2011Guhap3795 Revocation of Disposition, such as return of subsidies for vocational skills development

A Stock Company

The President of the Central Local Labor Agency

December 29, 2011

February 9, 2012

1. The Defendant’s disposition of restricting the payment of subsidies for vocational skills development to the Plaintiff on May 4, 201 (from May 8, 2008 to May 7, 2009) and cancelling the disposition of returning subsidies KRW 72,969,70.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

The judgment as referred to in Paragraph 1 and the defendant's disposition of returning 53,390 won and additional collection of KRW 53,390,000, which was made against the plaintiff on May 4, 2011.

1. Details of the disposition;

A. On February 21, 2008, the Plaintiff was recognized as a vocational skills development training course with respect to “field innovation (basic) course (training place: B and training period: total of 10 hours from March 7, 2008 to March 8, 2008; hereinafter “instant curriculum”) to the Defendant.

B. On May 6, 2008, the Plaintiff applied for subsidies for vocational skills development training expenses related to the instant curriculum to the Defendant on the ground that the Plaintiff conducted the instant curriculum for five of the employees belonging to the Plaintiff. Around that time, the Defendant received KRW 266,90 as subsidies for the instant curriculum. Among them, the Plaintiff’s employees included KRW 53,390 in training expenses for C, who are trainees of the instant curriculum.

C. The Defendant received a request from the Board of Audit and Inspection and the Ministry of Employment and Labor for an investigation as to whether his or her illegal employment management, along with the list of trainees who entered or depart from the Republic of Korea during the vocational skills development training period. As a result of the investigation, the Defendant confirmed that the Plaintiff’s employee C left Korea from March 3, 2008 to March 8, 2008, which is the date of the implementation of the instant curriculum, was treated as having attended on March 7 and March 8, 2008.

D. Accordingly, on May 4, 201, the Defendant issued an order to refund KRW 53,390 of training expenses paid by the Plaintiff by fraud or other improper means to the Plaintiff (hereinafter referred to as “instant first disposition”) pursuant to Article 35(1) of the Old Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) and Article 56(1) of the Enforcement Decree of the Old Employment Insurance Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter the same shall apply), and issued an order to refund KRW 53,390 of training expenses paid by the Plaintiff by fraud or other improper means; ② The Defendant additionally collected the amount equivalent to KRW 53,390 of training expenses paid by the Plaintiff by fraud or other improper means (hereinafter referred to as “instant second disposition”); and ③ the Plaintiff’s return of subsidies to the Plaintiff for the above period of 250(1) and 50(2) of the old Employment Insurance Act (hereinafter referred to “250.7”).

[Reasons for Recognition] Each entry of evidence Nos. 1, 2, 3, 8, and 13, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Non-existence of the grounds for disposition

In light of the fact that the Plaintiff applied for C as a trainee of the instant curriculum, but the period of overseas business trip of C, thereby changing C to D instead of other employees, and D actually participated in the instant curriculum. Although the Plaintiff did not confirm whether the trainee was changed to B at the time, the instant curriculum was erroneous, but the Plaintiff was responsible for the management of entry and exit of the students under B, and the Plaintiff applied for subsidies by trust in the details of the management of entry and exit, etc., it cannot be deemed that the Plaintiff received subsidies for vocational skills development training by fraud or other improper means. Accordingly, there is no reason for the instant disposition.

(2) unconstitutionality of Article 56(2) of the Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of this case”) is invalid.

The enforcement decree of this case provides that an order for the return of condition for training expenses paid for one year from the date of fraudulent receipt shall be null and void because it violates the principle of excessive prohibition and infringes on property rights, contrary to the purport of delegation of the old Employment Insurance Act, which is the mother corporation. Therefore, the third disposition of this case made by the Defendant by applying the enforcement decree of this case is unlawful.

B. Relevant statutes

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

C. Determination

(1) Whether the grounds for the disposition exist

It is insufficient to recognize that D, an employee of the Plaintiff, who is another employee of C, has participated in the instant curriculum, and there is no other evidence to acknowledge it. Rather, the period of overseas business trip originally scheduled from March 3, 2008 to March 8, 2008, rather than the scheduled period of overseas business trip from March 3, 2008 (Evidence No. 5 and 8). The Plaintiff did not at all state the statement that D, when it first states his opinion to the Defendant on April 21, 201, was participating in the instant curriculum, after prior notice of the instant disposition was given (Evidence No. 5 and 7). The Plaintiff stated D, instead of C, that D, was participating in the instant curriculum (Evidence No. 12), and that D, in light of the fact that D’s signature was only made on the instant curriculum (Evidence No. 16). Accordingly, the Plaintiff’s assertion that D did not participate in the instant curriculum is not acceptable under the premise that D’s participation in the instant curriculum.

