(영문) 대전지방법원 2017.8.29. 선고 2016구단101046 판결

On September 9, 2016, the Defendant’s order for return, order for additional collection, and restriction on payment of subsidies (from September 7, 2016 to June 6, 2017) shall be revoked.

Reasons

1. Details of the disposition;

A. On February 11, 2015, the Plaintiff entered into an agreement on the internship support with the Small and Medium Enterprise Innovation Association, Daejeon, Chungcheongnam-nam Branch of the Korea Youth Association (hereinafter “the Korea Youth Operation Agency”), which is an operating institution entrusted by the Defendant with the duties of youth employment internship, and participated in the said agreement.

B. The Plaintiff employed A, B, and C as an intern, and received the total of KRW 5.4 million from the internship operating institution as follows.

A person shall be appointed.

C. The Defendant: (a) investigated the Plaintiff’s illegal receipt of the internship subsidy; (b) concealed the relevant facts; (c) applied for and received the internship subsidy after receiving false and formal referrals from the internship operating institution; (b) requested and received the internship subsidy while working for the Plaintiff from before the start date of the internship work reported to the Defendant; (c) filed a false internship agreement with three persons, including A, for the purpose of receiving the internship subsidy; and (d) filed an application for and received the subsidy by submitting a standard employment contract with the Plaintiff on September 9, 2016, pursuant to Article 35 of the Employment Insurance Act, the Defendant issued a return order of KRW 5.4 million to the Plaintiff on September 9, 2016; (b) order to additionally collect additional collection of KRW 1080,000,000,000,000 for the internship subsidy received by unlawful means; and (c) order to return the subsidy to the Plaintiff and to additionally collect the subsidy for the period from the date of receipt of the order to return the subsidy.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Since it does not constitute an illegal receipt under Article 35 of the Employment Insurance Act for the following reasons, each of the instant dispositions based on such premise is unlawful.

① It is true that the Plaintiff, after the Plaintiff’s decision to select an intern A, B, and C, was employed as an intermediary for an operating institution. However, since the occupation of intern workers who can be employed is limited to the occupations of the Plaintiff’s business characteristics (system integration business, computer program development, IT consulting, etc.), the Plaintiff’s decision to select the intern workers who are arranged by the operating institution was included in A, B, and C, and the process of arranging the operating institution is by normal methods.

② The Plaintiff determined the employment of A and B, and conducted education for new teachers from October 2015 to December 16, 2016 of the same month, but this is a basic knowledge education rather than occupational education, and whether it was an employee’s voluntary will. Since the Plaintiff paid the attendance fee to the employee more than contractual remuneration, it does not provide the employee with labor for the purpose of wage. Therefore, the Plaintiff did not have worked prior to the commencement date of the internship training reported to the Defendant by A and B.

③ Although there exists an employment contract in the form of self-produced work, in the case of an employee subject to the instant youth internship system, the Plaintiff only prepared a standard internship contract and the standard employment contract to the same effect for applying for a supply and demand as the guidelines for implementation of the youth internship system for small and medium enterprises in 2015, and it cannot be said that the contract prepared by the Plaintiff with the internship employee is a false contract.

2) Even if there were errors in the process of hiring a internship, each of the instant dispositions was unlawful by abusing and abusing discretion in light of the various circumstances, etc. revealed in the instant case.

(b) Related statutes;

It is as shown in the attached Table related statutes.

1) On October 7, 2015, the Plaintiff received support for job-seeking through the Hodor site and recommendation, and conducted an interview on October 2, 2015, and then selected A, B, and C as an intern. On October 7, 2015, the Plaintiff entered into an employment contract with each of them on the following terms:

O, B: October 12, 2015 to February 29, 2016: O C: 2015, November 1 through February 29, 2016

2) Upon the Plaintiff’s recommendation, A and B filed an application for job-seeking on October 8, 2015, C, October 16, 2015, and entered into a standard internship agreement (Evidence 5) setting the term of the employment contract between the Plaintiff and the Plaintiff, upon receipt of the application for job-seeking with a internship operating agency on October 16, 2015.

○○, B: OC on October 19, 2015 to January 18, 2016: (a) the Plaintiff provided job training to A and B on November 2, 2015 to October 16, 2016; and (b) the Plaintiff provided job training to A and B on the job-related education at the Seoul office from October 12 to October 16, 2015; and (c) paid the money in the name of the education allowances as ten-month payment.

4) The wage contract entered into between the Plaintiff, A and B (Evidence No. 4) is written as " October 12, 2015" and the entry date is written as " October 12, 2015" on the certificate of employment issued by the Plaintiff, and the employment date is written as " October 12, 2015" on the application for employment support payment submitted by the Defendant by the Plaintiff, A and B.

