2011. Revocation of a fixed revocation disposition, etc., which is a vocational ability development training course

A Stock Company

1. The head of the Seoul Regional Employment and Labor Office;

2. The head of the Seoul Regional Employment and Labor Office;

November 10, 201

November 24, 2011

1. On March 22, 2011, the part of support amounting to KRW 164,231,970 during the limited payment restriction period among the disposition of an order to return illegal receipt issued by the head of the Seoul Regional Employment and Labor Office against the Plaintiff shall be revoked. On March 22, 201, the Plaintiff’s claim against the head of the Seoul Regional Employment and Labor Office’s Seoul Local Employment and Labor Office site and the remainder claim against the head of the Seoul Regional Employment and Labor Office’s Seoul Local

3. Of the costs of lawsuit, the part arising between the Plaintiff and the head of the Seoul Eastern District Office shall be borne by the Plaintiff. The part arising between the Plaintiff and the head of the Seoul Southern District Office shall be borne by the Plaintiff, and the remainder by the said Defendant, respectively.

The part of KRW 193,620 due to illegal receipt and return of occupational ability development training expenses and additional collection among orders issued to the Plaintiff on March 22, 2011 by the head of the Seoul Regional Employment and Labor Office and the Seoul Regional Employment and Labor Office (hereinafter “Seoul Regional Employment and Labor Office”) shall be revoked, and the revocation of recognition of occupational ability development training courses conducted against the Plaintiff on March 18, 201 and the restriction of recognition for one year for the pertinent training courses shall be revoked, respectively.

1. Details of the disposition;

A. On October 19, 2007, the Plaintiff was recognized as a vocational skills development training course as the chief of the department from the head of the Seoul Eastern District Office (hereinafter referred to as Defendant 1) of the Seoul East District Office (hereinafter referred to as “Defendant 1”) on the part of the Plaintiff’s internal job training for the mid- and long-term development of the company as part of the internal job training for the company’s mid- and long-term development by cultivating the role and the awareness of responsibility. (The number of students higher than the school level 42: domestic office training and training method: four days between October 20, 207 and December 8, 2007; hereinafter referred to as “instant training course”).

B. After implementing the instant training course between October 20, 207 and December 8, 2007, the Plaintiff applied for vocational skills development training expenses including the instant training course to the head of Seoul Regional Employment and Labor Office (hereinafter “Defendant 2”) having jurisdiction over the Plaintiff’s head office on March 13, 2008. On March 25, 2008, the Plaintiff received KRW 15,887,490 for subsidies from Defendant 2. Of the above subsidies, subsidies for the instant training course are KRW 3,969,292 x 41). However, at the time of the above application for training, the Plaintiff’s 20-day survey and the Plaintiff’s 10-day survey was conducted on the list of “the Plaintiff’s 10-day vocational skills development training courses including B and C, and the Plaintiff’s 17-day survey was conducted on the ground that the Plaintiff’s 10-day survey was conducted on the list as well as the 10-day training period.

A person shall be appointed.

D. On March 22, 2011, Defendant 2 notified Defendant 1 of the Plaintiff’s illegal receipt of subsidies based on the management of the Plaintiff’s illegal withdrawal, Defendant 2 decided to recover KRW 164,425,590 (hereinafter referred to as “instant secondary disposition”) out of the subsidy paid to the Plaintiff during the period from March 25, 2008 to March 24, 2009 (from March 25, 2008 to March 25, 2009) 164,231,970, including the subsidy paid to the Plaintiff during the same amount as follows, and the details of the specific disposition are as follows.

