2010 old 4443 Restriction on Entrustment of Vocational Training Institution for the Disabled

A Stock Company

1. Korea;

2. The Administrator of the Seoul Regional Employment and Labor Office;

March 25, 2011

July 13, 2012

1. As to the Plaintiff on December 21, 2010 by the head of the Seoul Eastern District Office of Employment and Labor, Defendant 2:

(a) a disposition of three months (from September 9, 2010 to December 8, 2010) of consignment restrictions for the entire course of a vocational professional school;

(b)a disposition of one year (from May 15, 2008 to August 6, 2009) of restriction on the payment of subsidies under the Employment Insurance Fund Support Project;

(c) revoke each disposition of additional collection of KRW 1,162,650,000 exceeding KRW 93,450.

2. The plaintiff's claim against the defendant Republic of Korea and the remaining claims against the head of the Seoul Regional Employment and Labor Office are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Republic of Korea is borne by the Plaintiff, and 1/2 of the part arising between the Plaintiff and the head of the Seoul Eastern District Office, and the remainder is borne by the head of the Seoul Eastern District Office.

Defendant Republic of Korea confirmed that the termination of the contract for the course of the assignment that the Plaintiff performed on December 21, 2010 is null and void. The cancellation of the contract is entirely revoked on December 21, 2010 by the head of the Seoul Eastern District Office (hereinafter referred to as the “head of the Dong Site”) of the Seoul Regional Employment and Labor Agency (hereinafter referred to as the “head of the Defendant East District Office”) of the Plaintiff on December 21, 2010, ① one year of restrictions on consignment (from November 13, 2010, from November 12, 2011 to November 12, 201), ② an order to return the illegally received amount of 1,162,650 won, and the disposition of additional collection.

1. Circumstances and basis of the disposition;

A. The Plaintiff entered into an entrustment contract (hereinafter referred to as “instant entrustment contract”) with the Administrator of the North Korean Site Office on March 26, 2008, under which the Plaintiff was entrusted with workplace skill development training for the course of learning (the training period: from April 1, 2008 to July 31, 2008; hereinafter referred to as “the course of learning”) from the head of the Defendant North Korean Site Office (hereinafter referred to as “instant training institution”).

C. According to each entrustment contract of this case (Evidence 3 of this case), Eul (the instant training institution) shall observe the rules for conducting workplace skill development training for the unemployed, etc. (hereinafter referred to as "training rules") and provide guidance and supervision to ensure that trainees do not escape (Article 1(2)), and where legitimate training is conducted pursuant to the training regulations of Eul (Article 4(2) and where training allowances are paid to persons who are not entitled to training allowances due to the wrongful attendance verification of Eul (Article 4(4)), the relevant amount shall be refunded to Eul (Article 4(4)); Eul shall accurately check and manage the attendance status of trainees (Article 8); and where Eul violates the training regulations, it may take measures pursuant to Article 39 of the Training Regulations (Article 9 subparag. 1).

C. According to the training regulations, vocational skills development training institutions must keep the attendance book to verify the attendance status of trainees (Article 30(1)), and where trainees continue to attend for at least five consecutive days without good cause, they should be excluded from the training subject (Article 31(1)1).

D. After conducting the instant training course from April 1, 2008 to July 31, 2008, the Plaintiff applied for KRW 38,440,670 for the course of the instant training from the head of the Dong site to the training expenses for vocational skills development (hereinafter “training expenses”).

E. On May 2009, the Board of Audit and Inspection and the Ministry of Employment and Labor conducted an investigation as to whether a trainee who had entry into or departure from the Republic of Korea during the vocational ability development training period for the training period for vocational ability development and confirmed that C had been treated as having been present at the attendance on April 25, 2008 by the teacher D in charge of the instant training course for five consecutive days from April 19, 2008 to April 25, 2008, since C, who is an trainee of the instant training course, had left the country and had been absent for five consecutive days from April 25, 2008, it was confirmed that C had been treated as having been present at the attendance on April 25, 2008. The aforementioned training expenses for the above C are 1,162,650 won, and the pertinent number of days of training due to the above unlawful attendance are 18,690 won per head (1 month, 392, 490 won/190 days).

