Revocation, such as an order to return workplace skill development training subsidies, etc., 2012Gu 20182

A Stock Company

The Head of Seoul Regional Employment and Labor Agency

October 31, 2012

November 23, 2012

1. On June 23, 2011, the order issued by the Defendant to return KRW 488,04,300 to the Plaintiff is revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 1/20 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The order of Paragraph 1 and the defendant issued a return order of KRW 83,220 to the plaintiff on June 23, 2011 and the disposition of additional collection of KRW 249,660 shall be revoked.

1. Details of the disposition;

A. On April 16, 2008, the Plaintiff was recognized as a vocational skills development training course with respect to the “S improvement program” (the training period: April 17, 2008; May 6, 2008; May 7, 2008; the number of trainees was 17 hours in total for 3 days on May 7, 2008; the number of trainees: 12 persons; the number of trainees; hereinafter referred to as the “training course in this case”).

B. After implementing the instant training course, the Plaintiff filed an application for subsidization of training expenses for eight trainees who completed the training course, and received KRW 665,792 on November 28, 2008. The head of the Gwangju Regional Employment and Labor Office rendered a notification of the fact that the Defendant, who was an employee of the Plaintiff, was in stay in a foreign country at the time of April 17, 2008, falls short of the completion standards for paying subsidies (at least 80% of the attendance rate). Although C, who is an employee of the Plaintiff in charge of the instant training course, signed the attendance card on behalf of B, was confirmed to have been treated as normally attending the instant training course, and notified the Plaintiff of the revocation of recognition of the instant training course on May 25, 201. The Defendant notified the Plaintiff of the fact that the Plaintiff’s illegal withdrawal management from the head of the Gwangju Regional Employment and Labor Office was subject to the instant administrative disposition on June 23, 2011 as follows.

A person shall be appointed.

A person shall be appointed.

[Ground of recognition] Evidence No. 1-3, Evidence No. 1-8, Evidence No. 1-8, and the purport of the whole pleadings

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

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The plaintiff applied for training expenses without finding the facts of his attendance in B, and the plaintiff's act is merely the number of actual business affairs, and it cannot be deemed that the plaintiff was provided with training expenses by fraud or other improper means.

2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) that provides that the payment of training expenses shall be restricted for one year from the date of illegal receipt and payment, and that the payment of training expenses already paid shall be ordered to be returned without any condition to the training expenses already paid shall be null and void as a provision contrary to the principle of proportionality. Thus, the third disposition that was issued based on the above provision is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether there is a ground for disposition

A) “False or other unlawful means” that 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 instant dispositions, refers to any and all unlawful acts committed by a business owner who is not eligible for general payment in order to conceal the eligibility for, or is not eligible for, payment of, vocational skills development training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

B) We examine the instant case, i.e., the following circumstances acknowledged by the facts of recognition, the evidence as above, and the purport of the entire pleadings, i.e., ① the Plaintiff’s employee B was present at the training course from April 16, 2008 to April 20, 208 and the Plaintiff’s employee’s presence at the training course was written differently from the fact that the Plaintiff did not participate in the training course on his behalf and participated in the training course. ② The Plaintiff’s absence of attendance at the training course was due to foreign travel with the Plaintiff’s approval and signed by the employee in charge of the training course of this case, and the Plaintiff was well aware that the Plaintiff would not have been present at the training course of this case (the Plaintiff’s absence of knowledge of the Plaintiff’s presence at least 208, 5, and 6). In light of the Plaintiff’s lack of sufficient knowledge of the Plaintiff’s participation in the training course and the Plaintiff’s failure to report the Plaintiff’s absence of knowledge of the Plaintiff’s participation in the training course.

2) Whether the statutes on the basis of the third disposition are null and void

A) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) (hereinafter “Enforcement Decree of the instant case”) provides that a disposition ordering the establishment of a period of restriction on payment and the return of subsidies, etc. granted during the period of restriction on payment constitutes a binding act. However, it is problematic whether the enforcement Decree of the instant case, which provides that a person who received or attempted to receive subsidies, etc. by fraud or other improper means (hereinafter “unlawful recipients”) according to delegation under Article 35(1) of the former Employment Insurance Act, shall be obliged to return the entire amount of subsidies, etc. granted during the period of restriction on payment, without paying subsidies, etc. for one year for which payment is made, is in violation of the principle of excessive prohibition under the Constitution.

