2019Nu37280 Order and revocation of a decision of additional collection, etc.

1. A;

2. C.

3. D;

4. E.

5. F;

6. G.

7. H;

8. I

Attorney Lee Dong-dong, Counsel for the plaintiffs

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

Incheon District Court Decision 2017Gudan50130 Decided January 22, 2019

June 20, 2019

August 22, 2019

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

1. Purport of claim

The Defendant issued an order to return KRW 2,56,80, KRW 2,565,80 to Plaintiff A on November 1, 2016; the order to additionally collect KRW 3,638,50 on KRW 360 on November 17, 2016; the order to return KRW 3,638,50 on KRW 3,638,50 on KRW 360 on KRW 460; the order to return KRW 4,186,960 on KRW 460 on November 7, 2016; the order to additionally collect KRW 360 on KRW 2,60 on KRW 360; the order to return KRW 4,60 on KRW 4,60 on KRW 60; the order to additionally collect KRW 4,60 on KRW 360; the order to return KRW 2,354,310 on KRW 2,364; the order to additionally collect and dispose on KRW 360,466,46.1

2. Purport of appeal

Of the judgment of the court of first instance, the part against which the Plaintiffs lost is revoked. The order of return of KRW 2,565,80 as of November 7, 2016; order of KRW 2,565,565,80 as of KRW 2,50; order of return of KRW 3,638,50 as of November 17, 2016; order of additional collection of KRW 3,638,650 as of KRW 3,638,50 as of KRW 3,650; order of return of KRW 4,186,960 as of KRW 4,186,96,960 as of KRW 30; order of additional collection of KRW 2,354,310; order of return of KRW 2,354,310; order of additional collection of KRW 2,460; order of KRW 70,410; order of additional collection; order of KRW 47,2015; order of KRW 47.10

1. Details of the disposition;

The reasoning for this part of this Court is that the corresponding part of the judgment of the court of first instance is the same, except for the following cases, and thus, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○○ The 3rd day below the 3rd day of the first instance judgment, "Plaintiff B", shall be "B".

○ The 6th sentence of the first instance judgment, which is the second sentence, "this court", shall be regarded as "In Mancheon District Court".

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

A. The plaintiffs' assertion

1) In the instant disposition, there is an error of law in the process of not guaranteeing "a considerable period of time (at least ten days) required to present opinions" as stipulated in Article 21(3) of the Administrative Procedures Act and Article 4 of the Guidelines for Operation of the Administrative Procedure System when giving prior notice.

2) The Defendant, on the sole basis of the criminal punishment against the AJ representative, did not confirm the fact of the cause of each of the dispositions by each of the plaintiffs and concluded that each of the dispositions by the instant case constitutes an unconditioned attendance at less than 80%. In addition, in the criminal judgment against the AJ representative, etc. regarding the receipt of training expenses, there was no intention for the Plaintiffs, and the Defendant was either subject to a disposition or was admitted to an investigation agency that there was no suspicion against the Plaintiffs. Nevertheless, the Defendant issued each of the dispositions by the instant case on the ground that the Defendant was paid training expenses by “a false or other unlawful means.” Therefore, since each of the dispositions by the instant case was issued by mistake of the facts, there was an

3) Even if each of the dispositions of this case did not contain any error of misunderstanding the above facts, each of the dispositions of this case against the plaintiffs who were not subject to a non-prosecution disposition or not admitted to an investigation agency, unlike the disposition guidelines of the Ministry of Employment and Labor, which are the discretionary rules, and each of the dispositions of this case including the additional collection for the reason that the defendant did not make a voluntary declaration irrespective of the degree of the reasons attributable to the plaintiffs, unlike the business owner who made a voluntary declaration, was against the law as

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the procedure is unlawful

A) Article 21(1) of the Administrative Procedures Act provides that "in cases where an administrative agency imposes an obligation on a party or imposes a disposition restricting his/her rights and interests, it shall notify the party concerned of the title of the disposition, name or title and address of the party concerned, facts causing the disposition, details of the disposition and legal basis thereof, the method of handling the case in which the opinion is not submitted, the name and address of the agency proposing the opinion, the deadline for submitting the opinion, and other necessary matters in advance." Article 21(3) of the Administrative Procedures Act provides that "in cases where an

Article 4 of the Administrative Procedure Act of the Ministry of Government Administration and Home Affairs (Rules No. 49 of the Ministry of Government Administration and Home Affairs) provides that "The considerable period of time required for submitting opinions under Article 21 (3) of the Administrative Procedure Act shall be at least ten days."

