(영문) 부산고등법원 2018.2.9. 선고 2017누22046 판결

The judgment of the first instance is revoked. On February 18, 2016, the Defendant’s cancellation against the Plaintiff on February 18, 2016, the termination of the contract for the Plaintiff’s process and the three-year consignment and restriction on recognition of recognition of the Plaintiff’s whole process, two-year disposition of restriction on consignment of the Plaintiff’s entire process, two-year order of return of KRW 20,594,010, and disposition of additional collection of KRW 20,

Reasons

1. Details of the disposition;

A. The status of the plaintiff and the defendant

The plaintiff is a training institution that conducts vocational training with the trade name of "Jind Human Resource Development Institute", and the defendant is a management and supervisory agency of the competent training institution.

B. Implementation of the Plaintiff’s training and designation of the NCS course

1) The Plaintiff obtained recognition of training courses for occupational categories in the national key strategic industry from the Defendant as listed below, and filed a report on conducting training courses from January 26, 2015 to November 12, 2015, and received subsidies for training expenses after conducting the training.

A person shall be appointed.

2) The Plaintiff was recognized as a process of applying the National Skill Standards (NCS) to the first training course from January 26, 2015 to April 24, 2015 among the training courses. As such, with respect to the training courses recognized as a process of applying the National Skill Standards, the training institution may obtain additional subsidies to cover training costs.

C. On October 23, 2015, the Defendant: (a) conducted a joint inspection by training institutions with the Plaintiff on the Plaintiff on October 23, 2015; (b) provided the Plaintiff at will, instead of paying seven tickets for the accredited training materials that the Plaintiff should pay to trainees free of charge at the first and second training courses; and (c) discovered the fact that the Plaintiff did not provide all the basic ability classes (45 hours) while running the training course mainly on the pool of the weather issues.

2) Accordingly, on February 2, 2016, the Defendant issued a disposition to terminate the contract for the A process and to restrict the entrustment and recognition of the relevant process for one year (hereinafter “the first disposition”) against the Plaintiff on the ground that “the Plaintiff did not pay training materials for the A process, did not provide vocational basic training courses, and did not provide training courses primarily, and that it did not violate the terms of the entrustment contract to the extent that it would violate the purpose of training by driving mainly on the pool of the issuance of the civil qualification certificate examination.”

D. Application for additional training costs by the Plaintiff and payment of subsidies therefor

1) On August 7, 2015, the Korea Technology Education University Vocational Skills Review Board assessed the Plaintiff’s trainees, and granted B grade for the first training course recognized as a process of applying the National Skill Standards (NCS).

2) On November 25, 2015, the Plaintiff filed an application with the Defendant for additional subsidies for training expenses for the process of applying the National Skill Standards (NCS). On December 1, 2015, the Plaintiff received additional subsidies from the Defendant for KRW 20,594,010.

E. On February 18, 2016, the Defendant: (a) prepared and submitted a self-training log as if the Plaintiff had not conducted training in accordance with the terms and conditions originally entrusted and the NCS programming standards; and (b) prepared and submitted a false training log as if he/she complied with the NCS programming standards; and (c) filed a claim for training costs upon receiving class B as a result of the evaluation thereof; and (d) additionally collected and disposed of the instant disposition for three years, including termination of the contract for the A process and restriction on consignment and recognition of the relevant process (from February 3, 2016 to February 2, 2019); and (b) an order to return KRW 20,594,010,000,000,000,000,000,000 won for the previous course of the training institution’s license for two years (hereinafter “the instant disposition order”).

【Unsatisfied Facts, Gap evidence Nos. 1, 2, 4 through 7 (including each number; hereinafter the same shall apply), Eul evidence Nos. 1 through 3, 10, 12, 13, and 16, the purport of the whole pleadings

2. Determination on the legitimacy of the disposition

A. The plaintiff's assertion

1) While the Defendant deemed that the Plaintiff violated the terms of the consignment contract to the extent that the Plaintiff violated the purpose of the training course in A’s primary disposition, it cannot be said that the Plaintiff exceeded the original purpose of the training, even if the Plaintiff did not conduct the occupational basic ability class, and thus, the Defendant violated the consignment contract to the extent that it would violate the purpose of the training.

2) Although the Plaintiff prepares and submits false evaluation data for trainees of training and received additional subsidies as the grounds for the instant disposition, the Plaintiff applied for subsidies in accordance with the Defendant’s active guidance, and thus does not have intention or negligence. Moreover, the Plaintiff did not receive training fees by fraud or other improper means, since there was no false data in the evaluation of trainees of training.

3) The provision that requires the addition of the period of restriction on recognition of entrustment under attached Table 1 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers shall be construed to the effect that the period of restriction may be added in cases where each of the grounds for restriction occur simultaneously by the disposition of the relevant process or by the entire process. As such, it is unlawful to aggregate the limitation on entrustment and recognition of the relevant process, which differs from

4) The Act on the Development of Workplace Skills of Workers and the same Enforcement Rule provide that if the degree of violation is minor, the measures may be taken by reducing the scope of 1/2 of the standards set by individual standards. The Plaintiff is merely conducting theoretical training to raise the awareness of the trainees’ intent and employment rate, and thus, the degree of violation is minor. In particular, the Plaintiff did not have any awareness of the illegal receipt since the application for additional subsidies was made in accordance with the Defendant’s direction and supervision. Nevertheless, the Defendant’s instant disposition without any mitigation is unlawful by abusing and abusing discretion.

B. Relevant statutes

It is as shown in the attached Form.

1) Determination on the Plaintiff’s first argument

In light of the following circumstances, the above evidence and evidence Nos. 8, 1, 4, 6, and 7, each of the above evidence and evidence Nos. 1, 4, 6, and 7 can be seen as having been trained in violation of the contents of the entrustment contract to the extent that it would violate the purpose of training. Therefore, the plaintiff's above assertion

① Students in the first and second training courses stated to the effect that they did not receive a total seven-year training teaching materials, and that the class mainly takes place according to the nine civil qualification certificate test schedule, instead of the time table approved after receiving four copies of the main teaching materials consisting of the issuance of the civil qualification examination, and that the class mainly takes place in line with the call questions, and that they do not receive a total of 45 hours vocational basic ability class.

② Training Teachers C also did not provide seven copies of training materials to be paid free of charge to trainees. Unlike the approved operational plan and time table, the training instructors continued to provide lessons mainly for acquiring qualification certificates in accordance with the test schedule for private self-satis, and stated that they failed to provide vocational basic skills classes.

③ In light of the above statements by trainees and training instructors, the Plaintiff appears to have conducted training only based on the call pool for acquiring private qualification certificates throughout the training course, rather than throughout the training course, regardless of the operational plan, etc., rather than through the process of conducting a normal training in accordance with the operational plan.

(4) The objective of the training courses for the first and second training courses, which the Plaintiff had obtained prior approval, is to analyze economic feasibility and technical feasibility for the purpose of mechanical design, to review the suitability and function of design, and to establish design planning and to train professionals equipped with D production capacity, and not to necessarily require the Plaintiff’s acquisition of private qualification certificates to achieve the training goal.

(6) Supporting the acquisition of private qualification certificates by the State with a large amount of training costs is also inconsistent with the purpose of the system prepared to train human resources in the categories of work lacking human resources or in need of human resources training among the national key and strategic industries.

2) Judgment on the second argument by the Plaintiff

In light of the following circumstances, the aforementioned evidence and evidence Nos. 1, 20 through 23, each statement of evidence Nos. 1, 20 through 23, and the purport of the entire pleadings, the Plaintiff is deemed to have received additional subsidies by submitting false materials in the evaluation of trainees. This constitutes a case where the Plaintiff received training expenses by fraud or other improper means. Accordingly, the Plaintiff’s assertion is without merit.

(1) Training expenses subsidies for training subject to the National Skill Standards (NCS) shall be paid for training courses whose grade D is higher as a result of the evaluation of trainees who completed the training course after the implementation of the training course. The training plan prepared by the Plaintiff states that: (a) the NCS vocational basic ability is 45 hours; (b) the NCS major 300 hours per nine subjects; and (c) the training course is paid free of charge; (d) the Plaintiff did not conduct the NCS vocational basic ability 45 hours according to the training plan; (c) the NCS major 30 hours per nine subjects; (d) the training course was conducted mainly for acquiring the qualification certificate; and (e) the training course was not paid free of charge to trainees.

(3) Nevertheless, the Plaintiff prepared a training log to the effect that it actually performed the training according to the training plan, prepared a training completion evaluation data on the premise that it conducted the training, and submitted the above data to the Employee Skill Review Board for the evaluation of the trainees of the training.

