2011 Gohap4932 Revocation of a restriction on payment of costs, etc.

A Stock Company

Daejeon Head of Local Employment and Labor Agency

April 25, 2012

May 30, 2012

1. The Defendant’s disposition of restricting the payment of expenses against the Plaintiff on October 14, 201, from October 17, 2008 to October 16, 2009, and the order to return KRW 703,029,180, which was issued against the Plaintiff.

2. The plaintiff's remaining claims are dismissed.

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

The Defendant’s order to return KRW 126,670 against the Plaintiff on October 14, 201; order to additionally collect KRW 126,670; order to restrict the payment of expenses from October 16, 209 to October 16, 2009; and order to return KRW 703,029,180.

1. Details of the disposition;

A. On March 28, 2008, the Plaintiff was recognized as a vocational skills development training course for “B” (the training period: the total of 23 hours from April 10, 2008 to April 29, 2008; hereinafter “instant curriculum”) to be conducted by the head of the Gangnam Branch Office of Seoul Regional Employment and Labor.

B. After implementing the instant curriculum for 37 employees C and D, the Plaintiff applied for subsidies for vocational skills development training expenses related to the instant curriculum to the head of the Seoul Regional Employment and Labor Office, and received the total amount of KRW 2,344,986 on October 16, 2008, and the subsidies included KRW 126,670 for C and D training costs. The head of the Seoul Regional Employment and Labor Office Gangnam Branch Office requested the Board of Audit and Inspection and the Ministry of Employment and Labor to investigate whether his or her improper decision-making management was conducted, along with the list of trainees who entered and departing from the Republic of Korea during the vocational skills development training period. As a result, C and D, who are the Plaintiff’s employees, was an overseas business trip during the education period, confirmed that they did not appear during the pertinent curriculum, and notified the Defendant of the fact that they did not appear during the training period.

D. On October 14, 2011, the Defendant notified the Plaintiff of the illegal receipt of subsidies for the management of the Plaintiff’s illegal withdrawal by the head of the Gangnam District Office of the Seoul Regional Employment and Labor (hereinafter “Seoul Regional Employment and Labor Office”) under Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) and Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter the same shall apply) of the restriction on payment to the Plaintiff for one year (from October 17, 2008 to October 16, 2009) and the suspension period of payment, the Defendant issued a notice of the fact that the Plaintiff’s illegal receipt of subsidies for the subsidy was entered in the return of KRW 703,029,180 (hereinafter “the instant restriction on payment and the return thereof”), and that the Plaintiff’s return or additional collection was made.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff did not receive training expenses as “any false or other unlawful means.”

(2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which is a basis for the instant restriction on payment and the return disposition accordingly, goes beyond the bounds of delegated legislation and is null and void in violation of the principle of excessive prohibition under the Constitution.

(3) Each of the instant dispositions taken by the Defendant on a different premise should be revoked in an unlawful manner.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The instant curriculum is a self-training conducted by the Plaintiff, and the number of trainees is 40.

(2) As a trainee of the instant curriculum, C/D, who is the Plaintiff’s employee, left Korea from April 23, 2008 to October 30 of the same month, and was not present in the curriculum on April 28, 2008 and April 29 of the instant curriculum, but other employees signed the attendance book and confirmed the attendance on behalf of the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 6, 7 (including virtual number), Eul evidence Nos. 4 and 5, the purport of the whole pleadings

D. Determination

(1) As to whether the Plaintiff received training expenses by "any false or other fraudulent means"

"False or other unlawful means" under Article 35 of the former Employment Insurance Act refers to all unlawful acts conducted by an unqualified business owner in order to conceal the eligibility for payment or to conceal the eligibility for payment by the unqualified business owner, which may affect the decision-making on the payment of new employment promotion incentives (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In light of the following circumstances revealed by the aforementioned evidence, i.e., ① stated differently from the facts that C and D did not participate in the part of the curriculum of this case, ② subsidies for training expenses are required to be confirmed because they were paid according to the attendance of the Plaintiff. ③ The curriculum of this case was conducted by the Plaintiff himself, and the number of the Plaintiff was only 40, and C and D were not present in the curriculum of this case due to overseas business trip to perform the Plaintiff’s duties. In light of the above circumstances, it is reasonable to deem that C and D were well aware of the fact that they did not attend the curriculum of this case. Even if they were not aware of the fact, they could have been aware of the fact that C and D did not attend the curriculum of this case, and therefore, there was negligence with the Plaintiff. Thus, this part of the Plaintiff’s assertion is without merit.

(2) Whether the delegation legislation limits are exceeded

In a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of whether the subordinate statute complies with the limits of delegation should be made by comprehensively examining the legislative purpose and content of the pertinent provision, structure of the provision, and relationship with other provisions. In a case where the delegation provision itself clearly states the limits of delegation by using terms with which accurate contents can be identified, whether the delegation provision exceeds the limits of its literal meaning, or whether a new legislation was made beyond the bounds of delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see, e.g., Supreme Court Decision 2009Du17797, Apr. 29, 2010).