A person shall be appointed.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 4, Eul evidence 1 through 3, Eul evidence 1 through 5, and the purport of whole pleadings]

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) As to the first disposition of this case

(A) Absence of the grounds for disposition

1) Regarding Article 25(1)3 of the former Workers’ Vocational Skills Development Act

The Plaintiff reported that all 42 persons including B completed the training course of this case. However, in applying for vocational skills development training expenses, only 3,969,292 won (i.e., one person training expenses excluding B 96.812 x 41) equivalent to the above amount were paid for vocational skills development training expenses (i.e., one person training expenses excluding B 96.812 x 41). Ultimately, in relation to B, the Plaintiff cannot be deemed to have conducted the training course of this case in violation of the contents recognized by the Plaintiff.

In addition, the defect in the management of B is due to the difference between the department in charge of education and training at the time and the department in charge of managing the country from overseas, and the person in charge of education and training failed to verify the absence of B. Thus, it shall not be deemed that it violates the contents of training, training period, training hours, and training methods recognized to the extent that it violates the purpose of training concerning the important matters of the training methods.

2) As seen in the preceding paragraph related to Article 25(1)2 of the former Workers’ Vocational Skills Development Act, the Plaintiff applied for only the expenses for the remaining 41 portion except for B when applying for vocational skills development training costs in relation to the instant training courses. Therefore, the Plaintiff cannot be deemed to have received subsidies for vocational skills development training costs by fraud or other improper means.

In addition, in light of the fact that the Plaintiff’s operation of the curriculum, such as workplace skill development training for 30 times annually, caused the suspension of training, etc., due care was paid to the Plaintiff while processing the application for support for training expenses and the supply and demand procedures for training expenses, such as failure to apply for training expenses, and that it was difficult for the Plaintiff’s education and training officer to become aware of departure from the Republic of Korea, it cannot be deemed that the Plaintiff’s participation in the instant training course was due to a simple mistake that the attendance and management of the training course was conducted abroad, and constitutes “

(b) A deviation from or abuse of discretionary power;

Even if the Plaintiff falls under the ground for the first disposition of this case, considering that the Plaintiff’s failure or gross negligence was not based on the Plaintiff’s intentional or gross negligence to manage the departure of this case, it was based on a simple mistake, and that the part of the defect in the management of the departure was only one of the 42 trainees, and one of the number of trainees present, the first disposition of this case is erroneous in deviation from or abusing the scope of discretion.

(2) As to the second disposition of this case

(A) Absence of the grounds for disposition

The Plaintiff’s assertion on the First Disposition does not constitute “a person who received support for vocational skills development projects by fraud or other improper means,” and thus does not constitute Article 35(1) of the former Employment Insurance Act. Therefore, the First Disposition is unlawful on a different premise.

(B) Claim regarding the disposition No. 2-3 of the instant case

The plaintiff asserts that there are defects as seen below in the disposition No. 2 of this case. In light of the purport and contents of the claim, it is related to the object and contents of the disposition No. 2-3 of this case. Thus, it is viewed as the argument about the disposition No. 2-3 of this case.

1) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010), which is the basis provision for the above disposition, provides that an order to return conditions to the training expenses paid during the one-year period of restriction on payment, shall be null and void in violation of the purport of delegation by the former Employment Insurance Act and the principle of prohibition of excessive restriction under the Constitution, which is the mother company, thereby violating the purport of delegation

2) The above disposition is a content that orders the Plaintiff to return all training expenses lawfully subsidized during the period of the previous restriction on payment for more than two years or for more than two years on the ground that there is a defect in the management of attendance for one day from among the trainees of the instant training course. The above disposition is excessively excessive to the amount exceeding 96,810 won 1,696 times of the training expenses that the Plaintiff illegally received during the restriction period subject to the order to return. Thus, the above beneficial disposition deviates from the limitation of revocation of the above beneficial administrative disposition.

