2011 Gohap3885 Revocation of administrative disposition, etc.

Korea Railroad Corporation

1. The Commissioner of the Daejeon Regional Employment and Labor Agency;

2. The head of Daejeon Regional Employment and Labor Office having jurisdiction over the site.

April 4, 2012

April 25, 2012

1. As to the plaintiff:

(a) An order to return KRW 18,103,90,00 granted on June 24, 201 by the Commissioner of the Daejeon Regional Employment and Labor Office; and (b) an order to return KRW 1,613,520,00 granted on August 4, 201 by the head of the Seo-gu Regional Employment and Labor Office;

Each cancellation shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

1. Details of the disposition;

A. On March 10, 2008, the Plaintiff was recognized as a vocational skills development training course on the video editing course (the training period: the total of 16 hours from March 11, 2008 to April 30, 2008; the total of 18 students: hereinafter referred to as “instant curriculum”) that the Plaintiff wants to undertake from the head of the Daegu Regional Employment and Labor Office.

B. From March 11, 2008 to April 3, 2008, the Plaintiff provided the instant curriculum with 18 employees, including A, who belong to the Plaintiff. On April 20, 2008, the Plaintiff received KRW 1,108,560 from the head of the Daegu Regional Employment and Labor Office for subsidies for business owners’ vocational skills development training expenses. The said subsidies included KRW 61,587 of the Plaintiff’s training expenses for A, who is a trainee of the instant curriculum, as the Plaintiff’s employee.

C. The head of the Daegu Regional Employment and Labor Agency confirmed the fact that the Plaintiff was treated as having attended each of the instant curriculum on March 25, 2008, the date on which the instant curriculum was conducted, and confirmed that on June 21, 201, the Plaintiff was subject to a disposition of restricting payment (from April 21, 2008 to April 20, 2009) for one year against the Plaintiff and the refund of KRW 593,513,050,050 paid out during the restriction period, even though A, an employee of the Plaintiff, left Korea from March 25, 2008 to April 1, 2008.

D. On June 24, 2011, the head of the Daejeon Regional Labor Office notified the Plaintiff of the illegal receipt of subsidies based on the management of the Plaintiff’s illegal withdrawal by the head of the Daegu Regional Labor Office, on June 24, 201, ordered the Plaintiff to refund KRW 18,103,900 of vocational skills development training expenses paid to the Plaintiff’s training course during the payment restriction period pursuant to Article 35(1) of the former Employment Report Act (amended by Act No. 9315, Sep. 18, 2008; hereinafter the same) and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter the same).

E. In addition, on June 27, 201, the head of the Daejeon Regional Employment and Labor Office, who was notified by the head of the Daegu Regional Employment and Labor Office of the Plaintiff of the fact of the illegal receipt of subsidies for the management of the Plaintiff’s illegal withdrawal, issued an order to the Plaintiff to refund KRW 1,613,520 of the vocational ability development training expenses already paid to the Plaintiff in the training course conducted by the Plaintiff during the period of the said restriction on payment (hereinafter “instant disposition 2”). [Grounds for recognition] Facts without dispute, Gap’s evidence 1 through 3 (including each number), Eul’s evidence 6, 7, Eul’s evidence 6, and Eul’s evidence 6, the purport of the entire pleadings, and the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff did not know that A did not participate in part of the instant curriculum and did not intend to receive illegal demand and supply. Therefore, the Plaintiff does not constitute a case where A received training expenses by “a false or other unlawful means.”

(2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis for the instant disposition, goes beyond the bounds of delegated legislation and goes against the principle of excessive prohibition under the Constitution.

(3) The scope of the subsidy shall be based on individual branch offices.

(4) Each of the instant dispositions by the Defendants on different premise should be revoked in an unlawful manner.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The instant curriculum is a self-training conducted by the Plaintiff.

(2) As a trainee of the instant curriculum, A, who is an employee of the Plaintiff, left Korea from March 25, 2008 to April 1, 2008, and confirmed the attendance at the attendance of the Plaintiff even though he did not attend at the time of education on March 25, 2008, March 27, 2008, and April 1, 200 of the same year.

