(영문) 수원지방법원 2017.11.9.선고 2017구합63772 판결

On March 23, 2017, the Defendant’s disposition of restricting payment, ordering the Plaintiff to return the illegally received amount, and imposing additional collection shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a corporation with the objective of maintaining and managing business facilities. The Plaintiff applied for the payment of KRW 2,250,000 to the Defendant for employment promotion subsidy corresponding to the period from April 1, 2016 to June 30, 2016 (hereinafter “instant subsidy”) on the ground that B, who is eligible for employment promotion support, was employed on April 1, 2016. The Plaintiff received the said subsidy from the Defendant.

B. Since then, the Defendant: (a) on March 23, 2017, issued a disposition to the Plaintiff for the payment of subsidies for three months, order to return the illegally received subsidies, 4,500,000 won, and additional collection of KRW 4,50,000, based on Article 35 of the Employment Insurance Act, Article 56 of the Enforcement Decree of the Employment Insurance Act, and Article 78 of the Enforcement Rule of the Employment Insurance Act, on the ground that (b) upon the Plaintiff’s participation in the employment support program had the Plaintiff employed the Plaintiff and applied for the subsidies for employment promotion as if the Plaintiff met the support requirements after the completion of the program (hereinafter “each of the instant dispositions”); (c) on the ground that there was no dispute on the grounds that there was no dispute; (d) evidence No. 1, 5, and 6 (including each number; hereinafter the same shall apply);

2. Whether the disposition is lawful;

A. The parties' assertion

As to the Defendant’s assertion that the disposition of this case was lawful on the grounds of its disposition and relevant statutes, the Plaintiff asserted the disposition of this case as unlawful on the following grounds.

1) Since the Plaintiff actually employed B on April 1, 2016, after completing the employment assistance program by B, the Plaintiff did not file a false application for the instant subsidy.

Even if the Plaintiff employed B during the period of participation in the employment assistance program, the subsidy for employment promotion was applied for from the period after the Plaintiff completed the program, and thus, it did not receive the instant subsidy by fraud or other improper means.

2) In light of all the circumstances such as the Plaintiff’s endeavor to provide high-quality jobs to the disadvantaged class in labor, the instant disposition may seriously interfere with the Plaintiff’s normal business activities, and the motive and degree of the Plaintiff’s act of violation, etc., the instant disposition was excessively excessive and abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(i) the existence of the reasons for the measure

A) Article 23 of the Employment Insurance Act provides that a business owner who newly employs the aged, etc. or takes necessary measures for their employment stability in order to promote the employment of those who have particular difficulty in finding employment under the ordinary conditions of the labor market, such as the aged (hereinafter referred to as "seniors, etc.") may provide necessary support, as prescribed by Presidential Decree. Article 26(1)1 of the Enforcement Decree of the Employment Insurance Act, upon delegation, provides that a business owner who has registered the job-seeking with an employment security office, etc. for the promotion of employment of those who have particular difficulty in finding employment, and employs the unemployed who has completed a certain program for employment promotion,

In light of the language, purport, and system of the above provision, it is deemed that the unemployed who completed the employment assistance program satisfies the requirements for the payment of subsidies for employment promotion.

B) However, in light of the overall purport of the statements and arguments stated in Eul evidence Nos. 2 through 18, i.e., the following circumstances revealed in light of the aforementioned evidence: ① from the time when the plaintiff makes a statement concerning the overdue wage payment to October 6, 2016, Eul consistently stated that it worked at the plaintiff’s workplace from March 22, 2016; ② The representative director D of the C Co., Ltd. was present at the Jungbu District Employment and Labor Agency Korea on October 6, 2016 and was working at the plaintiff’s workplace at the time of making a statement as the plaintiff’s agent; ② was stated as from March 22, 2016; ③ transferred KRW 508,750 to B on April 12, 2016; ② the above money was transferred to B, which appears to be against B’s order to provide employment assistance to the witness from March 22, 2016 to the end of March 31, 2016.

Therefore, even though the Plaintiff did not newly employ the unemployed who completed the employment assistance program, it did not meet the requirements for the payment of the subsidy for employment promotion, the Plaintiff entered the application as if B was employed on April 1, 2016, which was after the completion of the above program, and received the instant subsidy from the Defendant, and thus, the Plaintiff would have received the instant subsidy by fraud or other improper means. Therefore, the Plaintiff’s assertion that there exists no ground for the instant disposition cannot be accepted.

2) Whether the discretion is deviates or abused

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 offense as the grounds for the disposition, the public interest purpose to achieve by the relevant disposition, and all the circumstances in question. 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 rules, and thus externally binding upon citizens or courts. Therefore, the legality of the relevant disposition should be determined not only by the above criteria for disposition but also by the relevant Acts and subordinate statutes. Therefore, the relevant disposition cannot be deemed legitimate as it conforms to the said criteria for disposition. However, unless there are reasonable grounds to believe that the above criteria do not conform with the Constitution or laws, or that the result of the application of the said criteria is considerably unreasonable in light of the content of the offense as the grounds for disposition, and the relevant Acts and subordinate statutes and subordinate statutes, it should not be readily determined that the disposition in accordance with such criteria has exceeded discretion or abused discretion (see, etc.

B) In full view of the following circumstances recognized by relevant statutes and the aforementioned evidence, the Plaintiff’s assertion on this part cannot be accepted, even if considering the circumstances alleged by the Plaintiff, since the instant disposition cannot be deemed to have deviates from and abused discretionary power. ① Each of the instant dispositions was conducted in accordance with the standards prescribed by relevant statutes, and the disposition standards per se do not coincide with the Constitution or laws.

② Although the Plaintiff employed B on March 22, 2016, it is difficult to deem that the Plaintiff applied for the instant subsidy by stating the date of employment as the date of April 1, 2016, and that the degree of denial is minor.

③ Considering the legislative intent of the Employment Insurance Act for the purpose of promoting employment of those who are particularly difficult to find employment in the ordinary conditions of the labor market, the necessity of securing the finances of subsidies for promotion of employment, etc., the disadvantage suffered by the Plaintiff due to the instant disposition is larger than the public interest to be protected through the instant disposition.

3. Conclusion

Thus, the plaintiff's claim seeking revocation on the ground that the disposition of this case is illegal is dismissed as it is without merit.