(영문) 서울행정법원 2018.6.15.선고 2017구합65883 판결

The Defendant’s disposition of return of KRW 42,501,70, which the Plaintiff rendered on March 9, 2017, additionally collecting the same amount as the return disposition of KRW 42,501,70, and the disposition of restricting loans of KRW 360 (from March 10, 2017 to March 4, 2018) shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff entered into a contract with B(hereinafter referred to as “B”) and C(hereinafter referred to as “D”, which is a company that has obtained recognition of the workplace skill development training course for workers in each of the following table (hereinafter referred to as “each of the instant workplace skill development training”) by way of mail distance training 2) with D as shown below: (a) vocational ability development training for workers belonging to the Plaintiff (hereinafter referred to as “each of the instant workplace skill development training”); and (b) with D as indicated below.

A person shall be appointed.

B. The Plaintiff asserted that most trainees (hereinafter referred to as the “training trainees of this case”) received each workplace skill development training in this case from D and met the completion standards, and applied for the payment of expenses for workplace skill development training (hereinafter referred to as “subsidies”) to the Human Resources Development Service of Korea. Accordingly, the Republic of Korea paid the Plaintiff KRW 42,50,00 in total amount of subsidies for workplace skill development training (i.e., KRW 7,392,00 in the instant table + KRW 7,392,00 in the instant table + KRW 7,392,820 in the instant table + KRW 7,187,840 in the instant table + KRW 47,840 in the instant table 50,967,040 in the instant table).

C. On March 9, 2017, the Defendant issued a disposition to restrict support and loans for 360 days (from March 10, 2017 to March 4, 2018) based on Article 55(2) of the Act on the Development of Workplace Skills of Workers and Article 22 and [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers, on the ground that “the instant trainees did not actually undergo each workplace skill development training from D and failed to meet the completion standards thereby,” and that the Plaintiff received subsidies without verifying them. Based on Article 56(2) and (3) of the Act on the Development of Workplace Skills of Workers and Article 22-2(1)2 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers, the Defendant issued a disposition to additionally collect the same amount as the refund of illegally received amount of 42,501,70 won (hereinafter collectively referred to as “each of the instant dispositions”).

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 1 to 3 and 9 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

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

A. The plaintiff's assertion

Each disposition of this case shall be revoked on the grounds that it is unlawful for the following reasons.

1) Since the instant trainees, who were not recognized as grounds for disposition, actually received each workplace skill development training from D and met the completion standards, the Plaintiff cannot be deemed to have received subsidies by fraud or other improper means.

2) A deviation from or abuse of discretionary power

Comprehensively taking account of the fact that the Plaintiff urged and supervised the instant trainees to undergo each workplace skill development training in good faith, that the Plaintiff entrusted the Plaintiff’s employees with workplace skill development training and did not take any economic benefits to D, and instead, some trainees did not collect fees, thereby causing damage equivalent to the difference between the training fees paid in D and the subsidies paid from the Republic of Korea, each of the instant dispositions should be deemed excessively harsh and abuse of discretionary authority.

B. Relevant statutes, etc.

Attached Acts and subordinate statutes, etc. shall be as listed.

C. Whether the grounds for disposition are recognized

1) Relevant legal principles

Article 55(2) and Article 56(2) and (3) of the Act on the Development of Workplace Skills of Workers refers to any act that a person who is not eligible to receive expenses makes that person is qualified, or is unable in light of social norms to conceal an unqualified fact, and that may affect the decision-making on subsidization of expenses, as an affirmative and passive act (see, e.g., Supreme Court Decision 2013Du1980, Oct. 30, 2014). Article 20(3) of the Act on the Development of Workplace Skills of Workers; Article 19(3) of the Enforcement Decree of the Act on the Development of Workplace Skills of Workers; Article 41(4) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 28160, Jun. 27, 2017); Article 60(1) of the Enforcement Rule of the Employment Insurance Act provides for subsidies for vocational skills development training to meet the standards for vocational skills development training programs that were normally received by the business owner.