[Ground of recognition] Facts without dispute, Eul's evidence Nos. 1, Eul's evidence Nos. 1 and 1 to 4, the purport of the whole pleadings

D. Determination

(1) As to whether the Plaintiff received training costs by fraud or other improper means;

"False or other unlawful means" under Article 35 of the former Employment Insurance Act refers to all unlawful acts conducted by an unqualified business owner in order to conceal the eligibility for payment or to conceal the eligibility for payment by the unqualified business owner, which may affect the decision-making on the payment of new employment promotion incentives (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In light of the following circumstances, it is reasonable to view that A was negligent in the Plaintiff’s act of failing to participate in the instant curriculum on March 25, 2008, and April 1 of the same year, based on the fact that the Plaintiff participated in the attendance division administered by the Plaintiff without participating in the instant curriculum; ② the amount of subsidies for training expenses is required to be verified depending on whether he/she was present; ③ the instant curriculum was not entrusted to other companies; ③ the trainee was conducted by himself/herself; the number of trainees was about 18; and A was not 3 times of the eight times of the instant curriculum; and even if he/she was unaware of the foregoing, he/she could have been sufficiently known if he/she did not attend the instant curriculum, and thus, it is reasonable to view that A was negligent in the Plaintiff’s act of failing to participate in the instant curriculum on March 25, 2008; and thus, the Plaintiff’s act of failing to participate in the Plaintiff’s training on March 27, 2008.

(2) As to whether Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis for the instant disposition, deviates from the limitation of delegated legislation or violates the principle of excessive prohibition under the Constitution, and thus becomes invalid

(A) Whether the delegation legislation limits are exceeded

In a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of whether the subordinate statute complies with the limits of delegation should be made by comprehensively examining the legislative purpose and content of the pertinent provision, structure of the provision, and relationship with other provisions. In a case where the delegation provision itself clearly states the limits of delegation by using terms with which accurate contents can be identified, whether the delegation provision exceeds the limits of its literal meaning, or whether a new legislation was made beyond the bounds of delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see, e.g., Supreme Court Decision 2009Du17797, Apr. 29, 2010).

Article 35 (1) of the former Employment Insurance Act provides that "the Minister of Labor may order a person who has received or intends to receive subsidies or subsidies for vocational skills development activities under this Chapter by fraud or other improper means to restrict such subsidies or to return the subsidies already provided, as prescribed by Presidential Decree," and Article 35 (2) of the same Act provides that "the Minister of Labor may additionally order a person who has received or has received subsidies or subsidies for workplace skill development activities under paragraph (1) by fraud or other improper means or to return the subsidies or subsidies already provided, in accordance with the guidelines prescribed by Ordinance of the Ministry of Labor." Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act provides that "the Minister of Labor shall additionally order a person who has received or intends to receive subsidies, subsidies, or subsidies for workplace skill development activities under paragraph (1) by fraud or other improper means, and the Minister of Labor shall order a person who has received or intends to receive subsidies, subsidies, or subsidies or subsidies for workplace skill development training expenses paid during the period of restriction on payment."

On the other hand, Article 35 (1) of the former Employment Insurance Act provides that "restriction on support" and "an order to return" as a result of a disciplinary measure against an illegal recipient, and Article 35 (2) of the same Act provides that "an additional collection disposition" shall take effect in the future from the date of the disposition. It is reasonable to interpret that "restriction on support" in interpreting the provision of the law should be interpreted as effective in the future from the date of the disposition, and the meaning of "in order to limit retroactive support" should be clearly stated in the law. Article 35 (1) of the former Employment Insurance Act provides that "an order to return subsidies already paid" shall be recovered through the return order, and Article 35 (2) of the former Employment Insurance Act provides that "an order to limit additional collection" and Article 35 (2) of the former Employment Insurance Act provides that "an order to limit additional collection" and the former Enforcement Decree of the Employment Insurance Act provides that "an application for support" in the first place to which the former Enforcement Decree of the Employment Insurance Act can be amended by Presidential Decree No. 56326 of the initial date.