3) According to the relevant regulations, the recognition of workplace skill development training courses related to the support for workplace skill development projects and whether to subsidize training expenses are independently determined by the head of the local labor office having jurisdiction over the workplace where the training establishment is located, and the scope of return of subsidies granted during the period of restrictions on payment due to illegal receipt of subsidies should be limited to the subsidies for the relevant workplace under the jurisdiction of the head of the local labor office having jurisdiction over the workplace where the place of business where the illegal receipt of subsidies was conducted is located. Therefore, the part ordering the return of training expenses for the remaining portion of the subsidies other than the training course of this case (the portion of subsidies for the remaining workplace other than Defendant 1 among the disposition No. 2-3 of this case

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Determination

(1) Non-existence of grounds for disposition (as to each disposition of this case)

(A) Whether the Plaintiff’s training courses received part of B from the Plaintiff

On the other hand, the Plaintiff asserts that the Plaintiff did not receive training expenses for B, while the Defendants asserted that the Plaintiff received all training expenses for all 41 persons including B except D (which appears to be referred to as “Plaintiff’s employee C”) with respect to the instant training course.

In full view of the purport of the Plaintiff’s above evidence Nos. 1, 5, 2, and 3 (including paper numbers), the Plaintiff’s application for the support of occupational ability development training expenses was entered in the 208 list, with the exception of “the number of applicants who completed the training course 1,04,00,000 won” as stated in the 20-year training course and the 1,046,080 won (i.e., the 20-year unit price 96,812 X), and the remaining number of applicants who completed the training course as indicated in the 10-year unit price 1,00,000 won (i.e., the 20-year unit price 10,000 won). However, the Plaintiff’s application for the support was written as indicated in the 20-year unit price 1,000 won (the 20-year unit price 104,608 won) as indicated in the 2-year training course.

(B) Whether there is a ground for Article 25(1)3 of the former Workers’ Vocational Skills Development Act

1) Article 25(1)3 of the former Workers’ Vocational Skills Development Act provides that one of the grounds for cancellation of recognition is the case where workplace skill development training is conducted in violation of the details recognized under Article 24 of the same Act, and Article 25(2) of the same Act provides that “where workplace skill development training is conducted in violation of Article

Article 24 of the Act provides that a person whose recognition is revoked shall not be recognized under Article 24 within five years from the date of revocation, and Article 25 (5) of the Act provides that matters necessary for the cancellation of recognition and restriction on recognition shall be prescribed by the Ordinance of the Ministry of Labor, and accordingly, Article 9 (3) [Attachment 2] 1-B of the Enforcement Rule of the Act on the Development of Workplace Skills shall be prescribed as one of the offenses falling under Article 25 (1) 3 of the former Act on the Development of Workplace Skills. In addition, Article 7 (1) 1 of the Act on the Requirements for Training Courses and Training Facilities (Notice of Ministry of Labor No. 2005-40) provides that "at least 80 percent of the prescribed number of days of training (at least 30 hours of training and at least 10 percent of the prescribed number of days of training where the training is less than 30 hours of training) shall be completed."

2) In light of the following circumstances revealed in light of the content of related laws and regulations, i.e., occupational ability development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, and the Ministry of Employment and Labor pays training expenses after confirming whether a trainee participated in the training through the attendance book submitted by the employer, and is a basic premise for the payment of subsidies for the completion of training expenses. In order to achieve the purpose of occupational ability development training and prevent unfair claim for training expenses, it is necessary to thoroughly manage the attendance of the trainee in order to achieve the training and prevent unfair claim for training expenses, and ii) it is highly likely to undermine the foundation of the occupational ability development training system itself if the trust and fairness in the attendance management is shakened, and therefore, the entry management in the occupational ability development training course is deemed to be very important and essential. In light of the above, the defect in the entry management that the Plaintiff committed in relation to B is recognized to the extent that it violates the purpose of training, such as the details of training, and thus, constitutes an individual violation of Article 25(1)3(b) [Attachment 3) of attached Table 3(a].

