2010Guhap2166 Revocation of designation of a vocational training establishment, etc.

A

The President of the Gwangju Regional Labor Administration

September 5, 2013

September 26, 2013

1. Of the instant lawsuits, the part on the termination of the relevant consignment contract and the claim for the cancellation of the relevant consignment contract shall be dismissed, respectively.

2. On May 12, 2010, the Defendant’s restriction on the entrustment and recognition of the entire course for three months to the Plaintiff, the part exceeding one year out of the restriction on the entrustment and recognition of one year and three months of the pertinent training course, and the time of workplace skill development training.

The disposition of additional collection of KRW 137,750 among the disposition of return of KRW 1,291,140 and KRW 1,291,140 shall be revoked.

3. The plaintiff's remaining claims are dismissed.

4. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

5. Among the dispositions referred to in paragraph (2), the restriction on the recognition of entrustment for three months in total, the portion exceeding one year out of the restriction on the recognition of entrustment for one year and three months, and the revocation of the designation of a workplace skill development training establishment shall be suspended until the judgment in this case becomes final and conclusive;

The termination of an entrustment contract with the Plaintiff on May 12, 2010, and the entrustment and recognition of the entire process for three months.

Restriction, revocation of designation of workplace skill development training facilities, termination of the relevant training course, restrictions on commission and recognition of the relevant training course for one year and three months, and revocation of recognition of the relevant training course, refund of the training course 1,291,140 won, and additional collection of KRW 1,291,140 shall be revoked.

1. Details of the disposition;

A. The plaintiff is operating a school B (hereinafter referred to as the "facilities of this case"), and the facilities of this case were designated as a vocational ability development training establishment under the Act on the Development of Workplace Skills of Workers from the defendant around January 26, 2002.

B. On August 14, 2007, the Plaintiff entered into an entrustment contract with the Defendant for six months (from August 2007 to February 20, 2008) for the training period, 29 trainees. On September 14, 2007, the web design training course (hereinafter referred to as "the web training course of this case") is called "the web training course of this case", and "each of the training courses of this case" is called "each of the training courses of this case" as 6 months for the training period (from March 20, 2007 to March 19, 2008) and 30 trainees (hereinafter referred to as "the entrustment contract of this case"). The main contents are as follows:

Article 1

(1) The Plaintiff shall conduct training for trainees entrusted by the Defendant.

(2) The Plaintiff shall observe training regulations, guide and supervise trainees so that they do not escape from middle age, and endeavor to develop training techniques, curriculum, etc. to improve the quality of training.

Article 4

(2) When the plaintiff conducts lawful training pursuant to the training regulations, the defendant shall pay training fees to the plaintiff.

(4) Where training allowances have been paid to a person who is not eligible for training allowances due to the plaintiff's improper attendance verification, etc., the plaintiff shall refund the relevant amount to the defendant.

(6) The defendant shall pay training expenses calculated from the commencement date to the plaintiff only for trainees confirmed by the training regulations.

Article 8

The plaintiff shall accurately confirm and manage the attendance of trainees, and shall assist trainees to promptly claim training allowances.

C. On May 12, 2010, the Defendant issued to the Plaintiff the instant computer training course C, and the instant web training trainee D illegally received training costs of KRW 1,291,140 by managing the withdrawal through false or other unlawful means while the Plaintiff’s withdrawal from the Republic of Korea during each training period. On May 12, 2010, the Defendant issued a disposition to revoke the consignment contract and to revoke the consignment contract and to additionally collect KRW 1,291,140 for the pertinent training course (hereinafter “the instant disposition”). The Defendant issued a disposition to revoke the consignment contract and to restrict the consignment of the entire course for three months, revoke the designation of the workplace skill development training course, terminate the consignment contract, to restrict the consignment contract for one year and three months, to revoke the recognition of the pertinent training course, to return training fees of KRW 1,291,140, and to additionally collect KRW 1,291,140 (hereinafter

[Reasons for Recognition] Each entry of Gap evidence Nos. 4 and 9 (including each number), the purport of the whole pleadings

2. Determination as to whether the relevant part of the instant lawsuit is lawful as to the termination of an entrustment contract and the relevant part of the claim to revoke the entrustment contract.