(ii) the facts of recognition

A) The prosecutor's office, in collusion with inside directors E, head of department F, and director G, who are the representative of D, had D workers visit the Plaintiff's workplace and make them conduct a proxy lecture and a proxy test with the personal information of the trainee of this case, without providing training materials, and then he prosecuted E, F, and G for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) by creating the appearance of the trainee of this case in a way that the trainee of this case satisfies the standards for completing a remote training course through the method of conducting a proxy lottery, and then fraudulently obtained the total amount of KRW 42,501,70 from the Republic of Korea.

B) On April 6, 2018, the Seoul Central District Court found E guilty of the above facts charged and sentenced E to four years of imprisonment, one year and six months of imprisonment, and three years of suspended execution to F and G (Seoul Central District Court 2018Gohap30, and E appealed against the above judgment and appealed, and the Seoul High Court 2018No112 currently pending the appellate trial).

C) F instructed its employees to conduct the Kakao Kakao Stockholm on behalf of its employees.

D) The waterway of the instant trainees’ vocational learning management system is concentrated on a specific day and specific time, and most of the learning hours per head is less than five minutes, and the distance per trainee is less than ten minutes.

E) In particular, in the case of November 20, 2013, the trainee’s title was formed in the order of name of the trainee. From June 10, 2014 to July 21, 2014, the trainee took place with the trainee’s title management system.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 3 through 7, 20, 25, 26, and the purport of the whole pleadings

3) Determination

In addition to the above facts, the following circumstances, i.e., evidence Nos. 1-2, 8, 14, 19 through 21, 24, and 26, which could be known by the overall purport of each statement and pleading of evidence Nos. 1-2, 8, 14, 19 through 26, i.e., Seoul Central District Court: (e., the entire facts charged on the trial date of the above Seoul Central District Court; (ii) D workers visited the company which entrusted workplace skill development training with D under the direction of Seoul Central Labor Agency and the investigative agency, such as E, etc., to make it possible for them to conduct a training on behalf of their trainees, and to make it difficult for them to use them to attend the training course as a whole without being asked questions from their respective trainees; and (iii) as a result, it is difficult for them to find out the fact that they were unable to receive training questions from their respective agencies, and as a whole, it is not possible to use them as training materials.

In light of the above, it is reasonable to view that the Plaintiff actively participated in the training of the D workers under its control by providing a place to the workers under its jurisdiction and creating a list of retired workers' list, and that the Plaintiff had actively participated in the training of the D workers under its control by taking the training of the instant occupational ability development training, and confirmed that the trainees received the training of the instant occupational ability development training of the Plaintiff and applied for the examination by finding out the teaching materials directly, or that there was a lack of participation by the retired workers in the instant occupational ability development training of the Plaintiff after visiting the Plaintiff’s place of business for the settlement of retirement allowances, the Plaintiff was trying to conceal the fact that the trainees did not receive the training of the instant occupational ability development training of the instant case normally, without undergoing the training of the instant vocational ability development training of the instant case conducted by mail, and thereby meeting the standards for completing the remote training of the instant case. Accordingly, the Plaintiff’s application for the training of the Korea Development Service for the total amount of subsidies or subsidies under Article 250(2)5(3) of the Act on the Development of Workplace of Workers of Workers of Korea.

(d) Whether the discretion is deviates or abused;

Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant disposition, by objectively examining the content of the act of violation and the public interest to be achieved by the relevant act of disposition, and all the relevant circumstances. In such cases, even if the criteria for a punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed in the administrative agency’s internal rules for handling affairs, and thus, it is not effective externally to the public or court. Thus, the legality of the relevant disposition shall be determined not only by the above criteria for disposition but also by the relevant Acts and subordinate statutes. Therefore, the relevant disposition cannot be deemed legitimate merely because it conforms to the criteria for disposition. However, unless there is a reasonable ground to believe that the above criteria do not conform with the Constitution or laws or that the result of its application is considerably unreasonable in light of the content of the act of violation and the relevant Acts and subordinate statutes, it shall not be readily determined that the disposition in accordance with such criteria has exceeded the scope of discretion or abused discretion (see, etc.).

