(영문) 대구지방법원 2013.11.22. 선고 2013구합1869 판결

1. On May 23, 2013, the Defendant’s decision to recover the employment improvement subsidy for small and medium enterprises of KRW 28,187,170 against the Plaintiff is revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On August 16, 2010, the Plaintiff operated automobile parts manufacturers with the trade name of “B,” the Plaintiff reported to the Defendant an employment environment improvement plan for small and medium enterprises on August 16, 2010, and revised the content and cost check amount of the employment environment improvement plan on August 24, 2010 (hereinafter “instant plan”).

The period of implementation plan for the report on the environmental improvement plan for small and medium enterprises in 2010: The amount of expenses required for the improvement of employment environment for small and medium enterprises from August 2010 to December 2010: The amount required for the improvement of employment environment for small and medium enterprises: 52,470,000 won for the improvement of employment environment for small and medium enterprises in 2010: The report on the change of the items and amount required for the improvement of employment environment for small and medium enterprises in B dormitories and educational rooms: the change of the items and amount required for the improvement of employment environment for small and medium enterprises in 2010 + the change of the type and amount of expenses required for the improvement of employment environment for small and medium enterprises: the addition of

B. On September 3, 2010, the Defendant issued a notice of approval on the instant plan to the Plaintiff, and the Plaintiff submitted a report on completion of employment improvement on October 28, 2010 to the Defendant, and an application for the principal for the improvement of the employment environment of small and medium enterprises on January 14, 2011, and the Defendant paid the Defendant a subsidy for the improvement of the employment environment of KRW 28,187,170 to the Plaintiff on January 1, 2011 (hereinafter “instant subsidy”). On May 21, 2013, the Defendant notified the Plaintiff on May 21, 2015, Article 15 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010); and Article 7(6) of the Regulations on the Payment of the Subsidies for the Improvement of Employment of Small and Medium Enterprises (hereinafter “instant Notice”).

Pursuant to Article 15 of the former Enforcement Decree of the Employment Insurance Act and Article 7 (6) of the Regulations on the Payment of Employment Improvement Subsidies for Small and Medium Enterprises (Notice of Ministry of Labor No. 2009-93), where a business owner commences an employment environment improvement, such as a contract for the installation of facilities or an application for construction authorization or permission before submitting an employment environment improvement plan, the subsidy may not be paid. Accordingly, the result of the actual audit of the Employment Improvement Subsidies for Small and Medium Enterprises implemented in December 11, 201, is as follows:

It is confirmed that the construction contract was entered into before the submission of the improvement plan and so it is known that the employment improvement subsidy for small and medium enterprises already paid should be recovered as follows:

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

1) As of September 7, 2010, the Plaintiff’s contract entered into with the Hyundai Welfare Corporation is merely a so-called “provisional contract,” and thus, it should be determined as to the violation of Article 7(6) of the Notice as of September 7, 2010, which is the date of entering into this contract.

2) Even if the Plaintiff violated Article 7(6) of the Notice, in light of the fact that Article 7(6) of the Notice of this case is stipulated in the discretionary act, the day before the date when the Plaintiff entered into a contract for the shop is the day of the submission of an employment environment improvement plan, that the content of the contract is premised on the receipt of the subsidy of this case, and that the Plaintiff actually uses the subsidy of this case as construction expenses for improving the employment environment, the instant disposition is an abuse of discretionary authority.

3) On October 28, 2010, the Plaintiff submitted a provisional contract at the time of submitting a report on completion of the improvement of the employment environment of small and medium enterprises to the Defendant, and the Defendant, despite being aware that the Plaintiff entered into a provisional contract with Hyundai Welfare Corporation on July 10, 2010, paid the instant subsidy. Nevertheless, the Defendant’s disposition of this case violates the principle of trust and protection, and the principle of trust and good faith.

(b) Related statutes;

It is as shown in the attached Table related statutes.

1) On July 10, 2010, the Plaintiff entered into a contract with the Hyundai Welfare Corporation on the following terms (hereinafter “instant provisional contract”) with respect to the remodeling of dormitories and educational rooms.

The contract (Evidence 6B) and the Hyundai Welfare Corporation (hereinafter referred to as "A") shall enter into a contract as follows.Article 1 (Goods to be Sold) shall be executed in accordance with the estimates presented to Gap.The sales price of the goods pursuant to Article 2 (Contract Amount) Article 1 shall be 51,640,000 won (value-added Tax Separate).The delivery period of Article 3 (Delivery Deadline) shall be within six months from the date of notification to the person who is entitled to receive the welfare facility fund of the Ministry of Labor.Article 4 (Payment for Price) 1.2. The amount of the welfare facility fund of the Ministry of Labor shall be paid in cash on the date of payment to the Ministry of Labor.

2) On September 7, 2010, based on the instant provisional contract with the Hyundai Welfare Corporation, the Plaintiff entered into the following contracts (hereinafter referred to as the “instant contract”). Accordingly, the Plaintiff commenced the construction of dormitories, education rooms, and the opening and repair of the cafeterias, and completed the construction on October 28, 2010.

The Agreement (Evidence A)B and Hyundai Welfare Corporation shall enter into this Agreement as follows:* as the notification was given to the Ministry of Labor on September 3, 2010, the content of the conditional contract prepared on July 10, 2010 shall be succeeded as it is.However, the commencement of works shall begin and complete as soon as possible before the said Section.

3) The Defendant’s notice is as follows with regard to the payment procedure of the instant subsidy.

1. The report on a plan to improve the employment environment of small and medium enterprises is submitted and approved (it shall not be supported if the improvement of employment environment begins before the approval is granted after submitting a plan); 2. The report on a plan to improve the employment environment of small and medium enterprises is to proceed as required (Provided, That in cases of alteration of a plan, the report on a change of a plan shall be submitted);

4) On October 28, 2010, the Plaintiff completed construction under the instant plan, and subsequently, on October 28, 2010, disbursed the instant provisional contract as well as the instant provisional contract at the time of reporting the completion of re-employment replacement. After examining the documents submitted by the Plaintiff, the Defendant paid the instant subsidies to the Plaintiff on January 1, 201.

[Ground of recognition] Facts without dispute, Gap evidence 6 through 8, Eul evidence 1 through 6, the purport of the whole pleadings

D. Determination

1) Determination on the first argument

A) Article 20 of the Employment Insurance Act provides that the Minister of Employment and Labor may provide necessary support to employers who have expanded employment opportunities due to the improvement of the employment environment, change of the form of employment, etc. Article 15(1) of the former Enforcement Decree of the Employment Insurance Act. Pursuant to Article 20 of the Act and Article 21(1) of the Special Act on Assistance to Small and Medium Enterprises Manpower, the Minister of Employment and Labor provides that business owners who fall under enterprises eligible for preferential support for the type of business under Article 3 of the same Act may, where they install facilities and equipment necessary for improving the employment environment to expand employment opportunities, and increase employment, partially subsidize expenses and wages within budgetary limits. Article 20(3) of the same Act provides that matters necessary for the requirements for support, such as the scope of recognition of facilities and equipment eligible for support

On the other hand, Article 7 (6) of the Notice of this case provides that the head of a local labor office may not pay the improvement subsidy if a business owner commences the improvement of employment environment, such as a contract for the installation of facilities and equipment or an application for construction authorization or permission, before submitting an employment environment improvement plan under Article 5

B) In light of the following circumstances revealed in accordance with the above facts and relevant regulations, even if the Plaintiff entered into the instant provisional contract concerning the improvement work before submitting the instant plan to the Defendant, the instant provisional contract was decided on the condition that the Plaintiff would be preferred as the recipient of the instant subsidy, and thereafter, when the Plaintiff was determined as the recipient of the improvement subsidy after obtaining approval of the instant plan, the instant provisional contract was concluded and the improvement was commenced. In such a case, the Plaintiff entered into the instant provisional contract and the improvement was not deemed to fall under “the case where the improvement of the employment environment, such as the application for construction authorization or permission, was commenced before submitting the instant plan to improve the employment environment, which is set forth in Article 7(6) of the Notice, solely on the ground that the Plaintiff entered into the instant provisional contract. Therefore, the Defendant’s disposition is unlawful, and the Plaintiff’s above assertion is with merit.