An administrative disposition that is the object of an appeal litigation refers to an act conducted by an administrative agency in a high power position and directly related to the rights and obligations of citizens, such as ordering the establishment of rights or the burden of obligations with respect to a specific matter under Acts and subordinate statutes, or giving rise to other legal effects, and an act that does not directly affect the legal status of the other party or the other party or other related persons on an equal status with the other party is not an administrative disposition that is

In full view of the above facts and the purport of Gap evidence Nos. 4 and 5 (including each number) as a whole, the defendant concluded the instant entrustment contract based on Article 16 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316, Dec. 31, 2008; hereinafter referred to as the "former Act on the Development of Workplace Skills") and Article 13 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009) and the provision on workplace skill development training for the unemployed, etc. (hereinafter referred to as the "training provision"). The main contents of the instant entrustment contract are to pay training expenses in the country when the plaintiff, who is a training institution, conducts legitimate training under the contract, and is established by the agreement between the plaintiff and the country, and it is not a case where the plaintiff imposes a certain duty on the training institution in a public interest position, or a specific administrative restriction is not a case where the contract is terminated.

Therefore, the part on the termination of each of the dispositions in this case, as a party to the contract, expressed the defendant's intent to terminate the entrustment contract in this case as a party to the contract in the position of the state as a party to the contract, on the ground of the termination reason stipulated in the above law and the contract, and cannot be seen as unilaterally resolving the contract relationship with the administrative agency, and thus, it does not constitute an administrative disposition (see, e.g., Supreme Court Decisions 92Nu4611, Sept. 14, 1993; 95Nu4636, Dec. 2, 1995; 95Nu10617, May 31, 1996).

Therefore, the part seeking revocation of the termination of each entrustment contract among the instant lawsuits is unlawful.

3. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

A) On May 2009, after one or more years from the completion of the training course C and D, the Plaintiff became aware of the fact that C and D left Korea during the training period and participated in the training. As long as the Plaintiff was aware of the above substitute attendance and was not paid training expenses, it cannot be said that C and D were managed by false or other unlawful means or received training expenses.

B) The plaintiff continued to conduct a training course without knowing the fact that C and D had been represented by proxy, and as long as C and D completed the remaining training course after they had been represented by proxy as above, C and D should be deemed to constitute an illegal amount. However, the defendant committed an error of law that recognized training expenses for the entire training period as an illegal amount after they were represented by proxy.

(ii) the deviation and abuse of discretionary power;

C is unable to attend a training course on the wind of carrying a new mixed travel. In this case, the training is deemed to have been conducted for 7 days pursuant to Article 30(2) [Attachment Table 1] of the Training Regulations, and if training expenses are excluded for C, the amount of the illegal payment shall be less than 1,00,000 won. Thus, the remaining disposition, excluding the termination of the relevant training course among the instant disposition and the restriction on entrustment and recognition for 1 year and 3 months of the relevant training course, cannot be made. In light of the fact that the Plaintiff’s intentional or gross negligence, cannot be deemed to have unfairly managed C, D’s withdrawal, or received training expenses, at least, it is unlawful that the instant disposition, excluding the termination of the entrustment contract for the relevant training course and the restrictions on entrustment and recognition for 1 year and 3 months of the relevant training course, has been too harsh and abused its discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) The facility of this case confirms the presence of trainees by card. According to the training regulations, where attendance is not confirmed by card due to unavoidable reasons, the attendance status of trainees may be entered in the ex officio computer network (Article 30(4)), and where trainees continue to absence for more than five days without justifiable reasons, such as natural disasters, etc., the trainee shall be excluded from the training subject if he/she is represented by a method such as leaving his/her card to other trainees (Article 31(1)1 and 5): Provided, That where trainees fail to undergo training through national examinations, job examinations, etc., the training shall be deemed to have been conducted according to the number of days required (Article 30(2)).

(ii) management of attendance to C and D and receipt of training costs;

A) The trainee C of the instant computer training course was Germany, from January 22, 2008 to January 25, 2008, and from January 25, 2008, the trainee D of the instant web training course left China respectively from January 9, 2008 to January 11, 2008, and was absent from each of the instant training courses during the said period.

