(영문) 서울행정법원 2020.3.12. 선고 2019구단71434 판결

1. On October 1, 2019, the Defendant’s disposition of additionally collecting KRW 3,600,000 out of the disposition following the illegal receipt of the B-employment internship system against the Plaintiff is revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

The Defendant’s disposition of restricting payment, such as an unfair supply and demand disposition 21,227,490 won and a subsidy for nine months, issued against the Plaintiff on October 1, 2019, shall be revoked, respectively.

Reasons

1. Details of the disposition;

A. The Ministry of Employment and Labor: (a) provided unemployed workers with opportunities for occupational ability development and career formation through the experience of internship work in small and medium enterprises; (b) entrusted the instant business operation to C (hereinafter “C”); (c) subject to public offering and examination procedures; and (d) entrusted the instant business operation with C (hereinafter “C”); (b) the head of the employment security office delegated the authority to the instant business pursuant to Article 115 of the Employment Insurance Act; (b) the Plaintiff, a corporation for the purpose of advertising agency, advertising business, etc., agreed to participate in the instant business as an executor of the instant business; and (c) entered into an agreement on internship support with C on February 5, 2015 with C; and (c) applied to the Defendant for a conversion into GD and E-H conversion into regular employees from April 2015 to September 2016; and (d) applied for the payment of each of the subsidies to GD and E-H conversion into full-time employees.

A person shall be appointed.

D. On October 1, 2019, the Defendant issued a disposition following the fraudulent receipt of the B-employee internship system on the following grounds: “The Plaintiff applied for a subsidy as if he/she had been employed as a broker by the entrusted operating institution for the case of having directly employed the Plaintiff.”

1) Based on Article 33(1)1 of the Subsidy Management Act (hereinafter referred to as the “Subsidy Act”) and Article 35(1) of the Employment Insurance Act and Article 56(1) of the Enforcement Decree of the same Act with respect to the full-time conversion subsidy, a disposition ordering the return of the subsidy amounting to KRW 7,075,830 in total as follows (i.e., KRW 18 million + KRW 5,275,830 of the full-time conversion subsidy + KRW 5,275,830) (hereinafter referred to as the “return disposition of the subsidy”).

A person shall be appointed.

2) For the internship subsidy, Article 33-2(1) of the Subsidy Act, Article 35(2) of the Employment Insurance Act, and Article 78(1)1 of the Enforcement Rule of the same Act, for the full-time conversion subsidy, 14,151,60 won in total corresponding to twice the above subsidies based on each of the above subsidies under Article 33-2(1) of the Employment Insurance Act and Article 78(1)1 of the same Enforcement Rule = (1.80,000 won + (5,275,830 won for the full-time conversion conversion) X2) of the additional collection (hereinafter “additional collection disposition of this case”) 3) of the Employment Insurance Act, Article 35(1) of the Employment Insurance Act, Article 56(2) of the Enforcement Decree of the Employment Insurance Act, a disposition ordering the restriction of payment of the subsidy for nine months (hereinafter “the instant restriction disposition of payment of the subsidy”), and each of the instant dispositions referred to as “the instant additional collection disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 4, 7 through 14 (including provisional number; hereinafter the same shall apply), the purport of the whole pleadings

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

A. The plaintiff's assertion

1) The assertion that the subsidy is not a case where the subsidy is granted by unlawful means

A) The term "a subsidy is granted by fraudulent or other illegal means" under the Subsidy Act and the Employment Insurance Act refers to the receipt of a subsidy in excess of the amount to be granted to a project that is not subject to the subsidy, or in excess of the amount to be granted to the relevant project, etc., and it does not constitute a case where a legitimate amount of subsidy has been granted to a project eligible to receive the subsidy, even if used as a means to deem that a certain degree of legitimacy is lacking in the granting of the subsidy. However, in the course of the Plaintiff’s participation in the instant project and the receipt of the subsidy, “B voluntarily entered the workshop with the knowledge of the instant project,” but only there was a minor defect in the process that the Plaintiff introduced the instant project to B, and thereby, the Plaintiff actually hired B as a new intern after being provided with a letter of assistance from the intermediary, which does not constitute a case where a subsidy is denied because there is no problem in relation to the requirements for the payment of the subsidy.

B) Since the internship support fund and the regular conversion support fund are separate subsidies and the requirements and the method of payment are different, it cannot be deemed that the lawful receipt of the internship support fund is a requirement for the payment of the regular conversion support fund. Therefore, even if the internship support fund received by the Plaintiff from the operating institution falls under an illegal receipt, the Plaintiff received the regular conversion support fund after meeting all the requirements of the termination of the internship period and the conversion into the regular employment. Thus, the full-time conversion support fund does not constitute an illegal receipt.

2) Claim of violation of the principle of proportionality

In light of the circumstances such as difficulties in fully understanding the instant project, the Plaintiff, who is not a labor expert, was unable to engage in the project in accordance with the guidance of the Defendant-designated operating institution or labor law firm, and was involved in the process of the project. The Plaintiff suffered economic difficulties as a small-scale small enterprise, and the Defendant neglected to properly manage and supervise the operating institution for the proper implementation of the instant project even though it was obligated to properly manage and supervise the instant project, the instant disposition is inconsistent with the suitability principle and the necessity principle.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

1) The purpose and summary of the instant project

The main contents of the Ministry of Employment and Labor's 2016 Guidelines for the Implementation of the Employment Dualton System for Small and Medium Enterprises (hereinafter referred to as the "Guidelines of this case") are as follows:

1. IN GENERAL. 2. 2. The term "entrusted operating institution" means an institution that selects unemployed persons as the operating institution of the internship system and entrusts them with the task of operating the internship system, through a public recruitment and examination procedure prescribed by the Ministry of Employment and Labor, and provides them with opportunities for training and employment. - The term "working enterprise" means a person who provides them with wide recognition and active occupational awareness of occupations, and promotes full-time employment suitable for their aptitude experience; 3. The term "small and Medium Enterprise 200" means a person who provides unemployed persons with opportunities for internships, such as small and medium enterprises, to improve their work experience and full-time employment opportunities, and to contribute to the elimination of difficulties in small and medium enterprises; 2. The term "working enterprise" means an institution that selects them as the operating institution of the internship system and the agency that provides them with opportunities for training and employment. - The term "working enterprise" means a person who provides them with opportunities for training and employment services, such as working skills, for the internships for which they wish to enter into an employment consultation with the implementing enterprise and employment guidance center;

- Payment and return of work bonus for internships for implementing companies - conclusion of internship employment agreement for B-ton employment and working conditions, etc. - ment of internships - designation through work training for paid leave, etc. 4. Employment assistance for internships 1. Employment recruitment, selection and conclusion of employment center (employment Center operating institutions) employment mediation and employment 3-1. Employment assistance for internship applicants 3. Employment consultation for career and work types desired for employment, etc. . 3-2. Employment assistance for applicant companies should be conducted by an operating agency which is highly likely to directly obtain employment assistance for full-time workers from the date of consultation. 1. 3-2. Employment assistance for full-time employees should be conducted by an operating agency which is 1. 3-4. (Mediation) employment assistance for full-time employees if the applicant company fails to meet any of the following requirements and directly obtain employment assistance for full-time employees from the competent operating agency(s) employment assistance center(s).

II.1. Payment of the Government subsidy 1. Payment of the 60,000 won per month (50,000 won per month for a small or medium enterprise) for an enterprise providing support 1-1. (Support Level) during the internship period, if the agreed wage specified in the 1.3-1. (Support Level) agreement is at least a certain standard. 60,000 won per month for the contract period (50,000 won per month for a small or medium enterprise). The enterprise implementing the subsidy payment procedure 2-1. (Application) for the internship period within 10 days after the payment of monthly wage to the internship workers, the enterprise shall submit an application for the subsidy attached to the 4-month employment subsidy (the first application and change are made) and the application for the subsidy to the operating institution within 10 days after the examination of the details of the application for the subsidy. The operating institution shall apply for the subsidy to the 3-month employment subsidy within 10 days after the date of payment of the 2-month employment subsidy to the competent operating institution and within 15-month employment period, respectively.

