Revocation, such as orders to refund expenses for workplace skill development training by employers, etc., 2012Guhap823

A Stock Company

1. The Administrator of the Central and Medium-Term Regional Employment and Labor Office:

2. The Administrator of the Seoul Southern District Office of Employment and Labor;

June 19, 2012

July 13, 2012

1. The order of return of KRW 5,46,020,034 of the training expenses paid during the above restriction period shall be revoked, respectively, on April 21, 201, by the head of the Seoul Southern District Office of Employment and Labor in Seoul, for one year (from April 22, 2008 to April 22, 2009) of the payment restriction under the employment insurance fund support program provided to the Plaintiff on April 21, 201 by the head of the Seoul District Office of Employment and Labor in Seoul, and the order of return of KRW 5,46,020,034, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the head of the Eunpyeong-gu Office of Employment and Labor, shall be borne by the Plaintiff, and 1/10 of the part arising between the Plaintiff and the head of the Seoul office of Employment and Labor, and the remainder by the head of the Seoul office of Employment and Labor, respectively.

The disposition specified in attached Table 1 issued by the head of the Eunpyeong-gu Regional Employment and Labor Office (hereinafter referred to as the "head of the Defendant Pyeong-gu Office") on April 21, 201 shall be revoked. The order for return of 671,412 won and the disposition for additional collection of the same amount that the head of the Seoul Regional Employment and Labor Office (hereinafter referred to as the "head of the Seoul Southern District Office") issued on April 21, 201 by the head of the Seoul Regional Employment and Labor Office (hereinafter referred to as the "head of the Seoul Southern District Office")

1. Details of the disposition;

A. Upon recognition of vocational skills development training courses from the head of Pyeongtaek-si Housing Site, the Plaintiff conducted the following occupational ability development training courses for the Plaintiff’s employees from October 5, 2007 to February 23, 2008 at the C Center located in Pyeongtaek-si B (hereinafter “instant training institution”).

A person shall be appointed.

B. After implementing the instant training course, the Plaintiff filed an application for vocational skills development training expenses (hereinafter referred to as “training expenses”) with the head of the Defendant Southern Site, and received KRW 231,07,90 on April 22, 2008, and KRW 136,98,830 on April 23, 2008, respectively.

C. On September 2010, the Board of Audit and Inspection and the Ministry of Employment and Labor conducted an investigation as to whether a trainee who had entry into or departure from the Republic of Korea during the training period for vocational skills development and confirmed the following facts, including that a trainee D, who was an trainee of the instant training course, was in a foreign country from October 9, 2007 to October 27, 2007, and was in a way to leave the call card to others.

A person shall be appointed.

D. As a result of the foregoing investigation, the head of the Defendant Pyeongtaek Housing Site shall make the disposition indicated in the attached Form 1 on April 21, 201, and the head of the Seoul Southern Housing Site shall make the order to return the illegally received amount of KRW 671,412 and additional collection of the same amount on the same day, ② the disposition of one year (from April 22, 2008 to April 22, 2009 to April 22, 2009 to restrict the payment of subsidies under the Employment Insurance Fund Support Project, and the order to return KRW 5,46,020,034 (hereinafter referred to as the "each disposition of this case") paid during the above restriction period (hereinafter referred to as the "each disposition of this case") to the Plaintiff. [Grounds for recognition] The fact that there is no dispute, Gap, 1,2, 3, 10, Eul evidence No. 1 through 8, Eul evidence No. 1, 2, and 3, and the purport of the entire pleadings as a whole pleadings.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Each disposition of this case is unlawful for the following reasons.

1) Although there was a negligence in which some employees did not thoroughly manage the progress of the instant training course, the Plaintiff did not intend to receive the expense through a false physical appearance. In such a case, the Plaintiff does not constitute “the case where the Plaintiff received the expense by fraud or other improper means” under Article 25(1)2 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same shall apply) and Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply).