F. As a result of the foregoing investigation, the Defendant Republic of Korea expressed the intent to terminate the instant entrustment contract on December 21, 2010, and the head of the Dong-dong District Office issued a disposition on the three months (from September 9, 2010 to December 8, 2010) of the restriction on entrustment to the entire course of the instant training institution (hereinafter referred to as “instant disposition”) and (2) one year (from November 13, 2010 to November 12, 201) of the restriction on entrustment to the course of the instant training institution (hereinafter referred to as “instant disposition”) and (3) one year (from May 15, 2008 to August 11, 209, to which the restriction on the payment of subsidies under the Employment Insurance Fund Support Fund was imposed (hereinafter referred to as “Grade 1), and the amount of the instant order returned to the Plaintiff and the additional collection order (hereinafter referred to as “the instant order”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 8, the purport of the whole pleadings

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

A. The plaintiff's assertion

Each disposition of this case is unlawful for the following reasons.

1) Although the Plaintiff did not thoroughly manage the progress of the instant training course, there was no intention to obtain subsidies from C through false physical attendance. In such a case, it cannot be deemed that the Plaintiff received subsidies from C by false or other unlawful means under Article 16(2)2 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008; hereinafter “Vocational Skills Development Act”); Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same).

2) As to failure to perform the call-up management, there was no intention of the instant training institution, and the degree of violation is minor. If the instant training institution is subject to a sanction leading to the closure of its business due to a disposition of restrictions on commission, etc., a huge economic loss would occur, as well as a suspension of vocational development training of many trainees, etc., and thus, each of the instant dispositions is unlawful as it is an abuse of discretionary power due to excessive suspicion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether there exist grounds under Article 16(2)2 and 3 of the Vocational Skills Development Act

Sanction against violation of administrative laws is a sanction against the objective fact of violation of administrative laws and regulations in order to achieve administrative purposes. Inasmuch as sanctions are imposed upon the violator, there is no intentional or negligent act on the part of the violator, barring any special circumstance, such as where the violator does not cause any negligence due to his/her duty, etc. (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). Inasmuch as sanctions under the former Employment Insurance Act and Vocational Skills Development Act, applicable to each of the dispositions of this case, are “any fraudulent or other unlawful means” means any unlawful act conducted in order to conceal the eligibility for payment by an unqualified business owner or the lack of eligibility to receive training costs (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In light of the above legal principles, comprehensively considering the following circumstances: (a) training regulations and the terms and conditions of the entrustment contract for the training courses of this case, which can be acknowledged in light of the background of the aforementioned disposition and the purport of the entire evidence revealed earlier; (b) training regulations and the details of the entrustment contract for the training courses of this case, the entry management is important and essential matters in the vocational training course (in the course of vocational training, the improper receipt of the national funds; (c) so, the above provisions stipulate that the training personnel directly attend the training card to prevent false attendance and the attendance status of the trainee per hour should be verified; and (d) the course of this case is subject to not less than 60 meters of the area of the training personnel, and where the training personnel were unable to attend the training course for five consecutive days, it should be deemed that the Plaintiff failed to lawfully manage the training training fee for the pertinent period, without being aware of the fact that the training personnel was not absent due to the fact that the Plaintiff was not absent from the training, and thus, it should be deemed that the training personnel was not lawfully managed.

