(영문) 광주지방법원 2014.1.16. 선고 2010구합337 판결

1. On January 22, 2010, the Defendant’s disposition to revoke the designation of a vocational ability development training establishment as of January 29, 2010 on the part exceeding 381,240 won among the disposition to entrust or to recognize the Plaintiff for three months as a whole, and the disposition to return training fees of KRW 1,770,510, and the additional collection of KRW 1,770,510 for one year of vocational ability development training expenses, and the disposition to revoke the designation of a vocational ability development training establishment as of January 2

2. The plaintiff's remaining claims are dismissed.

3. One-six of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Disposition to revoke the designation of a vocational skills development training establishment among dispositions referred to in paragraph (1) shall be suspended until the judgment of this case becomes final and conclusive;

Purport of claim

The Defendant’s disposition of restriction on recognition of entrustment for three months on January 22, 2010 to the Plaintiff, disposition of restriction on commission and recognition for one year for the pertinent training course, return of KRW 1,770,510 for the pertinent training course, additional collection of KRW 1,770,510 for one year for vocational skills development training expenses, disposition of restriction on payment for one year for vocational skills development training expenses, and disposition of cancellation of designation of the designated occupational training establishment on January 29, 2010 (hereinafter “disposition of unjust receipt training expenses and application for change of reason”), and revocation of designation of the designated occupational training establishment on January 29, 2010 (hereinafter “disposition of additional collection of KRW 3,541,020”) appears to be a clerical error in the “disposition of illegal receipt training expenses, return of KRW 1,770,510, and additional collection of KRW 1,770,5

Reasons

1. Details of the disposition;

A. The Plaintiff is operating the Cwork Special School located in Gwangju Northern-gu B (hereinafter referred to as the “instant facilities”). The instant facilities were designated as training facilities for the development of vocational abilities under the Act on the Development of Workplace Skills of Workers from the Defendant.

B. The Plaintiff and the Defendant set the training course for ubiquitous system control (hereinafter referred to as the "quota training course of this case") as one year (from March 2, 2007 to March 1, 2008) for the training period of one year, and entered into an entrustment contract of each case (hereinafter referred to as the "contract of this case") with respect to the indoor design training course for six months (from September 17, 2008 to March 16, 2009) for the training period of six months (hereinafter referred to as the "indoor design training course of this case"). The indoor construction training course of this case is called the "indoor construction training course of this case", and each of the above training courses is called the "in each of the above training courses of this case" as one year for the training period of one year (from March 2, 2007 to March 1, 208).

C. On January 22, 2010, the Defendant denied the Plaintiff’s measure of KRW 1,770,510 (i.e., KRW 369,230 + KRW 1,401,280) of training expenses by managing the Plaintiff’s release from the Republic of Korea during each training period under Article 16 of the former Enforcement Decree of the Employment Insurance Act (amended by Act No. 11272, Feb. 1, 2012; hereinafter “former Enforcement Decree of the Employment Insurance Act”) (amended by Presidential Decree No. 1360, Aug. 25, 2010; hereinafter “former Enforcement Decree of the Employment Insurance Act”). The Defendant’s measure of KRW 1,770; hereinafter “the former Enforcement Decree of the Employment Insurance Act” under Article 16 of the former Enforcement Decree of the Employment Insurance Act (amended by Act No. 11271, Dec. 31, 2008; hereinafter “the former Enforcement Decree of the Employment Insurance Act”).

[Reasons for Recognition] Evidence No. 3, Evidence No. 6-6, and Evidence No. 7

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) The plaintiff was unaware of the fact that the trainee D, F, and E (hereinafter referred to as "D, etc.") had been present on behalf of the trainee, and as long as the plaintiff was aware of this fact and did not receive training expenses, the plaintiff cannot be deemed to have managed the withdrawal of D, etc. by fraud or other improper means, or to have received training expenses.

2) According to the rules on the implementation of workplace skill development training including the unemployed (hereinafter “training rules”), after concluding an entrustment contract with the instant facility and the Defendant, the Plaintiff expressed his intention to attend the training on the eight-day basis of the eight-day day after the Plaintiff started the training, and, i.e., the “a fixed trainee,” who participated in the training for more than one day, shall be regarded as an entrusted trainee under the consignment contract. At the time when the F was absent, the Plaintiff cannot be deemed to have a duty to attend the training with the F, and even if the Plaintiff was unaware of the attendance of F’s proxy, it cannot be said that there was gross negligence on the part of the Plaintiff. Accordingly, it cannot be said that the case where the Plaintiff received training expenses by fraud or other improper means or managed the withdrawal by improper means.

