(영문) 부산지방법원 2016.4.8. 선고 2015구합21231 판결

On July 21, 2014, the Defendant’s disposition of ordering payment of KRW 286,340,000,000, which was paid by the Plaintiff to the Plaintiff, shall be revoked in entirety.

Reasons

1. Details of the disposition;

A. The Plaintiff is the representative of the BAD which was recognized as the vocational skills development training course by the Minister of Employment and Labor (hereinafter referred to as “instant private teaching institute”). (b) The Plaintiff was granted from the Defendant a total of KRW 286,340,000 (hereinafter referred to as “the subsidies of this case”) in the name of the Plaintiff as indicated below, upon recognition of four courses, including “services expert practice courses” as a training course for the development of vocational skills of employees under the Act on the Development of Workplace Skills of Workers (hereinafter referred to as “Vocational Skills Development Act”). The Plaintiff recruited students from December 1, 2012 to July 5, 2013, and conducted each of the above training courses. From February 12, 2013 to August 2, 2013, the Plaintiff applied for training fees to the Defendant during the period from February 12, 2013 to August 2, 2013.

A person shall be appointed.

C. On February 4, 2014, the Plaintiff was sentenced to imprisonment with prison labor for one year and six months on May 29, 2014, on the following grounds: “The Defendant operated the instant private teaching institute as a partnership with C in collusion with D in order to interfere with the performance of official duties by being unlawfully issued with a student’s internal learning card; “A in collusion with C or D in collusion with and without receiving a self-paid subsidy of KRW 286,340,000 by submitting a false receipt,” and was sentenced to a suspended sentence of one year and six months on May 29, 2014.

D. On April 11, 2014, the Defendant, along with a false receipt, intended to receive training expenses or to receive subsidies from the Plaintiff as if the trainees paid self-paid expenses, had a substitute signature to manage the withdrawal at will, and had changed the training contents arbitrarily, issued a disposition of entrustment and restriction on recognition of the course at issue, and issued an additional collection disposition of the same amount as the refund disposition of KRW 286,340,000 for the illegally received training expenses (hereinafter “the refund disposition of this case”) on July 21, 2014 (hereinafter “the collection disposition of this case”).

E. Accordingly, on October 13, 2014, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission, and the Central Administrative Appeals Commission rendered a ruling dismissing the Plaintiff’s claim on December 23, 2014. 【Grounds for Recognition】 The Plaintiff’s entries in Gap’s 1, 2, and Eul’s 1 through 6 (including various numbers; hereinafter the same shall apply), and the purport of the entire pleadings.

2. Determination on the legitimacy of the disposition

A. Summary of the plaintiff's assertion

The return and collection disposition of this case are illegal for the following reasons.

1) In relation to the instant return disposition, ① the Defendant, who was the actual operator of the instant private teaching institute, determined the Plaintiff as the employer; ② the Plaintiff did not receive self-paid expenses from trainees and conducted training normally, and thus does not constitute illegal receipt; ③ even if it is recognized as illegal receipt, the remainder of training expenses, excluding self-paid expenses, constitute normal training expenses, and thus, it was erroneous in calculating the total amount of training expenses subsidized by the Defendant as illegal receipt amount.

2) In relation to the collection disposition of this case, ① Article 56(3)1 (b) of the Vocational Skills Development Act provides that the administrative agency’s discretion may be additionally collected an amount below the illegally received amount, and thus, Article 22-2(1)2 of the Enforcement Rule of the same Act, which served as the basis of the collection disposition of this case, provides that the collection disposition of this case is “additional collection of an amount equivalent to the amount of subsidies or loans received by false or other unlawful means” and thus, it infringes upon the administrative agency’s discretionary authority. The above Enforcement Rule is unconstitutional and unlawful provisions beyond the scope of delegation of the Act. ② The size of the profits gained by the Plaintiff from the operation of the private teaching institute of this case is limited to the amount of KRW 10 million per year, and most of the training fees are collected in return of the total amount of training fees provided while they were used in the operation of the private teaching institute of this case, such as instructors, and are in violation of

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the legality of the instant return disposition

