(영문) 인천지방법원 2015.9.10.선고 2014구합32411 판결

1. Of the instant lawsuit, the part of the Defendant’s claim to revoke a disposition to restrict the payment of principal against the Plaintiff on July 29, 2014 is dismissed.

2. On July 29, 2014, the Defendant’s disposition of additionally collecting KRW 41,200,000, out of the disposition of return of KRW 44,800,000, the amount of the employment environment improvement subsidy granted to the Plaintiff for the Plaintiff is revoked.

3. The plaintiff's remaining claims are dismissed.

4. The costs of lawsuit shall be borne by each person;

Purport of claim

On July 29, 2014, the Defendant’s disposition of returning KRW 44,80,000 to the Plaintiff’s improper receipt of subsidies for improving employment environment, additionally collecting KRW 134,40,000, and the disposition of restricting the payment of various subsidies for 12 months is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a corporation that manufactures and engages in the business of manufacturing and wholesale of computer peripheral devices in Seo-gu Incheon Metropolitan City.

B. On May 31, 2012, the Plaintiff submitted to the Defendant an application for the Employment Creation Support Project (hereinafter referred to as the “Support Project”). On June 18, 2012, the Defendant recognized the installation cost of the instant Support Project as 82,547,370 won, the increased number of workers as 50%, and as 41,273,680 won, the total of 50% of the installation cost of facilities and 6,680 won for five evidence workers, and approved the improvement plan. The Plaintiff completed the instant Support Project on June 3, 2013, and reported the completion of business fees to the Defendant on June 4, 2013, the Plaintiff filed an application for the reduction of construction expenses to the Defendant on June 4, 2013, and the Plaintiff paid the Defendant the amount of 47,273,680 won, including the amount of 50% of the installation cost of facilities and the amount of 6,000 won for five evidence workers.

D. The Defendant recognized 82,547,360 won, the construction price stated in the construction contract submitted by the Plaintiff, as the construction price, and determined the employment improvement subsidy to be paid to the Plaintiff as 44,800,000 won (i.e., the amount of support for the construction project + 40,000 won + 4,800,000 won for four increased workers). On November 7, 2013, the Defendant paid the above employment improvement subsidy to the Plaintiff.

E. Around April 2014, the Defendant confirmed that the Plaintiff submitted a false construction contract document and tax invoice to cover construction expenses to the Plaintiff, and that the Plaintiff received subsidies by unlawful means, including the increased number of employees, by reporting blood relatives within the fourth degree of blood relationship of the business owner, who is excluded from personnel expenses, to the increased number of employees. On July 29, 2014, the Defendant issued an order to return the employment environment improvement subsidy of KRW 44,80,000, additional collection of KRW 134,40,000, and additional collection of KRW 134,40,000 for three times of the employment environment improvement subsidy, for one year (hereinafter referred to as “instant return order disposition”, “additional collection disposition”, “restricted payment restriction”, and “instant restriction disposition”).

[Ground of recognition] Evidence Nos. 1 through 6, Evidence Nos. 1 through 8 (including the number of evidence Nos. 5), the purport of the whole pleadings

2. Whether the part concerning the disposition to restrict the payment of this case among the lawsuit of this case is legitimate

Since it is apparent that the period of the restriction on the payment of the instant restriction (from June 6, 2014 to June 24, 2015) was set up ex officio, the instant restriction on payment became null and void, and there is no evidence to prove that the Plaintiff may receive subsidies or incentives in the event that the Plaintiff conducts a business that is entitled to receive subsidies and incentives from the Defendant during the said restriction period and becomes a disposition of the restriction on payment of subsidies and incentives. Thus, the instant restriction on payment cannot be deemed to have infringed on any legal interest due to the remaining form of the instant restriction on payment. Therefore, there is no legal interest to seek the revocation of the instant restriction on payment of the instant lawsuit, and thus, the claim for the revocation of the instant restriction on payment of the instant lawsuit

3. Whether the order to return the instant case and the disposition of additional collection (hereinafter referred to as “each of the instant dispositions”) are lawful

A. The plaintiff's assertion

1) Each of the instant dispositions is null and void on the basis of Article 35(1) of the former Employment Insurance Act, which the Constitutional Court rendered a decision of unconstitutionality.

2) The Plaintiff paid the design cost of KRW 71,254,736 as the construction cost for the instant support project (i.e., design cost of KRW 3,00,000 + construction cost of KRW 68,254,736). The Defendant’s subsidies that can be ordered to return were received by false or other unlawful means. As such, the part of the instant order for return of subsidies corresponding to the construction cost actually paid is unlawful.

