(영문) 서울행정법원 2015.4.30. 선고 2014구단58412 판결

1. On October 13, 2014, the Defendant’s disposition to prohibit the Plaintiff from newly employing a youth intern by not later than the time the amount of money unlawfully received was returned to the Plaintiff is revoked.

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

3. The disposition stated in Paragraph 1 is suspended until the judgment of the appellate court of this case is pronounced.

Purport of claim

The same shall apply to the order.

Reasons

1. Facts recognized and circumstances of dispositions;

A. Status of the parties

(1) The Plaintiff is a corporation that is engaged in business activities such as construction dogs, architectural production, and budget consulting for construction costs. The Plaintiff is a small and medium enterprise operating institution that is a small and medium enterprise, which is entrusted by the Minister of Employment and Labor with business activities related to youth internship (hereinafter “instant business”), based on Articles 25 and 34 of the Framework Act on Employment Policy, Article 25(1) of the Employment Insurance Act, Articles 35 and 36 of the Enforcement Decree of the same Act, Article 7 of the Special Act on the Promotion of Youth Employment, and other relevant statutes.

(2) On September 2009, the Plaintiff entered into the instant agreement with professional banks (hereinafter “the instant agreement”) and hired 37 internships by participating in the instant project’s implementing institution until April 2013.

B. The defendant's measures following the improper receipt of subsidies

(1) As to the instant business plan and the internship employed by the Plaintiff in accordance with the instant agreement, the Plaintiff received subsidies for youth internships from professional banks, and subsidies for full-time conversion from the Defendant.

(2) However, the Defendant conducted a fact-finding survey on the Plaintiff on July 2013 and discovered that the Plaintiff received subsidies for youth internships and subsidies for youth conversion from professional banks and the Defendant on the basis of the amount of wages actually paid to 30 youth internships. Accordingly, the Defendant ordered the return of KRW 142,574,010 in total and KRW 43,500 in total and KRW 142,574,010 in total and KRW 43,500 in full and KRW 142,574,010 in total, based on Articles 30 and 31 of the Subsidy Management Act and the instant agreement, and ordered the return of the subsidies for youth internships and the regular conversion subsidies for two years in the future (hereinafter referred to as “prior disposition”).

(3) On the other hand, the Plaintiff filed an administrative appeal and administrative litigation (2014Guhap5404) with the Central Administrative Appeals Commission and the Seoul Administrative Court seeking revocation of each preceding disposition.

(4) In the above administrative appeal and administrative litigation, the Seoul Administrative Court rendered a judgment revoking the preceding 1 and 3 dispositions on June 20, 2014, and the Central Administrative Appeals Commission rendered a ruling revoking the preceding 3 dispositions on August 5, 2014.

C. On October 13, 2014 after the judgment of the above administrative litigation and the decision of the administrative appeal, the instant disposition Defendant rendered a disposition prohibiting the new employment of youth internships until he/she returns the total amount of KRW 142,574,010 (hereinafter referred to as the “instant disposition”) received by the Plaintiff based on the provision of the 2013 Guidelines for the Implementation of the Youth Work Experience System for Small and Medium Enterprises (hereinafter referred to as the “instant Guidelines”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 6, Eul evidence 1 to 4 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Defendant’s disposition of this case is an invasion disposition that can only be disposed of if there is a legal basis in accordance with the principle of statutory reservation. The disposition of this case is unlawful as it was issued without any legal basis.

B. Relevant statutes

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

C. Determination

(1) Although the Defendant, at the time of the instant disposition, considered only the instant guidelines as the basis for the instant disposition, the instant disposition was alleged to be a discretionary act that determines whether to withdraw the beneficial administrative disposition or grant subsidies, rather than a sediment disposition on the date of pleading, and presented not only the instant guidelines, but also the instant agreements based on the disposition, Article 30 and Article 31 of the Subsidy Management Act, Article 25(1) of the Employment Insurance Act, and the instant agreements. Accordingly, it should be determined together by selecting the basis for the disposition as additional within the same factual basis.

(2) As to the nature of the instant disposition, the instant disposition imposes restrictions on the legal status of the Plaintiff in the future, such as the Plaintiff’s failure to receive all subsidies related to the internship for two years, etc., and thus, ought to be deemed as an invasion disposition, and the subject of withdrawal.

Since there is no beneficial disposition, it cannot be viewed as the withdrawal of beneficial disposition, and as long as it is viewed as an infringement disposition, there is no room to regard it as discretionary act under Article 25 (1) of the Employment Insurance Act.

(3) According to the evidence No. 2 regarding the legal basis of the instant disposition, it is recognized that “If the implementing company applied for the internship or received the subsidy by fraudulent or other unlawful means, it shall be prohibited from hiring an intern for two years from the date of the return of the employment center or the restriction on the payment to the employment center, and shall not be prohibited from hiring an intern until the completion of the return, if the two years have passed, even if the subsidy was not returned.” However, Article 25(2) of the Employment Insurance Act delegates matters necessary for the implementation and subsidization of the instant business to the Presidential Decree, and Article 36(2) of the Enforcement Decree of the Employment Insurance Act delegates matters concerning the type and content of the target business, the scope and degree of the target insured, etc., and the method of application to the Minister of Employment and Labor. Accordingly, the instant guidelines provide for the disciplinary disposition, which is a sanction, without any delegation from the upper statutes, and thus, it cannot be asserted the legality of the instant administrative disposition.

In addition, while Articles 30 and 31 of the Subsidy Management Act are asserted as the grounds for the instant disposition, the above provisions only stipulate the revocation of the decision to grant and the return of the subsidy due to the violation of the Act and subordinate statutes, but do not stipulate the sanctions prohibiting the employment of an intern, so the defendant's assertion on this is without merit.

Furthermore, the Defendant asserts that the instant agreement is also based on the disposition. However, the instant agreement was concluded between the Plaintiff and professional banks, and the content of the said agreement cannot be asserted as the grounds for the instant disposition, apart from the restriction on the Plaintiff and professional banks in private areas.

Therefore, the defendant's disposition of this case is unlawful as it is issued without any legal basis.

3. Suspension of execution.

According to the records of this case, it is recognized that the execution of the disposition of this case is urgently required to prevent irrecoverable damage to the plaintiff, and there is no other evidence to recognize that the suspension of execution is likely to have a significant impact on public welfare. Thus, the execution of the disposition of this case shall be suspended ex officio until the judgment of the appellate court of this case is rendered.

4. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.