A) Whether the Plaintiff is a business owner of the instant driving school

The financial resources necessary for employment insurance consisting of money collectible under the Employment Insurance Act, reserves, national operating earnings, and other income generated from the employment insurance fund created by the National Treasury, etc., and thus, the return of the amount of subsidies and additional collection of the amount of subsidies based on unlawful acts are different from the tax collection, etc. In addition, when applying for the subsidy for training expenses under the relevant provisions of the Vocational Development Ability Act, it is difficult to view that the competent administrative agency has a substantial right to examine whether the business owner is identical with the actual business owner. Furthermore, even if the nominal business owner is not a person who directly causes such unlawful act, it is reasonable to assume liability as the nominal business owner even if the nominal business owner is not a person who directly causes such unlawful act. If such act is not deemed, the business owner may assert that he/she is a nominal business owner and abuse it as a means to avoid liability. In full view of the fact that the name of the business owner is encouraging to clarify the relationship of the administrative law and thus, the person who has received subsidies for training expenses in question can be deemed as an element that undermines legal stability (see, 2001.

On March 15, 2012, the following facts are acknowledged: ① the Plaintiff registered the instant private teaching institute as a lifelong education or vocational training facility and registered its business under its own name; ② the Plaintiff submitted an application for recognition of training courses, a training implementation report, a report on completion of training, an application for training expenses, etc. under its own name; ② the Plaintiff received the instant subsidies from the Defendant to the deposit account in the Plaintiff’s name; ③ the Plaintiff prepared a false receipt of self-paid expenses; ③ the Plaintiff signed a false receipt on the part of the trainees who failed to meet the completion standards; the Plaintiff signed on the part of the students who participated in the employment insurance; ④ the Plaintiff registered the Plaintiff as the trainee with the employment insurance card by having them file a false report on the details of labor; ④ the Plaintiff and the Plaintiff’s criminal facts in the instant judgment, such as violation of the Subsidy Management Act against the Plaintiff; and ④ the Plaintiff’s assertion that the Plaintiff operated the instant private teaching institute as the Plaintiff’s business. As such, this part of the Plaintiff’s assertion is without merit.

B) Whether it constitutes an illegal receipt of goods

Article 20 of the Vocational Skills Development Act provides that the Minister of Employment and Labor may subsidize expenses incurred by a business owner who conducts workplace skill development training by fraud or other improper means, and Article 55 of the same Act provides that a business owner may restrict subsidies for expenses incurred by a business owner who has received subsidies by fraud or other improper means, and may order the return of the amount subsidized by fraud or other improper means out of the amount already subsidized by Article 56, and additionally collect the amount below the amount of fraudulent or other improper means. "False or other improper means" as provided in the above provision refers to all active and passive acts conducted by a business owner who is not eligible to receive subsidies in order to conceal the eligibility to receive subsidies or to conceal the lack of eligibility to receive training costs (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

On the other hand, it is reasonable to see that the plaintiff's act is the fact that the plaintiff has received training expenses by signing a false receipt for the self-paid expenses of trainees on his/her behalf or by having undergraduate students who do not have purchased employment insurance through a false report on the confirmation of the details of labor. The above act is the most entitled plaintiff to receive training expenses from the defendant, and it directly and finally affected the defendant's decision on whether to pay training expenses. Thus, even if the plaintiff actually provided education for trainees, the plaintiff's receipt of the subsidy in this case constitutes an illegal receipt in Article 56 of the Vocational Skills Development Act. Therefore, the plaintiff's assertion that this part of the plaintiff's assertion is without merit (the plaintiff's assertion that only stated in the notice on the disposition of July 21, 2014 should be a ground for disposition, but Article 56 (2) of the Vocational Skills Development Act provides that the plaintiff's submission of a false receipt for self-paid expenses or a false report on the amount of training expenses can not be viewed as a ground for cancellation of the plaintiff's payment of training expenses.

