2012Guhap29936, revocation of disposition, such as disposition to redeem training costs, etc.

A Stock Company

The Head of Seoul Regional Employment and Labor Agency

November 16, 2012

December 21, 2012

1. On October 18, 201, the order issued by the Defendant to refund KRW 59,956,530, which was already paid by the Defendant to the Plaintiff on October 18, 201 for one year related to the regular course of the Plaintiff’s vocational skills development training (from November 26, 2008 to November 25, 2009).

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

The disposition is the same as the disposition (However, the plaintiff's disposition on the restriction of payment in the complaint itself is also stated as the subject of cancellation, but the disposition in this case constitutes an order to return already paid training costs during the past period of restriction of payment that has already passed at the time of the disposition in this case, not an order on the restriction of payment in the future. Therefore, the plaintiff's claim for the above disposition is

1. Details of the disposition;

A. On June 19, 2008, the Plaintiff was recognized as a vocational skills development training course for the workout program (hereinafter “training course of this case”) from the Jung-gu Regional Employment and Labor Agency (hereinafter “Seoul Regional Employment and Labor Agency”). From June 20, 2008 to June 21, 2008, the Plaintiff conducted the training course for 30 employees belonging to the Plaintiff. On November 25, 2008, the Defendant received KRW 2,006,220 of the training course of this case from the Defendant.

B. On July 17, 2008, the Plaintiff was recognized as a training course for vocational skills development for the workout program (hereinafter “training course”) from the Gyeonggi-do branch of the Gyeonggi-do Employment and Labor Agency (hereinafter “KD branch”). From July 18, 2008 to July 19, 2008, the Plaintiff conducted a training course for 48 employees belonging to the Plaintiff. On November 25, 2008, the Defendant was paid KRW 2,657,184 to the training course of this case.

C. As a result of the investigation into whether the plaintiff's employee B and C left Korea from June 19, 2008 to June 22, 2008 during the vocational ability development training period, the Gyeonggi Housing Site Administration confirmed that the plaintiff was paid KRW 13,748 of the training course as the plaintiff's employee D left Korea from June 26, 2008 to July 25, 2008, and confirmed that the plaintiff was paid KRW 133,748 of the training course. The Gyeonggi Housing Site Administration confirmed that the plaintiff's employee D attended the training course on July 19, 2008, which is the date the training course was conducted, and that the plaintiff was paid KRW 5,538 of the training expenses.

D. On October 18, 2011, the Defendant issued an order to return the irregular amount of 189,090 won (13,740 won +55,350 won, and less than each won) and a disposition to additionally collect the same amount (hereinafter referred to as “unlawful supply and demand and additional collection of training expenses”) pursuant to Article 35(1) and (2) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) and Article 25(4)1 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same shall apply) for a period of 189,090 won (13,740 won; hereinafter the same shall apply) for a period of 150 days (hereinafter referred to as “illegal payment and additional collection of training expenses”) to the Plaintiff from 150 days to 250 days (amended by Presidential Decree No. 165165, 208. 16. 195.20.25).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1 to 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act, which serves as the basis for the instant disposition, exceeded the purport of delegation under Article 35 (1) of the former Employment Insurance Act as the mother corporation, and is null and void as a provision that violates the principle of excessive prohibition under the Constitution. Therefore, the instant disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Article 35(1) of the former Employment Insurance Act and Article 56(2)(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of this case”) provide that a disposition ordering the establishment of a period of restriction on payment and the return of subsidies granted during the period of restriction on payment is a binding act. However, there is a question as to whether the enforcement decree of this case, which provides that a person who has received, or intended to receive, vocational skills development training expenses, etc. (hereinafter “unlawful recipients”) by fraud or other improper means pursuant to Article 35(1) of the former Employment Insurance Act, must be obliged to pay training expenses, etc. for one year and order the refund of training expenses, etc. paid during the period of restriction on payment, does not violate

In light of the fact that workplace skill development training is conducted through 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 punitive sanctions prescribed

However, as seen below, the instant provision violates 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.” Therefore, the instant disposition based on the provision of the Enforcement Decree of the instant case, which is null and void due to a violation of the Constitution, is unlawful, and therefore, the Plaintiff’s allegation in this part is with merit.

A) Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount received by false or other unlawful means may be collected within a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act, 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 provides that the amount to be additionally collected shall be calculated based on the number of times claims were filed by false or other unlawful means during the past five years. Meanwhile, separate from the aforesaid additional collection, Article 35(2) of the former Employment Insurance Act provides that an order to return subsidies paid within the said restriction period shall be imposed on the Plaintiff for one year, and the amount of subsidies paid within the said restriction period shall be limited to 90 times the amount of subsidies paid to the Plaintiff, 50 times the amount of the subsidies paid to the Plaintiff, 50 times the amount of the subsidies paid to the Plaintiff and the Plaintiff.

B) In addition, since the provision 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 a sanction was imposed, the illegal recipient shall return retroactively the amount already received before the sanction was imposed. However, if the illegal recipient knew in advance that the payment of training expenses, etc. would be restricted for one year, he could reduce the amount of the order of return by flexibly implementing the training course during the restriction on payment period, and it is not unreasonable to operate the training course. Ultimately, even if the provision of the Enforcement Decree of this case prescribes the initial date of the restriction on payment as a binding act, it cannot be deemed that the provision of this case prescribes the initial date as the date of payment or the date of application for payment of training expenses, etc., which is different from the date of initial date, and therefore, it cannot be deemed that the principle of "minimum damage

C) In addition, Article 1 of the Enforcement Decree of the instant case provides for a mandatory return order with respect to subsidies already paid during the period of one year from the date on which the training expenses were paid or the application for payment was filed, and there is a problem that the status of an illegal recipient is unstable for a long time due to the lack of special restrictions on the period during which the said sanctions may be imposed

D) Therefore, the legislative purpose of the instant provision, which is a disciplinary measure, may be more efficient by prescribing the same in addition to the additional collection disposition against an illegal recipient. However, the provision of the instant provision, without setting detailed standards according to the type of an illegal recipient’s offense, which provides for the restriction on payment for one year and the order to return subsidies paid during the restriction period, was violated by excessively restricting the property rights of the illegal recipient (in this case, Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010, provides for one-year restriction on payment to the illegal recipient, but it appears that “if three years have elapsed from the date of receipt of the subsidy or the subsidy, and the amount received or intended to receive the subsidy by fraud or other improper means is less than three million won, the restriction on the payment for one-year period is not applicable to each of the subsidies newly implemented under Article 56(1)1 of the Enforcement Decree of the Employment Insurance Act or one-year restriction on the payment of the subsidy under Article 5(1).

3. Conclusion

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

Number of judges of the presiding judge;

Judges Jeong Jae-hee

Judges Yang Jae-chul

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.