3) Although F shall be deemed to constitute an illegal receipt of training costs during the period of actual acting attendance, the Defendant is erroneous in recognizing training costs for the entire training period as an illegal receipt amount after the substitute attendance.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) The facility of this case confirms the presence of trainees by card. According to the training regulations, where attendance is not confirmed by card due to unavoidable reasons, the attendance status of trainees may be entered in the ex officio computer network (Article 30(4)), and where trainees continue to absence for more than five days without justifiable reasons, such as natural disasters, etc., the trainee shall be excluded from the training subject if he/she is represented by a method such as leaving his/her card to other trainees (Article 31(1)1 and 5): Provided, That where trainees fail to undergo training through national examinations, job examinations, etc., the training shall be deemed to have been conducted according to the number of days required (Article 30(2)).

(ii) management of withdrawal from D, etc. and receipt of training costs;

A) The trainees D of the instant ubiquitous training course were absent on November 2, 2007, and the trainees E of the instant indoor architectural training course from December 27, 2007 to February 28, 2008 (33 days), and the trainees F of the instant indoor design training course were absent on September 17, 2008 (1 day).

B) The Plaintiff continued the pertinent training courses for D, etc., and had D, etc. complete each relevant training course.

C) The amount that the Plaintiff received from the Defendant as training expenses for E includes 12,010 won received due to the failure to dispose of them for 33 days from January 12, 2007 to February 28, 2008, as training expenses for E, and 369,230 won received due to the failure to dispose of them as training expenses for 33 days from February 28, 2008.

[Reasons for Recognition] Facts without dispute, purport of whole pleading

D. Determination

1) The meaning of "any false or other fraudulent means" under Article 16 (2) 2 of the former Functional Development Act

"False or other unlawful means" under Article 16 (2) 2 of the former Vocational Development Act refers to all acts that are not correct by social norms in order for a person who is not qualified to receive training costs to see as if he/she is qualified or to conceal the fact that he/she is not qualified, and "training costs" refers to expenses that are paid in compensation for training conducted by a person who is entrusted with workplace skill development training (hereinafter referred to as a "trustee"). Even if a trainee has not received training, if a trustee claims training costs differently from the fact that he/she has received training due to a violation of the legal or contractual obligations under the law or contract on the management, etc. of rehabilitation of trainees, etc., if a trustee claims training costs differently from the fact that he/she has not received training, such training costs should be viewed as "false or other unlawful means".

In addition, even if a trustee conducted training for a trainee and requested the payment of such training, if the trainee had already been removed from such training, and the training teacher, etc., who is subject to his/her management and supervision, knowingly conducted training in violation of the legal or contractual obligations that require the expulsion of the trainee, he/she shall not be paid for due process, so it is reasonable to interpret that training costs are not merely a violation of the consignment contract, but also a fraudulent or other unlawful method (see Supreme Court Decision 2011Du377, Jun. 13, 2013).

2) Whether the instant entrustment contract was lawfully terminated

A) In light of the above facts, if D et al. did not receive training but claimed training expenses differently from the fact that D et al. had received training, it would not be actually paid. Thus, even if D et al. knew of the fact that D et al. did not receive training, it would be deemed that D et al. received training expenses by fraud or other improper means (Article 21(4) of the Training Regulations provides that "the fixed entrusted trainee shall be deemed to have been conducted from the date of commencing the training," and the F would have been a final trainee. In light of the above provisions, it is reasonable to deem that D et al. had the duty to conduct the conclusion management as long as the training was commenced even before it becomes a final trainee).

B) In addition, considering the following circumstances, i.e., training regulations and guidelines for the vocational training card system, and the contents of the consignment contract for each of the training courses of this case, the plaintiff's duty of supervision should be more carefully paid to the above facts, since the entry management is important and essential in the vocational training course, ② in the case of the electronic presence check using a card, the electronic presence check can be easily conducted, so the person responsible for supervision must pay more attention to this point; ③ the failure of entry management was made to the extent that the physical check could have been made for 33 days; ③ the plaintiff's duty to immediately remove the trainee if there was an act such as the substitute check, etc., although it was not known that the training for the trainee was paid the same training fee as the lawfully implemented, unlike the fact that the training for D, etc. was not faithfully managed due to the negligence of management, and as a result, the plaintiff's failure to conduct the entry management for D, etc., and received the training fee in violation of the consignment agreement.