C) Determination on the scope of illegal receipt

According to Article 18(3) of the Vocational Skills Development Act, Article 16(5) of the Enforcement Decree of the same Act, Article 39 of the Regulations on Implementation of the Vocational Skills Development Programs, and Article 13-2 of the Regulations on Assistance for Workplace Skill Development Training for Workers, trainees who attend the courses for workplace skill development training shall bear at their own expense a certain amount (20/100 of the training expenses) such as training expenses, and trainees who attend the courses for workplace skill development training shall bear at their own expense a certain amount of training expenses (tuition fees) exceeding the amount of support. The purport that the trainees subject to support should bear at their own expense a certain amount of training expenses is to prevent abuse of the subsidy system that may occur in the event of absence of self-responsibility, to prevent workers who intend to receive training with serious intent, and to achieve the original purpose of the system that intends to support the development of workplace skills of workers with limited financial resources by subsidizing training expenses.

In full view of the purport of the provision on self-payment and the provision of Article 56 (2) of the Vocational Skills Development Act, if the plaintiff did not submit a false receipt for his own contributions, the defendant may order the plaintiff to return the full amount of the training expenses that he did not have paid to the plaintiff, and there is no illegality in any disposition. Accordingly, if the training institution makes a reduction or refund of part of the training expenses under similar names, such as a scholarship (including a scholarship) to trainees, etc., in Article 40 of the provision on the Implementation of the Vocational Skills Development Account, the plaintiff claims that the remaining amount after deducting the amount of the training expenses should be assessed as a normal training fee. However, the above provision is only applicable to determining the amount of the subsidy when the defendant determines the amount of the training expenses in consideration of the overall circumstances, regardless of unlawful acts such as reduction or refund of part of the training expenses, and it is not applicable to the case where the defendant decides to return the amount of the non-payment. Accordingly, the plaintiff's assertion in this part is without merit.

2) Determination on the legality of the instant collection disposition

A) Determination on the assertion of deviation from the scope of delegation under the Enforcement Rule

Article 22-2 (1) of the Enforcement Rule of the Vocational Skills Development Act is a form of Ordinance, but in light of the nature and content of the provision, it is determined by the internal rules of administrative agencies, and it does not externally bind the people or the court. Thus, the above provision is externally a national or the court.

under the premise that this part of the Plaintiff’s assertion which binds B is without merit.

In addition, Article 22-2(1)2 of the Enforcement Rule provides that where an administrative agency decides to additionally collect money from a business owner, etc. pursuant to the main sentence of Article 56(3) of the Vocational Skills Development Act, the amount of additional money is merely an amount equivalent to the amount of money received by unlawful means, setting the specific standard, and thus, Article 22-2(1)2 of the Enforcement Rule does not necessarily stipulate that the act of additional collection by an administrative agency is not a binding act that requires additional collection, unlike that of the administrative agency’s discretionary act. Therefore, the Plaintiff’s above assertion is without merit.

B) Determination on the assertion of violation of the principle of proportionality

In light of the aforementioned facts and the purport of the entire arguments, the following circumstances are considered as a whole: ① the Plaintiff: (a) the Plaintiff: (b) the Plaintiff prepared a false receipt of vocational skills development training subsidies on behalf of trainees who do not meet the standards for completion; or (c) obtained subsidies on behalf of students who did not subscribe to employment insurance by false labor details confirmation report; (b) the amount of such subsidies for a long period of eight months; (c) the amount of subsidies paid by the State exceeds 286,340,000; (d) the State’s application for subsidies by false or other unlawful means to ensure the effectiveness of sanctions against the violation; (d) the Plaintiff’s application for subsidies by means of false or other unlawful means; (b) the Plaintiff’s submission of subsidies by means of false or other unlawful means; (c) the Plaintiff’s submission and demand of subsidies for vocational skills development training and provision of subsidies by means of false or other unlawful means under Article 25(2) of the Enforcement Decree of the Act; and (c) the Plaintiff’s return of subsidies by means of unlawful provision 160 or other unlawful means.

Comprehensively taking account of all the circumstances, such as the purpose and effect of the instant disposition, the circumstances before and after the instant disposition, etc., it is difficult to deem that there is a reasonable ground to believe that the instant disposition is considerably unreasonable in light of the content and purport of the relevant statutes, and as such, it cannot be deemed that the public interest to be achieved through the instant disposition is less unfavorable than that of the Plaintiff, such as infringement of the Plaintiff’s right to vested interests and legal stability, and thus, it cannot be deemed that the instant disposition violates the principle of proportionality. Therefore, the Plaintiff’s assertion on this part is groundless

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.