5) According to the 2015 Guidelines for the Implementation of the Youth Employment Finding Program (hereinafter referred to as the “instant implementing Guidelines”). According to the consultation results, the operating agency shall arrange internship employment by reflecting the demand of internship job seekers and job offering companies (3-2). If an implementing company intends to directly select internship job seekers, it may directly select internships as long as it has obtained approval from the employment center having jurisdiction over the operating agency after meeting the requirements for direct selection. If an implementing company directly employs internships without meeting the requirements for direct selection, it stipulates that the company should bear all the expenses for the employment of internships (3-4). On February 11, 2015, the Plaintiff signed and sealed an agreement on support for the Standard Roton employment including the above contents.

6) According to the instant implementing guidelines (V - the conclusion of the internship agreement and the internship management), the internship period is to be set up within three months. The Plaintiff entered into a separate employment contract (Evidence 1) with a full-time intern employment contract for more than three months, from October 7, 2015 to October 12, 2015, 2016 to February 29, 2016; and C, from November 1, 2015 to February 29, 2016, for more than three months, from November 1, 2015 to February 29, 2016; and on March 16, 2016, between A and C, “No fixed-term employment contract for more than three months” (Evidence 11); however, the Plaintiff entered into a separate employment contract with a full-time intern employment contract for more than three months (No fixed-term employment contract).

[Ground of recognition] Facts without dispute, entry of evidence of Nos. 1 to 15, purport of the whole pleadings

D. Determination

1) The grounds for each of the instant dispositions are based on Article 35(1) of the Employment Insurance Act, Article 56(1) of the Enforcement Decree of the Employment Insurance Act, and Article 78(1) of the Enforcement Rule of the same Act. “False or other unlawful means,” which can be subject to sanctions for return orders and additional collection under Article 35 of the Employment Insurance Act, refers to any and all unlawful acts conducted by an unqualified business owner in order to conceal the eligibility for payment or the lack of eligibility for payment of internship subsidies (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In full view of the above facts, the Plaintiff directly selected A, B, and C as an intern and had them apply for job seeking and arrange by the operating agency, and then employed them through the formal arrangement of the internship operating agency. Among them, the starting date of actual work A and B is different from the starting date of work reported to the Defendant on October 12, 2015. The Plaintiff prepared a written employment contract and a regular employment contract for an intern with a different content in fact even though the Plaintiff was in the course of his/her own internship and was converted into a regular position, and applied for and received the internship subsidy. The above act of the Plaintiff constitutes a case where the Plaintiff received the most eligible recipient of the internship subsidy without being entitled to receive the internship subsidy by fraudulent or other unjust means prescribed in Article 35 of the Employment Insurance Act.

Furthermore, sanctions against violations of administrative laws are sanctions against the objective fact of violation of administrative laws in order to achieve administrative purposes. Thus, barring special circumstances, such as where a failure to perform duties is not attributable to the offender, barring special circumstances, such as where there is a justifiable reason not attributable to the offender, it may be imposed even if there is no intention or negligence on the offender (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). There is no circumstance that the Plaintiff was a justifiable reason not attributable to the Plaintiff in this case.

2) Whether the discretion is deviates or abused

Article 35 (1) of the Employment Insurance Act provides that "the Minister of Employment and Labor shall order a person who has received or intends to receive support for employment security and vocational skills development programs referred to in this Chapter by fraud or other improper means to return the amount of subsidy granted to him/her." Article 56 (1) of the Enforcement Decree of the Employment Insurance Act also provides that "the Minister of Employment and Labor shall order the person to return

The court shall order the return of the subsidy already received by fraud or other improper means. Since it is apparent that the subsidy itself is a binding act, the ground for deviation or abuse of discretion in the order of return of the subsidy received among the dispositions in this case is without merit.

Article 78(1) of the Enforcement Rule of the Employment Insurance Act provides that an order for additional collection is in line with the standard of “period of restriction on payment of subsidies according to fraudulent acts” under attached Table 2 of the Enforcement Decree of the Employment Insurance Act, and there is no reasonable ground to deem that the above disposition standard does not conform with the Constitution or the law. In light of the circumstances leading up to the Plaintiff’s fraudulent act, etc., there is no reasonable ground to recognize that the above disposition in accordance with the above disposition standard is considerably unreasonable. In full view of the foregoing, there is no violation of law of abuse of discretion

3. Conclusion

Thus, all of the plaintiff's claims shall be dismissed as it is without merit.