2011Guhap4550 Revocation of a decision to recover costs of workplace skill development training

A Stock Company

The Director General of the Daejeon Regional Employment and Labor Office

April 4, 2012

April 25, 2012

1. The Defendant’s disposition of recovering KRW 1,722,3041 of the vocational ability development training costs that the Plaintiff paid to the Plaintiff on August 16, 2011 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On March 6, 2008, the Plaintiff was recognized as a vocational skills development training course with respect to the “projector management process” (the training period: the total second period from March 8, 2008 to March 29, 2008; the total number of trainees: 58 persons; hereinafter referred to as the “instant curriculum”) that the Plaintiff intends to undertake from the head of the Seoul Regional Employment and Labor Office.

B. The Plaintiff conducted the first training (29) from March 8, 2008 to March 29, 2008 for 58 personnel, including B, C, D, E, F, G, H, and I, and the second training (29 persons) from April 5, 2008 to March 26, 208, and applied for subsidies to the Administrator of the Seoul Regional Employment and Labor Office for training expenses for the development of vocational abilities in relation to the instant curriculum. The Plaintiff received KRW 7,741,260 in total on September 22, 2008, and the subsidies included KRW 1,067,808 in training expenses for B, C, D, E, F, G, H, H, and I.

C. The head of the Seoul Regional Employment Agency requested the Board of Audit and Inspection and the Ministry of Employment and Labor to investigate whether a trainee who entered and entered into the Republic of Korea during the vocational ability development training period for the purpose of his/her inspection, and investigated the Plaintiff. It confirmed the fact that the Plaintiff’s employee did not attend part of the pertinent training period due to his/her overseas business trip during the training period, and confirmed the fact that he/she was treated as present at the meeting, and on August 8, 201, ordered the Plaintiff to take a disposition of restricting payment (from September 23, 2008 to September 22, 2009) for one year for one year against the Plaintiff (from September 23, 2008 to September 22, 2009) and an additional collection of KRW 1,067,808,1,067,808,000,067,

D. On August 16, 201, the Defendant notified the Plaintiff of the illegal receipt of subsidies due to the Plaintiff’s illegal extension management by the head of the Seoul Regional Employment Labor Office (hereinafter “instant disposition”) pursuant to Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) and 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 shall apply), issued an order to refund KRW 1,722,304 of vocational skills development training expenses paid to the Plaintiff’s training course conducted during the above restriction period (hereinafter “instant disposition”). [Grounds for recognition] The purport of the entire pleadings is as follows: (i) there is no dispute over the Plaintiff’s grounds for recognition; (ii) Gap’s evidence Nos. 1, 2, 4, 5 (Ga number); and (iii) No. 1 through 5);

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis of the instant disposition, is invalid because it deviates from the limitation of delegated legislation and violates the principle of excessive prohibition under the Constitution.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the delegation legislation limits are exceeded

In a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of whether the subordinate statute complies with the limits of delegation should be made by comprehensively examining the legislative purpose and content of the pertinent provision, structure of the provision, and relationship with other provisions. In a case where the delegation provision itself clearly states the limits of delegation by using terms with which accurate contents can be identified, whether the delegation provision exceeds the limits of its literal meaning, or whether a new legislation was made beyond the bounds of delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see, e.g., Supreme Court Decision 2009Du17797, Apr. 29, 2010).

Article 35 (1) of the former Employment Insurance Act provides that "the Minister of Labor may order a person who has received, or intends to receive, subsidies for employment security and vocational skills development projects under this Chapter by fraud or other improper means to restrict such subsidies or to return already paid subsidies, as prescribed by Presidential Decree," and Article 35 (2) of the same Act provides that "the Minister of Labor may additionally order a person who has received, or has received, subsidies, incentives, or vocational skills development training expenses under the provisions of this Chapter, to return the subsidies, subsidies, or vocational skills development training expenses in accordance with the standards prescribed by Ordinance of the Ministry of Labor." In addition, Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act provides that "the Minister of Labor shall order a person who has received, or intends to receive, subsidies, subsidies, or vocational skills development training expenses under the provisions of paragraph (1) by fraud or other improper means for one year from the date on which he/she has received, or applied for, subsidies, incentives, or vocational skills development training expenses."

On the other hand, Article 35 (1) of the former Employment Insurance Act provides that "restriction on support" and "an order to return" are "an additional collection disposition" and Article 35 (2) of the same Act provides that "an additional collection disposition" shall take effect in the future from the date of such disposition. In interpreting the provision of the law, "restriction on support" should be clearly stated in the law and the meaning of "in order to restrict retroactive support" should be clearly stated in the law. Article 35 (1) of the former Employment Insurance Act provides that "an order to return subsidies already paid can be recovered through the return order." Article 35 (2) of the former Employment Insurance Act provides that "an additional collection order" and Article 35 (2) of the same Act provides that "an additional collection order shall take effect in the future by delegation of the provision of the former Enforcement Decree of the Employment Insurance Act by Presidential Decree No. 2603, Dec. 31, 2010.