3) The Defendant: (a) recognized that the number of employees was increased by four as the instant aid program, and paid KRW 4,800,000 to the Defendant; (b) issued an order to return the entire subsidy solely on the ground that the number of employees excluded from the instant aid program includes one employee.

4) While the Plaintiff applied for a subsidy differently from the actual facts or included a worker subject to support in the process of applying for a subsidy, the Plaintiff actually carried out the instant support project, and considering the Plaintiff’s poor management situation, each of the instant dispositions is unlawful by abusing and abusing discretion.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Whether the underlying statute is unconstitutional or not

On August 29, 2013, Article 35(1) of the former Employment Insurance Act (amended by Act No. 8429 of May 11, 2007, and amended by Act No. 9315 of December 31, 2008) provides that "the provision shall be restricted separately from "return of the subsidy already provided" for the purpose of punishing unfair recipients of the subsidy." However, the Supreme Court rendered a simple decision of unconstitutionality on the ground that the scope or period of restriction on the restriction on the subsidy is not provided for in the Act and the Presidential Decree comprehensively delegates it to the Presidential Decree, and thus it violates the principle of prohibition of comprehensive delegation (No. 2011Hun-Ba390). However, the above provision that served as the basis of the disposition in this case is not the above provision, but the amended provision after the decision of unconstitutionality is without merit. Thus, the plaintiff's assertion is without merit.

2) Determination as to the disposition of the return order of this case

A) According to Article 35(1) of the former Employment Insurance Act, the Minister of Employment and Labor may order a person who has received or intends to receive support for employment security and vocational skills development programs by fraud or other improper means to return the amount of support received by such person by fraud or other improper means, as prescribed by Presidential Decree. According to Article 56(1) of the former Enforcement Decree of the Employment Insurance Act by delegation, the Minister of Employment and Labor shall not order the person who has received or intends to receive the support under Articles 17, 19, 22, 24 through 26, 28, 29, 33, 37, 38, and 55 of the Act by fraud or other improper means, to return the amount of support received by the person who has received or intends to receive the support by fraud or other improper means (see, e.g., Supreme Court Decision 2012Du5898, Apr. 28, 2014).

B) In full view of the purport of the entire pleadings, the following facts can be acknowledged in each entry of Eul evidence Nos. 1 to 5 (including the branch numbers of evidence Nos. 5).

① On September 13, 2013, when applying for subsidies under the instant aid program to the Defendant, the Plaintiff attached a construction contract wherein the construction amount is indicated as KRW 82,547,360, and a tax invoice stating the same amount as the supply value, and a financial transaction statement on the said amount. The Plaintiff attached a list of workers indicating that the number of workers increases from 17 persons (average of the 3 months immediately preceding the month in which the date the plan was submitted) to 23 persons (average of the month in which the date of completion falls and the 2 months immediately preceding the month

② As a result of examining the Plaintiff’s application for subsidies, the Defendant has 17.66 workers (2012).

2. From 17, 18, and 18 averages for three months to 21.66 (averages of 22,21,22) each for three months from 2012 to 21.66 (averages of 22,21,22). Based on the increased number of workers and the construction cost stated in the construction contract submitted by the Plaintiff, the Plaintiff paid KRW 40,000,000 for construction cost subsidies and KRW 4,800,000 for employment creation subsidies (averages of KRW 1,20,000 for each increased worker) to the Plaintiff.

③ Unlike the above contract for construction, the Plaintiff actually disbursed only KRW 71,254,736 as the construction cost for the instant support project (i.e., design cost of KRW 3,00,000 + construction cost of KRW 68,254,736). (iv) The Plaintiff’s employee list attached to the Plaintiff’s application for support was indicated as a worker created as the instant support project by the representative director D, and the Defendant also included C in calculating the number of employees released as four. Meanwhile, on June 18, 2012, the Defendant approved the instant support project to the Plaintiff on the condition that “the spouse, relative, or relative within the fourth degree” of the business owner’s spouse, relative, or relative within the fourth degree is excluded from the employee entitled to support for job creation, and provided guidance on the implementation guidelines for employment creation in 2012.

C) First, examining the part regarding the subsidy for construction cost of KRW 40,00,000 among the instant return order disposition, even if the Plaintiff had actually performed the construction work in the process of lowering the subsidy for construction cost according to the instant support project, if it was arising from a single construction project, it is reasonable to determine whether the subsidy was granted by means of social norms or unlawful means, and it is inappropriate to view that only the portion that was actually invested in the construction cost was separated from the actual construction cost, and that it does not constitute a subsidy granted by false or unlawful means. Therefore, the Plaintiff’s assertion that the subsidy for the construction cost actually invested in the instant return order should be excluded from the instant

D) Next, according to Article 17(2) of the former Enforcement Decree of the Employment Insurance Act, the requirements, etc. for subsidies for job creation shall be determined by the Minister of Employment and Labor, and the guidelines for implementing employment creation support projects in 2012 provide that the spouse of the business owner, blood relatives and relatives within the fourth degree of relationship shall be excluded from the workers eligible for employment creation support. The Plaintiff is included in the employees employed by the representative director C even if he/she received the approval of the instant support project, even if he/she received the notification of the above matters, and thus, the Plaintiff’s act constitutes a case where the Plaintiff received subsidies by fraud or other improper means.

However, as seen earlier, the amount that can be ordered to be returned to a person who received support from employment security programs by fraud or other improper means is limited to the amount subsidized by the Plaintiff by fraud or other improper means. According to the guidelines for the implementation of employment creation support programs in 2012, 1.2 million won per increased number of workers can be determined individually by one increased worker as to whether it constitutes a false or unjust means. Thus, the Defendant’s order to return is limited to 1.2 million won for increased number of workers, including C, who are excluded from support, as the Plaintiff included in the employment creation worker, and one increased number of workers who were paid by the Plaintiff depending on the increase in number of workers. This part of the Plaintiff’s assertion is with merit.

E) The Plaintiff asserts to the effect that the instant return order disposition was an abuse of discretion. However, according to Article 35(1) of the former Employment Insurance Act and Article 56(1) of the former Enforcement Decree of the Employment Insurance Act enacted upon delegation of the above provision, the administrative agency must order the return of the subsidy granted in relation to the violation of the duty to make a return of the subsidy. Thus, the instant return order disposition constitutes a binding act with no room for discretion to the Defendant. Thus, the Plaintiff’s assertion that the instant return order disposition is a discretionary act is based on the premise that the instant return order

F) Therefore, the part regarding the amount of the instant return order disposition of KRW 44,800,00,000 as construction cost subsidies of KRW 40,000,00 and the part regarding the wage subsidies of KRW 1,20,00,000, which were paid by including C in employment-generating workers, is lawful, and the exceeding part is unlawful.

3) Determination on the disposition of additional collection in this case

A) According to Article 35(2) of the former Employment Insurance Act, where the Minister of Employment and Labor orders the return of subsidies received by fraud or other improper means, he/she may additionally collect an amount not exceeding five times the amount received by such fraud or other improper means in accordance with the guidelines prescribed by Ordinance of the Ministry of Employment and Labor. According to Article 78(1)2 of the Enforcement Rule of the Employment Insurance Act, where the number of times a person received or received subsidies by fraud or other improper means during the past five years prior to the date on which illegal act is discovered is discovered is ordered to additionally collect three times the amount received by fraud or other improper means. On June 26, 2009, the Plaintiff has been subject to a disposition of restriction on payment of subsidies and incentives for one year on the ground that the Plaintiff received subsidies by falsely preparing the wage ledger of a person subject to suspension of business, and the Defendant applied the Plaintiff’s above past power to additionally collect the amount additionally collected KRW 44,80,00,300,000.

B) The amount to be additionally collected is also based on the amount related to false or other unlawful means (see, e.g., Supreme Court Decision 2012Du21598, Sept. 4, 2014). As seen earlier, the portion of the wage subsidy of KRW 3,600,000 for three workers who have created employment, excluding C, among the instant order to return, does not constitute the payment by false or other unlawful means. As such, the portion of the instant additional collection disposition based on the said KRW 3,60,000, among the instant additional collection disposition, is also unlawful.

C) Next, regarding whether the remaining additional collection disposition, among the additional collection disposition of this case, deviates from and abused discretion, it is reasonable to deem that the Plaintiff’s disadvantage is excessive compared to the public interest to be achieved through the additional collection disposition of this case, and thus, it is reasonable to deem that the additional collection disposition of this case is excessive since the Plaintiff deviates from the scope of discretion or abused discretion, and the Plaintiff’s additional collection disposition of this case does not have any significant difference in the amount of economic benefits accrued to the Plaintiff by paying the construction cost of 71,254,736 won as the construction cost of the instant support project of this case.

3. Conclusion

Therefore, the claim for revocation of the disposition imposing the restriction on payment of this case among the lawsuit of this case is unlawful and dismissed, and the part concerning the disposition imposing the additional collection among the plaintiff's claims of this case is justified. The part concerning the disposition imposing the return order of this case is accepted within the scope of the above recognition, and it is dismissed as it is so decided as per Disposition.