Article 35 (1) of the former Employment Insurance Act provides that "the Minister of Labor may order a person who has received or intends to receive subsidies or vocational skills development training programs under this Chapter by fraud or other improper means to restrict such subsidies or to return the subsidies already provided, as prescribed by Presidential Decree," and Article 35 (2) of the same Act provides that "the Minister of Labor may additionally order a person who has received or intends to receive subsidies, incentives, or vocational skills development training expenses under paragraph (1) by fraud or other improper means, to return the subsidies or vocational skills development training expenses under paragraph (1)." Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act provides that "the Minister of Labor shall order a person who has received or intends to receive subsidies, incentives, or vocational skills development training expenses by fraud or other improper means for one year from the date on which he/she has received or applied for subsidies, incentives, or vocational skills development training expenses, and the Minister of Labor shall order a person to return subsidies, incentives, or vocational skills development training expenses paid during a restriction period."

On the other hand, Article 35 (1) of the former Employment Insurance Act provides that "restriction on support" and "an order to return" are "an additional collection disposition" and Article 35 (2) of the same Act provides that "an additional collection disposition" shall take effect in the future from the date of such disposition. In interpreting the provision of the law, "restriction on support" must clearly indicate the meaning of "in order to restrict retroactive support" in the law. Article 35 (1) of the former Employment Insurance Act provides that "an order to return subsidies already paid shall be recovered through the return order," and Article 35 (2) of the former Employment Insurance Act provides that "an additional collection order" and "an additional collection order shall take effect in the future," and Article 35 (2) of the former Employment Insurance Act provides that "an additional collection order shall take effect in the future from the date of such disposition to the date of its initial enforcement," and Article 35 (1) of the former Enforcement Decree of the Employment Insurance Act provides that "an additional collection order shall take effect in the future."

(2) Whether the principle of excessive prohibition is violated

Article 35(1) of the former Employment Insurance Act and Article 56(2) of the Enforcement Decree of the same Act (hereinafter “Enforcement Decree of this case”) stipulate the form of the provision of Article 35(1) of the same Act and Article 56(2) of the same Enforcement Decree of the same Act, the establishment of the period of restriction on payment, and the return of subsidies granted during the period of restriction on payment constitutes a continuous act. It is a question of whether the enforcement Decree of this case, which provides that, under Article 35(1) of the former Employment Insurance Act, an illegal recipient who has received, or attempted to receive, vocational skills development training expenses, etc. by fraud or other improper means, must be ordered to refund training expenses,

In this case, the enforcement decree of this case provides for training expenses, etc. for one year for fraudulent recipients.

The legislative purpose of this case is to prevent unlawful acts related to the payment of training expenses, etc. and ultimately to promote the development and improvement of workers’ vocational ability by issuing an order to refund subsidies within the period of restriction on payment and the payment restriction, and 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, the legislative purpose of this case is justifiable. In addition, it appears that unlawful acts related to the payment of training expenses, etc. are to be reduced through disciplinary sanctions prescribed in the Enforcement Decree of this case, and accordingly, it is deemed that the amount of public resources, such as the Fund, will be improved compared to

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."

① Article 35(2) of the former Employment Insurance Act provides that a person may collect an amount equivalent to or less than the amount received by fraud or other improper means within a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act and 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 stipulate that the amount to be additionally collected shall be calculated based on the number of times a person has applied for expenses by fraud or other improper means during the past five years. Meanwhile, separate from the aforesaid additional collection disposition, the provision of the Enforcement Decree of the same case provides that the amount of subsidies paid within the said restriction period shall be limited to the amount of subsidies paid to the illegal recipient for one year, and at the same time, the order to return the subsidies within the said restriction period shall be imposed uniformly, unlike the aforementioned additional collection disposition, on the other hand, the Plaintiff and the small amount of subsidies that are subject to additional collection may not be denied.

(2) In addition, since the provision 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 a sanction was imposed, the illegal recipient shall return retroactively the amount already received prior to the sanction. However, if the illegal recipient knew in advance that the payment of training expenses, etc. would be restricted for one year, he/she may flexibly conduct the training course during the restriction period and reduce the amount of the order for return, and it is not unreasonable to operate the training course. Ultimately, even if the provision of the Enforcement Decree of this case stipulates the restriction on payment as a binding act, it cannot be deemed that the initial date of the provision of this case stipulates the date of payment or the date of application for payment as the date of payment for training expenses, etc. may reduce the damage suffered by the illegal recipient by providing for different reasons.

③ 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 received 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 disciplinary measure may

④ Therefore, even if the legislative purpose of the instant provision, which is a disciplinary measure, can be more effectively achieved by stipulating the same in addition to the additional collection disposition against illegal recipients, the provision of the Enforcement Decree of the instant case, which is a disciplinary measure, provides for the restriction on payment for one year and the order for return of subsidies paid during the restriction period, without setting detailed standards depending on the pattern of the unlawful act committed by the illegal recipients, is an infringement by excessively restricting the property rights of the illegal recipients (see 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 recipients; however, the provision provides for the restriction on payment for one year and three years after the date of receipt of the subsidies or the incentive, which is less than three million won and where the first fraudulent act is discovered, the restriction on payment for one year and three years after being amended by Presidential Decree No. 22603, Dec. 31, 20101>

(4) Therefore, the instant restriction on payment and its return based on Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which deviates from the limitation of delegated legislation, and is null and void due to a violation of the principle of excessive prohibition under the Constitution, is unlawful.

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, judge and officer

Judges Jeon Jae-il

Judges Lee Jae-sung

A person shall be appointed.

A person shall be appointed.