(영문) 인천지방법원 2015.4.9.선고 2014구합2762 판결

1. Of the instant lawsuit, the Defendant’s claim to revoke a disposition restricting the payment of various subsidies and incentives for one year (from December 31, 2013 to December 30, 2014) against the Plaintiff on January 6, 2014 shall be dismissed.

2. The Defendant’s disposition of additionally collecting KRW 104,00,000 against the Plaintiff on January 6, 2014 is revoked.

3. The plaintiff's remaining claims are dismissed.

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

Purport of claim

Order 2. The Defendant’s order to return 52,05,000 won for the Plaintiff on January 6, 2014 to improve the employment environment of small and medium enterprises, and disposition to restrict the payment of various subsidies and incentives for one year (from December 31, 2013 to December 30, 2014) shall be revoked.

Reasons

1. Details of the disposition;

A. On March 29, 2010, the Plaintiff filed an application for a building permit to extend the physical fitness room with the head of Si/Gu/Si/Gu/Ucheon-gu, 183-13, the Plaintiff, a corporation operating the manufacture, wholesale, etc. of computer peripherals at 183-13, Macheon-gu, Macheon-si, the Plaintiff obtained the building permit from the head of Si/Gu/Gu/Gu on April 15, 2010.

B. On May 13, 2010, the Plaintiff submitted a report on an employment environment improvement plan to improve the employment environment by expanding the fitness room to the Defendant. On June 11, 2010, the Defendant approved the improvement plan with the estimated amount of support of KRW 182,390,001 out of the construction cost for the improvement project for the above employment environment as the estimated amount of support.

C. After completing the Employment Environment Improvement Work on June 10, 201, the Plaintiff applied for the payment of subsidies of KRW 58,400,000 as a result of the improvement of the employment environment to the Defendant on October 7, 2011 (hereinafter “instant application”). On March 13, 2012, the Defendant paid the Plaintiff KRW 52,004,000 (=the amount of subsidies for construction + KRW 50,000 + the amount of subsidies for new employees + KRW 2,004,000).

D. On November 12, 2013, the Defendant: (a) conducted a self-inspection to prepare for a regular inspection by the Ministry of Employment and Labor; (b) confirmed that the Plaintiff obtained a building permit with respect to the extension of the physical fitness room before submitting a report on an employment improvement plan; and (c) on January 6, 2014, issued an order to return KRW 52,005,000 and additional collection of KRW 104,000 for one year (i.e., the return order, the instant additional collection order, the instant additional collection order, and the instant restriction order) on the payment of various subsidies and incentives for one year (i.e., the return order, the instant additional collection order, and the instant additional collection restriction order).

E. On March 28, 2014, the Plaintiff appealed to the Central Administrative Appeals Commission, but the said commission dismissed the Plaintiff’s request on August 5, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3-1 to 5, 4-11, Eul evidence 1 to 17, and 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

Inasmuch as it is apparent that the period of the instant restriction on payment (from December 31, 2013 to December 30, 2014), the instant restriction on payment was imposed ex officio, the instant restriction on payment became null and void. Inasmuch as there is no evidence to deem that the instant restriction on payment remains remaining in the external form, there is no legal interest to seek cancellation of the instant restriction on payment (see, e.g., Supreme Court Decisions 92Nu3625, Jul. 10, 1992; 96Nu6233, Feb. 14, 197; 98Du1080, Apr. 21, 200). Of the instant lawsuit, there is no legal interest to seek revocation of the instant restriction on payment, insofar as there is no evidence to deem that there was an infringement on the Plaintiff’s legal interest due to the remaining remaining in the external form of the instant restriction on payment.

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) According to Article 20 of the former Employment Insurance Act (amended by Act No. 13041, Jan. 20, 2015; hereinafter referred to as the "Employment Report Act") and Article 17(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 25022, Dec. 24, 2013; hereinafter referred to as the "Enforcement Decree of the Employment Insurance Act"), where facilities and equipment necessary for improving employment environment are installed and employment increases, employment improvement subsidies shall be provided in principle. Even in the above case, the guidelines for implementing employment improvement support projects (hereinafter referred to as the "Enforcement Guidelines"), employment improvement support, and three-3 items (hereinafter referred to as "the "this case") are unlawful since each of the above items is determined that the improvement subsidy was not to be granted since the improvement subsidy was not to be delegated before the submission of the employment environment improvement plan.

2) The instant disposition based on the foregoing item is an unlawful disposition, as it is against the principle of proportionality to restrict the payment of employment improvement subsidies as the instant item.

3) Even if the act was conducted prior to the submission of a plan to improve the employment environment, it does not immediately constitute a case where the act was rendered support for employment security and vocational skills development activities by “any false or other unlawful means” under Article 35(1) of the Employment Insurance Act, which is the basis of the instant disposition, and thus, each of the instant dispositions based on such premise is unlawful.