○ Illegal Supply and Demand refers to all acts of entering into an internship agreement or receiving government subsidies by false or other unlawful means for the purpose of receiving government subsidies. 3-2. The standard of determining illegal receipt and demand refers to cases where an employee who has already been employed as an intern or a person who has not actually worked as an intern is registered as an intern, or where the number of insured workers who can confirm the employed limit is falsely submitted, etc.: Provided, That where an implementing company receives government subsidies due to a cause not attributable to the implementing company, it shall not be deemed to be illegal receipt; 3-4. When an implementing company receives government subsidies by fraudulent or other unlawful means (including where a person applies for or fails to receive government subsidies), it shall comply with an order to return the employment center and operating institution, and shall be prohibited until the return of the amount of fraudulent receipt and demand is completed. Where an employee who has been employed pursuant to Article 56 of the Enforcement Decree of the Employment Insurance Act in accordance with an application for fraudulent receipt and demand is limited.

2) Method and procedure for employing the Plaintiff’s internship

A) The Plaintiff was aware of the instant business by reporting the advertising mail sent to the Plaintiff, and participated in the instant business when paying fees for the business support to I.

B) The Plaintiff, irrespective of the instant business, conducted an interview with G, H, and H to support employment through employment advertisement, etc., and determined employment, and confirmed that G and H were eligible to support the internship under the instant business. After that, the Plaintiff provided guidance to G and H on the instant business and requested G and H to apply for the Worknets joining and Bton.

C) The Plaintiff requested I to arrange for G and H, and C, upon receipt of I’s request, issued a letter of good offices for G and H. The Plaintiff employed H as each intern on March 28, 2016, and September 8, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 6, 11 through 13, Eul evidence 1, 2, 7 through 9, the purport of the whole pleadings

D. Determination

1) Whether the Plaintiff’s receipt of the internship subsidy and the full-time conversion subsidy constitutes a case where the Plaintiff received the subsidy by fraudulent or other illegal means

A) Article 33(1)1 of the Subsidy Act provides that “Where a subsidy recipient has received subsidies or indirect subsidies by fraud or other improper means, the head of a central government agency, etc. shall order him/her to return all or part of the subsidies or indirect subsidies by setting a deadline.” Article 35(1) of the Employment Insurance Act provides that “the Minister of Employment and Labor shall restrict the payment of subsidies as prescribed by Presidential Decree within one year to a person who has received subsidies for vocational skills development programs under this Chapter by fraud or other improper means, and order the person to return the subsidies received by fraud or other improper means.” Here, the term “false or other improper means” refers to deceptive and passive acts conducted in order to conceal the eligibility to receive subsidies, etc. under the Act, or other acts deemed unfair under the social norms, which may affect the decision-making on the grant of subsidies, etc. by fraud or other improper means (see, e.g., Supreme Court Decision 201Du2701, Sept. 5, 2003; 2015Du751585, May 2017).

B) In light of the above legal principles, in light of the following circumstances acknowledged in light of the health class, facts acknowledged earlier, and evidence No. 4-1, and evidence No. 5-1, the purport of the entire pleadings, it is reasonable to deem that the Plaintiff’s receipt of the internship subsidy and the full-time conversion subsidy was based on “any false or other unlawful means” as prescribed by Article 33(1)1 of the Subsidy Act and Article 35(1) of the Employment Insurance Act. Accordingly, the Defendant’s disposition of returning the instant subsidy to the Plaintiff is lawful.

① The purpose of the instant project is to provide unemployed persons with experience in internship service in small and medium enterprises, etc. to provide them with opportunities for job skills development and career formation, and to promote their employment as regular workers who are appropriate for aptitude and experience.

② Under the instant guidelines, the instant guidelines provide for the recruitment of an executor company’s internships by receiving the “management agency”. In the instant projects, the operating agency serves as a broker for and arranging the executor company and the internships, and the instant guidelines require the operating agency to provide education and counseling services to the executor company and the internship applicants in the course of good offices. Such education and counseling shall enhance the wide range of occupation and active occupational awareness, and shall accurately grasp B’s ability, aptitude and desired occupation, human resources needed for and working conditions of the executor company, etc. by providing them with opportunities for work under the most suitable conditions to individual internships, and further enhancing the possibility of transition to regular employment.

