2011. Revocation of vocational ability development training expenses, refund and disposition, etc.

A Stock Company

1. The head of the Seoul Regional Employment and Labor Office;

2. The head of the Seoul Western District Office;

April 10, 2012

May 4, 2012

1. As to the Plaintiff:

A. Disposition of restricting the payment of vocational skills development training for one year (from October 9, 2008 to October 8, 2009) related to the Plaintiff’s TOC’s vocational skills development training course on September 30, 201 by the head of the Seoul Southern District Office of Employment and Labor (Seoul District Office Head of the Seoul District Office), and order to refund training costs for vocational skills development training of 197,258,560 won that were paid during that period;

B. An order to return training costs of KRW 7,395,220, which was already paid during the period of the disposition to restrict the payment specified in Paragraph (a) of November 8, 201 by the head of the Seoul Western District Office for Employment and Labor (from October 9, 2008 to October 8, 2009)

Each cancellation shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

1. Details of the disposition;

A. On March 12, 2008, B Co., Ltd. (hereinafter referred to as "Plaintiff") was recognized as vocational skills development training course for TOC, a theoretical practical training education course for the purpose of finding a solution to solve the problems of customers and increasing the customer's service satisfaction level by the head of the Seoul Regional Employment and Labor Office (hereinafter referred to as "Defendant 2") on March 12, 2008, with the aim of finding out the solution to solve the problems of customers from the Seoul Regional Employment and Labor Office (hereinafter referred to as "Defendant 2"), which is a theoretical practical training course for the purpose of fundamentally resolving various problems through logical accidents. On March 15, 2008 and March 22, 2008, COC, a theoretical practical training course for the purpose of fundamentally solving the problems of customers, was conducted by 31 employees of the Plaintiff on March 15, 2008 and implementing the above course by means of internal collective training (hereinafter referred to as "instant training course").

B. After implementing the instant training course, on July 22, 2008, the Plaintiff applied for KRW 1,963,106 as training expenses (hereinafter referred to as “training expenses”) to the head of Gangseo-gu Seoul Regional Employment and Labor Office (hereinafter referred to as “Defendant 1”) for vocational skills development training expenses, and received the payment in full.

C. Around September 2010, Defendant 2 investigated whether a trainee who had entry into and departure from the Republic of Korea during the training period for vocational skills development and confirmed that the trainee E and F left the Republic of Korea from March 14, 2008 to March 18, 2008 and did not participate in the training but did not participate in the training, and that the Plaintiff was paid KRW 126,650 as training expenses.

D. On September 30, 201, Defendant 1 issued a disposition to restrict the payment of training expenses for one year (from October 9, 2008 to October 8, 2009) related to the instant training course to the Plaintiff on the ground that the Plaintiff was paid training expenses by means of false or other unlawful means, and issued an order to refund training expenses for the development of vocational abilities with KRW 197,258,560, which was paid during the pertinent period, and Defendant 2 issued the order to the Plaintiff on November 8, 201 for the restriction period of the payment (from October 9, 2008 to October 8, 2009) (hereinafter referred to as “each disposition of this case”) to the Plaintiff on September 30, 201.

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

A. The plaintiff's assertion

Each disposition of this case is unlawful for the following reasons.

1) Although there was a negligence in which some employees did not thoroughly manage the progress of the instant training course, the Plaintiff did not have any intent to receive the expense through a false physical appearance. In such a case, it cannot be deemed that the Plaintiff received the expense by false or other unlawful means under Article 25(1)2 of the former Act on the Development of Workers’ Vocational Skills (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same shall apply) and Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply).

2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter the same) (which is the basis of each of the instant dispositions exceeds the scope of delegation under Article 35(1) of the former Employment Insurance Act as the mother corporate, and even if it is deemed that it did not deviate from the scope of delegation, it violates the purport of delegation by mother law or the constitutional principle of excessive prohibition.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the first argument

In imposing sanctions on the ground of an illegal act, in principle, the relevant laws and regulations shall govern at the time of the act, and the amended laws and regulations shall not govern (see, e.g., Supreme Court Decision 82Nu1, Dec. 28, 1982). In each of the instant dispositions, which are sanctions against the Plaintiff, the former Employment Insurance Act and the former Workers’ Vocational Skills Development Act shall apply. In addition, inasmuch as sanctions against an administrative violation are imposed based on the objective fact of the administrative laws and regulations to achieve administrative purposes, barring any special circumstance, such as where a breach of duty is not caused by an intentional or negligent act (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). The former Employment Insurance Act and the former Workers’ Vocational Skills Development Act applicable to each of the instant dispositions, which generally enable sanctions against the Plaintiff to be imposed on the Defendants, the term “any other unlawful act” means that the Defendants are not eligible to receive or be paid for training fees under the former Employment Insurance Act.

In light of the above legal principles, it is reasonable to deem that the Plaintiff was paid training costs for vocational skills development training by fraud or other improper means in full view of the following circumstances, which can be acknowledged as admitting the background of the above disposition and the purport of the entire evidence presented earlier.

A) The Plaintiff, as an executor of the instant training course, was obligated to finally verify whether the trainees of the instant training course were actually present and trained before filing an application for subsidies with Defendant 1. Nevertheless, the Plaintiff neglected such duty, without going through verification procedures as to whether EF was actually present at the instant training course on March 15, 2008, and applied for subsidies, including training expenses for E and F, under the trust of the contents of the attendance transferred from the employee in charge of the training,. Furthermore, the number of trainees of the instant training course is only 31, and the period of the instant training course is only two days, and EF did not attend the training course, and the purpose of departure from the Republic of Korea is an urgent overseas business trip to solve the problem caused by the communication network disorder of foreign customers, and it is difficult to deem that E and F knew knew or did not have been present due to the absence on the date of the training course.