(C) Whether there exist grounds for Article 25(1)2 of the former Workers’ Vocational Skills Development Act and Article 35(1) of the former Employment Insurance Act

1) Sanction against violation of administrative regulations is a sanction against the objective fact that is a violation of administrative regulations to achieve administrative purposes, and thus, it may be imposed even if the violator has no intention or negligence, barring any special circumstances such as there is a justifiable reason not to cause any negligence on the part of the violation. The term "any false or other unlawful means" which can be subject to sanctions under the former Employment Insurance Act and the former Workers' Vocational Skills Development Act, which apply to each of the dispositions in this case, means all the active and passive acts that may affect the decision-making on the payment of vocational skills development training fees, which are conducted in order to conceal the eligibility for payment or the lack of eligibility for payment (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

2) The Plaintiff’s act of failing to meet the requirements for completing B’s training courses for four days (24 hours in total) due to departure from Korea. Nevertheless, the Plaintiff’s act of failing to meet the requirements for completing B’s training courses was found to have been present and signed at the meeting. The Plaintiff’s act of not having completed B’s training courses for one day. The Plaintiff’s act of not having been present at the meeting was recognized by the evidence as follows: (i) the Plaintiff’s act of not having been present at the meeting was conducted to improve his/her job skills necessary for the business; and (ii) the Plaintiff’s act of not having been present at the meeting for the purpose of conducting B’s training for one’s own due to the Plaintiff’s failure to meet the requirements for supporting the Plaintiff’s work, which was not verified by the Plaintiff’s failure to meet the requirements for supporting the Plaintiff’s training courses, such as filing a report on completion of the training courses and filing a request for reimbursement; and (iii) the Plaintiff’s act of not having been present at the meeting for one’s own knowledge of the training courses.

(D) Sub-determination

Therefore, the plaintiff's assertion that there is no ground for each disposition of this case is without merit.

(2) A deviation from or abuse of discretionary authority (related to Disposition 1 of this case)

Defendant 1 issued the first disposition of this case in accordance with the standards prescribed by relevant Acts and subordinate statutes, and the entry management in the vocational ability development training course constitutes a very important and essential matter as seen earlier. The training course of this case is managed and conducted under the supervision of the Plaintiff, as well as the self-training conducted under the supervision of the Plaintiff, and even if there is a problem between the department in charge of overseas business trip and the department in charge of education and training within the Plaintiff as long as B took overseas business trips with the approval of the Plaintiff, it is difficult to view that the Plaintiff’s failure to manage the entry of this case or neglect of duties is merely a mere mistake. In light of the above, it is difficult to deem that the first disposition of this case was an unlawful act of deviating from or abusing the scope of discretionary authority. The Plaintiff’s assertion on this part is without merit.

(3) Defendant 2’s assertion regarding the instant disposition No. 2-3

(A) Article 35(1) of the former Employment Insurance Act and Article 56(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) (hereinafter “Enforcement Decree of this case”) provide that a disposition ordering the establishment of a period of restriction on payment or the return of subsidies paid during the period of restriction on payment under the structure or language constitutes a binding act. As such, it is problematic whether the enforcement Decree of this case, which provides that a person who has received or attempted to receive vocational skills development training expenses, etc. (hereinafter “unlawful recipients”) shall be obliged to pay training expenses, etc. for one year for which the payment is limited, and the refund of training expenses, etc. paid during the period of restriction on payment does not violate the purport of delegation of the mother law or the principle of prohibition of excessive restriction.

(B) In light of the fact that workplace skill development training assistance programs are conducted through limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, etc., the legislative purpose of the instant provision is justifiable. In addition, since the instant provision appears to reduce misconduct in relation to the payment of subsidies, etc. through punitive sanctions under the Enforcement Decree of the instant case’s provision, it appears that public resources, such as funds, etc., should be further improved. Thus, the instant provision of the Enforcement Decree of the instant case can be seen as appropriate means to achieve its legislative purpose.

However, as seen below, the enforcement decree of this case is 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" and thus is in violation of the delegation purpose of the parent law or the principle of excessive prohibition under the Constitution. Thus, the disposition of this case based on the provision of the enforcement decree of this case which is null and void due to a violation of the Constitution is unlawful.

