2019Nu37082. Order of return and revocation of decision of additional collection, etc.

1. A;

2. C.

3. D;

4. E.

5. F;

6. G.

Attorney Lee Dong-dong, Counsel for the plaintiffs

The Deputy Director General of the Central Regional Employment and Labor Office;

Incheon District Court Decision 2017Gudan50123 Decided January 22, 2019

August 22, 2019

September 19, 2019

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

1. Purport of claim

The Defendant issued an order to return KRW 1,016,00 to the Plaintiff on September 2, 2016, issued an order to return KRW 1,016,00 to the Plaintiff; the decision to additionally collect KRW 2,864,00 from the date of the disposition; the order to return KRW 2,864,00; the decision to additionally collect KRW 2,864,000 to the Plaintiff C on September 12, 2016; the decision to restrict the loan for KRW 360; the order to return KRW 4,07,080 to the Plaintiff D; the order to return KRW 4,07,00; the order to return KRW 2,684,00; the order to additionally collect KRW 2,684,00; the decision to additionally collect KRW 00; the order to return KRW 2,750; the order to return KRW 2,270; the order to return KRW 2,864,00; and the decision to additionally collect KRW 36365.7.7

2. Purport of appeal

In the judgment of the first instance, the part against the plaintiffs falling under the following cancellation shall be revoked.

On September 2, 2016, the Defendant issued an order to return KRW 1,016,00 to Plaintiff A, the order to additionally collect KRW 1,016,00,000, the order to return KRW 2,864,000, the order to return KRW 2,864,000, the order to additionally collect KRW 2,864,000, the order to return KRW 4,07,080, the order to return KRW 4,07,07,00, the order to additionally collect KRW 4,077,00,00, the order to return KRW 2,684,00,00, the order to additionally collect KRW 2,722,750, the order to return KRW 2,722,72,72,750, the order to additionally collect KRW 750, Sept. 27, 2016, the Defendant did not revoke the order to return KRW 36,7652,7665

1. Scope of the judgment of this court;

In the first instance trial, the Plaintiffs sought the revocation of each return order and each subsequent collection decision against the Defendant, and the Plaintiffs A, C, and F sought revocation of each restriction on financing, and the court of first instance dismissed all the Plaintiffs’ claims. The Plaintiffs appealed only to the part on the claim for revocation of each return order and the subsequent collection decision. As such, the scope of the judgment of this court is limited to the part on the claim for revocation in the first instance judgment.

2. Quotation of judgment of the first instance;

The grounds alleged by the plaintiffs in the court of first instance do not differ significantly from the contents claimed by the plaintiffs in the court of first instance, and even if the evidence submitted in the court of first instance and the court of first instance are reviewed together with the allegations by the plaintiffs, the judgment of the court of first instance dismissing all of the above orders of return and the claims for revocation of additional collection

Therefore, the reasoning for this Court regarding this case is the same as that of the corresponding part of the judgment of the court of first instance, except for dismissal or addition as follows. Thus, this Court cites it in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

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○ 8.3 The following shall be added to the 3 pages:

D) Furthermore, in principle, the burden of proof in an administrative litigation to which the provisions of the Civil Procedure Act apply mutatis mutandis is allocated among the parties in accordance with the general principles of civil procedure.

In light of the aforementioned circumstances, the Defendant’s burden of proof as to the legitimacy of the disposition has the burden of proving the legitimacy of the disposition. However, in a case where there is a reasonable and acceptable proof as to the legitimacy of the specific disposition asserted by the Defendant, the disposition is justifiable, and the allegations contrary thereto and proof return to the Plaintiff, the other party, the Plaintiff. (see, e.g., Supreme Court en banc Decision 2010Du27639, Jun. 18, 2012; Supreme Court Decision 2015Du42817, Oct. 27, 2016; etc.) and the aforementioned circumstances, etc., it is reasonable to deem that the instant disposition ground that the Plaintiffs’ infant care teachers provided education for less than 80% of the training hours but received compensation for the training costs, which is beyond 18:0 through 50% of the daily training hours from AA, the Plaintiffs’ assertion that the training hours were not included in Gap’s instruction hours after the completion of the training hours from 20% to 10%.

0 The 8th parallel 4 to 9th parallel 9th parallel are as follows:

2) “False or other unlawful means” prescribed as grounds for sanctions under Articles 55 and 56 of the Act on the Development of Workplace Skills of Workers (the relationship between intention of unlawful supply and demand, etc. and each of the dispositions in this case) refers to active and passive acts that may have an impact on the decision-making on the payment of training fees, which are all acts that are not correct under the social norms with intent to see as if a person who is not eligible to receive training fees were qualified or to conceal the fact that he/she is not qualified (see, e.g., Supreme Court Decisions 2011Du377, Jun. 13, 2013; 201Du7175, Jun. 13, 2013). In addition, sanctions against violations of administrative regulations are sanctions against the objective fact of violation of administrative laws and regulations to achieve administrative purposes, so a person who is not a real offender, but a special manager is also imposed on a person provided for in the statutes and regulations.

Unless there exist any circumstances under which one’s intent or negligence may be imposed even on a violator (see, e.g., Supreme Court Decisions 2002Du5177, Sept. 2, 2003; 2012Du1297, May 10, 2012). With respect to the instant case, the Plaintiffs filed an application for the payment of training expenses as if the infant care teachers under their control completed the training course without verifying the completion of the trainee’s training course, and the appropriateness of the application for the payment of subsidies for decoration costs, although the infant care teachers under their control were unable to file a claim for training costs due to their failure to complete the training course, the Plaintiffs did not confirm the appropriateness of the application for the payment of training costs. This constitutes an act that a person who is not entitled to the payment of training costs does not seem to have been qualified or a person who is unable to conceal the fact that he/she

Therefore, even if the plaintiffs were to be subject to a disposition of no suspicion in an investigative agency or not separately admitted to an investigative agency, and even if related persons, such as the representative of AA, were punished as an indirect crime, the plaintiffs were determined to have received training costs by fraud or other improper means. Therefore, it is reasonable to view that an order for return and a disposition for additional collection may be issued pursuant to Article 56(2)1 and (3) of the Act on the Development of Workplace Skills of Workers.

0 Parts 9 9, 11 to 10, 6 shall be advanced as follows:

A) Claim on violation of discretionary rules

(1) In addition to the aforementioned evidence, the head of the Incheon Bupyeong-gu Police Station conducted an investigation into AA, etc. on October 17, 2014. The head of the Incheon Bupyeong-gu Police Station notified a person subject to an administrative disposition that he/she received a national subsidy as if he/she did not receive a training fee for at least 80% even if the head of the childcare center and the head of the education center did not receive a training fee, and notified the person subject to an administrative disposition that he/she received a national subsidy as if he/she received a training. After the prosecutor, on November 1, 2014 and July 17, 2014, the prosecutor prosecuted the relevant persons such as the representative of the AA, etc. on suspicion of fraud, but the plaintiffs were not subject to a disposition without suspicion or not. On the other hand, the Ministry of Employment and Labor, on April 12, 2016, acknowledged that the Plaintiffs submitted a report on the supply and demand of training expenses by the competent administrative agency including the Defendant, and the Plaintiffs did not present the opinion.

[1] Guidance on the criteria, etc. for administrative disposition on the case for which a business owner's illegal receipt and suspected of illegal receipt and receipt are confirmed in cooperation with the investigation results by the prosecutor's office (the case of indictment) on the case for which the prosecution investigation is terminated * the process of taking the disposition for illegal receipt and receipt * if the business owner's illegal receipt and receipt is unclear as a result of the prosecutor's investigation results, the case where it is not clearly confirmed that the illegal act is not clearly confirmed, such as "the cause for non-prosecution of the prosecutor's office (in the event of uncertainty of indictment)" by confirming the reason for non-prosecution of the prosecutor's office (in the event of uncertainty of the suspicion of illegal receipt and receipt) / Where the business owner's voluntary declaration is made by the employment center on the case for which the fact of illegal receipt and receipt is confirmed after separate investigation by the employment center (the case of voluntary report and restriction on loan) and the case for which the business owner's written investigation and confirmation document submitted by the mail delivery company is excluded from administrative disposition.

- With respect to business owners who have failed to submit a written survey and a written survey for confirmation, whether the employment center conducts an additional survey, such as a business owners’ attendance survey, and then determines whether to take an administrative disposition

(2) In light of the following circumstances acknowledged in addition to the purport of the entire pleadings, each of the instant dispositions cannot be deemed to have violated the instant standards, and it cannot be deemed to have been unlawful due to the Defendant’s non-exercise of discretion or abuse of discretion. Therefore, the Plaintiffs’ assertion on this part is without merit.

(A) According to the instant standard, in a case where a prosecutor’s investigation was completed and prosecuted, the administrative agency may proceed with the procedure for disposition against the business owner when verifying the data of the prosecutor’s investigation results and confirming the business owner’s suspicion of illegal receipt. However, in a case where the suspicion of illegal receipt is unclear solely based on the prosecutor’s investigation results, the investigation results by the prosecutor’s office can confirm whether the illegal receipt was made through the business owner’s written investigation and confirmation, etc., and, if the business owner fails to submit it, the relevant parties, including the representative of AA, etc. were indicted, and the Defendant was given an opportunity to send a written investigation and confirmation document to the Plaintiffs, who were the business owner, on the ground that the Plaintiffs’ infant care teachers were present at less than 80% of the training course, based on the data transmitted by the investigative agency under the instant standard, and thus, the Defendant did not present any opinion.

It can be seen that each of the dispositions of this case was taken against the plaintiffs following the investigation results data and additional investigation procedures.

B) In the event that the Defendant voluntarily filed a report in accordance with the instant standard, the amount of illegal receipt shall be returned, but each of the instant dispositions against the Plaintiffs who did not file a voluntary report, including additional collection and disposition with the order of return. The instant standard and each of the instant dispositions based thereon conforms to Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workers’ Vocational Skills, and it is difficult to view that the content thereof is considerably unreasonable, or that it does not

3. Conclusion

Therefore, the decision of return order and additional collection among the judgment of the court of first instance is justifiable, and the plaintiffs' appeal is dismissed as it is without merit.

The presiding judge, the whole judge;

Judges Min Il-young

Judge Lee Jin-hun