(2) Whether the principle of excessive prohibition is violated

Article 35(1) of the former Employment Insurance Act and Article 56(2) of the Enforcement Decree of the same Act (hereinafter “Enforcement Decree of this case”) provide for the form of the provision, system, or language of the provision of Article 35(1) of the same Act, and the establishment of the period of restriction on payment, and the return of subsidies granted during the period of restriction on payment, are an act of continuous payment. As such, it is a matter of whether the enforcement Decree of this case, which provides that, under Article 35(1) of the former Employment Insurance Act, an illegal recipient who received, or intends to receive, vocational skills development training expenses, etc. by fraud or other improper means, must be obliged to refund training expenses, etc.

In this case, the enforcement decree of this case provides for training expenses, etc. for one year for fraudulent recipients.

The legislative purpose of this case is to prevent unlawful acts related to the payment of training expenses, etc. and ultimately to promote the development and improvement of workers’ vocational ability by issuing an order to refund subsidies within the period of restriction on payment and the payment restriction, and 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, the legislative purpose of this case is justifiable. In addition, it appears that unlawful acts related to the payment of training expenses, etc. are to be reduced through disciplinary sanctions prescribed in the Enforcement Decree of this case, and accordingly, it is deemed that the amount of public resources, such as the Fund, will be improved compared to

However, as seen below, the enforcement decree of this case is in violation of the Constitution as 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."

① Article 35(2) of the former Employment Insurance Act provides that a person may collect an amount equivalent to or less than the amount received by fraud or other improper means within a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act and 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 stipulate that the amount to be additionally collected shall be calculated based on the number of times a person has applied for expenses by fraud or other improper means during the past five years. Meanwhile, separate from the aforesaid additional collection disposition, the provision of the Enforcement Decree of the same case provides that the amount of subsidies paid within the said restriction period shall be limited to the amount of subsidies paid to the illegal recipient for one year, and at the same time, the order to return the subsidies within the said restriction period shall be imposed uniformly, unlike the aforementioned additional collection disposition, on the other hand, the Plaintiff and the small amount of subsidies that are subject to additional collection may not be denied.

In addition, since the provision of this case specifies the initial date of the restriction on payment as "the date on which the application for the payment of training expenses was received or made" rather than the date on which the restriction on payment was imposed, the illegal recipient shall return retroactively the amount already received prior to the disposition. However, if the illegal recipient had known in advance that the payment of training expenses, etc. for one year would be restricted, he could have flexibly conducted the training course during the restriction period and could have reduced the amount of the order to return. It would not be unreasonable to operate the training course. Ultimately, even if the provision of the Enforcement Decree of this case prescribes the restriction on payment as a continuous act, it cannot be deemed that the initial date was in compliance with the principle of "minimum of damages" due to the fact that the payment date of training expenses, etc. or the date on which the application for payment was filed could be reduced

③ 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 received 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 disciplinary measure may

④ Therefore, even if the legislative purpose of the instant provision, which is a disciplinary measure, can be more effectively achieved by stipulating the same in addition to the additional collection disposition against an illegal recipient, the provision of the Enforcement Decree of the instant case, which is a disciplinary measure, 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 pattern of the illegal recipient’s act, is an infringement by excessively restricting the property rights of the illegal recipient (see Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010; Article 56(1) of the Employment Insurance Act provides for one-year restriction on payment to the illegal recipient; however, the provision provides for the restriction on payment for three years after the date of receipt of the subsidy or the incentive; however, the provision provides for the restriction on payment for one-year period from the date of receipt of the subsidy or the subsidy to the extent of one-year restriction on payment under Article 15(1) to the extent of one-year restriction on payment.

(3) Therefore, each of the instant dispositions based on Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which deviates from the limitation of delegated legislation, and is null and void due to a violation of the principle of excessive prohibition under the Constitution,

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.

The presiding judge, judge and officer

Judges Jeon Jae-il

Judges Lee Jae-sung

1) The amount of the notice for the collection disposition is KRW 1,722,300, or the amount of the refund in the letter of recovery disposition dated August 16, 201 is KRW 1,722,304, and the Plaintiff

Although the claim is sought to recover KRW 1,722,300 on the purport of the claim, it seems to be a clerical error in the collection disposition of KRW 1,722,304.

A person shall be appointed.

A person shall be appointed.