B) According to the evidence revealed earlier, around August 31, 2016, the Defendant prepared and sent a prior notice to the Plaintiff A and H on September 8, 2016 on each of the instant dispositions (in the case of Plaintiff A, the part related to N Child Care Centers) and around October 18, 2016, upon setting the deadline for submitting opinions to the Plaintiff A, C, D, E, and F on the pertinent part (in the case of Plaintiff A, the part related to L Child Care Centers) of the instant dispositions as of October 26, 2016. On September 1, 2016, the Defendant prepared and sent a prior notice to the Plaintiff on September 9, 2016, setting the deadline for submitting opinions to the Plaintiff on September 1, 2016, and setting the deadline for submitting opinions to the Plaintiff on September 10, 2016, and the Defendant may acknowledge the facts as to each of the instant dispositions from 10th to 13th 16th 16 each of the instant dispositions.

However, in light of the following circumstances admitted by each of the above evidence, it is difficult to deem that the above facts alone are procedural errors in failing to comply with each of the dispositions of this case in violation of Article 21(3) of the Administrative Procedures Act. The plaintiffs' above assertion is without merit.

① The Guideline for the Operation of the Administrative Procedure System of the Ministry of the Interior is effective only within the administrative organization and cannot be seen as an external binding administrative rule. Thus, the Defendant’s failure to comply with the submission deadline of ten days under the Guideline cannot be deemed to be procedurally unlawful solely on the ground that the Defendant’s prior notification of each of the dispositions of the instant case was made.

② As above, the Defendant: (a) prepared and sent a prior notice to the Plaintiffs; and (b) set the time limit for submitting opinions 8 days later; and (c) it is difficult to view that the time limit for submitting opinions given by the Defendant to the Plaintiffs does not constitute a reasonable period to submit opinions under Article 21(3) of the Administrative Procedures Act, even if the said prior notice

③ Furthermore, around April 22, 2016, the prior notification prior to the Defendant sent the Plaintiffs a notice of voluntary report on the illegal receipt of the cost of vocational skills development training, specifying the investigation results by the Bupyeong Police Station in Incheon Bupyeong Police Station to AJ, details of the illegal receipt of the training fees, etc. However, the Plaintiffs did not comply with the request. On May 26, 2016, the Defendant sent the Plaintiffs a written notice requesting the submission of a written investigation on the illegal receipt of vocational skills development training costs, but the Plaintiffs did not comply with the request. Considering these circumstances, it is difficult to view that the submission deadline given to the Plaintiffs during the subsequent notification process is unreasonably short.

2) Whether there exist grounds for the disposition

A) The reasoning for this part of the judgment of the court of first instance as to whether the Plaintiffs’ infant care teachers were present at less than 80% is the same as that of the corresponding part of the judgment of the court of first instance (from 15 to 8 pages), and thus, this part is cited pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act

B) Whether the plaintiffs received subsidies for training costs with "any false or other fraudulent means"

Article 55 and Article 56 of the Act on the Development of Workplace Skills of Workers refers to all acts that are not correct under social norms in order to encourage a person who is not eligible to receive training costs as if he/she were qualified or to conceal an unqualified fact (see, e.g., Supreme Court Decisions 2011Du3777, Jun. 13, 2013; 201Du7175, Jun. 13, 2013; 201Du24764, Jul. 24, 2014). In addition, sanctions against administrative regulations are sanctions against a violation of administrative regulations by admitting the objective fact of violation of administrative regulations to achieve administrative purposes, and thus, are always imposed on a person who is not a real offender but a person in charge under statutes, and may be imposed on a person who has committed an intentional act or a person who has committed an offense prescribed by the statutes, 205Du7579, Jul. 24, 2014).

In light of the above legal principles, the Plaintiffs did not confirm whether each affiliated nursery teacher completed training courses, and whether they applied for training expenses, even though they were unable to claim training expenses due to the failure of each affiliated nursery teacher to complete the training courses, as seen earlier, and did not verify the validity of the application for training expenses. Moreover, even if the training expenses were not paid in advance to AJ, an application for support for training expenses was filed by attaching false tax invoices without being issued. This constitutes an act that is inappropriate under the social norms with intent to see as if a person who is not entitled to training expenses were qualified or to conceal the fact that he/she is not qualified, and even

Therefore, even if the president of the Plaintiffs’ child-care center received without suspicion from an investigative agency or was not admitted separately to an investigative agency, it is reasonable to deem that the Plaintiff’s child-care center was paid training expenses by fraud or other improper means, and thus, it may be subject to a return order and a disposition of additional collection under Article 56(2)1 and (3)