2) Whether there exist grounds for disposition

A) According to Article 16 (3) of the Act on the Development of Vocational Skills and Measures in this case, the State or the Minister of Labor may choose not to recognize the entrustment of workplace skill development training for a person whose entrustment contract is terminated under paragraph (2) of the same Article within the scope of five years from the date of termination, but does not provide any particular exception in the case of breach of contract. On the other hand, Article 16 (2) 2 of the same Act and Article 13-2 of the Enforcement Decree of the same Act provide that a person whose entrustment contract is terminated as he falls under "where he received training costs or received them by fraudulent or other illegal means" shall be excluded from the restriction on entrustment contract if the training costs are less than one million

The instant disposition was made by mistakeing that the amount of training expenses paid by fraud or other improper means is less than 18,690 won and is less than one million won and is excluded from the subject of restrictions on entrustment contracts for the following reasons, and thus, it was unlawful as the grounds for the instant disposition did not exist.

(1) Although training costs that the Plaintiff received by filing a different claim from the fact that the training was conducted for the period of absence of a trainee C are considered to constitute training costs paid as “a false or other unlawful means,” the fact that the Plaintiff continued to conduct the training without removing a trainee who has committed a fraudulent act and received training costs related thereto constitutes a violation of the entrustment contract, which is separate from the fact that the Plaintiff neglected the management duty. As seen earlier, it would be harsh to impose the additional collection on the training costs paid by false or other unlawful means as well as the refund of the training costs paid by additional collection for the portion that actually performed the training.

(2) Therefore, it is reasonable to view that the calculation standards for training expenses paid by false or other unlawful means include only training expenses paid to C for the number of days of absence of training for a trainee C, and that the training is not included in training expenses paid without expulsion for a violation of an entrustment contract. However, since there is no dispute between the parties as to the fact that the total amount of training expenses paid during the period of absence of a trainee C is 18,690, the training expenses paid by the Plaintiff by false or other unlawful means shall be deemed limited to 18,690 won.

B) As seen earlier, the instant disposition constituted workplace skill development training conducted in violation of the instant disposition consignment agreement. As such, the instant disposition was based on the grounds for disposition.

C) According to Article 35(1) of the former Employment Insurance Act, the Minister of Labor may order a person who has received or intends to receive support for employment security and vocational skills development projects by fraud or other improper means to restrict the support or return the support already provided, as prescribed by Presidential Decree. Here, a person who has received support for employment security and vocational skills development projects refers to a business owner, local government, or non-profit corporation or organization prescribed by Presidential Decree that provides employment security and vocational skills development projects under Chapter III of the former Employment Insurance Act, or a non-profit corporation or organization prescribed by Presidential Decree, such as the instant training institution, which provides workplace skill development training programs entrusted by the State or local government, and thus, it is deemed that there is no room for such training institution to correspond thereto.

D) The instant disposition 4

(1) According to the first sentence of Article 16 (5) of the Vocational Skills Development Act, the State or the Minister of Labor may order the person whose commission contract is terminated under paragraph (2) of the same Article to return all or part of the amount already paid or subsidized. In this case, the amount of such order can be ordered to be considered as a violation that constitutes the ground for termination of the entrustment contract. Thus, in this case, the refund of all or part of the amount paid to the trainee C can be ordered. Thus, there is a reason for the above disposition.

However, in this case, the head of the defendant Dong District Office issued a return disposition within the limit of KRW 1,162,650 equivalent to training expenses for one trainee who violated the above. ① It is necessary to impose effective sanctions against the violation of the contract for workplace skill development training. ② In the case of a person whose contract is terminated under the former part of Article 16(5) of the Vocational Skills Development Act, he can order the refund of all or part of the amount already paid or subsidized, and the latter part does not provide that only "the amount already paid or subsidized by fraudulent or other unlawful means," unlike the additional collection disposition in the latter part, can be collected. In light of the above, even if all circumstances asserted by the plaintiff are considered, it is difficult to recognize that the part of the return order in this case is a deviation or abuse of discretionary power.