2) 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) (hereinafter referred to as the “Enforcement Decree of the instant case”) which is the basis of each of the instant dispositions, exceeded the scope of delegation under Article 35(1) of the former Employment Insurance Act as the parent company, and did not deviate from the scope of delegation. Furthermore, the same is an illegal and invalid provision contrary to the purport of delegation under the parent law or the constitutional principle of excessive prohibition.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

1) Whether there is a reason under Article 25(1)2 of the Vocational Skills Development Act

Sanction against violation of administrative laws is a sanction against the objective fact that is contrary to the administrative laws and regulations in order to achieve administrative purposes, and thus, there is no intentional or negligent act on the part of the violator, barring any special circumstance, such as a failure to cause any negligence on the part of the violator (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). Inasmuch as sanctions under the former Employment Insurance Act and Vocational Skills Development Act, applicable to each of the dispositions of this case, are “any fraudulent or other unlawful means” means any unlawful act committed in order for an unqualified business owner to conceal the eligibility for payment or lack of eligibility for payment, which may affect the decision-making on the payment of vocational skills development training costs (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In light of the above legal principles, it is reasonable to deem that the Plaintiff was paid training costs for vocational skills development training by fraud or other improper means in full view of the following circumstances, which can be acknowledged as admitting the background of the above disposition and the purport of the entire evidence presented earlier.

A) The Plaintiff, as an executor of the instant training course, was obligated to finally verify whether the trainees of the instant training course had been actually present and trained before filing an application for subsidies to the Administrator of the Defendant Southern Site. Nevertheless, the Plaintiff neglected such duty and applied for subsidies including D, E, F, G, and H’s training expenses, under the trust of the contents of the attendance part transferred from the training officer, without going through verification procedures as to whether D, E, F, G, and H had been actually present at the instant training course. Furthermore, in light of the fact that the instant training course is more than 30 to 60 trainees, and the duration of the instant training course is less than 4 or 10 days, the Plaintiff could not be deemed to have been aware of the fact that D, E, F, G, and H had been absent on the date of the instant training, and that there was a justifiable reason for not verifying the completion of the training course.

B) Although D, E, F, and G were unable to meet the completion requirements due to their failure to attend the training for two days or four days during the instant training course, the Plaintiff applied for training expenses for them as if they met the completion requirements, and received them from the head of the Defendant Southern Site. If the head of the Defendant Southern Site Office became aware of such fact in advance, the Plaintiff did not pay training expenses for the trainees. Therefore, it is reasonable to deem that the Plaintiff’s aforementioned act was an unlawful act committed by the business owner who is not entitled to subsidies for D, E, F, and G, and thereby affected the decision-making of the head of the Defendant Southern Site Office regarding the payment of subsidies.

2) Whether there is a reason under Article 25(1)3 of the Vocational Skills Development Act

In light of the following circumstances, which can be recognized as the whole of the arguments as mentioned above and the purport of the aforementioned detailed evidence, (i) the entry management is important and essential in the workplace skill development training course, (ii) the entry management is inadequate to the extent that the five trainees were able to attend the training course of this case by proxy, and (iii) the training course of this case was conducted against a large number of trainees with 30 to 60 persons, and the training course of this case was continued during the specific training period, and thus, the training instructors could be sufficiently aware of the absence of the trainee, despite the fact that the training instructors did not properly manage the absence of the trainee or confirm the progress of the training. In light of the above, it is clear that the training course of 4 persons among them was conducted without faithfully performing the attendance management for five trainees absent by the Plaintiff and without faithfully performing the attendance management for the five trainees, and the training course of this case was conducted in violation of the provisions of Article 24.

3) Determination on the provision of the Enforcement Decree of the instant case

Article 35(1) of the former Employment Insurance Act and Article 35(1) of the Enforcement Decree of the same Act, and a disposition ordering the return of subsidies granted during the period of restriction on payment is an act of binding force. However, there is a question as to whether the enforcement decree of the same case does not violate the principle of excessive prohibition, which provides that a person who has received, or intended to receive, vocational skills development training costs, etc. (hereinafter referred to as “unpaid person”) by false or other unlawful means pursuant to Article 35(1) of the former Employment Insurance Act, must be obliged to reimburse training costs, etc. paid during the period of restriction on payment for one year.