In full view of the following circumstances, each of the above facts recognized and the entire purport of the evidence Nos. 10, 23, and 26 and the entire pleadings cannot be deemed to have been abused or abused the discretionary power.

1) Workplace skill development training is implemented with the aim of contributing to the development of society and economy by promoting and supporting workplace skill development training through workers’ life-oriented workplace skill development, improving their social and economic status, improving their productivity, and realizing the ability-oriented society. If a person who received workplace skill development training subsidies by fraud or other improper means is left unattended as the Plaintiff, the failure of the employment insurance fund may result in the failure of the employment insurance fund, and the injury may be transferred to the bona fide insured who paid the employment insurance premium with the Republic of Korea. Therefore, it is necessary to impose strict sanctions against those who receive workplace skill development training subsidies by fraud or other improper means, such as

2) The public interest aimed at stabilizing the employment security of workers, improving the social and economic status, and realizing the Employment Insurance Fund by operating the workplace skill development training support system fairly and transparently is less than the Plaintiff’s private interest that is limited due to each disposition of the instant case.

3) It is true that the Plaintiff received subsidies of an amount less than the training fees paid to D from the Republic of Korea due to the Plaintiff’s failure to complete some trainees’ names, as alleged by the Plaintiff.

However, the plaintiff not only received the amount equivalent to the difference between the above training fee and the subsidy from D, but also appears to have received 5 through 7% of the subsidy as the expense for acceptance. Thus, the plaintiff's assertion that the plaintiff entrusted the occupational ability development training of this case to D and did not take any economic benefits, and rather suffered damage equivalent to the difference between the above training fee and the subsidy cannot be accepted.

4) Each disposition of this case shall meet the disposition standards stipulated in Article 55(2) of the Act on the Development of Workplace Skills of Workers, Article 22 and [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers, Article 56(2) and (3) of the Act on the Development of Workplace Skills of Workers, and Article 22(1)2 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers. There is no circumstance that the above disposition standards do not conform to the Constitution or laws, or that the application of the standards is considerably unreasonable in light of the contents of the

5) The proviso to Article 6-2 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers [Attachment 6-2] 1. A. 2] provides that where there is no intention or gross negligence, or where the degree of violation is insignificant, a measure may be taken by reducing support and loan restriction within the limit of 1/2 of the standard established by the individual standard. However, as seen earlier, the above provision is not only a discretionary mitigation provision, but also an intentional act committed against the Plaintiff as seen earlier, and the amount of illegal receipt reaches KRW 42,501,70, and the degree of violation is significant. Therefore, there is no room for the Plaintiff to reduce the loan restriction pursuant to the above provision.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

Judgment of the presiding judge;

Judges Slocks

Judges Kang Jae-sung

Note tin

1) The term "vocational ability development training" means training conducted to improve workers to acquire job skills necessary for their occupation (Article 2 subparagraph 1 of the Act on the Development of Workplace Skills of Workers).

2) The term "entrusted training" means vocational ability development training conducted by a business owner on behalf of his/her employed workers and prospective employed workers to another training institution and by the relevant training institution directly conducting training implementation, training management, etc. (Article 2 subparagraph 6 of the Regulations on Assistance to Workplace Skill Development Training by a Business owner). The term "postal remote training" means remote training conducted using training teaching materials in a printed medium and conducted on the web for trainees management, etc. (Article 2 subparagraph 11 of the Regulations on Assistance to Workplace Skill Development Training by a Business owner).

3) Sanction against a violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws and regulations to achieve administrative purposes, and thus, barring any special circumstance, such as where the perpetrator is unable to cause his/her failure to perform his/her duties, it may be imposed even if there is no intention or negligence (see, e.g., Supreme Court Decisions 2002Du5177, Sept. 2, 2003; 2012Du1297, May 10, 2012). Therefore, even if it is assumed that the Plaintiff had no intention, there is no change in the conclusion that the grounds for each of the dispositions of this case are recognized, since there is no justifiable reason not attributable to the Plaintiff’s illegal act, even if it is assumed that the Plaintiff did not have intention.