(4) Subsidies for training expenses are based on the premise that training has been implemented in accordance with a training plan, and subsidies are granted after submitting a training plan and the documents containing the details of the training plan completely different from the actual training, as long as the evaluation grade for trainees of training falls under the standards for payment of subsidies for training expenses, the amount of subsidies granted after obtaining the evaluation grade for trainees of training by fraud or other improper means.

applicable to this section.

⑤ The Plaintiff asserts that “the evaluation data for trainees are not prepared falsely.” However, the above evaluation data is prepared on the basis of the Plaintiff’s training program, so long as most of the training programs are not implemented, evaluation of the training courses cannot be conducted, and evaluation data are written by trainees who do not directly prepare evaluation data, and evaluation data are prepared by different trainees. However, the Plaintiff appears to have prepared evaluation data at will to prove that the training courses were conducted in accordance with the training plan.

⑤ On January 12, 2017, the Busan District Court rendered a judgment of conviction of a fine of KRW 4 million for a crime that the Plaintiff submitted false training site and evaluation data and received a subsidy by an evaluation rating by the vocational ability review board (hereinafter referred to as “vocational ability review board”) on the ground of the fact that the Plaintiff received the subsidy by unlawful means (hereinafter referred to as 2017Da

3) Judgment on the third assertion by the Plaintiff

The Plaintiff’s act of violating the contents of the consignment contract to the extent that it would violate the purpose of training in A training courses constitutes termination of the contract and restriction on consignment and recognition of the relevant course for one year pursuant to attached Table 1-2(3)a of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers. Moreover, the Plaintiff’s act of preparing and submitting false evaluation data of trainees for A’s first training courses recognized as the process of applying NCS standards (NCS) and receiving additional subsidies 20,594,010 won constitutes termination of the contract and restriction on recognition of entrustment of two-year course pursuant to attached Table 1-2(e) of Article 6 of the Enforcement Rule of the same Act.

Meanwhile, Article 6 and attached Table 1-1.5 of the Enforcement Rule provide that "where at least two grounds for restrictions on entrustment and recognition occur simultaneously or during the period of restrictions on entrustment and recognition occur, the period of restrictions on entrustment and recognition shall be the period calculated by adding up the respective periods of restrictions within three years." Since the whole course of vocational development training includes each individual training course, the grounds for restrictions on recognition of entrustment for the whole process constitutes grounds for restrictions on recognition of entrustment.

Therefore, pursuant to the foregoing attached Table 1-1-5, the Defendant may impose a total of three years of restriction period of one year and two years of restriction period on the relevant process, and the restriction period of entrustment and recognition on the relevant process for three years (from February 3, 2016 to February 2, 2019) was overlapped with the two-year period of entrustment and personal seal restriction (from February 19, 2016 to February 2, 2019) for the entire process, so it cannot be deemed that the sum of restriction periods is otherwise unfair. Therefore, the Plaintiff’s aforementioned assertion is without merit.

4) Judgment on the plaintiff's fourth argument

In light of the fact that the Plaintiff’s training courses were conducted differently from the initially specified training goals, the number of trainees’ satisfaction is not high, and the amount of illegal receipt received by the Plaintiff is considerable, the degree of violation cannot be deemed to be minor. Furthermore, even though such defective training courses have been conducted for a long time, the Plaintiff appears to have neglected the management and supervision of the training instructors, as seen earlier, and the Plaintiff’s responsibility for such training sites and evaluation sites is not less weak, such as having them voluntarily prepare training sites and evaluation sites and submit them to the evaluation of trainees, and thus, the Plaintiff’s liability cannot be deemed to be mitigated under the proviso to Article 6 and Article 1-1 of the Enforcement Rule of the Act on the Development of Workplace Skills

In addition, workplace skill development training is conducted with limited financial resources, such as the Employment Insurance Fund under the and Employment Insurance Act, and it is highly public interest to promote the employment security of workers, the improvement of social and economic status, and the productivity of enterprises due to the disposition of this case, and it is necessary to thoroughly manage whether training is conducted in accordance with the recognized training courses in order to achieve the purpose of training for the development of workplace skills and to prevent unfair claims for training

Therefore, since the disposition of this case cannot be deemed to have deviates from or abused the defendant's discretionary power, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.