgment held to the effect that, in the case of a 3-hour training for 4 hours a day and 13 hours a day a day a day a day a day a 5 hours training was conducted, and that, in the case of a 13-hour training for 13 hours a day a day a day a day a day a day ad hoc, 80/100 or more of the subsidies provided to 48 business owners including the plaintiffs and 48 hours a day a day a day a day a day a day ad hoc, it constitutes a strong probative value of fraud.

B) In addition, the AJ’s head of AJ’s branch and AK, as well as the instructors belonging to AJ, have entered into a lecture agreement at three hours a day and five hours a Saturday, and on Sundays, there was no lecture, and there was no infant care teacher who has completed all training courses normally (No. 11-3).

C) Ultimately, even in the case of each training course in which the Plaintiffs’ infant care teachers participated, it shall be less than 80% in the case of each training course including Saturdays and Sundays, and it may be recognized that the training course conducted three times a day-day is less than 9 hours out of 12 hours and less than 80% in total. Thus, the allegation that there is no reason to dispose of it is difficult to accept.

2) Meritorious legal principles (related to intentional receipt and intentional collection and additional collection)

Article 16 (2) 2 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316 of Dec. 31, 2008; hereinafter referred to as the "former Act on the Development of Workplace Skills") generally refers to the affirmative and passive act that may affect the decision-making on the payment of training fees by a person who is not entitled to training expenses in accordance with social norms with intent to see that he/she is qualified, or that he/she is not qualified to do so. Article 16 (1), (2), and (3) of the former Act and Article 16 (6) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Act No. 9316 of Mar. 31, 2009; hereinafter referred to as the "former Act"), and Article 13 (4) 1 of the former Act on the Development of Workplace Skills of Workers means all acts that are not justifiable in terms of social norms, and thus, it is difficult to apply the same legal principles as the Supreme Court’s ruling concerning the act of negligence.

Therefore, the allegation that the disposition of additional collection is unlawful because the plaintiffs received a decision of payment or suspicion during the investigation process and the intent of illegal receipt is not recognized. Furthermore, as seen earlier, the plaintiffs confirmed their responsibility whether AJ had properly trained childcare teachers under its jurisdiction, and then the AJ should pay training expenses beforehand to the Human Resources Development Service of Korea, and then it could receive subsidies from the Human Resources Development Service of Korea along with the receipt.

However, in full view of the fact that only a part of the daily and Saturdays are implemented, and in particular, on Sundays, it did not verify whether the training course was properly implemented even if the training was not conducted, and that the training expenses were not paid in advance to AJ, by issuing false tax invoices and transferring them to AJ, etc., the additional collection disposition among each of the dispositions in this case is legitimate.

3) A deviation from and abuse of discretionary power

A) Claim on violation of discretionary rules

The discretionary rule on the administration of the internal affairs of an administrative agency prepared as a basis for the exercise of discretionary power is a discretionary rule, and such discretionary rule is generally effective only within the administrative organization, but does not have external binding power. Thus, the administrative disposition is not immediately unlawful merely because it is in violation of such rule. However, if the administrative practice is implemented after a pooling as prescribed by the discretionary rule, the administrative agency is placed under self-detained in relation to the other party in accordance with the principle of equality or the principle of protection of trust. In such a case, barring any special circumstance, any disposition contrary thereto is an illegal disposition that deviatess from and abuses the discretionary authority contrary to the principle of equality or the principle of protection of trust (see Supreme Court Decision 2011Du28783, Nov. 14, 2013).

On the other hand, the Ministry of Employment and Labor, on April 12, 2016, pertaining to the result of the investigation into the illegal receipt of training fees by the business owner of the Incheon Bupyeong Police Station, sent guidance, such as the criteria for the administrative disposition on the business owner's illegal training to the competent administrative agency including the defendant (Evidence A 10). The above disposition criteria only state the opinion of a superior agency in relation to a specific case, but cannot be said to be a discretionary rule that states the criteria for general handling cases, and it cannot be said that the defendant is detained or violated, and it does not immediately constitute a deviation or abuse of discretionary power. Therefore, this part of the plaintiffs' assertion is without merit, without any need to examine the violation

B) Claim regarding voluntary declaration

As seen earlier, the Defendant issued each of the instant dispositions with respect to the Plaintiffs who did not file a voluntary report, including additional collection and disposition with respect to the return order, on the other hand, the amount of illegal receipt should be returned only. Such disposition criteria have been clearly announced in advance. Moreover, it is reasonable in light of Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers as it conforms to the content of Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers and it is difficult to view that the content

C) Claim regarding additional collection disposition

The Act on the Development of Workplace Skills of Workers stipulates that a business owner, etc. who engages in a workplace skill development project shall, in order to promote and support workplace skill development throughout his/her life and train technical and skilled human resources needed in the industrial field, subsidize expenses necessary for the project, and if the expenses are subsidized by unlawful means, a certain disciplinary measure may be imposed. However, in light of the following: (a) in the case of training expenses paid by the Plaintiffs by unlawful means, the extinctive prescription for a considerable portion of the training expenses has expired; (b) the unfair payment period is short; and (c) in the case of Sundays, the claim for additional collection is filed without the training course; and (d) the disadvantage caused by the additional collection among each of the dispositions of this case cannot be deemed excessive in light of the purpose or intent to achieve

4) Accordingly, each of the instant dispositions is lawful.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-sik