(2) Meanwhile, in full view of the provisions of the latter part of Article 16(5) of the Vocational Skills Development Act, Article 13-2 of the Enforcement Decree of the same Act, and Article 6(1)1(c) and 2 of the Enforcement Rule of the same Act, the Minister of Labor may additionally collect an amount equivalent to five times the amount, if the amount already received by the Plaintiff by fraud or other improper means is less than one million won among the amount already received by the Plaintiff in accordance with the standards prescribed by the Ordinance of the Ministry of Labor, and if the amount is more than one million won, the amount equivalent to the amount equivalent

However, in making a disposition for additional collection, unlike an order to refund training fees, it is reasonable to view that training fees are paid by false or other unlawful means, unlike an order to refund training fees, and that the calculation standards for training fees paid by false or other unlawful means in this case include only training expenses paid for the number of days of absence of trainees, and that the Plaintiff’s implementation of workplace skill development training without expulsion of trainees in violation of the entrustment contract for workplace skill development training and the training expenses paid therefor are not included. Thus, the disposition for additional collection corresponding to the training expenses during the period of absence of a trainee C is justifiable, but the disposition for additional collection in excess thereof is unlawful.

Furthermore, the facts that training expenses for the period of absence of a trainee C received by false or other unlawful means are 18,690 are as seen above. In such a case, 93,450 won equivalent to five times the amount received pursuant to the foregoing relevant provisions and Article 6(1)1(c) of the Enforcement Rule is calculated as additional collection amount. (2) The disposition for additional collection during the instant disposition is lawful within the scope of 93,450 won, and the exceeding part should be revoked as unlawful.

3) Whether the discretionary authority is deviates or abused

(2) With respect to whether the instant disposition deviates from or abused discretionary authority, since workplace skill development training is conducted through limited public resources, such as the State budget and the Employment Insurance Fund under the Employment Insurance Act, it is necessary to thoroughly control the entry of trainees in order to achieve its purpose and prevent unfair training costs. Therefore, it is necessary to impose effective sanctions against the instant violation. According to Article 6(3) of the Enforcement Rule of the Vocational Skills Development Act [Attachment Table 1], which provides for the general criteria for restrictions on consignment in accordance with Article 6(3) [Attachment 1] of the Enforcement Rule of the Vocational Skills Development Act, where workplace skill development training is conducted in violation of the consignment contract and training is conducted in a false or other unlawful manner, or where the training personnel is operated or discretionary management is conducted, it is difficult to consider that the above disposition conforms to the above criteria, and that the above disposition is unreasonable, and that it is difficult to say that the above disposition is an abuse of discretionary authority, without any special circumstance, or that it is difficult to consider that the above disposition is an abuse of discretionary authority.

3. Determination on the claim against Defendant Republic of Korea

A. Determination on Defendant Republic of Korea’s defense prior to the merits

The defendant Republic of Korea has asserted that this part of the lawsuit seeking confirmation of invalidity of the declaration of intention to terminate the contract against the defendant Republic of Korea in the form of a party suit is unlawful, since the declaration of intention to terminate the contract was an administrative disposition against the plaintiff by the head of

On the other hand, the head of the defendant Dong District Office concluded the instant entrustment contract with the Plaintiff based on Article 16 of the same Act and Article 13 of the Enforcement Decree thereof, which is the administrative agency of the State that conducts workplace skill development training under the Vocational Skills Development Act. The main contents of the contract have a screening of the contract that the Plaintiff, which is the training institution, pays training expenses when conducting lawful training under the contract, and is formed with the opposite direction between the Plaintiff and the State. However, in the case of imposing certain obligations on the training institution in the nature of the public interest of the contract or violating the entrustment contract, it does not seem that the head of the defendant Dong District Office did not perform administrative authority, etc. against the Plaintiff in superior status.

Ultimately, the expression of intent to terminate the instant consignment contract made by the head of the Dong Site Office is merely a party to the instant consignment contract as a party to the contract in the position of the competent administrative agency of the State, based on the grounds for termination stipulated in law and the contract, and cannot be deemed as unilaterally resolving the contractual relationship based on the inherent status of the administrative agency. Thus, it does not constitute an administrative disposition (see, e.g., Supreme Court Decision 95Nu10617, May 31, 1996).