B) The Plaintiff continued to conduct the instant computer training course against C and caused C to complete the instant computer training course, and continued to conduct the instant web training course with D, and caused D to complete the instant web training course. The Plaintiff received KRW 945,260 from the Defendant as training expenses for C. The Plaintiff’s receipt of KRW 78,830, which was paid due to the Defendant’s failure to take four-day leave from January 22, 2008 to January 25, 2008, including KRW 345,880, which was paid as training expenses for D. This includes KRW 58,920, which was received due to the Defendant’s failure to take treatment for three days from January 9, 2008 to January 11, 2008.

[Reasons for Recognition] Facts without dispute, purport of whole pleading

D. Determination

1) Applicable legislation

In full view of the provisions of Articles 16, 25, 29, and 31 of the former Vocational Training Act, which was in force at the time of the Plaintiff’s violation, and Articles 16, 25, 29, and 31 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316, Dec. 31, 2008; hereinafter “amended Vocational Training Act”) and Articles 16, 25, 29, and 31 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 11272, Feb. 1, 2012; hereinafter “amended Vocational Training Development Act”), the restrictions on the entrustment of workplace skill development training, the refund of the amount of workplace skill development training paid or subsidized, and the disposition of occupational ability development training, which was conducted at the time of the Plaintiff’s violation, are identified as the requirements for the cancellation of the entrustment contract or revocation of the designation of workplace skill development training, 201 of the former Act or 20.

2) The meaning of "any false or other fraudulent means" under Article 16 (2) 2 of the amended Functional Development Act

"False or other unlawful means" under Article 16 (2) 2 of the amended Vocational Development Act refers to all acts that are not correct by social norms in order for a person who is not eligible to receive training costs to see as if he/she is qualified or to conceal the fact that he/she is not qualified, and "training costs" refers to expenses that are paid in compensation for vocational skills development training conducted by a person entrusted with vocational skills development training (hereinafter referred to as "trustee"). Even if a trainee did not receive training, if a trustee claims training costs differently from the fact that he/she had received training due to a violation of the legal or contractual obligations concerning the management of rehabilitation of trainees, etc., the trustee claims training costs that should not be paid, so even if he/she was unaware of the fact that he/she did not receive training.

In addition, even if a trustee conducted training for a trainee and requested the payment of such training, if the trainee had already been removed from such training, and the training teacher, etc., who is subject to his/her management and supervision, knowingly conducted training in violation of the legal or contractual obligations that require the expulsion of the trainee, he/she shall not be paid for due process, so it is reasonable to interpret that training costs are not merely a violation of the consignment contract, but also a fraudulent or other unlawful method (see Supreme Court Decision 2011Du377, Jun. 13, 2013).

3) Whether the instant entrustment contract was lawfully terminated

A) In light of the above facts, as long as the Plaintiff claimed reimbursement of training costs differently from the fact that C and D had not received training, it constitutes a case where C and D had received training costs by false or other unlawful means even though C and D had known the fact that they had not received training.

B) In addition, considering the following circumstances revealed in light of the above facts, i.e., training regulations and guidelines for the vocational training card system, and the consignment contract form for the training courses of this case, the person responsible for supervision should pay more attention to the fact that the entry management is important and essential in the occupational ability development training process, ii) in the case of electronic presence check using the card, and e.g., the electronic presence check can be easily conducted, so the person responsible for supervision should pay more attention to this point. In addition, the entry management is insufficient to the extent that the agent check out to the extent that the agent check out to the extent that the training courses of this case could have been achieved for 3 to 4 days, 30 consecutive absence from the training course for a large number of trainees, and 4 consecutive absence from the training course, but the training fees were neglected to the extent that the specific trainee did not become aware of such act in the private teaching institute, iv) in light of the fact that the plaintiff did not lawfully conduct the training entrustment contract without being able to immediately conduct the training in question.

C) Therefore, the instant consignment contract was lawfully terminated in accordance with Article 16(2)2 and 3 of the former Vocational Development Act.

