(영문) 서울행정법원 2018.4.13.선고 2017구합61034 판결

On January 13, 2017, the Defendant’s order to terminate an agreement with the Plaintiff on January 13, 2017, the next year (2018), the restriction on the participation in the project of the contracting party to the private sector in the next year (2018), the amount used for the purposes other than basic money, the refund of the National Treasury to the National Treasury in KRW 34,64,763, and the transfer of type 72 and type 5 to the Center.

Reasons

1. Basic facts

A. On March 11, 2014, the Plaintiff entrusted the Plaintiff with the Defendant with intensive counseling, employment training, etc. necessary for employment with respect to the unemployed young people, etc., and the Defendant entered into an agreement on the consignment of the project to support the work failure (hereinafter referred to as the “instant agreement on consignment”) with the Defendant, which mainly covers the payment of subsidies to the Plaintiff. Since then, the term of the contract has been extended by one year by entering into a renewal contract in 2015 and 2016. The major contents of the instant agreement on consignment of the private sector are as follows.

Article 3 (Details of Employment Assistance) ① 2) The content of the project for supporting the success and failure of employment to be provided to the person entrusted shall be based on the following matters, and shall be determined by B, taking into account the characteristics of participants.1. 2. The plan for employment assistance for each individual to the person entrusted is formulated; 3. The plan for employment assistance for each individual to the person entrusted; 4. Operation of the employment assistance program, such as employment education and group counseling program; 5. Employment assistance program, according to the characteristics of participants; 6. After employment of the entrusted person, post management, etc., Article 4 (Obligation of Parties) ① A(3) shall cooperate so that the entrusted person can smoothly promote the job success and failure of employment, and actively cooperate with the matters requested by Section B related to the entrusted project.Third, in relation to the work provided or supported by Section 5 (Support of Operation Expenses, etc.) A shall be paid to the entrusted person for each of the following expenses (hereinafter referred to as "the incentives for continuous employment") within the scope of budget:

(4) A participant's failure to return a basic fund that he/she shall return upon occurrence of a participant's failure or termination of an agreement shall comply with the guidelines for operation of employment failure and work manuals. Article 6 (Management of Subsidies) (1) shall manage subsidies under Article 5 through a separate exclusive account.

B. On December 27, 2016, the Defendant confirmed that the Plaintiff used KRW 34,64,763 out of the basic amount that the Plaintiff received from the Defendant for the purpose other than the original purpose from January 1, 2014 to November 30, 2016, and notified the Plaintiff that he/she would submit explanatory documents by January 10, 2017, as it is expected to make a disposition, such as refunding the amount of unlawful use for the said purpose. On January 13, 2017, the Defendant notified the Plaintiff that he/she would submit explanatory documents by not later than January 10, 2017. On January 13, 2017, the Defendant notified the Plaintiff that “the Plaintiff would terminate the private consignment agreement of this case, return the basic amount 34,64,763 won used by the Plaintiff for the purpose other than the original purpose, restriction on the Plaintiff’s participation in the private consignment business in employment in 2018, Plaintiff’s request for the transfer (hereinafter “instant”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Gap evidence No. 11-1, Eul evidence Nos. 2, 9 and 10, and the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

With respect to the plaintiff's claim for revocation by the lawsuit of this case on the premise that the notification of this case constitutes an administrative disposition, the defendant is merely not entitled to terminate the contract of this case under private law and claim for restitution based on it. Even if the contract of this case to the private sector constitutes public law contract, the notification of this case is subject to appeal litigation even if it falls under public law contract

As such, this case’s lawsuit is unlawful, since it does not constitute an administrative disposition.

B. Determination

1) The term “administrative disposition”, which is the subject of an appeal litigation, refers to an act of an administrative agency under public law, which directly changes in specific rights and duties of citizens, such as ordering the establishment of rights or the burden of obligations, or giving rise to other legal effects, with respect to a specific matter (see Supreme Court Decision 2006Du18362, Sept. 11, 2008). Meanwhile, even if an administrative agency’s unilateral declaration of intent has terminated legal relations between itself and the other party, it cannot be readily concluded that the expression of intent is an administrative disposition by exercising public authority as an administrative agency. Whether the expression of intent constitutes an administrative disposition subject to an appeal litigation or whether the declaration of intent is a party to a contractual relationship under public law, depending on how relevant statutes specifically provide for the other party’s legal relations, should be determined individually (see Supreme Court Decision 2015Du41449, Aug. 27, 2015).

2) Article 6(1) of the Framework Act on Employment Policy provides that "the matters concerning job placement, vocational guidance, and vocational training for the promotion of employment, the career development of incomplete employees for their re-employment to better jobs, and the promotion of their non-economic activity population's participation in the labor market (Article 5)." Article 26(1) provides that "the State shall establish and implement necessary policies for the efficient operation of the system concerning support such as various subsidies, incentives, allowances, etc. (Article 9)." Article 26(1) provides that "State shall establish and implement necessary policies for the efficient operation of the system (Article 40(2) of the Framework Act)." Article 11(4) provides that "the State or local governments may establish and operate non-profit corporations or organizations prescribed by Presidential Decree which provide services for the provision of employment services to the vulnerable class in employment, such as the diagnosis of their abilities and aptitude, promotion of their vocational abilities, and intensive job placement, etc." (Article 40(2) of the Framework Act on Employment Policy.

3) The following facts or circumstances are acknowledged based on the facts acknowledged earlier, the relevant provisions of the Framework Act on the Promotion of Employment and the Enforcement Decree of the same Act, Gap evidence Nos. 7, 8, 17, 24, Eul evidence Nos. 1 and 8, and the overall purport of pleadings, i.e., the agreement of this case provides that the plaintiff is entrusted with employment failure support projects by the defendant on an equal footing status with the plaintiff, and the defendant is a contract under public law which provides that the plaintiff shall pay a subsidy to the plaintiff. ② The above subsidy consists of the basic amount for which a fixed amount is paid according to the number of entrusted persons, employment quality and continuous service period of the entrusted persons, which are paid to the plaintiff, and the defendant cannot be deemed as a subsidy under the Act on the Management of Subsidies to Private Sector, which means that the plaintiff cannot be deemed as having paid a subsidy to the plaintiff for the purpose of preserving and repairing the cost of the project in accordance with the contract of this case, and the defendant cannot be deemed as having paid a certain amount of subsidy under the employment promotion guidelines or termination guidelines under public law.

Therefore, the instant lawsuit seeking revocation on the premise that the instant notification constitutes an administrative disposition is unlawful.

3. Conclusion

Therefore, we decide to dismiss the lawsuit of this case and decide as per Disposition.