4) Lastly, each of the dispositions in this case is in violation of the law of deviation and abuse of discretion.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

A. Where the provision of the Act and subordinate statutes governing whether the instant item deviates from the bounds delegated by the Employment Insurance Act and the Enforcement Decree thereof, grants a specific administrative agency the authority to determine the specific matters of the pertinent statute and does not specify the procedure or method of exercising its authority, and the delegated administrative agency specifically provides for the matters that may be the contents of the relevant statute in the form of administrative rules, the relevant administrative rules shall be deemed to have effect as an order of laws and regulations which are externally binding (see, e.g., Supreme Court Decision 20032274, Sept. 26, 2003).

Pursuant to the above legal principles, the Minister of Employment and Labor may provide necessary support as prescribed by Presidential Decree to employers who have expanded employment opportunities due to improvement of employment environment, change of work environment, etc., and Article 17(1) and (2) of the Enforcement Decree of the Employment Insurance Act provides that the Minister of Employment and Labor may partially subsidize installation costs of facilities in cases where the number of workers increases due to improvement of employment environment by installing and operating facilities prescribed by the Minister of Employment and Labor, and employment of unemployed workers. In such cases, the requirements for support, the scope of business owners eligible for support, the level of support, the period of support, the period of application and payment of subsidies, and other matters necessary for support shall be determined by the Minister of Employment and Labor. Accordingly, the implementation guidelines in this case were prepared, and among them, the implementation guidelines in this case were excluded from support where the business owners commenced improvement of employment environment, such as contract for installation of facilities, construction authorization and permission, before submitting improvement plans in this case. Since the Employment Insurance Act and its Enforcement Decree granted authority to determine detailed matters concerning the payment of employment improvement subsidies to the Minister of this case, the details of this case are not specified in the details.

B. Whether the instant item violates the principle of proportionality

In light of the following: (a) The purpose of the Employment Environment Improvement Subsidy is to support a business owner who intends to improve the employment environment and who lacks financial capacity, and (b) the instant item is to prevent the business owner of a small and medium enterprise with financial capacity to the extent that the improvement subsidy is unnecessary from receiving the improvement subsidy by abusing the system after commencing the employment environment improvement project; (c) if the business owner initiates the improvement of the employment environment, such as the contract for the installation of facilities or the application for authorization or permission for construction, before submitting the improvement plan, he shall not be paid the improvement subsidy; and (d) if the business owner lacks financial capacity to the extent that the improvement subsidy is needed, it is deemed unnecessary to commence the improvement of the employment environment with the cost in advance of the submission of the improvement plan for the employment environment, the instant item does not violate the principle of proportionality. Therefore, the Plaintiff’s assertion on this part is without merit.

"False or other unlawful means" means any act that makes it possible to illegally receive employment improvement subsidies by social norms, and includes both active and passive acts (e.g., omission) (see, e., Supreme Court Decisions 93Do2579, Jan. 14, 1994; 2005Do2652, Oct. 7, 2005; 2009Du6087, Jul. 23, 2009). According to the purport of all evidence and arguments mentioned above, the plaintiff did not have the duty to report the environmental improvement improvement plan to the defendant on April 15, 2010, and the plaintiff did not have the duty to report it to the defendant on the improvement plan for employment (see, e.g., Supreme Court Decision 93Do2579, Oct. 26, 2005; 2009Du6087, May 13, 2010).

(d) Whether the discretion is deviates or abused;

First of all, according to Article 35(1) of the Employment Insurance Act and Article 56(1) of the Enforcement Decree of the same Act, which was enacted pursuant to delegation of the above provision with regard to the instant return order, where the grounds for returning the employment improvement subsidy arise, administrative agencies shall order the return of the employment environment improvement subsidy paid in relation to a compulsory violation, and thus, the instant return order disposition constitutes a binding act with no discretion to the Defendant). Therefore, the Plaintiff’s assertion that the instant return order disposition deviatess from or abused the discretionary authority on the premise that the instant return order disposition is a discretionary act.

Next, with respect to whether the additional collection disposition in this case deviates from and abused discretion, the item of this case is revised in 2014, and the subject of this case is currently entitled to pay the principal for the improvement of employment environment if it is 'preed' within 3 months to promote the improvement of employment environment, such as building design, estimate contract, construction authorization, etc., and the above revision seems to take a reflective consideration that even if an application was made within 3 months before the business owner submitted the improvement plan, the business owner is expected to be entitled to receive the support for improvement of employment exchange and enters into the preparatory act in advance and there is little room to abuse this system. In this case, according to the above, the Plaintiff applied for a building permit to the competent authority two months before submitting the report on the improvement of employment environment to the Defendant, and the Plaintiff applied for a building permit to the Defendant before obtaining the approval of the employment improvement plan from the Defendant. The additional collection disposition in this case is more than the amount which the Plaintiff illegally received the subsidy, and the Plaintiff is also subject to additional collection in excess of the principle of public interest.

4. Conclusion

Therefore, the claim to revoke 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, and the remaining claims are dismissed as it is so decided as per Disposition.