3) Whether the discretionary authority is deviates or abused

A) According to the above evidence and the evidence No. 11, the prosecutor indicted relevant persons, including the representative of the AJ, etc. on charges of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), but it can be recognized that the prosecutor conducted a non-prosecution disposition against the Plaintiffs A, E, F, G, and H, and there is no evidence to acknowledge that the rest of the Plaintiffs were detained by the investigative agency and was investigated by the investigation agency. Meanwhile, according to the above evidence and the evidence No. 10-1, No. 10-2, the Ministry of Employment and Labor, in relation to the result of the investigation into the unfair supply and demand of training fees by the operator of the Busan Bupyeong Police Station on April 12, 2016, the fact that the Minister of Employment and Labor and Labor sent the competent administrative agency including the Defendant, including the Defendant, a notice, including the guidelines for the unfair training administrative disposition (hereinafter referred to as the “instant guidelines”), despite the Plaintiffs’ submission of a written voluntary report and investigation, etc. related to the supply and demand of training expenses from the Defendant.

A business owner whose suspicion of illegal receipt is confirmed with cooperation from the investigation results of the prosecutor's office 0 (case of indictment) on the case where the 1st prosecutor's investigation is terminated, such as the criteria for the disposition for illegal training and administrative disposition by the business owner, shall not clearly verify the illegal act, such as "where the suspicion of illegal receipt by the business owner is unclear even as the result of the prosecutor's investigation results, it is not clear that the business owner's non-prosecution cause for prosecution is verified as the case of "where the suspicion of illegal receipt by the prosecutor's office is unclear," or "in the course of the suspension of prosecution and investigation, it shall not be confirmed clearly." / [2] Where the business owner files a voluntary report with the business owner whose illegal receipt is confirmed after separate investigation by the employment center (the same as the restriction on the loan).

O (business owner who has failed to file a voluntary report) Where it is not verified that the illegal receipt has not been verified through a written investigation and a written confirmation (including evidentiary materials) submitted by the mail service provider to the business owner who has failed to file a voluntary report, the decision on whether to impose an administrative disposition shall be made on the business owner who has failed to submit a written investigation and a written confirmation (including evidentiary materials). (The business owner who has failed to submit a written investigation and a written confirmation)

B) In light of the following circumstances, each of the instant dispositions cannot be deemed to have violated the instant standards, and even when considering the circumstances alleged by the Plaintiffs, each of the instant dispositions cannot be deemed to be unlawful as it deviates from or abused discretion. Accordingly, the Plaintiff’s assertion on this part is without merit.

① According to the instant standard, in a case where a prosecutor’s investigation was completed and prosecuted, an administrative agency may proceed with a disposition procedure against a business owner upon confirmation of the business owner’s suspicion of illegal receipt upon confirmation of the investigation results by the prosecutor’s office. However, if the suspicion of illegal receipt is unclear solely based on the investigation results by the prosecutor’s office, it may be confirmed whether the business owner received illegal receipt through a written investigation and a written confirmation, etc., and if the business owner fails to submit it, it may decide whether to take an administrative disposition by conducting an additional investigation, such as an appearance investigation. As seen earlier, the representative of the AJ was prosecuted. The Defendant provided an opportunity to send a written investigation and confirmation document to the Plaintiffs, on the ground that the Plaintiff’s infant care teacher appeared to have received less than 80% of the training course, based on the data received from the investigative agency pursuant to the instant standard, but the Defendant did not present any opinion. Accordingly, the Defendant appears to have made each of the instant dispositions against the Plaintiffs in accordance with objective data and procedures, such as additional investigation according to the instant standard, and the instant provision of Article 2.

The Act on the Development of Workers’ Vocational Skills stipulates that a business owner, etc. who engages in a development project of vocational abilities shall, in order to support the promotion of vocational skills development throughout his/her life and to train technical and skilled human resources needed in the industrial field, provide that certain sanctions may be imposed if the expenses are subsidized by unlawful means. However, in the case of training expenses provided by the Plaintiffs by unlawful means, most of the extinctive prescription for which the refund order and additional collection are not possible. Considering the aforementioned circumstances, the disadvantage that the Plaintiffs received by each disposition of this case is excessive in light of the purpose or intent of the Act on the Development of Workplace Skills of Workers

3. Conclusion

The part of the plaintiffs' claims, excluding the part of the defendant's claim for revocation of the restriction on subsidies and loans, shall be dismissed in its entirety. This part of the judgment of the court of first instance is justifiable in its conclusion, and therefore all appeals by the plaintiffs are dismissed.

The presiding judge, judge, police officer;

Judges Lee Jong-hwan

Awards and Decorations for Judges

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.