(영문) 서울행정법원 2018.11.27. 선고 2017구단72495 판결

The Defendant’s disposition of restricting subsidies and loans for 360 days against the Plaintiff on August 8, 2017, and disposition of returning KRW 41,665,520, and additionally collecting KRW 41,665,520, all of which are revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff concluded an entrustment contract with B or C Co., Ltd. (hereinafter collectively referred to as “D”) that is an enterprise that is recognized as the course of vocational skills development training for taxi passengers, which is an enterprise that is recognized as the course of vocational skills development training for the Plaintiff’s employees (hereinafter referred to as “instant training”) as follows. A part of it is referred to as “the instant training”, which is indicated as “the first training, etc.” according to the sequence when they are named.

A person shall be appointed.

B. The plaintiff applied for subsidies for training expenses to the Human Resources Development Service of Korea on the premise that the number of trainees who completed the above training in the following table (hereinafter referred to as the "training trainees of this case") had completed the training in normal and met the standards for the payment of subsidies for postal remote training, and received subsidies for training expenses of KRW 41,65,520 in total from the above Corporation as follows.

A person shall be appointed.

C. On August 8, 2017, the Defendant restricted subsidies and loans for 360 days (from August 9, 2017 to August 3, 2018) pursuant to Article 55(2) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jan. 27, 2016; hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”) and Article 22 [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”) on the grounds that “the instant trainees did not undergo the instant training and failed to meet the standards for completion,” and that the Plaintiff applied for subsidies for training expenses to the Human Resources Development Service of Korea.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Gap evidence Nos. 2 through 4-2 and 9, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The trainees of this case were most old and difficult to prepare learning and answers using computers. D’s employees have attempted to do so, and they also met the standard of completion after receiving the instant training in a normal manner. Thus, the Plaintiff cannot be deemed to have received training costs by fraud or other improper means.

2) The Plaintiff actively recommended or instructed trainees to participate in the training, and there was no contest with regard to unlawful means. Since the instant training was conducted on behalf of the Plaintiff, the training course was directly managed by D, and there was no obligation to manage the Plaintiff as to whether the training was conducted, and the Plaintiff was aware of the Plaintiff’s completion of training through D’s notification, and there was no other way to know whether the requirements for completion were met. Thus, there was no reason attributable to the Plaintiff.

3) The Plaintiff was aware that the instant training was normally conducted, and paid the full amount of the subsidies received from the Korea Industrial Manpower Agency to D. Considering that the Plaintiff was merely a victim of fraud used to D, and that the Defendant is also liable for negligence of supervision, the instant disposition is unlawful as it is in violation of the principle of proportionality, and is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) “False or any other unlawful means” under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act means any active and passive act that may affect the decision-making on subsidization of expenses, in general, with the intention to make sure that a person who is not eligible to receive subsidization of expenses is qualified, or to conceal the fact that he/she is not qualified, through social norms (see, e.g., Supreme Court Decision 2013Du1980, Oct. 30, 2014).

Meanwhile, Article 20(3) of the Vocational Skills Development Act, Article 19(3) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 27393, Jul. 26, 2016); 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 the workplace skill development training support rules (wholly amended by Ordinance of the Ministry of Employment and Labor No. 2015-114, Dec. 31, 2015; hereinafter referred to as the “former provision on the wholly amended provision”), which provides for the “cyber training” under Article 2 subparag. 10 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers; Article 10(1) of the former Enforcement Decree of the Employment Insurance Act provides for the same provision on workplace development training for more than 10%.

Therefore, even if a trainee did not normally undergo vocational skills development training conducted by means of remote training and failed to meet the above standards for completion, a business owner applied for subsidies for training expenses as if the trainee received normal training and met the standards for completion of training and received subsidies. Therefore, even if a business owner did not know the above circumstances, it constitutes “the case where a business owner received subsidies by fraud or other improper means” under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act (see the purport of the above Decision 2013Du1980, supra).

