(영문) 서울행정법원 2020.11.24. 선고 2018구단76951 판결

On December 28, 2017, the Defendant’s order to return KRW 69,421,210 to the Plaintiff on a flexible-time job grant, order to additionally collect KRW 134,842,420 due to illegal receipt, and disposition to restrict payment of all kinds of subsidies for one year ( December 28, 2017 - December 27, 2018) shall be revoked.

Reasons

1. Details of the disposition;

A. The purpose of the Plaintiff’s general and overseas travel business is Seoul branch office and Jeju branch office, and the Seoul branch office is composed of domestic, overseas, and management business departments.

B. Under the premise that 20 employees from 2014 to 2016 (hereinafter referred to as the “worker of the instant case”) had worked as part-time selective workers, the Plaintiff applied for subsidies for the creation of jobs on a part-time basis as shown in the Defendant (hereinafter referred to as the “instant business”) and received subsidies for KRW 80,601,850 in total from the Defendant as follows (hereinafter referred to as the “instant subsidies”).

(1) approved workers in 2014;

A person shall be appointed.

(2) approved workers in 2015.

A person shall be appointed.

(3) approved workers in 2016.

A person shall be appointed.

(4) The amount of support by payment date.

A person shall be appointed.

C. In accordance with Article 35 of the former Employment Insurance Act (amended by Act No. 16557, Aug. 27, 2019; hereinafter the same shall apply) and Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 30296, Dec. 31, 2019; hereinafter the same shall apply), the Defendant issued an order to return KRW 80,601,850 to the Plaintiff on December 28, 2017, to return KRW 161,203,70, and KRW 161,200, and KRW 700, and ② to limit the payment of each original disposition that is newly supported for one year from December 28, 2017 under Article 56(1) of the Enforcement Decree of the Employment Insurance Act (hereinafter the same shall apply).

D. The Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission on September 11, 2018, and the Central Administrative Appeals Commission rendered a ruling dismissing the remainder of the original disposition on the ground that the right to claim return, which served as the basis for the order to return, expired, and expired, the portion of KRW 5,400,000, and the amount of KRW 10,800,000, out of the order to return the amount of unlawful receipt of original disposition in the instant case, and the amount of KRW 5,80,000,000, among the orders to return the amount

E. On April 30, 2019, the Defendant: (a) discovered that the part exceeding KRW 69,421,210 of the order to return the illegally received amount of the disposition after the instant ruling and that exceeding the additionally collected amount of KRW 138,842,420 of the amount of the order to return the illegally received amount of the disposition was already returned on the ground that the amount exceeded the scope of the entire period of support or exceeded the approved number of persons; and (b) revoked each of the relevant parts (hereinafter the instant disposition).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 15, Eul evidence Nos. 1 through 3, 7, 8, 12, 13 (including provisional number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Non-existence of the grounds for disposition

Of the instant workers, fifteen workers other than H, L, K, I, and M were employed as actual part-time workers and worked within the scope of 15 to 30 hours per week, which is the contractual work hours meeting the requirements set by the Plaintiff. Unlike actual hours, the Plaintiff’s application for the instant subsidy was made by uniformly entering the hours of leaving work from 17:00 to 17:00, which is against the purport of the instant work-time worker’s work-based work-based work-based work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related workers. In addition, the Defendant has no cadastral map on the past work-related work-related records from 2014 to 17:00.

Therefore, the Plaintiff cannot be deemed to have received the instant subsidy by fraud or other improper means, and there is a justifiable reason not to mislead the Plaintiff into neglecting his/her duty.

(2) A deviation from or abuse of discretionary power

Considering the fact that the Plaintiff failed to faithfully explain the purport and content of the system from the Defendant and that the Defendant neglected the management and supervision, the instant disposition is unlawful by abusing and abusing discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Determination as to the non-existence of the grounds for disposition

Sanction against violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws in order to achieve administrative purposes, and thus, a sanction may be imposed even if the violator has no intention or negligence, barring any special circumstance, such as a failure to cause a failure to perform his/her duty of violation, and "any false or other unlawful means" means any and all unlawful acts committed by an unqualified business owner in general in order to conceal the eligibility to receive benefits or to conceal the lack of eligibility to receive subsidies (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009), which may affect the decision-making of subsidies (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In light of the following facts and circumstances acknowledged in light of the facts without dispute, Gap evidence Nos. 4 through 27, Eul evidence Nos. 2 through 11, and 14 through 24 (including virtual numbers), and the overall purport of the facts and arguments in this court, it is reasonable to deem that the plaintiff received the subsidy of this case by fraud or other improper means. The plaintiff's assertion on this part is rejected.

(A) The Plaintiff’s representative director V and the Plaintiff’s managing director: (a) was indicted for violating the Subsidy Management Act that illegally received the instant subsidy by Seoul Southern District Court Decision 2018Da5536; and (b) on March 3, 2019, “V and W” (hereinafter referred to as “V”) intended to receive the instant subsidy, which is a subsidy, by means of falsely preparing and submitting a labor contract and a labor contract management book as if the full-time employee worked for not less than 30 hours a week, and as if he/she were employed for not less than 15 hours but not more than 30 hours a week; (c) the Plaintiff was sentenced to a fine of not less than 20 years a week from around November 26, 2014 to March 3, 2017; (d) the Defendant was sentenced to a suspended sentence of not less than 30 hours a week; and (e) the Defendant was sentenced to a fine of not less than 100,601,50 won, respectively.