③ In addition, the operating agency shall support the conclusion of an internship agreement between the applicant for the internship and the executing company, and perform guidance and management duties for the proper implementation of the internship system even after the employment. In addition, the ultimate purpose of the instant business is to provide the opportunity for new employees who have no career experience to be employed as regular workers. As such, the instant guidelines impose an obligation on the operating agency to ensure that the intern participants are employed as regular workers through the development of job ability and work adaptation. As such, the operating agency shall not only link the internship with the executing company through the arrangement in the instant business, but also play the role of guidance and management so that the employment of the intern will lead to the full-time employment through continuous intervention on the extension line after the employment of the internship.

④ As can be seen, the instant guideline is not merely a formal procedure, but also an important and essential part for achieving the objectives of the instant business. From this perspective, the term “in this case’s guideline is distinguishable from an intern under the employment or screening system of similar names implemented by the company itself in terms of the definition of the terms. In the event that the implementing company fails to receive employment mediation at least once a week from the filing date of the application for the internship, the implementing company is allowed to employ Bton without arranging the operating agency only when it satisfies one of the requirements and obtains approval from the employment center under the jurisdiction of the operating agency. In the event that the implementing company directly employs a intern without meeting the requirements for direct selection, it is strictly defined that the implementing company should bear all of the expenses incurred in hiring the intern. 5th, in light of the Plaintiff’s order of employment support by directly employing the Plaintiff without good faith or obtaining approval from the operating agency, and thus, it is not possible to receive the Plaintiff’s employment assistance in the instant case’s guidelines from the operating agency.

Now can only be said to be a mere fact.

(6) Furthermore, the full-time conversion subsidy can be applied only when the pertinent implementing company intends to convert the internship employed in accordance with the instant guidelines into a full-time employee, and the payment requirements are directly related to the Baton support system, and such payment requirements are to convert the internship employed in accordance with the instant guidelines into a full-time employee and maintain employment for six months. Therefore, as seen earlier, insofar as the Plaintiff did not employ G and H as a full-time employee in accordance with the method prescribed in the instant guidelines, the requirements for the payment of the full-time conversion subsidy are not satisfied. Since the Plaintiff received the full-time employee conversion subsidy by pretending to be eligible, it also constitutes the receipt of subsidies by fraud or other improper means.

7) The Plaintiff, who is not a labor expert, asserts to the purport that the disposition to return the instant subsidy is unfair, because it was difficult for the Plaintiff to fully understand the instant project, and the Plaintiff did not know that there was procedural defect in receiving the subsidy while participating in the business by dependence on the labor law firm or the Defendant’s designated intermediary business. However, the sanctions imposed on the 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 special circumstances, such as where it is impossible to cause negligence on the part of the offender’s duty of care, it may be imposed even if the Plaintiff did not act intentionally or negligently against the offender (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). Furthermore, the Plaintiff could not be seen as having any justifiable reason for signing the instant agreement between the operating agency or employment center and the Plaintiff’s failure to contact with the Plaintiff. In light of the fact that the Plaintiff’s failure to comply with the guidelines, etc., such as the Plaintiff’s failure to comply with the guidelines.

2) Whether the part concerning the internship subsidy is legitimate among the disposition of additional collection in the instant case

ex officio, this case’s additional collection disposition is examined with respect to the relevant statutes on the basis of the part concerning the internship subsidy.