B) In light of the following facts and circumstances, it is sufficiently recognized that the instant trainees did not undergo the instant training, and even though they failed to meet the completion standards, the Plaintiff applied for the subsidization of training costs as if they met all completion standards, and the payment of training costs was not possible. The Plaintiff’s assertion is without merit. On January 5, 2018, the Seoul Central District Prosecutor’s Office did not have any reasonable ground. The Seoul Central District Prosecutor’s Office: internal director E, chief executive officer, director, and manager of G, and Eul’s 26-1 through 6-1 of the evidence No. 30-2 of the evidence No. 30, and Eul’s 26-2 of the evidence No. 30, 18-2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as “Seoul Central Prosecutor’s Office”). The Seoul Central Prosecutor’s 200, 10-6, 20-7, 20-7, 20-7, 30-7, etc. by means of the instant employees by means.

○ In the instant case, the Defendants led to the entire confession of the facts charged, and the said court convicted E of the above facts charged on April 6, 2018, sentenced E imprisonment with prison labor for four years, F, and G for one year and six months, and three years of suspended execution (Article 98, 174, and 211).

No one who participated in the instant training has received education at an investigative agency. B, there was a tension that employees would provide B with the question and respond to the OX. However, some other persons did not comply with the training on the Internet homepage of the training institution. There was no choice but to respond directly. There was no evaluation or task submission on the Internet homepage of the training institution. There was no choice but to be a notification on the completion of the training." At the same time, I stated that there was only D employees if they were in the office at the time of the school. On the other hand, there was three questions related to the traffic safety at the time of the school, and that there was a three question about the completion of the training, and that there was no question about whether the person directly provided training on the Internet homepage of the training institution. There was no difference between D and D, and that there was no problem about whether the person directly provided the training on the Internet homepage.

D Employees visited the company that entrusted workplace skill development training in D with the direction of E, etc. at the Seoul Western District Office of Employment and Labor, Seoul District Office, and the investigative agency, stated to the effect that they conducted a proxy lecture and a proxy test by creating a ID with the personal information of trainees, there was no device that produced and ordered D training teaching materials, and that they entered the date of receiving teaching materials of trainees en bloc from the website manager guide.

○ In the process of the investigation and investigation, F sent the message to D staff in charge of the instant training on May 9, 2016, stating that F sent the message indicating “the completion of learning”, and on the same day, whether D staff in charge of the instant training had sent the message to F before receiving the list of “(L).” (In fact, it was confirmed that the Plaintiff’s former staff J, K, and K had a history of learning on April 20, 2016). In order to prevent the Plaintiff’s employee who was in charge of the instant training from acting for, on behalf of, withdrawings, etc., and conducting a test on behalf of, retireds, etc., and confirming the list of retireds or long-term absences of absences, etc. among D’s trainings.

As a result of the analysis of the trainee learning management system for the training in this case, it was found that the duration of the trainee's training was ordinarily short of average 13 seconds, average 3 seconds, average 3 seconds, 33 seconds, and 262 seconds, during the training period in 2 months, there are many kinds of details in which the study and evaluation in certain IPs are conducted continuously during a specific time and specific time period. In the case of some trainees, it was found that the number of typical proxy lectures and proxy tests are unique, such as the same date as those of other trainees after the date of retirement and the same details of learning are confirmed.

2) Whether there exists a cause attributable to an conspiracy, etc.

Inasmuch as sanctions against violations of administrative laws are sanctions against the objective facts that are contrary to administrative laws in order to achieve administrative purposes, barring any special circumstance, such as where a failure to perform the duty of the violator is not caused by an intentional act or negligence, barring special circumstances (see, e.g., Supreme Court Decision 2012Du1297, May 10, 2012). The burden of proving the existence of such special circumstances is imposed on the violator of administrative laws and regulations.

Article 4(2) of the Vocational Skills Development Act provides that a business owner shall conduct workplace skill development training for workers, participate in workplace skill development training for workers, and make efforts to create conditions for workplace skill development training, such as granting leave for workplace skill development training to workers or appointing a person in charge of workplace skill development training (including cases of conducting workplace skill development training on commission). Accordingly, the Minister of Employment and Labor may provide subsidies or loans to employers who conduct workplace skill development training (Article 20(1)1). The workplace skill development training is a business owner who conducts workplace skill development training and is subject to workplace skill development training for workers, and this is also a case where workplace skill development training is conducted by 'entrusted training'. Therefore, the Plaintiff was responsible for self-verification of whether the instant trainees meet the completion standards for receiving subsidies prior to applying for subsidies as a business owner who received workplace skill development training. Moreover, since the instant training was conducted for workers belonging to the Plaintiff’s workplace, it can be easily confirmed whether the instant training was conducted in a normal manner by observing the training process or directly verifying the employees belonging to the Plaintiff.

