(영문) 인천지방법원 2013.4.18. 선고 2012구합4566 판결

A. The plaintiff is a corporation that operates the Green Computer Institutes Incheon Bupyeong-dong 549-6 Incheon Bupyeong-gu Incheon District Office Incheon Scambus (hereinafter referred to as the "private teaching institute of this case"), and is conducting workplace skill development training by obtaining from the Minister of Employment and Labor 41 training courses for the unemployed, 140 training courses for the employees, and 140 training courses for the employees under Article 19 of the Act on the Development of Workplace Skills of Workers (hereinafter referred to as the "Act"), and conducting workplace skill development training (the accounts-based training courses refer to the training courses under Article 18(1)1 of the Act, and the employment-based training courses refer to the training courses for improving workplace skill development training under Article 17(1)1 of the Act, and the employment-based training courses refer to the employment-based account-based joint training courses under Article 18(1)2 of the Act; hereinafter referred to as the "employee-based joint training courses for the unemployed's account-based business," the "personnel training courses for the employees' ability improvement of the workplace."

B. On July 27, 2012, the Defendant conducted a field survey on the instant private teaching institute, and discovered the following facts.

① The Plaintiff received training expenses (hereinafter referred to as “refiscing the fact of detection”) from three trainees in the government-funded training courses by discounting the tuition fees of general trainees A, B, and C who attend three courses, such as flucing design & solution-building, 'dlimbing and shopping mall building using the dlimbbandme shop', and 'welve design & shopping mall design I', which are lower than that of the government-funded training courses (hereinafter referred to as “refiscing the fact of detection”).

The Plaintiff posted the employment rate of a regular course completed unrelated to the process of the unemployed (92%) on the Internet homepage, promotional books, and promotional complexes, etc. of the instant private teaching institute without indicating that the employment rate of all processes was calculated only for the students who completed the regular course (hereinafter referred to as "advertisementd advertisements on the employment rate").

C. Accordingly, on September 18, 2012, the Defendant rendered the following dispositions with respect to the Plaintiff (hereinafter collectively referred to as “each of the instant dispositions”).

① With respect to an exaggerated advertisement for the employment rate, 38 unemployed processes under paragraph (1) of the attached Table No. 1 (excluding three processes of 'proped design and solution-building', 'dlimb & shopping mall construction', 'welve design & shopping mall design', 'welve design', 'welve design and shopping mall design', 19 (2) 5 (where vocational ability development training has been conducted in violation of recognized contents) of the Act, 6-3 [Attachment 1-2] of the Enforcement Rule of the Act, 6-3 [Attachment 1-2] of the Act, on the ground that the recruitment of trainees is "in a false or exaggerated advertisement different from the approved contents under subparagraph 5 (d) of the attached Table 1-2."

② With respect to the discount of training costs and the exaggerated advertisement for employment rate, on the ground that the number of unemployed persons under paragraph (2) of the attached Form Nos. 2 falls under three types of training costs (including "proced design & liquid establishment of shopping mall using the Dlimb," "weld design & shopping mall design I"), Article 19 (2) 5 of the Act, Article 6-3 [Attachment 1-2] of the Enforcement Rule of the Act, and Article 6-3 [Attachment 1-2] of the Enforcement Rule of the Act, on the ground that the case of receiving training costs lower than those recognized only for other trainees compared to the government trainees under subparagraph 5 (c) [Attachment 1-2] and the case of "in the case of recruitment of trainees in a false or exaggerated advertisement than the approved ones under the above item (d), one year (from September 19, 2013 to September 18, 2013) and the case was recognized as one of the above two months or less.