(B) Whether the principle of excessive prohibition is violated

Article 35(1) of the former Employment Insurance Act and Article 56(2) of the Enforcement Decree of the same Act (hereinafter “Enforcement Decree of this case”) stipulate the form of the provision, structure, or language of the provision of Article 35(1) of the same Act, and the establishment of the period of restriction on payment, and a disposition ordering the return of subsidies granted during the period of restriction on payment is an act of continuous payment. As such, it is a matter of whether the enforcement Decree of this case, which provides that, under Article 35(1) of the former Employment Insurance Act, an illegal recipient who has received or attempted to receive vocational skills development training expenses, etc. by fraud or other improper means, must be obliged to refund training expenses, etc.

In light of the fact that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, etc., the legislative purpose of the instant provision is justifiable in light of the following: (a) the restriction on the payment of training costs, etc. for one year for illegal recipients and the order to refund subsidies paid within the restriction period; and (b) the purpose of the instant provision is to prevent misconduct in relation to the payment of training expenses, etc., and ultimately to promote the development and improvement of workplace skill of workers, and (c) vocational ability development training is conducted through limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act. In addition, the instant provision appears to have reduced misconduct in relation to the payment of training expenses, etc., through disciplinary sanctions

However, as seen below, the enforcement decree of this case is in violation of the Constitution as a provision that excessively infringes on the property rights of the remaining illegal recipients who lack the requirement of "minimum degree of damage" or "a balance of legal interests."

① Article 35(2) of the former Employment Insurance Act provides that a person may collect an amount equivalent to or less than the amount received by fraud or other improper means within a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act and Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009) and Article 9(1) of the Enforcement Rule of the same Act stipulate that the amount to be additionally collected shall be calculated based on the number of times a person has applied for expenses by fraud or other improper means during the past five years. Meanwhile, separate from the aforesaid additional collection disposition, the provision of the Enforcement Decree of the same case provides that the amount of subsidies paid within the said restriction period shall be limited to the amount of subsidies paid to the illegal recipient for one year, and at the same time, the order to return the subsidies within the said restriction period shall be imposed uniformly, unlike the aforementioned additional collection disposition, on the other hand, the Plaintiff and the small amount of subsidies that are subject to additional collection may not be denied.

(2) In addition, since the provision of the Enforcement Decree of this case specifies the initial date of the restriction on payment as "the date on which the application for payment was made" rather than the date on which the payment was made, the illegal recipient shall return retroactively the amount already received prior to the date on which the restriction on payment was made. However, if the illegal recipient had known in advance that the payment of training expenses, etc. would be restricted for one year, he could have flexibly conducted the training course during the restriction period and could have reduced the amount of the order of return. It would not be unreasonable to operate the training course. Ultimately, even if the provision of the Enforcement Decree of this case prescribes the restriction on payment as a continuous act, the initial date of the restriction on payment was set as the date of receiving training expenses or the date of application for payment was set as the date on which the illegal recipient would suffer damages by separately setting the initial date,

③ In addition, Article 1 of the Enforcement Decree of the instant case provides for "training expenses or an order to return subsidies already paid during the period of one year from the date of receipt of the training expenses or the application for payment, but does not impose any special restrictions on the period during which the said sanctions may be imposed, thereby creating a problem that the status of an illegal recipient is unstable for a long

④ Therefore, even if the legislative purpose of the instant provision, which is a disciplinary measure, can be more effectively achieved by stipulating the same in addition to the additional collection disposition against an illegal recipient, the provision of the Enforcement Decree of the instant case, which is a disciplinary measure, provides for the restriction on payment for one year and the order to return subsidies paid during the restriction period, without setting detailed standards depending on the pattern of the illegal recipient’s act, is an infringement by excessively restricting the property rights of the illegal recipient (see Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010; Article 56(1) of the Employment Insurance Act provides for one-year restriction on payment to the illegal recipient; however, the provision provides for the restriction on payment for three years after the date of receipt of the subsidy or the incentive; however, the provision provides for the restriction on payment for one-year period from the date of receipt of the subsidy or the subsidy to the extent of one-year restriction on payment under Article 15(1) to the extent of one-year restriction on payment.

(C) Accordingly, each of the instant dispositions based on Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which deviates from the limitation of delegated legislation, and is null and void due to a violation of the principle of excessive prohibition under the Constitution,

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.

The presiding judge, judge and officer

Judges Jeon Jae-il

Judges Lee Jae-sung

A person shall be appointed.

A person shall be appointed.