The plaintiff was aware that the trainees of this case did not undergo the training in normal condition and did not meet the completion standards, or could have easily known that they did not meet the completion standards. Thus, there is no justifiable reason for not misunderstanding their duty. The plaintiff's assertion on this part is without merit.

3) Whether the discretionary authority is deviates or abused

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to 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 offense as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances. In this case, 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 it is externally binding upon citizens or courts. Therefore, the legality of the relevant disposition should be determined not only by the above criteria for disposition but also by the provisions and purport of the relevant Acts and subordinate statutes. Therefore, the relevant disposition cannot be immediately deemed legitimate, unless the said criteria are consistent with the Constitution or laws, or unless there are reasonable grounds to believe that the result of the application of the said criteria is considerably unreasonable in light of the content of the offense as the grounds for disposition and the relevant Acts and subordinate statutes and the purport thereof, it should not be readily determined that the disposition in accordance with such criteria has exceeded the discretion or abused discretion (see, etc.

B) In light of the following circumstances, it cannot be deemed that the instant disposition was a deviation or abuse of discretionary power, in light of the health team, the facts and circumstances acknowledged earlier, and the purport of the entire pleadings. The Plaintiff’s assertion on this part is without merit.

The purpose of workplace skill development training is to contribute to the development of society and economy by facilitating and supporting workplace skill development through the life of workers. The act of receiving workplace skill development training subsidies by fraud or other improper means is to contribute to the stabilization of employment of workers, the improvement of social and economic status, the improvement of corporate productivity, and the realization of a competence-oriented society. Since the act of receiving workplace skill development training subsidies by fraud or other improper means causes the insolvency of the employment insurance fund, and may inflict damage on the insured who paid the employment insurance premium in good

○○ Operation of the workplace skill development training support system in a fair and transparent manner, thereby promoting the employment stability of workers, improvement of social and economic status, and establishment of the Employment Insurance Fund, shall not be deemed to be less than the Plaintiff’s private interest restricted by the instant disposition.

As seen earlier, even if a business owner entrusted workplace skill development training to a worker, the business owner is the subject of the training and the subject of the subsidy. As such, the Plaintiff, the business owner, prior to applying for the payment of the subsidy, was responsible for self-verification as to whether the trainee satisfies the completion standards for receiving the subsidy, and could have easily confirmed the completion standards.

○ The instant disposition is in conformity with the disposition standards set forth in Article 55(2) of the Vocational Skills Development Act, Article 2 [Attachment 6-2] of the Enforcement Rule of the Vocational Skills Development Act, Article 56(2) and (3) of the Vocational Skills Development Act, and Article 22(1)2 of the Enforcement Rule of the Vocational Skills Development Act. The instant disposition does not conform with the Constitution or laws, or its application results in the Plaintiff’s act’s application.

In light of the purport of statutes, etc., it cannot be deemed significantly unreasonable.

The proviso to Article 6-2 of the Enforcement Rule of the Act on the Development of Vocational Skills (Attachment Table 6-2) provides that "if there is no intention or gross negligence, or if the degree of violation is minor, a disposition to restrict loans may be mitigated within the limit of 1/2 of the standard set by the individual standard." However, as seen earlier, the above provision is not only a discretionary mitigation provision, but also a provision is not a discretionary mitigation provision, and as seen earlier, the training in this case was known or could be easily known that the process of the training in this case is not normal. As such, the Plaintiff was aware or could have been easily informed of the fact that the process of the training in this case is not normal, it is recognized that the Plaintiff was intentional or gross negligence, and the degree of violation is serious in light of the frequency or amount of the illegal supply and demand. Therefore, it is unlikely that the reduction of the measure to restrict loans

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Kim Gin-young

Note tin

1) Under the Act on January 27, 2016, Act No. 13902 on January 27, 2016, the grounds for issuing an order to return illegal receipt relating to the supply of subsidies for training (date of payment: August 11, 2016) shall be as follows:

Article 56 (2) 1 of the current Act amended by Act No. 56 (2) or its content is substantially the same as that provided by the Act on the Development of Vocational Skills.

does not indicate.