4) Whether there is a reason for the disposition

(A) restrictions on consignment and recognition for three months in the entire course, and restrictions on consignment and recognition for one year and three months in the relevant training course;

(1) According to Article 16(3) of the amended Vocational Development Act and Article 13-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22356, Aug. 25, 2010; hereinafter the same), the State or the Minister of Labor may choose not to entrust and recognize workplace skill development training for a person whose commission contract is terminated under paragraph (2) of the same Article within a period of five years from the date of termination. However, there are no particular exceptions in cases of contractual breach, while, in cases where training costs are paid or intended to be paid by fraud or other improper means, if the training costs are less than KRW 1,00,000,000.

On the other hand, the defendant deemed that training expenses paid by the plaintiff by fraud or other improper means are at least KRW 1,00,00,000,00,00, and accordingly, he/she shall be deemed to have been entrusted with the whole process for three months pursuant to Article 16(3) of the amended Vocational Development Act, Article 6(3) [Attachment Table 1](b) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Employment and Labor No. 12, Jul. 12, 2010; hereinafter the same shall apply), Article 25(2) of the amended Vocational Development Act, Article 9(4) [Attachment Table 2](b) of the Enforcement Rule of the same Act, Article 16(3) of the amended Vocational Development Act, Article 6(3) [Attachment Table 1] of the Enforcement Rule of the same Act, Article 6(2) [Attachment 3], Article 6(2) [Attachment 4] of the same Act, and Article 6(3) [Attachment 6(2) of the Enforcement Rule of the same Act].

(2) Restrictions on the entrustment and recognition of the entire course for three months;

Unlike the fact that the Plaintiff continued to conduct training without removing C, D’s substitute attendance and received training expenses therefor, the evidence submitted by the Defendant alone is insufficient to recognize that the Plaintiff continued to conduct training for C, and D with knowledge of the above substitute attendance, and there is no other evidence to acknowledge this otherwise. Therefore, it is reasonable to deem that the standards for calculating training expenses paid by the Plaintiff by false or other unlawful means include only training expenses paid for C, D’s number of days of absence, and that the Plaintiff conducted training without removing the trainee in violation of the entrustment contract and does not include training expenses paid. However, it is reasonable to deem that training expenses paid during the period of absence of C, for which C, 137,750 won (=520 won + 78,830 won) are less than 1,00,000 won, and thus, the Defendant was not subject to the restriction on entrustment contract, and thus, the Defendant did not have any ground for restriction on entrustment in the entire process for three months due to mistake that training expenses were 1,291,140 won.

(3) Restrictions on the recognition of the commission of the pertinent training course for one year and three months;

(A) As seen earlier, since training costs that the Plaintiff received by false or other unlawful means are less than KRW 1,00,000,00, the restriction on consignment and recognition for three months among the dispositions under Article 16(3) and (2)2 of the amended Vocational Development Act and Article 13-2 of the Enforcement Decree of the same Act does not exist.

(B) However, in the instant case, since occupational ability development training is conducted in violation of a consignment agreement by fraud or other improper means, it constitutes "in a case where training personnel is operated, or the party is engaged in a training, by means of improper means," or "in a case where the party is found to be in violation of the purpose of training concerning the training concerning the training methods," the defendant is entitled to impose restrictions on the entrustment and recognition of the relevant training course for one year pursuant to Article 16 (3) of the revised Occupational Development Act, Article 6 (3) [Attachment 1]-B] of the Enforcement Rule of the same Act, Article 25 (2) of the amended Functional Development Act, Article 25 (4) [Attachment 2]-B] of the Enforcement Rule of the same Act, and Article 9 (4) [Attachment 2]-B of the Enforcement Rule of the same Act. Thus, the part in excess of the above shall be revoked (the above part of the defendant's disposition and the part shall be revoked for one year or less.

(b) the cancellation of the relevant training course;

As seen earlier, the Plaintiff received training costs of KRW 137,750 by fraud or other improper means, and thus, Article 25(1)2 of the former Vocational Development Act and Article 9(3) [Attachment 2] of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 315, Mar. 10, 2009) [Attachment 2] b. Of individual standards, recognition should be revoked in accordance with Article 25(1)2 of the same Act. Accordingly, the revocation of the relevant training course is lawful.

C) According to Article 31(1)3 and Article 29 subparag. 9 of the Act on the Revocation of Designation of Vocational Skills Development and Development, the designation of a vocational ability development training establishment should be revoked if a restriction on entrustment is imposed, but a part of the training courses entrusted or recognized is not limited to cases where entrustment or recognition is imposed. As seen earlier, the restriction on entrustment for three months to the entire process is unlawful as the grounds for the restriction on entrustment do not exist, and the restriction on entrustment for one year to each of the training courses of this case is merely a restriction on entrustment for some training courses, and thus, the revocation of designation of a vocational ability development training establishment is also unlawful as the grounds for the restriction on entrustment.

D) Disposition to return 1,291,140 won for illegal receipt training expenses;

Article 16 (5) of the amended Vocational Development Act provides that "the State or a local government may order a person whose entrustment contract is terminated pursuant to paragraph (2) to return the amount paid or subsidized by false or other unlawful means among training expenses paid or training allowances subsidized in relation to workplace skill development training." As seen earlier, since training expenses paid by false or other unlawful means are KRW 137,750, the defendant can only order the return of the amount. Thus, the part exceeding KRW 137,750, out of the disposition of return of training expenses for improper receipt, should be revoked as unlawful.

(E)an additional collection of KRW 1,291,140.

According to Article 16(6)1 (a) of the amended Vocational Development Act, Article 13-2 of the Enforcement Decree of the same Act, and Article 6(1)1 (a) of the Enforcement Rule of the same Act, where the amount subsidized by a commission contract terminated by fraud or other improper means is less than KRW 1,00,000,000, an administrative agency may additionally collect an amount equivalent to five times the amount subsidized by fraud or other improper means (where there is no frequency of application for expenses by fraud or other improper means during five years before the date of detection of the violation, it shall be three times the amount subsidized by the subsidized amount by fraud or other improper means) from a person whose commission contract is terminated.

The Defendant deemed the Plaintiff’s illegal receipt amount as KRW 1,291,140 and additionally collected the amount corresponding thereto. As seen earlier, the Defendant’s disposition on this part is unlawful, and in light of the above provisions, the Defendant has the discretion to additionally collect the amount equivalent to three times the amount equivalent to the above 137,750 won, and thus, the disposition on additional collection should be revoked in full.

5) Whether the discretion is deviates or abused or not

With respect to the remaining parts of the instant disposition (the part corresponding to one year among the restrictions on commission and recognition of training courses in question, the part corresponding to 1,291,140 won out of the refund of 1,291,140 won of the training course), health care room and the whole purport of arguments as to the above recognition facts are as follows. ① Workplace skill development training is conducted with limited financial resources, such as budget and employment insurance fund under the Employment Insurance Act, and it is highly important for the public interest to improve the employment security and social and economic status of workers and to improve corporate productivity due to the above disposition. ② In particular, in order to achieve the purpose of workplace skill development training and prevent the unfair claim for training fees, it is highly likely that the foundation of the workplace skill development training system itself might be damaged if the trust and fairness of the withdrawal management is shaken, ③ it is difficult to view the Plaintiff’s substitute training instructor’s failure to attend the training school due to the Plaintiff’s duty to manage the training course, and further, the Defendant’s act of this case out of the training days of his/her absence is justified.

4. Suspension of execution.

In full view of the records in the instant case, the restriction on commission and recognition of three months in the entire course of the instant disposition, the portion exceeding one year out of the restriction on the recognition of commission of one year and three months in the pertinent training course, and the recognition of the revocation of the designation of a vocational ability development training establishment is recognized as urgently necessary to prevent any irrecoverable damage that may arise to the Plaintiff due to the execution of the revocation of the designation, and there is no evidence to recognize that the suspension of execution may cause a serious damage to the public welfare due to the suspension of execution. Therefore, the revocation

5. Conclusion

Therefore, the part of the lawsuit of this case seeking the cancellation of each entrustment contract is unlawful. Thus, the plaintiff's claim is justified within the scope of the above recognition, and it is accepted. The remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, Kim Jae-young

Judges Hong Young-jin

Judges Park Young-young

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.