(2) The validity of the enforcement decree of the instant case

The disposition ordering a person who has received, or attempted to receive, vocational skills development training costs, etc. by fraud or other improper means (hereinafter referred to as "unlawful recipients") pursuant to Article 35(1) of the former Employment Insurance Act constitutes a binding act. However, it is a question whether the enforcement decree of this case does not violate the principle of excessive prohibition, which provides that a person who has received, or attempted to receive, vocational skills development training costs, etc. by fraud or other improper means (hereinafter referred to as "unlawful recipients") shall be obliged to pay training costs, etc. for one year, and the refund of, training costs, etc. paid during the payment restriction period is required.

However, 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, etc., the legislative purpose of this case is to prevent misconduct in relation to the payment of training expenses, etc., and ultimately, to promote the development and improvement of workplace skill of workers by restricting the payment of training expenses, etc. for one year for illegal recipients and issuing an order to refund subsidies paid within the payment restriction period, and that workplace skill development training is conducted through limited public resources, such as the Employment Insurance Fund under the Enforcement Decree of this case, the legislative purpose of this case itself is justifiable. In addition, since it appears that misconduct in relation to the payment of training expenses, etc. is to be reduced through disciplinary sanctions under the Enforcement Decree of this case

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 Constitution. Therefore, the third disposition of this case based on the provision of the enforcement decree of this case which is null and void in violation of the Constitution is unlawful.

① Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount that was received by fraud or other improper means may be collected within a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008) and Article 9(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 320, Apr. 1, 2009) provides that the amount to be additionally collected shall be calculated based on the number of times applied for expenses during the past five years by fraud or other improper means. Meanwhile, Article 35(2) of the Enforcement Rule of the same Act provides that the amount of subsidies paid within the above restriction period shall be limited to the Plaintiff for one year, separately from the above additional collection, and that the amount of subsidies paid within the above restriction period shall be 70 times the amount of subsidies paid to the Plaintiff, as well as the amount of subsidies paid to the Plaintiff for the foregoing restriction period of KRW 970.

(2) In addition, since the provision of the Enforcement Decree of this case specifies the initial date of the restriction on payment as "the date on which the application for payment was made" rather than the date on which the payment was made, the illegal recipient shall return retroactively the amount already received prior to the date on which the restriction on payment was made. However, if the illegal recipient becomes aware of the fact that the payment of training expenses, etc. for one year would be restricted, he could reduce the amount of the order to return by flexibly implementing the training course during the restriction period, and it would not be unreasonable to operate the training course. Ultimately, even if the provision of the Enforcement Decree of this case stipulates the restriction on payment as binding act, the initial date is set as the date on which the payment was made or the date on which the payment was applied for training expenses, etc., may reduce the damage suffered by the illegal recipient by providing for a different date,

③ In addition, Article 1 of the Enforcement Decree of the instant case provides for a restriction on payment for one year from the date on which the training expenses were received or the application for payment was filed, and a mandatory return order with respect to the subsidies already paid during the period of restriction on payment, but there is a problem that the status of an illegal recipient is unstable for a long time due to the lack of special restrictions.

④ Therefore, even if the legislative purpose of the instant provision, which is a disciplinary measure in addition to the additional collection, can be more efficiently achieved by prescribing the provision of the Enforcement Decree of the instant case, which is a disciplinary measure against an illegal recipient, the provision of the instant provision was mandatory without setting detailed standards depending on the form of the illegal recipient’s act of violation, which infringes upon the property rights of the illegal recipient by excessively restricting the payment period for one year and the provision of an order of return of the subsidies paid during the restriction period (Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010; however, Article 56(1) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides for one-year restriction on payment to the illegal recipient; however, it appears that the provision of the instant provision was limited to one-year restriction on payment period or one-year restriction under Article 15(1) of the Enforcement Decree of the Employment Insurance Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge shall be the highest judge.

Judge Choi Gyeong-hoon

Judges Kim Gin-dong

A person shall be appointed.

A person shall be appointed.