(영문) 부산고등법원 창원재판부 2017.2.3. 선고 2016누11653 판결

On February 24, 2016, the Defendant revoked the recognition of the workplace skill development training course conducted by the Plaintiff on February 24, 2016, the revocation of the recognition of the national qualification of an assistant nurse during the course of one year, and the restriction of entrustment and recognition of the relevant course shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Quotation of judgment of the first instance;

The court's explanation on this case is the same as the reasoning of the judgment of the court of first instance, except for the dismissal of the reasons for the judgment of the court of first instance as follows. Thus, it refers to Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ From the third side of the judgment of the first instance court, the phrase “No. 5” in the sentence No. 7 shall be deemed to read “No. 5 and No. 3. The part of the first instance court’s first instance court’s third side to No. 4 through No. 5, No. 11 [Attachment 1-2] is as follows. (1) Article 6-3 [Attachment 1-2] of the Enforcement Rule of the Vocational Skills Development Act provides that “The restriction on consignment and recognition shall be effective only in cases where the relevant training institution entrusts the relevant training course only (hereinafter referred to as “restricted on consignment and recognition of the whole process”) to the relevant training course pursuant to Article 19 of the Act: Provided, That the same shall not apply to cases where the restriction on consignment and recognition of the relevant process” is divided into the “restricted on consignment and recognition of the relevant training course” in addition to the relevant training courses on which the act of violation was committed and the “restricted on consignment and recognition” shall be effective only in the relevant process.

2) Article 19(2)5 of the Vocational Skills Development Act provides that "the Minister of Employment and Labor may issue a corrective order or revoke recognition of training courses where a person who has been recognized as a vocational skills development training course violates the details recognized as a vocational skills development training course," and Article 19(3) of the same Act provides that "if a person whose recognition is revoked pursuant to paragraph (2) (excluding a person whose recognition is revoked as he/she falls under subparagraphs 2 through 4 of paragraph (2) is less than the amount prescribed by Presidential Decree, he/she shall not be entrusted with workplace skill development training under Article 16(1) and recognition under Articles 16(1) and 24 of the Enforcement Rule of the same Act within five years from the date of revocation, and if such training courses are revoked, it is reasonable to deem that the person violates Article 6-3 [Attachment 1-2] of the Enforcement Rule of the same Act to recognize the relevant training course to the extent that he/she can not be recognized as a violation of Article 19 of the Vocational Skills Development Act."

3) Meanwhile, the Enforcement Rule of the same Act [Attachment 1-2] 1.3] only provides for the sanctions against the pertinent training courses conducted in violation of Article 6-3 [Attachment 1-2] of the Enforcement Rule of the same Act [Attachment 1-2], and does not include the same and similar training courses as those subject to sanctions. Therefore, the revocation of recognition of the relevant training courses for occupational ability development and the restriction on entrustment and recognition of the relevant courses is an influence disposition that restricts the operator’s freedom of business, and thus, the relevant provision should be strictly construed and applied.

4) The pertinent guidelines of the Ministry of Employment and Labor, based on the instant disposition, by the Defendant (where 70% or more is similar, the entire process is deemed to be the same) are merely an administrative rule issued by a superior administrative agency to determine the business performance guidelines or the criteria for the interpretation and application of statutes, and does not have external binding force. If sanctions can be imposed on the same process solely on the basis that the gasium is similar, the term “similar” means that the standard is the same, and the scope of sanctions can be determined by arbitrary interpretation of the administrative agency (at least 70%, the standard is ambiguous in comparison method, etc.).

5) Furthermore, in light of the fact that the instant training courses are conducted for employees in office, and are conducted for 60 hours only on a monthly basis, while the instant national qualification training courses are conducted for the unemployed, the instant national qualification training courses are conducted for 12 months, and there is a difference between the subject of training and training hours, such as training for total 1,570 hours (i.e., 784 hours during practical period + 786 hours during theoretical period) for 12 months, and there is a difference between the subject of training and training instructors and instructors, and 3.8% of the number of training courses in the process of acquiring national qualification certificates, the difference between the subject of training and training instructors and instructors, and the ratio of the course of acquiring national qualification certificates is 3.8%, both are commonly aimed at acquiring the qualification certificate of assistant nurse, and the former is part of the latter.

6) Therefore, in the instant case, the Plaintiff was trained in excess of the prescribed number in the instant training course. Therefore, it is reasonable to deem that a disposition to revoke the recognition of the relevant training course and to restrict the entrustment and recognition of the relevant course, i.e., the instant training course, can be revoked and a disposition to restrict the entrustment and recognition, pursuant to the relevant statutes.

2. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.