(영문) 인천지방법원 2014.9.26. 선고 2013구합4280 판결

A. The Plaintiff is a person who was engaged in the manufacturing of plastic products under the trade name of “C” at the Seo-gu Incheon Metropolitan Government Factory (hereinafter “instant plant”).

B. On June 22, 2010 and June 22, 2012, the Plaintiff submitted to the Defendant a report on the improvement plan for the employment environment of small and medium enterprises, including (i) dormitory, (ii) the head of the district office of education, (iii) showers, (iv) cafeterias, (v) library, (v) library, (i) the expense check amount of KRW 83.6 million, and (ii) the report on the improvement plan for the employment environment of small and medium enterprises, (iii) the number of employees scheduled to be employed after the improvement of the employment environment, (iv) on July 8, 2010, and (iv) the above content of the improvement plan for the employment environment of small and medium enterprises, (v) the amount of expenses check amount to KRW 9,845,00 (including value-added tax),

C. On September 7, 2010, on the Plaintiff’s above application, the Defendant partially approved KRW 37,366,00, out of the amount required for improving “facilities essential for living (a dormitory, shower room), cultural, sports, and convenience facilities (a educational facility)” as the amount of support (the amount excluded from each value-added tax).

D. On September 30, 2010, the Plaintiff submitted a report on the completion of the employment environment improvement for small and medium enterprises to the Defendant, and applied for a subsidy for the improvement of the employment environment for small and medium enterprises with the number of increased workers as 3.33.

E. On January 19, 201, the Defendant paid to the Plaintiff KRW 37,366,00,000, out of total expenses incurred in improving the employment environment, including KRW 4,404,00,00, the amount of subsidies for improving the environment of small and medium enterprises (hereinafter “instant subsidies”).

F. On July 26, 2012, the Plaintiff sold the instant place of business, including the instant support facilities, to D Co., Ltd. for KRW 1.5 billion, and closed the business on December 31, 2012.

G. On December 11, 2012, the Defendant: (a) conducted on-site inspections on the instant place of business; (b) confirmed the fact that the instant theory was sold and removed; and (c) ordered the Plaintiff to reinstate the instant support facility up to January 5, 2013 by December 26, 2012.

H. On January 14, 2013, the Defendant, on which the Plaintiff did not comply with the above corrective order, issued a prior notice and an instruction to present opinions regarding the collection and disposition of the instant subsidies to the Defendant, and on January 25, 2013, issued a disposition to fully return the instant subsidies to the Plaintiff on the ground of Article 10(4) of the Regulations on the Payment of Subsidies for the Improvement of Employment Environment for Small and Medium Enterprises (Notice of the Ministry of Employment and Labor No. 2010-16, hereinafter referred to as the “Notification”).

(i) The Plaintiff filed an administrative appeal against the instant disposition on February 19, 2013, but was decided by the Central Administrative Appeals Commission on September 3, 2013 to dismiss the said claim.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 7, 8, Eul evidence Nos. 1 through 11, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant notice, which served as the basis for the instant disposition, is null and void, and the instant disposition is unlawful as it is in violation of its discretionary authority.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Invalidity of Article 10(4) of the Notice of this case

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., as prescribed by Presidential Decree, and Article 15(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 201; hereinafter the same shall apply) provides that the requirements for support, such as the scope of recognition of facilities and equipment eligible for support under the above Act, the amount of subsidies, applications for subsidies, and other necessary matters shall be prescribed and publicly notified by the Minister of Employment and Labor, and Article 35(1) of the Employment Insurance Act and Article 56(1) of the former Enforcement Decree of the Employment Insurance Act provide that the person who has received subsidies may be ordered to return the subsidies by fraud or other improper means.

However, as seen earlier, the Defendant did not take the instant disposition by fraud or other improper means, and according to the content, form, and system of the pertinent provision, Article 15(2) of the former Enforcement Decree of the Employment Insurance Act merely delegated matters related to the subsidization to the Minister of Labor directly notify. It does not delegate the contents related to the collection of subsidies to the Minister of Labor.

Therefore, Article 10(4) of the instant public notice, which separately prescribes the details related to the collection of subsidies, is beyond the scope of delegation under Article 15(2) of the Enforcement Decree of the Employment Insurance Act, and cannot have external binding force as a statutory order (see Supreme Court Decision 97Nu13474, Nov. 1, 199; 26, etc.).

2) Illegal as a result of deviation from and abuse of discretionary power of the instant disposition

Meanwhile, the Defendant may seek the return of the instant subsidy, based on Articles 30 subparag. 2 and 31(1) of the Subsidy Management Act, to the Plaintiff, on the ground that the instant subsidy constitutes a subsidy under the Subsidy Management Act.

However, since the Plaintiff operated the instant support facility for a certain period, which was constructed with the instant subsidy granted on January 19, 201, and sold it to a third party at his discretion on July 26, 2012, it is reasonable to deem that the part corresponding to the period for which the Plaintiff operated the support facility during the restriction period stipulated in Article 10(1) of the Notice was executed as the purpose of the instant subsidy.

Therefore, in rendering the instant disposition, the Defendant did not take into account the circumstances where part of the instant subsidy was executed in accordance with its purpose (see, e.g., Supreme Court Decisions 86Nu276, Dec. 9, 1986; 2003Du1288, May 16, 2003) and did not take into account the circumstances where the Defendant’s disposition of this case with the purport that the Defendant would return the entire amount of the instant subsidy to the Plaintiff can be deemed to have been partially executed. Thus, the instant disposition is unlawful in its deviation from and abuse of its discretionary power.

Conclusion

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