① Article 35(2) of the former Employment Insurance Act provides that an amount not exceeding an amount equivalent to the amount received by false or other unlawful means may be collected within a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act, 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 provides that the amount to be additionally collected shall be subdivided based on the number of times the Plaintiff requested expenses by false or other unlawful means during the past five years. Meanwhile, the provision of the instant case, separate from the aforementioned additional collection, provides that the amount of subsidies paid within the said restriction period shall be limited to one year for the wrongful recipient, and the amount of subsidies paid within the said restriction period shall be limited to the amount of subsidies paid to the Plaintiff and the Plaintiff’s 20-6 amount of subsidies that can be excessively denied, in light of the details and degree of the said additional collection, unlike the foregoing additional collection disposition.

(2) In addition, since the provision of this case specifies the starting date of the restriction on payment as ‘the date on which the application for payment was received' 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 receipt of the sanction.

However, if an illegal recipient knew of the fact that the payment of training expenses, etc. for one year is restricted, the training course could be flexibly conducted during the period of restriction on payment, and it cannot be deemed unfair to operate such training course. Ultimately, even if the provision of the Enforcement Decree of this case provides for restriction on payment as a continuous act, the initial date may be reduced by providing for the payment of subsidies, etc. as the date of payment or the date of application for payment. In light of the fact that the initial date may have been reduced by separately prescribing the initial date, it cannot be deemed that the principle of "minimum damage" was observed.

③ Furthermore, Article 1 of the Enforcement Decree of the instant case provides for the restriction on payment of subsidies, etc. for one year from the date on which the application for payment was received or made, and the order for return of subsidies, etc. already paid during the period of restriction on payment to him/her, but it does not impose any special restrictions on the period during which the said restriction is possible, thereby

① Meanwhile, even if Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of delegation to the Presidential Decree, the scope or limitation of inherent delegation by the legislative intent, purpose, etc. of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Du6578, Jul. 22, 1997); and considering various types of subsidy granted under the former Employment Insurance Act, the nature of various types of violation is anticipated to occur; the legislative purpose of the above provision; and the principle of excessive prohibition under the Constitution, etc., the purport of delegation under Article 35(1) of the former Employment Insurance Act is to ensure that the delegation of the above provision can be reasonably subdivided and regulated according to the type of misconduct and its degree, contents, motive, and consequence, etc.; or, if so, to ensure that the administrative agency can increase or decrease the scope of delegation within a certain scope, regardless of the purport of the above provision’s legislative intent or purpose of delegation.

⑤ Therefore, even if the legislative purpose of this case can be more efficiently achieved by stipulating the provision of the Enforcement Decree of this case, which is a disciplinary sanction in addition to the additional collection disposition against an illegal recipient, the provision of this case’s enforcement decree, without setting detailed standards depending on the pattern of offense committed by the illegal recipient, was an infringement upon the property rights of the illegal recipient by excessively restricting the payment period (see, e.g., 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 Enforcement Decree of the Employment Insurance Act provides for one-year restriction on payment to the illegal recipient; however, “where three years have passed from the date of receipt of the subsidy or incentive and the amount of money received or to receive is found for the first time by fraudulent or other unlawful means, it does not apply to the restriction on payment for one-year period from the date of its amendment to the Presidential Decree No. 22603, Dec. 31, 2010>

(C) Therefore, the Plaintiff’s assertion on this part is with merit.

(4) Sub-determination

Therefore, the Disposition No. 2-3 of the instant case is unlawful without having to examine the remainder of the Plaintiff’s assertion, and all of the remaining dispositions are lawful.

3. Conclusion

Thus, the plaintiff's claim against the defendant 2 is justified within the scope of the above recognition, and the plaintiff's remaining claim against the defendant 2 and the claim against the defendant 1 are all justified, and they are dismissed.

Presiding Judge, Judge

Judges Kim Jae-hwan

Judges Lee Dong-won

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.