B) In light of the fact that workplace skill development training is conducted with limited public resources, such as employment insurance fund under the Employment Insurance Act, etc., the legislative purpose of the instant provision 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 through the restriction on the payment of subsidies for one-year period for illegal recipients and orders to return subsidies within the restriction period for payment of training expenses, and that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Enforcement Decree of the instant case, the legislative purpose of the instant provision is justifiable. In addition, it appears that the act related to the payment of training expenses, etc. is to be reduced through disciplinary sanctions under the Enforcement Decree of the instant case, and accordingly,

However, as seen below, the enforcement decree of this case 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."

Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount of subsidies already paid by fraud or other improper means may be collected as punitive sanctions. Meanwhile, the instant provision provides that, apart from the aforementioned additional collection restriction period, subsidies, etc. shall be limited to those for an illegal recipient for one year, and that if subsidies, etc. were paid during the said restriction period, they shall be returned to all regardless of whether they were paid by fraud or other improper means. Unlike the provision on additional collection restriction, the provision on the Enforcement Decree of the instant case provides that, unlike the above provision on grounds of the aforementioned additional collection restriction period, only the provision on the restriction on payment and the order for return of subsidies, etc. that were paid during the restriction period for one year can be uniformly determined based on the content or degree of the offense, which is far more than the provision on the additional collection restriction period, and that the amount of subsidies, etc., which were paid to an illegal recipient for more than the amount of subsidies that were paid by the Plaintiff, the Defendant may not be deemed to have been denied by 20 years prior to the date of application for the foregoing restriction on payment.

In addition, the enforcement decree of this case also provides that the payment restriction and the return order of the subsidy paid during the payment restriction period shall be mandatory for one year from the date on which the person received the subsidy, etc. or applied for the payment, but there is a problem that the status of the illegal recipient is unstable for a long time due to the lack of special restrictions within the time limit for the above

Meanwhile, even if Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of delegation to Presidential Decree, the scope or limitation of inherent delegation by the legislative purport or purpose, etc. of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Nu6578, Jul. 22, 1997). In light of the fact that various types of violations, such as various subsidies granted under the former Employment Insurance Act, are likely to occur in the nature of various types of violations, the legislative purpose of the above provision, 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 competent administrative agency can increase and decrease the scope of delegation within a certain scope, regardless of the type of misconduct, its degree, motive, consequence, etc., or it is consistent with the legislative purport of the above provision, and thus, it is consistent with the legislative purport and purpose of the provision of the Act.

Article 56 (2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides for the restriction on payment of subsidies for one year to illegal recipients: Provided, That the same shall not apply to cases where three years have passed since the date of receipt of subsidies or incentives, or where the amount received or intended to receive subsidies by fraud or other improper means is less than three million won and where fraudulent acts have been discovered for the first time, the restriction on payment for one year shall not apply. Article 56 (1) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) provides that "a return of subsidies already received by fraud or other improper means shall be ordered", and Article 56 (2) of the Enforcement Decree of the Employment Insurance Act provides that "the Minister of Employment and Labor may order a person who has received or intended to receive any one of the subsidies under paragraph (1) by fraud or other improper means to the extent that the subsidy was newly limited by one year as a result of the amendment.

Therefore, in addition to Article 35(2) of the former Employment Insurance Act that can additionally collect and impose disciplinary sanctions against illegal recipients, the legislative purpose of this case can be more efficiently achieved by prescribing the provisions of the Enforcement Decree of this case in duplicate, but the provision of the Enforcement Decree of this case provides for the order to restrict the payment for one year and order to return the total amount of subsidies, etc. paid during the period of restriction on the payment to the illegal recipients without reasonably subdividing the standards according to the type of the illegal recipients’ act.

○ Ultimately, Article 3 of the Enforcement Decree of the instant case, which is null and void due to a violation of the principle of proportionality and the purport of delegation of the parent law, is unlawful.

3) Therefore, Article 3 of the instant dispositions is unlawful, and all remaining dispositions are lawful.

3. Conclusion

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

the presiding judge and deputy judge

Judges Yang Yang-ju

Judge Kim Gin-hun

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.