③ With respect to the discount of training fees, two types of the employment process under the [Attachment] No. 3 (hereinafter ‘Dlim & M&C establishment', ‘dlimb design' and ‘satise-type design') and one process of improving workers' work ability (hereinafter ‘welve design & shopping mall design I'), on the ground that the cancellation of recognition and the suspension of recognition and the restriction of recognition (hereinafter ‘disposition No. 3 of this case') are applicable to the case where training fees recognized only for other trainees compared to the government-funded trainees under the above (c).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 3, 4, 7, 9, 11, 12, and 15 (including provisional number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

A) Claim as to an unfair discount of training costs (as to No. 2 and 3 of this case)

(1) The proviso of Article 11(4) of the Regulations on the Assistance to the Improvement of Workers’ Vocational Skills (Notice of the Ministry of Employment and Labor No. 2012-18) provides that tuition fees for basic trainees may be discounted exceptionally in the case of basic trainees, disabled persons, students, etc. As such, it should also be applied mutatis mutandis to the account-based training courses. Therefore, even though the Plaintiff was granted a discount of tuition fees for general trainees A and B, it is true that the Plaintiff was less than tuition fees than the trainees of the unemployed courses, this constitutes an exception under the above provision, taking into account the circumstances such as the fact that A is unemployed and B is a student

(2) In the case of the “web design & shopping mall design I” process, only the trainees and general trainees were enrolled in the process, and there were no trainees for the process of improving workers’ vocational ability. As such, in relation to the above process established through the process of improving workers’ vocational ability, it cannot be deemed that only other trainees were paid a lower training fee than the government-funded training trainees (Chapter 2);

B) Claim on an exaggerated advertisement with employment rate (No. 1 and 2 of this case)

(1) The Plaintiff, while publishing 92% of the employment rate of those who completed the regular course, was able to be aware that it was an employment rate calculated only for those who completed the regular course, so this does not constitute false or exaggerated advertisements, and there was no possibility that the students might be mistaken for them. Even if the Plaintiff advertised the employment rate in a false or exaggerated manner, the employment rate of those who completed the instant private teaching institute does not constitute “a content recognized” under Article 19(2)5 of the Act, and thus, this cannot be the grounds for cancellation and restriction.

(2) Article 6-3 [Attachment 1-2] of the Enforcement Rule of the Act provides for the revocation of recognition and the restriction on entrustment and recognition of the relevant process for six months as a disposition standard for the recruitment of trainees through false or exaggerated advertisements. Thus, even if the Plaintiff’s act falls under the grounds for disposition, it is unlawful to revoke recognition and restrict the Plaintiff’s act as to the 15 process, which cannot be seen as “the relevant process related to the Plaintiff’s violation, since it was not actually established among 41 process for the unemployed recognized by the Plaintiff.”

2) A deviation from or abuse of discretionary power

Considering the fact that there was a substantial reason for the Plaintiff to discount tuition fees to general trainees A and B, the employment rate posted by the Plaintiff is an advertisement act ordinarily conducted at a same driving school and is not likely to be mistaken for all students, and the disposition of this case is likely to eventually close down the driving school of this case, each of the dispositions of this case is in violation of the law of deviation from and abuse of discretionary authority.

B. Relevant statutes

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

C. Determination

1) Whether there is a ground for disposition

A) Determination as to the improper discount of training costs (Disposition No. 2 and 3 of this case)

(1) Determination as to the First Claim

According to Article 19 of the Act, anyone who intends to operate a workplace skill development training course, such as the process of improving workers' workplace skill development training and the account combined training course, shall obtain recognition from the Minister of Employment and Labor (paragraph (1)); and where anyone who has obtained recognition of workplace skill development training course, has conducted workplace skill development training in violation of the recognized details, the Minister of Employment and Labor may cancel recognition of the training course (Paragraph (2) 5), and where anyone whose recognition of the training course has been cancelled for the above reasons is not granted recognition of workplace skill development training for not more than five years from the date of cancellation (Paragraph (3)), the scope and contents of recognition of workplace skill development training course - the requirements for recognition of workplace skill development training course - the detailed criteria for revocation, detailed period of recognition restriction by reason of recognition, and other necessary matters are delegated to the Minister of Employment and Labor (paragraph (4)), and Article 6-3 [Attachment 1-2] of the Enforcement Rule of the Act, if any training fee is modified at his/her discretion (including any other person who has received recognition of workplace skill development training under the Act).