(2) The facts alleged in the lower court’s final judgment as to the same facts in the administrative trial are significant evidence. However, if there are special circumstances where it is deemed difficult to adopt a factual judgment in the criminal trial in light of other evidence submitted in the administrative trial, the facts opposed thereto may be acknowledged (see, e.g., Supreme Court Decision 2001Du1635, Jan. 15, 2002). However, the grounds alleged in this part are different from the grounds alleged in the facts charged in the criminal trial, and the evidence submitted by the Plaintiff is also not identical to those presented in the criminal trial, and there is no special circumstance where it is deemed difficult to adopt a factual judgment in the final judgment.

C. Of the instant workers, H, L, K, I, and M were so-called full-time workers, and were falsely requested as if they were part-time workers and received the instant subsidy.

D. Under the labor contract, the hours of part-time workers were less than 10 hours a week from 10:0,000 to 5:00 a.m., the amount of wages equal to the full-time workers on the full-time basis of KRW 1.2 million per month was paid. During the investigation and trial process of the above criminal case, N, who was affiliated with the Seoul branch office, stated that he had consistently worked at the Seoul branch office 9:0 p.m. before 6:00 a.m., and that he had no employee who had worked at 10:0 a.m. during 10:0 a.m. and had no employee who had worked at 5:0 p.m. during 10:0 a.m. and in particular, H stated to the effect that he had no employee who had worked at 5:0 p.m. during 10:0 a.m. during the investigation process of the above criminal case, N, H, I, M, and K had made a statement to the effect that he had no employee from 9:

E) W changed the departure and retirement data of the entire workers in the instant case into the X-cell file, and drafted a register of work by correcting the complete retirement record to 17:00, and the above workers voluntarily prepared and submitted to the Defendant the withdrawal and retirement hours of the register of work in the register of work, even on the day when they do not attend the office due to business trip, leave of absence, etc., or leave without returning to the office. Considering that the absence of the records of work or the number of overtime hours exceeds a certain period of time, the submission of a false register of work in the register of work constitutes an unlawful method in itself, by making it impossible to confirm the actual working hours of workers.

F. The Plaintiff was informed of the fact that it is not suitable for a flexible-time worker system, but only able to provide support for office workers, such as office work assistance, telephone counseling, and tax accounting, among the instant workers. However, workers employed at the Jeju branch of the instant workers engaged in dysing work concurrently with outdoor work or business trip, and other workers have also been in charge of performing duties inappropriate for the flexible-time worker system, such as frequently going through a business trip or out-time work, and in particular, C, E, K, I, U, and P are going to go through an overseas business trip. Nevertheless, the Plaintiff was approved by applying for support as if he is employed as an employee to be in charge of internal work, such as telephone counseling and office assistance. As such, the Plaintiff’s filing an application by stating the details of duties differently from the actual work of the workers subject to support is in itself an improper way. On the other hand, the Plaintiff’s notice of approval given multiple times by the Defendant is insufficient to thoroughly manage the workplace work hours, and the Plaintiff’s change of the Plaintiff’s detailed work hours, etc.

(2) Determination on the assertion of deviation or abuse of discretionary power

Whether a punitive administrative disposition deviates from or abused the scope of discretionary power under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages that an individual may be seen as an individual by objectively examining the content of the offense, which is the reason for the disposition, and the public interest to be achieved through the relevant disposition, as well as various circumstances complying with such disposition (see, e.g., Supreme Court Decision 98Du11779, Apr. 7, 200). In addition, in cases where a disposition standard is prescribed by Presidential Decree or Ordinance of the Ministries, such disposition standard itself does not conform with the Constitution or laws, or unless there is any reasonable ground to believe that the disciplinary administrative disposition is considerably unreasonable in light of the content of the offense, which is the reason for the disposition, and the content and purport of the relevant statutes, the disposition should not be readily determined that such disposition deviates from the scope of discretion or abused its discretionary power (see, e.g., Supreme Court Decision 2007Du

In light of the following circumstances known in addition to the purport of the entire pleadings, the instant disposition cannot be deemed as deviation from or abuse of discretion. The Plaintiff’s assertion on this part is rejected.

It is intended for business owners to create jobs on a flexible basis through the reorganization of a work system or the development of new flexible-time work. However, the Plaintiff needs to strictly impose sanctions by harming the soundness of the system by receiving the subsidy in this case with the appearance of creating jobs on a flexible basis, such as creating new jobs on a flexible basis.

(B) The amount of the instant subsidy that the Plaintiff received by unlawful means reaches a considerable amount of the subsidy for several years, and the Plaintiff deceivings the Defendant by active acts, such as preparing false records of employment and written labor contracts, to receive the instant subsidy. The instant disposition conforms to the standards prescribed in Article 35(1) and (2) of the former Employment Insurance Act, Article 56(2) [Attachment 2] of the former Enforcement Decree of the Employment Insurance Act, and Article 78(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 292, Aug. 28, 2020). It is difficult to see that such disposition is in itself inconsistent with the Constitution or law, and it is difficult to view that the instant disposition is considerably unfair solely on the basis of

(D) The Plaintiff asserts to the effect that the situation where the situation of the travel industry, including the Plaintiff, has significantly deteriorated due to a windowvirosis 19 (COVID-19). However, in an appeal litigation seeking the revocation of an administrative disposition, the determination of illegality of the disposition should be made at the time of the disposition (see, e.g., Supreme Court Decision 20041083, Apr. 15, 2005). Thus, the determination of illegality cannot be made on the ground of the circumstance of the Plaintiff’s assertion that occurred after the instant disposition.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit.