2019Nu36720 Order and revocation of a decision to additionally collect additional collection, etc.

1. A;

2. C.

3. D;

4. E.

5. F;

6. H;

7. I

8. J;

Attorney Lee Dong-dong, Counsel for the plaintiffs

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

Incheon District Court Decision 2016Gudan51495 Decided January 22, 2019

August 21, 2019

September 25, 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 2,57,920 to Plaintiff A on August 8, 2016; 2,577,920; the order to return KRW 5,008,230; the order to return KRW 5,008,230; the order to additionally collect KRW 5,00; the order to return KRW 4,823,580 to Plaintiff D; the order to return KRW 4,823,580; the order to additionally collect KRW 4,823,580; the order to limit KRW 360; the order to return KRW 2,363,940; the order to additionally collect KRW 2,363,940; the order to return KRW 330; the order to return KRW 360; the order to return KRW 360; the order to additionally collect KRW 360; the order to return KRW 360; the order to additionally collect KRW 360; the order to return KRW 36360; and 484; the order to Plaintiff F.

2. Purport of appeal

In the judgment of the first instance court, the part against the plaintiffs falling under the order to revoke is revoked. The order to return each claim made by the defendant against the plaintiffs and the decision to additionally collect additional collection shall be revoked.

1. Quotation of judgment of the first instance;

The reasons for this Court concerning this case are as follows: (a) the court revises the "each of the dispositions in this case (hereinafter referred to as "each of the dispositions in this case"), such as an order to return, an additional collection, and a restriction on financing," under Section 9 or 10 of the first instance judgment (hereinafter referred to as "each of the dispositions in this case"), and the "each of the dispositions in this case")," and the "each of the administrative dispositions in the restriction on financing, additional collection (hereinafter referred to as "each of the dispositions in this case")," and (b) the judgment of the plaintiffs of this case repeated or added in the first instance judgment is as stated in the reasons for the judgment in the second instance except for the addition of the judgment as stated in Section 2

2. Additional matters to be determined;

A. Summary of the plaintiffs' assertion

1) Non-existence of the grounds for disposition

API) both the plaintiffs and their affiliated infant care teachers notified the plaintiffs and their affiliated infant care teachers as training hours of up to 21:50, and they received training hours even after the end of the training period. Unless it is proved that the actual training period of the plaintiffs' infant care teachers is less than 80%, it does not necessarily mean that the actual training period of the infant care teachers does not fall short of 80% solely on the ground that the training period under the lecture contract between AP and their affiliated lecturers does not fall short of 80%. In addition, the investigation results of the investigation by the investigation agency related to the attendance rate of the infant care teachers are limited to only some of the plaintiffs, and it is difficult to view that all of the plaintiffs did not complete the training hours. Accordingly, each disposition of this case is unlawful since it is not proven that the grounds for each disposition of this case exist by the defendant.

2) The plaintiffs' intentional or negligent absence

The Plaintiffs were used in obtaining subsidies for workplace skill development training costs by a business owner of AP. For this reason, some of the Plaintiffs were subject to a disposition without suspicion by an investigative agency or not subject to separate charges. Infant care teachers individually received certificates from AP, and they do not have to record the actual training hours received by a infant care teacher when applying for subsidies for training costs, and there is no way to know that they received certificates of completion even though infant care teacher was short of 80% of training hours. In addition, since 2014, the Plaintiffs paid training expenses by credit card, etc., and in this case, the Plaintiffs did not know that AP issued a false tax invoice because they were earlier than the date of the credit card payment. As such, the Plaintiffs did not have intention to apply for subsidies for training costs by fraud or other improper means, and the Defendant imposed a refund order and additional collection order to the Plaintiffs.

(iii) deviation from and abuse of discretionary power;

Some of the plaintiffs were suspected of having been investigated under suspicion that they were not admitted to investigation agencies or received government subsidies, such as training expenses, etc. However, the defendant was subject to each of the dispositions of this case in violation of the administrative disposition standards by the Ministry of Employment and Labor for the sole reason that the plaintiffs did not voluntarily report, without considering all the following factors: (a) whether there was any reason attributable to each of the plaintiffs' violation; and (b) whether there were any reason attributable to the plaintiffs; and (c) whether there were any reason attributable to the plaintiffs; and (d) whether there

B. Determination

(i) the existence of the reasons for the measure

A) Relevant legal principles

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

A defendant who asserts the legality of a disposition is liable to prove the legitimacy of the disposition. If there is a proof that the legality of a certain disposition asserted by the defendant can be reasonably acceptable, the disposition is justifiable, and arguments and evidence, such as the contrary circumstances, return to the other party to the disposition (see, e.g., Supreme Court Decision 2015Du42817, Oct. 27, 2016).

B) Specific determination

(1) The Defendant granted an opportunity to voluntarily report to the Plaintiffs suspected of receiving training costs on the basis of the data received from the investigative agency, but did not comply with the Plaintiffs. Accordingly, the Defendant issued each of the instant dispositions based on the data notified by the investigative agency at the time, and the criminal judgment on the AP representative, etc. was finalized as notified by the Defendant. In light of this, it is reasonable to view that there was proof to the reasonable extent that the fact that “the Plaintiffs were compensated for training costs even though they appeared under 80% of the training hours,” which constitutes the premise for each of the instant dispositions, was reasonable. (2) However, the training hours are divided into lectures and training hours, and there is no ground to support the Plaintiffs’ assertion that the training hours can be deemed to have completed the training only with the self-training of the trainees’ infant care teachers without the instructor. Moreover, there is no specific assertion and sufficient proof of what the Plaintiffs’ actual training hours, the curriculum contents, etc. received by the Plaintiffs. Therefore, this part of the Plaintiffs’ assertion is not acceptable.

2) The plaintiffs' intention or negligence

A) Relevant legal principles

Article 55 and Article 56 of the Act on the Development of Workplace Skills of Workers refers to any act that is not correct under the social norms in order to encourage a person who is not eligible to receive training costs as if he/she is qualified or to conceal the fact that he/she is not qualified, and that is affirmative and passive act that may affect the decision-making on the payment of training costs (see, e.g., Supreme Court Decisions 2011Du3777, Jun. 13, 2013). Furthermore, sanctions against violation of administrative regulations are imposed based on the objective fact of administrative regulations, which is contrary to the above administrative regulations, to achieve the purposes of administration. Thus, the sanctions against violation of administrative regulations are imposed on a person who is not a real offender, but also on a person who is prescribed as a person in charge under the statutes, barring special circumstances (see, e.g., Supreme Court Decisions 98Du5972, May 26, 200; 201Du1297, May 10, 2012).

B) Specific determination

(1) As seen earlier, the Plaintiffs filed an application for subsidization of training costs in a manner that did not verify whether each of their infant care teachers was able to file a claim for training costs because they failed to complete the training course properly, and did not verify whether they completed the training course, and whether they applied for reimbursement of training costs. Moreover, the Plaintiffs also filed an application for subsidization of training costs by attaching false tax invoices to AP. This is an act that a person who is not eligible for reimbursement of training costs is not correct under the social norms with intent to see as if he/she is qualified or not, and even in this case, it is difficult to fully secure the effectiveness

(2) On the other hand, if the training expenses are paid by credit card, the credit card settlement date may be earlier than the refund date. However, if the plaintiffs paid the training expenses by credit card, the card settlement method and the tax invoice issuance method are mixed, and if a tax invoice is issued during the payment method, the deposit date is later than the refund date and the payment date is later, a false tax invoice is issued from AP when applying for the payment of the training expenses. Therefore, even if the plaintiffs paid the training expenses by credit card for a certain period, it cannot be deemed that there is a justifiable reason to the extent that it is impossible for the plaintiffs to neglect their obligations.

(3) Examining these circumstances in light of the legal principles as seen earlier, even if some of the Plaintiffs were to be subject to a non-suspected disposition by an investigative agency or not separately admitted to an investigative agency, there is no influence on the conclusion that the Plaintiffs received training costs by false or other unlawful means. Therefore, it is reasonable to view that the Defendant may issue a return order and an additional collection order to the Plaintiffs pursuant to Article 56(2)1 and (3) of the Act on the Development of Workplace Skills of Workers. Therefore, this part of the Plaintiffs’ assertion is

3) Whether the discretionary authority is deviates or abused

A) Facts of recognition

In full view of the respective descriptions of Gap evidence Nos. 8, 11 through 16, Eul evidence Nos. 1, 2, 5, 6, 18, 19, and 20, the following facts may be acknowledged.

(1) On October 16, 2014, the Incheon Bupyeong Police Station notified the subject of administrative disposition, which is a list of child care centers related to the above act, including the plaintiffs, to the effect that the defendant prepared a false statement as if he/she received training expenses even though he/she did not receive training expenses, or that infant care teachers did not complete training more than 80% even if he/she did not complete training.

(2) On November 17, 2014, the prosecutor indicted relevant persons, including the representatives of AP, on charges of fraud, etc. In December 2014, Plaintiff E, H, C, F, I, and J were subject to the non-prosecution of “a suspected case of violating the Subsidy Management Act” (Evidence of Evidence). The rest of the Plaintiffs except the above Plaintiffs were not admitted to the investigation agency separately.

(3) On April 12, 2016, the Ministry of Employment and Labor sent a guidance, including the Defendant, to the competent administrative agency, including the Defendant, regarding the result of an investigation into the illegal receipt of training expenses by the business owner of the Bupyeong Police Station in Incheon Bupyeong-gu, Incheon (hereinafter referred to as the “instant standard”).

A business owner whose suspicion of illegal receipt and receipt is confirmed by cooperation with the investigation results of the prosecutor's office 0 (in the case of indictment) on the case where the guidance 110 prosecutor's investigation is terminated, such as the criteria for the administrative disposition on illegal receipt and the investigation results of the prosecutor's office * if the suspicion of illegal receipt and receipt is unclear as a result of the prosecutor's investigation results, it is excluded from administrative disposition where it is not clearly confirmed that the illegal act is not clearly confirmed, such as "if the suspicion of illegal receipt and receipt is unclear by the business owner, after confirming the reasons for the non-prosecution of the prosecutor's office (in the case of non-prosecution)" in accordance with the case of the suspension of prosecution and investigation under the process of the investigation / [2] Where the business owner files a voluntary report to the business owner whose illegal receipt and receipt is confirmed after separate investigation by the employment center (the same as the support and loan restriction disposition), the amount of illegal receipt and the written investigation and confirmation documents (including the supporting documents) submitted by the mail business owner, for the business owner who fails to receive the illegal receipt and payment.

The Center shall decide on whether to take an administrative disposition after checking the additional investigation, such as a business owner's attendance, etc.

(4) On May 26, 2016, the Defendant: (a) requested the president of a child care center including the Plaintiffs to prepare and submit a “written investigation of unjust payment of subsidies for training expenses” and “written confirmation” to investigate additional facts; (b) on June 10, 2016. However, the Plaintiffs did not submit a written investigation and written confirmation within that period.

B) Specific determination

In full view of the following circumstances that can be recognized based on the purport of the above facts and the entire pleadings, it is difficult to deem that each disposition of this case was in violation of the criteria of this case or was abused or abused by mistake of basic facts, and there is no other evidence to acknowledge this differently. Accordingly, the Plaintiffs’ assertion on this part is without merit.

(1) According to the instant standard, where a prosecutor’s investigation is completed and is prosecuted, the administrative agency may proceed with the process of dispositions against the business owner when verifying the data on the results of the prosecutor’s investigation and verifying the business owner’s suspicion of illegal receipt. However, where the suspicion of illegal receipt is unclear solely with the result of the prosecutor’s investigation, the administrative agency may confirm whether the business owner is illegal receipt or not through the interview investigation, confirmation, etc., and where the business owner fails to submit it,

As seen earlier, relevant persons, including the representative of AP, were indicted. The Defendant, based on the materials received from the investigative agency in accordance with the instant standard, deemed that the Plaintiffs’ infant care teachers were subsidized for training expenses by unlawful means, based on the Plaintiffs’ infant care teachers’ attendance at less than 80% of the training course, provided the Plaintiffs, who are business owners, with an opportunity to present their opinions by sending written investigation and written confirmations. However, the Plaintiffs did not present any opinion. In particular, even if they did not actually receive education, it is determined that they received government subsidies unlawfully by impliedly making relevant documents and filing an application, but there is insufficient evidence to prove intention.

In full view of this, the defendant can be deemed to have rendered each of the dispositions in this case against the plaintiffs through the investigation results data and additional investigation procedures in accordance with the standard of this case.

(2) If the Defendant voluntarily filed a report in accordance with the instant standard, he/she shall return the illegally received amount only.

However, each of the instant dispositions was taken, including the order of return, against the Plaintiffs who did not file a voluntary report. The instant criteria and the Defendant’s respective dispositions pertaining thereto are consistent with the provisions of Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers, and it is difficult to view that the submitted evidence alone is unreasonable and considerably unreasonable, or that it does not coincide with the Plaintiffs’ liability.

(3) The Act on the Development of Workplace Skills of Workers stipulates that a business owner, etc. who implements a workplace skill development project shall, in order to promote and support workplace skill development throughout the workers’ life and train technical and skilled human resources needed in the industrial field, subsidize expenses necessary for the project, and where subsidies are granted by unlawful means, certain sanctions may be imposed. However, in the case of training expenses actually provided by the Plaintiffs by unlawful means, most of the extinctive prescription for training expenses that were provided by the Plaintiffs were overfinite and impossible to return and additionally collect them. Considering the aforementioned circumstances, the disadvantages suffered by the Plaintiffs by each disposition of this case cannot be deemed excessive in light

3. Conclusion

Therefore, the plaintiffs' claims seeking revocation of each of the dispositions of this case shall be dismissed in its entirety due to the lack of grounds. Since the judgment of the court of first instance on this part is justified with this conclusion, the plaintiffs' appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

The presiding judge, Park Jong-nam

Judges Jeong Jae-ok

Judges are accommodated in judges;

1) 'AO' has been reduced as such.