According to delegation under Article 19(4) of the above Act, Article 17 of the Enforcement Decree of the Act provides for one of the "matters that recognize training expenses" (Article 2(2)2), and the Minister of Employment and Labor provides for the requirements for recognition of workplace skill development training courses and provides for separate designation requirements of workplace skill development training courses (Article 1(1)1). Upon delegation, the Minister of Employment and Labor enacted and publicly announced the "Rules on the Implementation of Accounts for Workplace Skill Development (Notice No. 2012-29, Feb. 28, 2012)" and "Rules on the Implementation of Accounts for Workplace Skill Development (Notice No. 2012-18, Jan. 20, 2012)".

Article 37 of the Regulations on the Implementation of Vocational Skills Development Accounts may be autonomously determined by the head of the training institution (paragraph (1)), and the training institution may operate a training course combining persons other than those who have been issued with the account, and shall not receive more training fees than those that have not been paid to trainees using the account in the event of a joint participation (Paragraph (3). The Minister of Employment and Labor may cancel the recognition of the relevant training course (Paragraph (4) where the training institution reduces or refunds part of the training expenses under similar names, such as scholarships, etc. to recruit trainees unfairly, and Article 11(4) of the Regulations on the Support for the Improvement of Workers' Skill Development (Article 11(4) of the Regulations on the Support for the Improvement of Workers' Skill, but the training institution may not receive more tuition fees than those for trainees who intend to obtain the support for the improvement of workers' ability, but in the case of basic daily life recipients, disabled persons, students, etc., it may discount tuition fees.

In full view of the provisions of the aforementioned relevant Acts and subordinate statutes, a training institution that operates a workplace skill development training course after obtaining recognition shall not receive training expenses and alter them arbitrarily, and in particular, considering the purpose of the workplace skill development training course to promote and support the workplace skill development of workers and train necessary human resources and the need to prevent excessive subsidies under the aforementioned system, it shall not receive training expenses lower than those recognized only for other trainees than those subsidized under the Act.

However, Article 37 (4) of the Regulations on the Implementation of Vocational Skills Development Accounts provides that where part of the training fees are reduced or refunded to a trainee in order for the training institution to unfairly recruit trainees, the recognition of the training courses can be revoked if there is a justifiable reason. In principle, Article 11 (4) of the Regulations on the Subsidies for the Improvement of Workers' Job Skills is based on the premise that a part of the training expenses can be reduced if there is a justifiable reason. In principle, it is reasonable to view that it is necessary to reduce part of the training expenses if there is an exceptional case where a training institution can not receive tuition fees higher than that of a trainee who is not receiving subsidies under the Act. In light of the principle, it is reasonable to view that it is necessary to reduce part of the training expenses if there is a need to reduce tuition fees for a general trainee, a basic life recipient, a disabled person, a student, etc. even if a general trainee needs to do so, according to the economic situation, etc., and there is no reason to treat the training fees differently.

According to the above statements, Gap evidence Nos. 3, 6, 8, Eul evidence Nos. 4, 23, and 24 (including virtual numbers) of this case, it is insufficient to acknowledge that the plaintiff received training fees less than the trainees of government-funded training courses who hear classes from the above 3, as a result of partial discount of training fees for Gap, Eul, and Eul, a general trainee who takes the above 3, as a general trainee who takes the above 11-1 and 2-1-2 of Gap evidence No. 11-2 of this case, the plaintiff's assertion that the plaintiff received training fees from the above 2-6-2 of this case's occupational ability development training under the above 5-6-2 of this case's provision that the plaintiff received training fees from the above 3-3, and there is no other evidence to acknowledge that it is not necessary to grant a discount to the above 3-2, such as a discount for additional registration, and that the plaintiff can not accept the above part of the A-6-2 of this case's provision of this case's provision.

(2) Determination as to the second proposal

According to each of the evidence Nos. 3, 23 and 24, the plaintiff's assertion on this part is not acceptable, since the trainee completed the web design & shopping mall design I in the process of improving worker's job ability.