A) The administrative laws and regulations, which serve as the basis for an sediment and sediment administrative disposition, shall be interpreted and applied strictly, and shall not be excessively expanded or analogically interpreted in a manner unfavorable to the other party to the administrative disposition, and even in cases where a teleological interpretation is allowed taking into account the legislative intent, purpose, etc. of such administrative laws and regulations, such interpretation does not deviate from the ordinary meaning of the text and text thereof (see, e.g., Supreme Court Decision 2016Du51610, Nov. 9,

B) As seen earlier, Article 33-2(1) of the Subsidy Act provides that “In any of the following cases, the head of a central government agency shall impose and collect additional monetary sanctions against a subsidy program operator, etc., as prescribed by Presidential Decree, within five times the total amount of subsidies or indirect subsidies to be refunded,” among the additional collection disposition in this case, the Defendant’s provision on the part concerning the internship subsidy in this case refers to Article 3-2(1) of the Subsidy Act.” subparagraph 1 provides that “Where a subsidy refund is ordered pursuant to Article 31(1)” and subparagraph 2 provides that “in accordance with Article 33,

A subsidy program operator or indirect subsidy program operator orders a subsidy recipient to return a subsidy or indirect subsidy."

First of all, Article 33-2(1)1 of the Subsidy Act provides that "where the decision to grant a subsidy is revoked, the head of a central government agency shall order the return of the subsidy corresponding to the revoked portion and the interest accrued therefrom with respect to the subsidy program whose decision to grant a subsidy was revoked, if the subsidy was already granted, with regard to the revoked portion of the subsidy program." This provision provides that where the head of a central government agency revokes the decision to grant a subsidy to a subsidy program operator pursuant to Article 30(1) of the Subsidy Act and orders the return thereof, additional additional monetary sanctions may be imposed and collected. As in the instant case, Article 33-2(1)1 of the Subsidy Act does not provide that the head of a central government agency intended to order a direct return to the subsidy recipient, the head of a central government agency may not be a legitimate basis for the additional collection disposition with respect to the internship subsidy.

Next, with respect to Article 33-2(1)2 of the Subsidy Act, the above provision provides that "the cases where a subsidy program operator or an indirect subsidy program operator orders a subsidy recipient to return a subsidy or an indirect subsidy pursuant to Article 33." However, in the instant case, there is no ground to deem that C, who is a subsidy program operator, ordered the return of a subsidy or an indirect subsidy to the Plaintiff. Therefore, the above provision cannot be a legitimate legal basis for

Ultimately, the current Subsidy Act seems to have no statute that imposes additional monetary sanctions when the head of a central government agency directly issues an order to return subsidies to a subsidy recipient. As such, 3.6 million won of the additional collection disposition of this case pertaining to H is illegal as it was conducted without any ground.

3) Determination as to whether the principle of proportionality has been violated

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant administrative disposition, by objectively examining the content of the act of violation as the grounds for the disposition, the public interest to be achieved by the relevant act of disposal, and all the relevant circumstances. In this case, even if the criteria for a punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed within the administrative agency’s internal business affairs rules, and thus, it is not effective externally to the public or the court. Thus, the legality of the relevant disposition should be determined not only by the above criteria for disposition but also by the provisions of the relevant Acts and subordinate statutes. Therefore, the relevant disposition can not be immediately deemed legitimate, unless the above criteria for disposition are consistent with the Constitution or laws, or unless there are reasonable grounds to believe that the result of the application of the said criteria is significantly unreasonable in light of the content of the act of violation and the relevant Acts and subordinate statutes (see, e.g., Supreme Court Decision 2007Du6966).

B) In light of the above legal principles, in light of the following circumstances, which can be seen in full view of the facts acknowledged as above and the purport of the entire argument as to the instant case, it cannot be deemed that each disposition of the instant case was excessively harsh to the Plaintiff as the disadvantages incurred by the Plaintiff compared to the public interest purpose to be achieved by each disposition of the instant case. Thus, the Plaintiff’s assertion on this part is without merit.

① The purpose of the instant project is to provide unemployed persons with opportunities to develop their job abilities and form career experience, and to promote employment for regular workers, which are appropriate for their aptitude and experience. To achieve the purpose of the system, it is essential to strictly manage subsidies in accordance with the purpose and purpose thereof, and to ensure the effectiveness of sanctions against violations by filing an application for subsidies by fraudulent or other illegal means and receiving such subsidies. Such public interest needs not be deemed to be less than the disadvantages the Plaintiff suffered due to each of the instant dispositions. As to the instant disposition on refund of subsidies, it is difficult to deem that ordering the Plaintiff who failed to meet the requirements to return the subsidies to the Plaintiff without return the subsidies to the Plaintiff.