B) Although E/F failed to meet the completion requirements due to his failure to attend the instant training on March 15, 2008 among the instant training courses, the Plaintiff applied for subsidies from Defendant 1 as if he met the completion requirements, and received them from Defendant 1. However, if Defendant 1 had been aware of such fact in advance, the Plaintiff did not receive subsidies from the Plaintiff.

In doing so, it is reasonable to view that the above act of the Plaintiff was affected by Defendant 1’s decision-making regarding the payment of subsidies, which was committed by a business owner who is not entitled to receive subsidies for E and F, by pretending to be qualified.

2) Determination on the second argument

Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of this case”) provide that a disposition ordering the establishment of a period of restriction on payment and the return of subsidies granted during the period of restriction on payment is a binding act. However, there is a question as to whether the enforcement decree of this case, which provides that a person who has received, or intended to receive, vocational skills development training expenses, etc. (hereinafter “unlawful recipients”) by fraud or other improper means under Article 35(1) of the former Employment Insurance Act, must be obliged to pay training expenses, etc. for one year and order the refund of training expenses, etc. paid during the period of restriction on payment, does not violate the principle of excessive

In light of the fact that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, etc., the legislative purpose of the instant provision is justifiable in light of the purpose of preventing misconduct in relation to the payment of training expenses, etc. through the restriction on the payment of training expenses, etc. for one year for illegal recipients and the order to refund subsidies paid within the restriction period, and ultimately, promoting the development and improvement of workplace skill development training of workers. Furthermore, the instant provision appears to have reduced misconduct in relation to the payment of training expenses, etc. through disciplinary sanctions prescribed under the Enforcement Decree of the instant case, and accordingly, the public resources, such as the Fund, etc., are deemed to have been further improved. Thus, the instant provision can be

However, as seen below, the enforcement decree of this case is a provision that excessively infringes on the property rights of the remaining illegal recipients who lack the requirement of "minimum degree of damage" or "a balance of legal interests" and is in violation of the Constitution. Accordingly, each of the dispositions of this case based on the enforcement decree of this case which is null and void due to a violation of the Constitution is null and void.

A) Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount received by false or other unlawful means may be collected as a punitive meaning. Accordingly, Article 25(4)1 of the former Act on the Development of Workers’ Vocational Skills, Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); and Article 9(1) of the Enforcement Rule of the same Act provides that the amount to be additionally collected shall be subdivided based on the number of times the application was filed by false or other unlawful means during the past five years. Meanwhile, the instant provision, separate from the aforesaid additional collection, prescribes that the amount of subsidies paid within the said restriction period shall be limited to the amount of subsidies paid for one year, and at the same time, the instant provision provides that an order to return the subsidies paid within the said restriction period shall be issued. On the other hand, the instant provision, unlike the aforementioned additional collection, has the characteristics of disciplinary sanctions, provides for the restriction of payment for one year and the refund restriction period.

Therefore, the Defendants, like the Plaintiff, have no choice but to uniformly impose such sanctions against business owners whose amount of illegal receipt is extremely small amount, as seen above. The subsidies subject to an order to return is considerably larger than the ordinary illegal receipt amount, which may be expected by the illegal recipient, and resulting in an excessive harsh result in light of the content and degree of the violation (in the case of the Plaintiff, the amount of illegal receipt is 126,650, while the amount of subsidies paid during the period of restriction on payment is 204,653,780, the amount of subsidies paid is 204,653,780, and each of the instant dispositions against the Plaintiff was ordered to return KRW 1,615,653,780 to the Plaintiff). As such, the instant enforcement decree states that the date of calculating the date of imposing restrictions on payment is not the date of receiving training expenses or the date of applying for payment before the date of receiving the order, and thus, it cannot be seen that the fraudulent recipient would have suffered losses from the date of calculating the payment period.

C) In addition, Article 1 of the Enforcement Decree of the instant case provides for a mandatory return order with respect to subsidies already paid during the period of one year from the date on which the training expenses were paid or the application for payment was filed, and there is a problem that the status of an illegal recipient is unstable for a long time due to the lack of special restrictions on the period during which the said sanctions may be imposed

D) Therefore, even if the legislative purpose of this case can be more efficiently achieved by stipulating the provision of the Enforcement Decree of this case, which is a disciplinary measure in addition to the additional collection disposition against an illegal recipient, the provision of the Enforcement Decree of this case, which provides for the restriction on payment for one year and the order to return subsidies paid during the restriction period, without setting detailed standards depending on the attitude of the illegal recipient’s act, violates the property rights of the illegal recipient by excessively restricting it (in response, Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026 of Feb. 8, 2010, which provides for one year restriction on payment to the illegal recipient, and Article 56(2) of the Enforcement Decree of the Employment Insurance Act provides for "if three years have passed from the date of receipt of the subsidy or the incentive, and if the amount of the subsidy received or to receive is found for the first time less than three million won, it does not apply to the restriction on payment for one year period from the date of the revision of the Enforcement Decree of the Employment Insurance Act to the extent of one year.

3. Conclusion

Thus, the plaintiff's claim of this case contains the purport of seeking revocation of the meaning of declaring the invalidity of each disposition of this case, so it is decided as per Disposition by admitting it.

Number of judges of the presiding judge;

Judges Jeong Jae-hee

Judges Yang Jae-chul

1) When arranging the details of the disposition by the Defendants centering on the Defendants, Defendant 2 recognized the instant training course to the Plaintiff and Defendant 1 found the Plaintiff.

In addition, training expenses for the training courses of this case are subsidized, and Defendant 2's disposition among each of the dispositions of this case is paid by Defendant 1.

During the period of the disposition, Defendant 2 ordered the Plaintiff to return training costs paid to the Plaintiff for another training course.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.