B) Determination on the exaggerated advertisement for employment rate (Disposition No. 1 and 2 of this case)

Pursuant to Article 19(2)5 of the Act, the Minister of Employment and Labor may revoke recognition of a training course if a person who has obtained recognition of a workplace skill development training course has conducted workplace skill development training in violation of the recognized details. Article 19(4) of the Act delegates the scope of recognition, requirements, contents and validity period of workplace skill development training course, and other necessary matters. Accordingly, recognition of the workplace skill development training course under Article 17(2) of the Enforcement Decree of the Act includes the name of a person who has obtained recognition of the name, location, and recognized of the facility or institution (in cases of a corporation, the name, location, and name of the representative of the corporation), 2. The name of the workplace skill development training course, training contents, training period, training method, training method, teachers, instructors, and training expenses, and the date of recognition. Article 6-3 [Attachment Table 1-2] of the Enforcement Decree of the Act, which provides for the criteria for recognition of recognition of workplace skill development training course pursuant to delegation under Article 19(5) of the Act, including the relevant provision for recognition and approval of trainees.

Although the Defendant made a false or exaggerated advertisement about the employment rate, even if the Plaintiff made a false or exaggerated advertisement, it cannot be viewed as a case where the Plaintiff conducted training in violation of the recognized contents under Article 19(2)5 of the Act. Thus, this part of the Plaintiff’s assertion is with merit.

2) Whether the discretion is deviates or abused

A) As to the second disposition of this case

As seen earlier, an exaggerated advertisement with the employment rate cannot be the ground for the Disposition No. 2 of the instant case, but the unfair training fee manager may be the ground for the disposition. Thus, we examine the assertion of deviation and abuse of discretion as to the Disposition No. 2 of the instant case.

Based on the premise that both an unfair discount of training expenses and an exaggerated advertisement for employment rate can be the ground for the above disposition, the defendant added the period of recognition restriction to six months each, which is the upper limit of the disposition standards (Revocation of recognition, and the entrustment of and restriction on recognition for the pertinent six months) under subparagraph 5 (c) and (d) of [Attachment 1-2] of Article 6-3 of the Enforcement Rule of the Act, based on the premise that the above disposition can be the ground for the above disposition, and the defendant taken a disposition to revoke recognition and to restrict entrustment and recognition for one year. As seen above, in light of the above, the exaggerated advertisements cannot be the ground for the disposition of subparagraph 2 of this case, the instant disposition 2 of this case

B) As to the disposition No. 3 of this case

In addition to the facts found above, the following circumstances revealed in the records and arguments of this case: ① Workplace skill development training is conducted with limited financial resources, such as budget and employment insurance fund under the Employment Insurance Act; ② public interest is very high to promote the stabilization of workers’ employment, social and economic status, and the enhancement of corporate productivity; ② the management and supervision on whether training courses are conducted as originally recognized, should be thoroughly conducted in order to achieve the purpose of workplace skill development training course; ③ the instant disposition does not restrict the operation of the instant private teaching institute; rather, the instant disposition does not restrict the operation of the private teaching institute; rather, it is difficult to deem that the Plaintiff’s private interest is excessively infringed upon when compared with the public interest to be achieved by the instant disposition. In light of the above, it is difficult to deem that the instant disposition 3 disposition deviates from and abused discretionary power.

3) Sub-decisions

Therefore, the first disposition of this case does not have a legitimate ground for disposition, and the second disposition of this case is deemed to be an unlawful act that deviates from or abused discretionary power, so it must be revoked accordingly.

3. Suspension of validity;

According to the records of this case, the validity of the first and second dispositions of this case is recognized to be urgently needed to prevent irrecoverable damage to the plaintiff due to the validity of the first and second dispositions, and there is no other evidence to recognize that such suspension may have a significant impact on public welfare, and thus, the validity of the first and second dispositions of this case shall be suspended ex officio until the judgment of this case

4. Conclusion

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

Judges

The presiding judge and judges;

Judge Min-young

Judges Yoon Jae-sung

Attached Form

A person shall be appointed.

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