2016 Guest 5156 Order for return and revocation of a decision for additional collection, etc.

1. A;

2. B

3. C

4. D;

Attorney Lee Dong-dong, Counsel for the plaintiffs

The Deputy Director General of the Central Regional Employment and Labor Office;

Government Law Firm Corporation, Attorney Han-soo et al.

May 29, 2018

July 10, 2018

1. Each of the plaintiffs' claims is dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

The Defendant’s order to pay KRW 7,412,90 to Plaintiff A on August 17, 2016, 360, 5,334,400, 360, 360, and 4,370,660, 360, 360, 360, and 6,787,00, 360, and 360, respectively, shall be revoked.

1. Details of the disposition;

A. Details of the plaintiffs' entrusted training

1) The Plaintiffs are all representatives of child-care centers who are employers, and they concluded a consignment training contract with E Co., Ltd. (hereinafter referred to as “E”) and their infant-care teachers, prepare a document that they met the requirements for the completion of the consignment training and pre-paid the training expenses to E, and submit it to the Korea Industrial Complex Corporation, which is a Korean Industrial Complex, and thereby receive the compensation for the training expenses from their own account pursuant to Article 27 of the Employment Insurance Act, etc. [Article 8 of the Regulations on the Support for Workplace Skill Development Training for Business Operators (Public Notice of the Ministry of Employment and Labor)], the Plaintiffs must attend at least

2) Specifically, Plaintiff A (the representative of F Child Care Centers) conducted from December 8, 2012 to January 20, 2014, including six (93) infant care teachers belonging to six (93) training courses including the "G Child Care Center Production1", and ② Plaintiff B (the representative of G Child Care Centers) conducted from December 16, 2012 to March 17, 2014] 6 (83) infant care teachers belonging to 21 training courses including the total number of 36 infant care teachers belonging to the Plaintiff C (the representative of H Child Care Centers), including 36 teachers belonging to the training courses including the "G Child Care Center Production1", and 10 to 15, 2014.

B. During the investigation into E, which is an entrusted training institution, the Incheon Bupyeong Police Station: (a) prepared and published a false commission contract and tax invoice as if the business owner of 488 childcare centers, including the Plaintiff, did not preferentially pay training expenses; and (b) notified the Defendant that the trainee failed to attend the training course at least 80%, and even if the trainee’s infant care teacher failed to meet the completion standards, he/she would have satisfied the completion standards and received training expenses.”

2) Accordingly, the Defendant classified the Plaintiffs’ actual illegal receipt amount and the amount of supply and demand, excluding the portion for which the extinctive prescription has lapsed, as indicated in the purport of the claim on August 17, 2016, and additionally collected the same amount as the amount of the order of return (hereinafter referred to as “each of the instant dispositions”) with respect to the Plaintiffs, as indicated in the reasoning of the claim on August 17, 2016 (hereinafter referred to as “each of the instant dispositions”). (The amount for which the Plaintiff’s order of payment was issued in the purport of the claim is the sum of the amount for which the amount equivalent to the refund order was additionally collected).

A person shall be appointed.

(c) Criminal punishment for representatives, etc. of E;

1) On November 17, 2014, related persons, including the representatives of E, were indicted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on the Management of Subsidies. On December 15, 2016, the part of fraud was pronounced guilty (the part of the violation of the Subsidy Management Act was acquitted on the grounds that the Defendants were not the recipient of subsidies even though the two crimes were charged with ordinary concurrent crimes). The Seoul High Court appealed as 201759, but appealed as Seoul High Court 2017, but the appeal was dismissed on April 27, 2017, and again appealed as the Supreme Court 2017Do7147, but the first instance judgment became final and conclusive by dismissal of the appeal on August 18, 2017 (hereinafter referred to as the “criminal judgment”).

2) The main point of the criminal judgment is as follows.

The Defendants, as indicated in the separate list of crimes, from May 6, 2012 to June 30, 2014, submitted to the Corporation a false report on completion of the training report to the Victim, who submitted a false report on completion of the training report to the Corporation, as if the child care teachers were unable to attend the training or to attend the training for 4 hours a day, 30 hours a day, 5 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day 5 hours training was conducted, and 8 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day as.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1 to 11

2. Determination on the defense prior to the merits

The defendant asserts that, among each of the dispositions of this case, 360 days each of the 360 days support and loan measures against the plaintiffs is unlawful as there is no benefit of lawsuit, since the period was terminated on April 23, 2017 against the plaintiff C.

According to the Enforcement Rule of the Act on the Development of Workplace Skills of Workers [Attachment 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers [Attachment 6-2] 1-A, 3 of the period of support, financing, and restriction on taking lectures (related to Article 22), where a person subject to the restriction is subject to the restriction repeatedly, the restriction may be imposed within the extent of three years.”