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 the instant provision is justifiable in light of the purpose of preventing misconduct in relation to the payment of training expenses, etc. through the restriction on the payment of training expenses, etc. for one year for illegal recipients and the order to refund subsidies paid within the restriction period, and ultimately, promoting the development and improvement of workplace skill development training of workers. Furthermore, it appears that misconduct in relation to the payment of training expenses, etc. is to be reduced through punitive sanctions prescribed in the Enforcement Decree of the instant case, and accordingly, public resources, such as funds, are to be improved more. Accordingly, the instant provision can be seen as a means suitable for achieving its legislative purpose

However, as seen below, the instant provision 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.” Therefore, a disposition of one year (from April 22, 2008 to April 22, 2009) for restrictions on the payment of subsidies under the Employment Insurance Fund Support Project by the head of the Defendant Southern Site Office based on the provision of the Enforcement Decree of the instant case, which is null and void in violation of the Constitution, and an order of return of KRW 5,46,020,034 paid during the said restriction period, shall be null and void.

A) Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount received by false or other unlawful means may be collected as a punitive meaning. Accordingly, Article 25(4)1 of the former Act on the Development of Workers’ Vocational Skills, 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 application was filed by false or other unlawful means during the past five years. Meanwhile, the instant provision, separate from the aforesaid additional collection, prescribes that the amount of subsidies paid within the said restriction period shall be limited to the amount of subsidies paid for one year, and at the same time, the instant provision provides that an order to return the subsidies paid within the said restriction period shall be issued. On the other hand, the instant provision, unlike the aforementioned additional collection, has the characteristics of disciplinary sanctions, provides for the restriction of payment for one year and the refund restriction period.

Therefore, the Defendants, like the Plaintiff, have no choice but to uniformly impose the above sanctions against small business owners whose amount of illegal receipt is extremely small, as seen above. The subsidies subject to the order to return is considerably larger than the ordinary illegal receipt amount, which may be expected by the illegal recipient, and thereby, may bring about an excessive harsh result in light of the content and degree of the violation (in the case of the Plaintiff, the amount of illegal receipt is 671,412, while the amount of subsidies paid during the period of restriction on payment is 5,466,020,034, the subsidies paid during the period of restriction on payment are 5,466,000,034, and each of the dispositions in this case orders the Plaintiff to return KRW 8,141,00,000,000 to the Plaintiff, which is 8,141,06,020,0000,0000,0000 won were stated as the date when the application for restriction on payment was received or applied for payment before the date of restriction on payment.

C) 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 paid 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 sanctions may be imposed

D) 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 measure in addition to the additional collection disposition against an illegal recipient, the provision of the Enforcement Decree of this case, which 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 attitude of the illegal recipient’s act, violates the property rights of the illegal recipient by excessively restricting it (in response, Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026 of Feb. 8, 2010, which provides for one year restriction on payment to the illegal recipient, and Article 56(2) of the Enforcement Decree of the Employment Insurance Act provides for "if three years have passed from the date of receipt of the subsidy or the incentive, and if the amount of the subsidy received or to receive is found for the first time less than three million won, it does not apply to the restriction on payment for one year period from the date of the revision of the Enforcement Decree of the Employment Insurance Act to the extent of one year.

3. Conclusion

Therefore, among the plaintiff's claims against the head of the building site, the part of the plaintiff's claim for the cancellation of the cancellation of the order of return of KRW 5,466,020,034 for one year (from April 22, 2008 to April 22, 2009) of the payment restriction under the Employment Insurance Fund Support Project and the training fees paid during the above payment restriction period is included in the purport of the claim for cancellation of the meaning of the invalid declaration. Therefore, this is justified, and it is dismissed as it is so decided as per Disposition.

Number of judges of the presiding judge;

Judges Jeong Jae-hee

Judges Yang Jae-chul

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.