(영문) 서울고등법원 2012.2.8. 선고 2011누29313 판결

The judgment of the first instance shall be revoked. The defendant's disposition on August 23, 2010 against the plaintiff shall be revoked for one-month suspension of business.

Reasons

1. cite the judgment of the first instance;

The reason why this Court is to use this case is to add the relevant laws and regulations attached to the relevant Acts and subordinate statutes, and to dismiss the following. The reason why the plaintiff claims in the trial is to add the following judgments to the relevant laws and regulations: Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act shall be cited.

E.Recoon part

The plaintiff's argument in this part is without merit, which will be 4th below the 5th below. The next addition is added.

The Plaintiff’s educational services provided in return for registration fees include the preparation of a letter of self-introduction, interview guidelines, and guidance on matters of attention to employment abroad. Such matters are only incidental information provided in the course of job placement rather than improving the vocational ability or technology for job seekers. It cannot be deemed that the Plaintiff received registration fees in return for the provision of such educational services.

A. The plaintiff's assertion

1) Article 19(6) of the Employment Security Act is null and void since it is a provision of blank delegation to the Presidential Decree concerning job seekers’ obligation to comply with Articles 37(2) and 75 of the Constitution providing for the principle of statutory reservation, the principle of prohibition of comprehensive delegation.

2) The prohibition of receiving advance payment from job seekers under Article 25 subparag. 6 of the Enforcement Decree of the Employment Security Act is null and void since it violates the principle of proportionality by excessively restricting the freedom of occupational exercise and freedom of business, and it violates the principle of equality by discriminating against overseas job placement service providers from other service providers without reasonable grounds.

B. Determination

1) As to the assertion that Article 19(6) of the Employment Security Act is unconstitutional

A) Whether a certain legal norm is clear or not depends on whether the legal norm gives predictability to a criminal by providing a fair notice so that he/she can understand the meaning of the law, and whether the legal norm can be excluded from the interpretation or enforcement of the law as a person by regulating sufficient meaning to the institution that interpret or enforce the law, and whether the law can be ensured predictability and arbitrary exclusion from enforcement of the law. In other words, the legal norm is concrete not only by its language and text, but also by the interpretation method that comprehensively takes into account legislative purpose, legislative history, structure of the law system, etc. Therefore, whether a legal norm violates the principle of clarity or not depends on whether an interpretation standard that can reasonably grasp the meaning of the law by the above tin method can be obtained (see, e.g., Supreme Court Decision 2006Do920, May 11, 2006). An individual delegation order can be determined when the scope of delegation is specifically defined in the law or higher order, and the specific scope of delegation can vary depending on the overall statutory structure and nature of the pertinent provision and its scope.

B) The legal provision of this case provides that "a person who conducts fee-charging job placement services after completing the registration under paragraph (1) and his/her employees shall comply with the matters prescribed by Presidential Decree." However, the matters to be observed by a fee-charging job placement service provider need professional and technical regulations in accordance with the specific economic situation where the subject of regulation is extremely diverse and continuous changes, and has the nature of changing from time to time, and therefore, it is necessary to delegate it to the Presidential Decree

Matters to be observed by paid job placement service providers who are expected to be prescribed by the Presidential Decree shall be reasonably predicted by the following interpretation purposes of the Employment Security Act, the legislative purport of the provision of this case, and the interpretation that takes into account the relation with other provisions under the Employment Security Act.

In other words, Article 1 of the Employment Security Act provides that "the purpose of the Employment Security Act is to provide all workers with an opportunity to find a job in which they may develop and display their own ability, to support the smooth supply of and demand for the necessary labor force for each industry in cooperation with the government and the private sector, thereby promoting the employment security of workers and contributing to the balanced development of the national economy." Furthermore, it is possible to expect that the matters to be observed by the person who conducts fee-charging job placement services should be determined within the scope of such legislative purpose. Furthermore, in the job placement process of job placement, which is prescribed as the main subject of regulation in the Employment Security Act, the provision of Article 19 (3) of the Employment Security Act provides that the person who conducts fee-charging job placement services shall not receive money or goods outside the fee determined and publicly notified by the Minister of Employment and Labor, thereby predicting what kind of matters to be observed by the Presidential Decree.

C) The delegation under the statutory provisions of this case does not contravene the principle of statutory reservation under Article 37(2) of the Constitution, Article 75 of the Constitution, and the principle of prohibition of the legislation on sale delegation.

2) As to the assertion that Article 25 subparag. 6 of the Enforcement Decree of the Employment Security Act is null and void, Article 25 of the Enforcement Decree of the Employment Security Act provides for the matters to be observed by fee-charging job placement services and provides for one of them to receive fees under Article 19(3) of the Act after a job seeker’s labor contract is concluded (Article 25 subparag.

In the fee-charging placement service, a job seeker is in a social and economic status lower than a job placement service provider and is in danger of concluding a job placement contract at a disadvantage. Unlike other service contract concluded between equal contracting parties, there is a need to establish a special provision in order to protect job seekers from a job placement service provider’s interim exploitation.

In particular, in addition to the method of receiving excessive job placement service from job seekers, the necessity of prohibiting the pre-payment of the job placement service fees to prevent damage to job seekers such as the job placement service provider's pre-payment of the job placement service after receiving the job placement service from job seekers is significant. On the other hand, the payment of the job placement service fees after the job placement service is provided is consistent with the general trade, and the risk of not receiving the job placement service provider's fee is very low after the job placement service is completed.

Comprehensively taking account of the above, Article 25 subparagraph 6 of the Enforcement Decree does not violate the principle of proportionality by excessively restricting the freedom of occupational exercise or the freedom of business as a provision to protect job seekers in a socially and economically low position, or by discriminating against job placement service providers without reasonable grounds.

3. Conclusion

The plaintiff's appeal is dismissed.