2011Guhap8360 Business Operators' Order to refund illegally received expenses for vocational ability development training

Revocation

A Stock Company

The head of the Central Regional Employment and Labor Office;

December 1, 2011

January 12, 2012

1. On June 9, 201, the Defendant’s disposition to refund the cost of workplace skill development training rendered against the Plaintiff is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. From March 17, 2008 to March 19, 2008, the Plaintiff provided a quality expert training course to its employees, and applied for training expenses to the Defendant on September 25, 2008.

B. Accordingly, the Defendant determined that training expenses per capita, KRW 97,264, KRW 20, and KRW 117,264 were to be subsidized, and paid them to the Plaintiff on October 9, 2008. The Defendant confirmed that the Plaintiff had completed the above commissioned education despite the Plaintiff’s departure from Korea from March 17, 2008 to March 21, 2008 by means of 10, KRW 205 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply), Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sep. 18, 2008; hereinafter the same shall apply), Article 30 of the same Act (amended by Presidential Decree No. 21935, Oct. 16, 201; hereinafter the same shall apply) and Article 310 of the former Workers’ Training Act (amended by Presidential Decree No. 21910 of the same Act).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff became aware of the fact that the above B was unable to participate in collective education on the date of education due to overseas business trip, and that the staff in charge of education was present at the presence of other employees on behalf of B in lieu of B due to the lack of duties of the staff in charge of education. It is merely a simple number of rooms without the intent or purpose of deceiving the Defendant, and thus, cannot be deemed to have received the subsidy by “a false or other unlawful means” under Article 35(1) of the Employment Insurance

(2) The amount of money unlawfully received by the Plaintiff is extremely minor to KRW 117,260 and is not subject to sanctions, and even if so, the instant disposition is excessive compared to the amount of unlawful receipt.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) "False or any other unlawful means", which is a requirement for sanctions under Article 35 of the Employment Insurance Act, which falls under "False or other unlawful means", generally refers to any unlawful act committed by a business owner who is not entitled to receive subsidies, incentives, etc. in order to pretend his/her eligibility or to reduce lack of qualifications, etc., which may affect the decision-making on the payment of subsidies, incentives, etc. (see Supreme Court Decision 2001Du2270, Sept. 5, 2003). The following circumstances recognized by the evidence and the entire purport of oral argument as mentioned above are acknowledged by the whole. In other words, the plaintiff, as the principal agent conducting the training in this case, failed to verify whether the plaintiff actually attended the training in this case before applying for subsidies, and failed to verify whether the plaintiff actually participated in the training in this case and applied for subsidies including training expenses, and the defendant did not have any influence on the plaintiff's decision-making in this case, and thus, the plaintiff's allegation that the plaintiff did not have been found to have been unlawful.

(2) Whether the person is not subject to sanctions

(A) If the amount of illegal receipt is small as alleged by the Plaintiff, there is no ground to deem that the amount of illegal receipt is subject to sanctions, and this part of the Plaintiff’s assertion is without merit.

However, the Plaintiff asserts to the effect that it is excessively harsh to order the return of all the subsidies paid during the period of restriction on payment, etc. for one year, which is irrelevant to any false or other unlawful means, and thus, the Plaintiff’s ex officio examination of whether Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) (hereinafter referred to as “Enforcement Decree of this case”) (hereinafter referred to as “the Enforcement Decree provision of this case”), which is the basis for the disposition of this case, is null and void (around February 8, 2010, the Plaintiff does not explicitly assert this part, but the court may ex officio examine this part (see Article 26 of the Administrative Litigation Act).

(B) In light of the form, structure, and language of the provision of Article 35(1) of the Employment Insurance Act and the Enforcement Decree of the instant case, the disposition ordering the establishment of a period of restriction on payment and the return of subsidies, etc. paid during the period of restriction on payment constitutes a binding act. The instant provision of the Enforcement Decree of the instant case is to prevent misconduct in relation to the payment of subsidies, etc., and ultimately promote the prevention of unemployment, promotion of employment, and development and improvement of workers’ vocational skills through the restriction on payment of subsidies, etc. for one year to illegal recipients, and the order to return subsidies, etc. granted during the restriction on payment period. Therefore, the legislative purpose of the instant provision can be deemed to be justifiable in light of the fact that subsidies, etc. are based on the limited public financial resources of the Employment Insurance Fund under the Employment Insurance Act, which is the Employment Insurance Act. In addition, it appears that the fraudulent act related to the payment of subsidies, etc. may be reduced through the punitive sanctions under the Enforcement Decree

However, in light of the various circumstances seen below, the content of the enforcement decree of this case is 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', and is therefore null and void in violation of the delegation purpose of the mother law or the principle of excessive prohibition under the Constitution.

① Article 35 of the Employment Insurance Act, which is a punitive sanction resulting from illegal receipt and demand, is the enforcement decree of the instant case.

In addition to the additional collection disposition under paragraph (2), the provision that the person who received subsidies by fraud or other improper means shall be obliged to restrict the provision of subsidies for one year. If subsidies, etc. were to be paid during the period of restriction on payment, it shall be ordered that all such subsidies be returned regardless of whether they were paid by fraud or other improper means. Although the provision has the nature of disciplinary measures much more than the provision on the grounds of the above additional disposition, it only stipulates that the order for return of subsidies, etc. for one year and the period of restriction on payment should be uniformly imposed according to the contents and degree of the above additional disposition, unlike the provision on the grounds of the above additional disposition. Therefore, the defendant may not be obliged to uniformly impose such sanctions on small business owners who received subsidies, as the plaintiff, which are larger than the amount of unfair payment, and that the amount of subsidies, etc. subject to the order for return exceeds the scope that can be anticipated as a sanction on the illegal payment of subsidies, which would result in excessive reduction of the amount of subsidies for one year or more than 10 years prior to the date of application for restriction on payment.

In addition, the enforcement decree of this case has a problem that the status of illegal recipients is unstable for a long time due to the lack of special restrictions on the restriction on payment and the order to return the subsidies paid during the restriction period for one year from the date of receiving the subsidies or the application for the payment.

④ Meanwhile, even if Article 35(1) of the Employment Insurance Act explicitly does not specify the scope of delegation to the Presidential Decree, it can be sufficiently recognized that the inherent scope or limitation of delegation by the legislative intent, purpose, etc. of the above provision (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Du6578, Jul. 22, 1997). In light of the nature of various types of violations, such as subsidies granted under the Act, and the legislative purpose of the above provision, the principle of excessive prohibition under the Constitution, etc., the delegation purpose of Article 35(1) of the Employment Insurance Act is to stipulate that the scope of delegation can be reasonably subdivided and regulated in accordance with the seriousness of the above provision, or that, if so, it would be difficult to uniformly increase the scope of delegation to the competent administrative agency within a certain scope, regardless of the legislative purport of the above provision’s provision’s provision that does not constitute a violation of the Act’s legislative intent.

⑤ Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides for restrictions on the payment of subsidies for one year to illegal recipients: Provided, That the same shall not apply to cases where three years have passed since the date of receipt of subsidies or incentives or where the amount of subsidies received or to be received by fraudulent or other illegal means is less than three million won and where fraudulent acts have been discovered for the first time, the restriction on the payment for one year shall not apply. Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) is currently in force after it was revised by Presidential Decree No. 22603, Dec. 31, 2010, the Minister of Employment and Labor appears to have reduced the amount of subsidies by up to one year from the date of return order or restriction under paragraph (1).

(6) Therefore, in addition to Article 35(2) of the Employment Insurance Act, which can impose an additional collection disposition against an illegal recipient as a disciplinary measure, even if the above legislative purpose can be more efficiently achieved by prescribing the provision of the Enforcement Decree of this case in duplicate, the provision of the Enforcement Decree of this case provides for the suspension of payment for one year and the order to return subsidies, etc. paid during the restriction period, without reasonably subdividing the standards according to the type of the illegal recipient’s offense, is an excessive infringement on the property rights of the illegal recipient.

(3) Sub-decisions

Ultimately, the instant disposition should be revoked as it is unlawful because it is based on the provision of the Enforcement Decree of the instant case that is null and void.

3. Conclusion

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

Judge of the presiding judge;

Judges Lee Hon

Judge No. Doingk

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.