Even after the expiration of the period of a restrictive measure, there is a disadvantage in the provisional arbitration system on the basis of the past record of violation of the law, so the plaintiffs still have a benefit to seek the cancellation of such restrictive measure.

Therefore, this part of the defendant's assertion that there is no benefit of lawsuit even after the actual cancellation is without merit.

3. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

The defendant did not properly confirm the cause of the disposition by each plaintiff on the sole basis of the criminal punishment against the representative, etc., and concluded that the plaintiffs did not have any intention in receiving training expenses, and was sentenced to a criminal judgment against the representative, etc. of E. The plaintiff A and C made a disposition of support, restriction on loans, return orders, and additional collection by concluding that the plaintiffs received support by false or other unlawful means even though they received a decision of non-guilty suspicion after being investigated as a suspect. Each of the dispositions of this case was made on the basis of the erroneous facts and is unlawful.

B. Determination

1) Whether the attendance of less than 80% of the training courses was conducted

Considering the following circumstances comprehensively, the Plaintiffs’ infant care teachers may be deemed to have attended less than 80% of the training courses.

A) Above all, even if a criminal judgment is not bound by the fact-finding in a criminal trial, the fact that a criminal judgment already became final and conclusive was guilty of the same factual basis is significant evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a factual judgment in the criminal trial in light of other evidence submitted in the administrative trial (see, e.g., Supreme Court Decision 2011Du28240, May 5, 2012). However, the criminal judgment held to the effect that, in the case of E, who provided education and training to childcare teachers entrusted by the plaintiffs for 4 hours a day, 3 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day asssss day a day a day a day a day.

B) Each training course of the plaintiffs' infant care teachers belonging to the plaintiffs consists of a total of 13 hours per day (13 hours per day), a total of 14 hours per day (14 hours per day, 2-9, 2-6, 2-11, etc.), and a total of 40 hours per 10 days (felt production A, 10-1, 10-1, and 3 hours per day). The short case is ten days per day, and the short case is about 40 hours per day, and the rest is 14 hours per day. However, even if 13 hours per day is 13 hours per day, 14 hours per day, 14 hours per day, 2 days per day, 10 hours per day, and 40 days per day, 10 hours per day, 3 hours per day, 4 hours per day, 10 days per day, and 14 days per day, 3 hours per day, respectively, and 3 hours per day, respectively.

C) In addition, not only J of the head of E’s branch, but also E’s instructors have entered into a lecture agreement at three hours a day, five hours a Saturday, and on Sundays, there was no lecture, and there was no infant care teacher who has completed all the training courses normally (No. 12-1, 2, and 3).

D) From among the child care teachers belonging to the Plaintiff A and C, K and L were not present at the investigation agency and did not complete all the education according to the time table, they were trained from 18:00 to 21:00 to 15:00 to 15:00 to 10:00 to 10:00 to 10:00 to 10,000 on Sundays was stated as being present on Sundays (No. 10-2). In addition, it was clearly stated that there was a fact that Plaintiff D’s infant care teachers were not in E during the training period (No. 20) as a result of the investigation by the radio station by the base station of the investigation by the radio station of the results of the Plaintiff D’s infant care teachers (No. 20);

2) Whether the contractor is an illegal contractor

Article 16 (2) 2 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316 of Dec. 31, 2008; hereinafter referred to as the "former Act on the Development of Workplace Skills") generally refers to the affirmative and passive act that may affect the decision-making on the payment of training fees by a person who is not eligible to receive training expenses, as if he/she were qualified or not able to conceal the fact that he/she is not qualified. Article 16 (1), (2), and (3) of the former Act on the Development of Workplace Skills and Article 16 (6) of the former Enforcement Decree of the former Act on the Development of Workplace Skills (amended by Presidential Decree No. 21398 of Mar. 31, 2009; hereinafter referred to as the "former Act on the Development of Workplace Skills"), and Article 13 (4) 1 of the former Act on the Development of Workplace Skills provides that "any intentional or gross negligence committed by a person who violated the Act shall be construed equally in the same manner."

However, as seen earlier, the Plaintiffs received subsidies by fraudulent or other illegal means inasmuch as they were unable to claim training expenses, even though they were unable to complete the training course properly, they can be deemed to have received subsidies. This does not necessarily change to the extent that they were not required for intention. Furthermore, in full view of the fact that the Plaintiffs did not perform the obligation to verify the completion of trainees in relation to the application for training expenses, the reasonableness of the application for training expenses, and that they applied for subsidies for training expenses in a manner such as attaching false tax invoices, even though they did not have paid advance payment to E, it is reasonable to deem that the Plaintiffs received subsidies by fraudulent or other illegal means.

3) Therefore, the instant disposition is lawful.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Yong-sik