(영문) 서울고등법원 2011.5.3. 선고 2010누32633 판결

On January 26, 2010, the Defendant’s order to return the new employment promotion subsidy of KRW 7,160,000, and the additional collection of KRW 35,800,000, each disposition against the Plaintiff shall be revoked.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

Reasons

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as stated in the reasoning of the judgment of the court of first instance except for the following parts: 7 pages of the judgment of the court of first instance "(2) whether or not the disposition of this case is deviating from or abusing the discretion of the court of first instance"; therefore, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

(2) Whether the instant disposition deviates from or abused discretionary power

(A) Relevant statutes

Article 35 of the former Employment Insurance Act (wholly amended by Act No. 1037, May 31, 2010; hereinafter the same shall apply) provides that the Minister of Labor may order a person who has received or intends to receive support from employment security and vocational skills development projects by fraud or other improper means to return the amount of support received, as prescribed by Presidential Decree. In addition, the Minister of Labor may collect an amount not exceeding five times the amount received by fraud or other improper means in accordance with the standards prescribed by Ordinance of the Ministry of Labor (Article 1 and 2). Article 78(1)3 of the former Enforcement Rule of the Employment Insurance Act (wholly amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter the Enforcement Rule of the Act) upon delegation from the above Act provides that where the number of applications filed by the person who received or attempted to receive support from employment security and vocational skills development projects by fraud or other improper means is additionally collected at least twice by fraud or other improper means.

(B) Of the instant disposition, the part of the order to return grants

As long as the Plaintiff received a subsidy by fraud or other improper means, the disposition that the Defendant ordered the Plaintiff to return the subsidy received pursuant to the relevant Acts and subordinate statutes shall not be deemed unlawful since it exceeded or abused the discretionary power.

1) The meaning of the frequency of fraudulent power under each subparagraph of Article 78(1) of the Enforcement Rule of the Act

The defendant issued a disposition to additionally collect five times the amount of incentives for both the plaintiff's illegal application, which was filed on June 18, 2009, and the illegal receipt as of July 10, 2009, and the illegal receipt as of October 12, 2009, and the plaintiff's illegal receipt as of October 19, 2009. This seems to be due to the fact that the plaintiff's illegal application filed as of June 18, 2009 constitutes one of the illegal receipt amounts as of June 18, 2009, respectively, because the plaintiff's illegal receipt constitutes one of the illegal receipt amounts as of June 18, 2009 and the number of illegal receipt as of October 19, 2009.

However, in accordance with the above relevant Acts and subordinate statutes, the Minister of Labor may additionally collect double, three, and five times the amount of incentives received by false or other unlawful means in accordance with the frequency of such application (hereinafter “the frequency of unlawful electricity”) for the preceding five years prior to the date of detection with respect to a person who received subsidies by deceit or other unlawful means, in addition to ordering the return of such fraudulent power, and the amount of additional collection due to such unlawful acts within the frequency of such unlawful electricity in accordance with Article 78(1) of the Enforcement Rule of the Act “the specified period of five years”, it is reasonable to deem that the above fraudulent power constitutes a separate unlawful act committed prior to the detection of such fraudulent power. In light of the purport of the above Article 78(1) of the Enforcement Rule of the Act, if such unlawful power is clearly interpreted to include the frequency of such unlawful acts subject to detection, the above provision cannot be applied to the case where the Minister of Labor receives or intends to receive 70 days prior to the discovery of such unlawful power by means of such unlawful acts.

2) Whether the discretion is deviates or abused

In light of the aforementioned legal principles and facts, and the following circumstances revealed in the argument of this case, i.e., ① the Defendant’s additional collection disposition under Article 78(1) of the Enforcement Rule of the Act shall be deemed double the amount to be additionally collected by the Plaintiff. ② In order to additionally collect five times the upper limit of additional collection under the Employment Report Act, the Defendant’s disposition to additionally collect five times the upper limit of the amount to be additionally collected by the Plaintiff should be deemed as serious as a violation, such as the Defendant’s refusal of payment of incentives for the same unlawful act despite having already received several sanctions from the administrative agency. ③ The Plaintiff was not subject to sanctions such as the return order, etc. on the ground of the illegal receipt of incentives from the Defendant before the instant disposition, and the Plaintiff was not subject to sanctions such as the return order, etc. on the ground of the illegal receipt of incentives. In full view of the fact that the Plaintiff applied for incentives B and B, the Plaintiff’s occurrence of the instant case, and the circumstances and result thereof, the Defendant’s disposition to additionally collect five times the amount of incentives paid to the Plaintiff pursuant to Article 78(1)3).

(3) Sub-determination

Therefore, among the dispositions of this case, the order of return is lawful, and the disposition of additional collection is unlawful.

3.Consultations

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed.