(영문) 광주지방법원 2017.6.29. 선고 2016구합12868 판결

(a) The cancellation of recognition of training courses for nursing assistants (B) and the restriction on recognition of the entrustment of six months for the relevant courses; (b) the recognition of training courses for nursing assistants (C) shall be entrusted for six months. The restriction on recognition of the entrustment of training courses for nursing assistants (D) for six months;

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

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. The plaintiff's status

1) The Plaintiff is operating a F Nursing Institute in Nam-gu, Gwangju (hereinafter referred to as “instant private teaching institute”).

2) The Plaintiff was recognized by the Minister of Employment and Labor in accordance with Article 19 of the Act on the Development of Workplace Skills of Workers in 2015 and 2016 (hereinafter “Vocational Skills Development Act”) as follows (hereinafter referred to as “individual training courses”) (Evidence A2).

A person shall be appointed.

B. Details of the instant disposition

1) Attendance of the instant case

A) G, one of the 22 trainees who participated in the instant training course, was subject to on-the-job training in the I/L located in the Nam-gu Seoul metropolitan area from July 4, 2016 to September 13, 2016, and during this period, on August 12, 2016 and August 13, 2016. (B) However, the Nursing Department Department of I/L of I/L was present at the G on-the-job training on August 12, 2016 and August 13, 2016, and sent it to the Plaintiff (321 pages of evidence No. 321 of evidence No. 3 of the evidence No. 3), and the Plaintiff was present at the on-the-job training on August 12, 2016 (hereinafter referred to as “on-the-job training”).

2) On October 7, 2016, the Defendant informed the Plaintiff of the fact that the Plaintiff was unable to attend the instant training course during the instant period, and that on October 7, 2016, the Plaintiff notified the Plaintiff of the fact that the Plaintiff would revoke recognition of the instant training course and to restrict the recognition of the instant training course for six months entrusted and fixed, and to restrict the recognition of the instant training course for six months for the instant 2, 3 months (Evidence 1-2).

A person shall be appointed.

B) On October 21, 2016, the Defendant issued the hearing procedure with respect to the Plaintiff, and on November 2, 2016, rendered the following dispositions to the Plaintiff as the grounds for the above disposition (hereinafter “instant disposition”). (Evidence 1-1)

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, and 7, witness J's testimony, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 6-3 [Attachment 1-2] 2-2](b) of the Enforcement Rule of the Vocational Skills Development Act provides that the Defendant shall impose a restriction on the recognition of entrustment on the instant 2-3 training courses that do not constitute “violations” if the Defendant either manipulates the training personnel by fraud or other improper means, or violates the recognized contents through the gathering management. However, the Defendant issued a disposition of restriction on the recognition of entrustment for six months as to the instant 2-4 training courses that are not “the instant courses” as well as “the relevant courses”. However, the Defendant issued a disposition of restriction on the recognition of entrustment for six months for the instant 2-4 training courses that are not “the instant courses”.

2) The instant disposition is unlawful by deviating from and abusing discretionary power.

The Plaintiff trusted the attendance card received from the I convalescent and did not manage the attendance book of the instant one training course in the instant case by “any false or other unlawful means.” Nevertheless, the Defendant’s disposition of the instant case is unlawful by abusing and abusing the limits of discretion.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Determination as to the disposition standards regarding the two and three training courses of this case, whether the disposition of restriction on recognition of entrustment for six months is illegal or not)

(1) Article 19(1) of the Vocational Skills Development Act provides that anyone who intends to conduct workplace skill development training for which workers are eligible to receive subsidies or loans for training expenses shall obtain recognition from the Minister of Employment and Labor on the workplace skill development training course. Paragraph (4) provides that the scope, requirements, content, validity period of recognition of workplace skill development training courses pursuant to paragraph (1) and other necessary matters shall be prescribed by Presidential Decree. Article 17 of the Enforcement Decree of the Vocational Skills Development Act provides that the requirements and details of recognition of workplace skill development training courses shall be classified into the name of the workplace skill development training course, training contents, training period, training methods, training place, training facilities, equipment, teachers, instructors, and training expenses (paragraphs (1) and (2)), and the validity period shall be determined on the basis that each course operated by at least two workplace skill development training courses is distinct (paragraphs (paragraphs (3) and (4)).

When considering the circumstances that workplace skill development training can be diverse, it is reasonable to see that two or more workplace skill development training courses established by the same person are different courses, and therefore, the training courses of this case 1, 2, and 3 are different courses.

The Defendant asserts that the training courses of this case 1, 2, and 3 are identical with the training method, training purpose, training media, and training contents by at least 90%, according to the Ministry of Employment and Labor’s guidelines (if 90% or more are the same, the entire process is determined as the same).

However, the above guidelines are merely an administrative rule issued by a superior administrative agency to determine the guidelines for the performance of duties or the criteria for the interpretation and application of statutes, and do not have external binding power, and as long as the contents are recognized as a separate training course, even if they are similar, they should be treated as a separate course in law. Thus, the defendant's argument in this part cannot be accepted.

(2) Article 19 of the Vocational Skills Development Act provides that the Minister of Employment and Labor may revoke recognition of a training course if a person who has obtained recognition of a training course pursuant to paragraph (1) falls under any of the subparagraphs of paragraph (2) (Article 2). The detailed criteria for revocation of recognition, specific period of restriction on recognition by reason of revocation of recognition, and other necessary matters shall be prescribed by Ordinance of the Ministry of Employment and Labor (Article 5). According to such delegation, Article 6-3 [Attachment 1-2] of the Enforcement Rule of the Vocational Skills Development Act provides that the restriction on entrustment and recognition of all training courses conducted by the relevant training institution pursuant to Article 19 of the Act (hereinafter referred to as “restriction on entrustment and recognition of the whole training course”). Provided, That the same shall not apply to cases where the restriction on entrustment and recognition of the relevant training course falls under any of the subparagraphs of paragraph (1) (hereinafter referred to as “relevant restriction on entrustment and recognition of the relevant training course”), and that the restriction on recognition of the entrusted training course and the relevant disposition are clearly prescribed to the extent that it violates any of the relevant training course.

In light of such relevant provisions, if a person who conducts workplace skill development training course violates the contents recognized to be contrary to the training purpose by managing the participation in the workplace skill development training course in a false or other unlawful manner, a disposition to revoke the relevant course of workplace skill development training, to entrust the process of workplace skill development training, and a disposition to restrict recognition is an influence that restricts the freedom of business of the operator of the relevant course, and such ground provisions should be strictly interpreted and applied, it is necessary to impose six-month restrictions on entrustment and recognition of the relevant course, and further to impose the same disposition on other training courses (see, e.g., Supreme Court Decision 2016Nu1653, Feb. 3, 2017).

B) Specific determination on the legality of the disposition

In light of the above legal principles, the facts acknowledged earlier are found to exist only in the one training course of this case. Accordingly, it is reasonable to view that the defendant's revocation of the grounds for such disposition and the disposition to restrict the entrustment of the one training course of this case for six months is not possible to entrust the two and three training courses of this case for six months. Therefore, the part concerning the two and three training courses of this case among the dispositions of this case is illegal.

2) It is reasonable to view that the disposition in this case is unlawful such as deviation from or abuse of discretion, etc., and the text and purport of relevant provisions, including Article 19 of the Vocational Training Act, etc., and thus, the revocation of recognition of the vocational training process, and the restriction on recognition of entrustment, belong to the discretion of the administrative agency. In light of the following circumstances, the disposition in this case is against the principle of proportionality as it excessively infringes on the plaintiff's interest compared to the public interest to be achieved thereby, and it constitutes illegal

A) If the cancellation or withdrawal of a beneficial administrative disposition is revoked or suspended, it would infringe the vested rights of the people already granted. Thus, even if there are grounds such as revocation, the exercise of the right to revoke, etc. is determined by comparing and comparing with the disadvantage of the other party only when it is necessary for the important public interest to justify the infringement of the vested rights or when it is necessary to protect the interests of a third party. If the disadvantage of the other party is enormous than that of the public interest, the disposition goes beyond the bounds of the discretionary authority, and is in itself unlawful (see, e.g., Supreme Court Decisions 90Du9780, May 14, 1991; 92Nu1723, Aug. 24, 1993).

B) There is a fact that G was absent on August 11, 2016 in the field training. In light of the fact that the Plaintiff is conscientiously notified the Defendant of the fact that G was absent on the part of August 11, 2016 (Article 3-1 of the evidence), and that it appears practical to confirm whether a person in charge of an in-service training place is present and notify the Plaintiff of the fact that the person in charge of an in-service training place is in charge of the in-service training, etc., it is difficult to readily conclude that the Plaintiff was negligent in the procedure to trust the confirmation notice of the in-service attendance in the Ivalescent hospital and to confirm the in-

C) The grounds for the instant disposition are that the attendance and treatment for two days per trainee is false, and thus, the violation is not committed in light of the total training course or the number of trainees, etc.

D) The Plaintiff, in fact, placed in a position in which it is practically impossible to operate the instant private teaching institute, and would have suffered excessive economic disadvantage compared to the responsibility for illegality of the instant violation. On the other hand, the Defendant appears to be able to achieve the administrative purpose of the instant disposition by having the Plaintiff properly improve the management of grown stones through the corrective order, etc.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.