① The employment environment improvement subsidy system is a system for encouraging small and medium enterprises to create employment by granting subsidies to employers who have expanded employment opportunities through the improvement of employment environment of small and medium enterprises. The purport of Article 7(6) of the instant notification is to prevent small and medium enterprises which have the ability to implement the employment environment improvement project from unfairly receiving improvement subsidies by abusing the system, such as the limitations on the authority of the administrative agencies to examine the improvement project after the implementation of the employment environment improvement project (see, e.g., Supreme Court Decision 2012-152, Jun. 25, 2012). (2) The Plaintiff concluded the instant provisional contract with Hyundai Welfare Corporation on July 10, 2010, before submitting the instant plan to the Defendant. However, the Plaintiff agreed to perform the instant contract on the condition that the Plaintiff was determined as the recipient of the instant subsidy and received the said subsidy from the Defendant on Sept. 3, 2010, the Plaintiff succeeds to the instant cafeteria agreement with the Hyundai Welfare Corporation as it is in accordance with the instant plan.

④ After completing construction under the instant plan, on October 28, 2010, the Plaintiff submitted the instant provisional contract to the Defendant on October 28, 2010 when reporting the death of a new employment environment. After examining all the documents submitted by the Plaintiff, the Defendant paid the instant subsidy to the Plaintiff on January 1, 201. ⑤ The Plaintiff’s application for the instant subsidy was unjustly intended for the improvement subsidy by abusing the limitations, etc. of the administrative agency’s authority to examine the employment environment after the commencement of the improvement project.

point that cannot be seen as being;

2) Judgment on the second argument (preliminary judgment)

Even if the conclusion of the instant provisional contract constitutes "the case where the improvement of employment environment, such as the application for contract, building authorization, and permission, was commenced before submitting the plan to improve the employment environment," as stipulated in Article 7 (6) of the instant provisional contract, in light of the above-mentioned facts and the following circumstances revealed by the relevant regulations, the instant provisional contract is deemed to have been affected by the Plaintiff compared to the public interest that the Defendant intends to protect in the instant disposition, and thus, the instant disposition is deemed to have exceeded and abused the discretionary authority. Therefore, the Plaintiff’s above assertion is well-grounded.

① Since the content of the instant provisional agreement provides that the instant subsidy shall be granted, it is difficult to deem that the Plaintiff’s ability to implement the project to improve the employment environment without receiving the instant subsidy is the case where the Plaintiff abused the system of the improvement subsidy.

② The Plaintiff actually used the instant subsidy as construction costs for improving the employment environment in accordance with the instant plan.

③ The notice on the procedure for the payment of the improvement subsidy granted by the Defendant to the Plaintiff is written only as follows: “not to provide support for the commencement of the improvement of employment environment before approval after the submission of the plan,” and “the commencement of construction works related to the improvement of employment environment after approval,” and it is not anticipated that the conclusion of the instant provisional contract alone does not lead to the commencement of the work.

④ In fact, the Plaintiff reported the completion of the employment environment improvement to the Defendant on October 28, 2010 after completing the construction work in accordance with the instant plan, and submitted the instant provisional contract also to the Defendant.

⑤ The Defendant has the authority to substantially examine whether the project meets the requirements for support prescribed by the relevant provisions at the time of approving the business plan. In particular, the Plaintiff submitted the instant provisional contract at the time of reporting the completion of improvement of the employment environment. Nevertheless, if the Defendant paid the instant subsidy, there is a need to protect the Plaintiff’s expectation for the payment of the improvement subsidy, barring special circumstances.

6. Article 7 (6) of the Notice of this case provides that where the improvement of employment environment, such as a contract for facilities and installation, has commenced before submitting an employment environment improvement plan, the payment of improvement subsidies may not be made, and that the administrative agency recognizes discretion.

3. Conclusion

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