Therefore, the instant consignment contract is a contract under public law and its party is the Republic of Korea. Thus, the Plaintiff’s lawsuit seeking confirmation of invalidation of termination of the contract against the Defendant Republic of Korea is lawful, and the said defense is without merit.

B. The plaintiff's assertion

Since the training under each of the instant consignment contracts has been completed in 2008 due to the expiration of the contract term, the expression of intent to terminate the contract made by the Defendant Republic of Korea should be deemed null and void.

C. Determination

1) According to Article 16(2)2 and 3 of the Vocational Skills Development Act, the State may terminate the entrustment contract of this case in cases where a person entrusted with workplace skill development training receives or intends to receive training costs by fraudulent or other illegal means, or where a person conducted workplace skill development training in violation of the entrustment contract. As seen earlier, the contract of this case is all applicable to the case of the plaintiff. Therefore, as long as the grounds for termination of the entrustment contract of this case under the Vocational Skills Development Act occur, the expression of intent to terminate the entrustment contract of this case by the defendant's Republic of Korea is justifiable, and accordingly, the entrustment contract of

2) Generally, the termination of a contract refers to a unilateral declaration of intent to extinguish the contract continuously in the future in the relationship of claims, and is distinguishable from the rescission that retroactively terminates the contract’s effect. In other words, the legal relationship based on the contract is completely effective before the termination takes effect and the payment already made is not returned. In this respect, it is distinguishable from the cancellation that the obligation of restitution takes effect.

However, according to Article 16 (1) of the Vocational Skills Development Act, when the entrustment contract of this case is terminated, the whole or part of the amount already paid may be ordered to be returned, and the legal effect accompanying the termination of the contract may be additionally collected from the person whose entrustment contract is terminated by fraud or other improper means, such as providing that a certain amount of money may be collected from the person who has been paid or subsidized in a fraudulent or other unlawful manner, is not limited to toward the future. In addition, even though there is a need to receive a refund and a certain sanction, if it is impossible to terminate the contract on the ground that the contract has expired, the return or additional collection based on the premise of the termination cannot be made if it is impossible to cancel the contract on the ground that the contract has expired. Therefore, unlike the termination of the contract of this case under the Civil Act under the Civil Act, the legal effect such as the retroactive extinction of the entrustment contract may occur within the scope related to the cause of the termination, and it is reasonable to deem that the contract can be exercised after the expiration of the contract (i.e., the plaintiff's assertion that the above legal effect should be completely different from the cancellation of the contract.

3) Ultimately, the Plaintiff’s claim against the Defendant Republic of Korea premised on the invalidity of the declaration of intention to terminate the contract of this case is without merit.

3. Conclusion

If so, the plaintiff's claim against the Administrator of the Eastern Site: ①, ③ Disposition, and this case

(4) A claim for revocation of the additional collection and disposition regarding the part exceeding KRW 93,450, among the dispositions, shall be accepted for reasonable grounds. The plaintiff's claim against the Republic of Korea and the remainder against the head of the defendant's Dong site shall be dismissed for lack of reasonable grounds. It is so decided as per Disposition.

Number of judges of the presiding judge;

Judges Jeong Jae-hee

Judges Yang Jae-chul

1) The limitation period of August 6, 2009, one year from the last day of May 15, 2008, the first day that the Plaintiff illegally received, added up to August 7, 2008, the last day from May 15, 2008 to the last day of August 7, 2008 (see subparagraph (a).

2) According to the facts in accordance with the Seoul Administrative Court Decision 2009Guhap7349 Decided November 13, 2009 against the Plaintiff, the number of the Plaintiff’s application for training expenses by unlawful means prior to the date of detection of the instant case seems to be more than twice.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.