③ This case’s additional collection disposition and a restriction on payment of subsidies are consistent with the criteria for disposition stipulated by the relevant statutes, and the said criteria do not in itself conform with the Constitution or laws. There is no ground to deem that the said criteria are inconsistent with the relevant statutes. The degree of differential sanctions depending on the history or amount of illegal receipt or demand under the criteria for disposition itself, and there is no special circumstance to deem that the application of the said criteria is considerably unreasonable in light of

④ While the proviso of Article 56(2) of the Enforcement Decree of the Employment and Labor Act provides that “a person may reduce the amount by up to 1/3 of the period of restriction on payment taking into account the degree, motive, and consequence, etc. of unlawful means,” the above provision is not only a provision of discretionary mitigation, but also a provision of discretionary mitigation, and as seen earlier, the Plaintiff appears to have been aware of, or could have been sufficiently aware of, the violation of the instant guidelines in the course of applying for a subsidy. As such, the Plaintiff intentionally or by gross negligence was found to have been found in breach of the guidelines, and even if the Plaintiff did not receive a referral from an operating institution, it cannot be deemed that the degree of the violation of the guidelines is minor, since the Plaintiff did not apply the said provision to the Plaintiff, and thus, cannot be deemed to have been unjust.

4) Sub-determination

Therefore, the disposition for additional collection of the internship subsidy of KRW 3.6 million among each disposition of this case is unlawful, and the remainder is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Soh-hee

Note tin

1) As seen in the following 2-C. (1) 'the purpose and outline of the instant project', the subject of payment and the need to pay the internship subsidy and the full-time conversion subsidy.

There are differences in the following cases:

○ton subsidies: The implementing company shall pay the benefits to the internship and apply for the subsidies to the operating institution after the internship is employed in accordance with the instant project.

(c) Upon receipt of an application for subsidies, the operating agency shall apply for subsidies to the head of the employment security office and the head of the employment security office shall decide

The head of an employment security office shall be notified of the agency in charge and the internship subsidy shall be paid. The operating agency shall receive the internship subsidy from the head of the employment security office.

shall be paid to the business.

○ A subsidy for full-time conversion: If an intern employed by an executing company is converted to a full-time employee and the employment is maintained for a certain period, at the request of the executing company.

The head of an employment security office shall pay a subsidy for full-time conversion to an executor company.

2) The Defendant paid to the Plaintiff KRW 1950,000,000 to the Plaintiff as a regular conversion subsidy for G, KRW 1950,000 on December 28, 2016, and KRW 195,00 on June 28, 2017, respectively.

3) As the internship subsidy for H, C paid each of the Plaintiff KRW 1,106,00,000 to the Plaintiff, KRW 26,60,000 on December 1, 2016, KRW 26,60,000 on December 26, 2016, and KRW 17,40,00 on February 17, 2017.

(c)

4) On May 18, 2017, the Defendant paid KRW 1,375,830 to the Plaintiff the full-time conversion subsidy for H.

5) In rendering each of the dispositions in the instant case, the Defendant: each internship subsidy, regular conversion subsidy, and G’s subsidy received by the Plaintiff due to employment D, E, and F

For the internship subsidy received due to employment, the extinctive prescription of three years has already elapsed at the time of the disposition of this case.

The object was excluded from the object.

6) Article 33(1)1 of the Subsidy Act, which is a legal basis for issuing a direct return order to a subsidy recipient, by which the head of a central government agency may issue a direct return order to the subsidy recipient, is applicable.

28. A subsidy Act was amended by Act No. 13931, which was enacted from April 29, 2016. Article 30 of the Subsidy Act before the amendment is amended;

31. Grounds for revocation of the State's decision to grant subsidies to a subsidy program operator and an order to return subsidies, and subsidy to a subsidy program operator under Article 33-1

There was only the basis for the order to return the subsidy to the recipient, and the State shall directly order the recipient of the subsidy to return the subsidy.

there was no applicable provision.