C) Therefore, the instant consignment contract was lawfully terminated in accordance with Article 16(2)2 and 3 of the former Vocational Development Act.

3) Whether there exist grounds for the disposition

(A) restrictions on recognition of commission for three months in total and restrictions on commission and recognition for one year in the training course;

(1) Article 16(3) of the former Vocational Development Act and Article 13-2 of the Enforcement Decree of the same Act provide that the State or a local government may not entrust or recognize workplace skill development training to a person whose entrustment contract is terminated pursuant to Article 16(2) of the former Vocational Development Act within the scope of five years from the date of termination. While there are no particular exceptions to cases of violation of entrustment contract, in cases of having received or attempted to receive training fees by fraud or other improper means, if the training expenses are less than 1,00,000 won, they shall be excluded from the scope of entrustment or recognition.

On the other hand, the defendant deemed that the training expenses that the plaintiff received by fraudulent or other illegal means are at least 1,00,000,000 won, but less than 5,00,000 won, and limited to the entrustment and recognition of the whole process for three months pursuant to Article 16(3) of the former Vocational Development Act and Article 6(3) [Attachment Table 1] 1(b) [Attachment Table 1] 1(b) and 9(4) [Attachment Table 2] 1(b)(b) of the Enforcement Rule of the same Act. For each training course of this case, Article 16(3) of the former Vocational Development Act, Article 6(3) [Attachment Table 1] 1(a) and (c) of the Enforcement Rule of the same Act, Article 9(4) [Attachment Table 2] 1(b)(b) of the same Act.

(2) Along with the fact that the Plaintiff continued to conduct training without removing D, etc. that the Plaintiff had been required to attend an agency for three months in total, the evidence submitted by the Defendant alone is insufficient to acknowledge that the Plaintiff continued to conduct training as to D, etc. with knowledge of the above agency attendance. Since there is no other evidence to acknowledge it, it is reasonable to deem that the standards for calculating training fees paid by the Plaintiff by fraud or other improper means include only training expenses paid for the number of days of absence such as D, and that the Plaintiff conducted training without expulsion of trainees in violation of the entrustment contract and did not include training expenses paid to the Plaintiff. However, training expenses paid during the period of absence of D, etc. fall under 381,240 won and below 1,770,000,000 won and is excluded from the scope of entrustment and recognition. Thus, the Defendant’s mistake that training expenses were up to KRW 1,770,510, and thus, the Defendant’s disposition of restriction on entrustment for three months in total is unlawful.

(3) According to the facts of recognition of each of the training courses of this case, the case where workplace skill development training was conducted in violation of a consignment agreement, and the case where the commission contract is violated to the extent that it would violate the purpose of training by fraud or other improper means with respect to the important matters of the training courses. Thus, the defendant may impose a restriction on recognition of commission for one year for each of the training courses of this case pursuant to Article 16(3) of the former Vocational Development Act, Article 6(3) [Attachment Table 1] 1(b)(3)(A), and Article 6(4) [Attachment Table 2] 1(b)(b) of the Enforcement Rule of the same Act, and Article 9(4) [Attachment Table 2] of the Enforcement Rule of the same Act. Thus, it is legitimate for the defendant to impose a restriction on recognition of commission for one year for each of the training courses of this case.

B) According to Articles 31(1)3 and 29 subparag. 9 of the Act on the Revocation of Designation of Workplace Skill Development Training Facilities, the designation of a workplace skill development training establishment should be revoked, but a part of the training courses commissioned or recognized should not be subject to restrictions on commission or recognition. As seen earlier, the restriction on commission for three months in the entire process is unlawful as the grounds for the restriction on commission did not exist, and the restriction on commission for one-year restriction on commission for each of the training courses of this case is merely a restriction on commission for some training courses. Thus, the revocation of designation of a workplace skill development training establishment is also unlawful as the grounds for the restriction on commission for one-year restriction on commission.

C) Disposition of restricting the payment of vocational ability development training costs for one year

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 support for employment security and vocational skills development programs under this Chapter by fraud or other improper means to restrict such support or return the amount of support received by false or other unlawful means, as prescribed by Presidential Decree." Here, a person who has received support for employment security and vocational skills development programs refers only to a business owner who conducts employment security and vocational skills development programs under Chapter III of the former Employment Insurance Act, a local government, or a non-profit corporation or organization prescribed by Presidential Decree. Therefore, it is reasonable to interpret that a trustee entrusted with workplace skill development training by the State or a local government pursuant to Article 16(1) of the former Vocational Development Act does not constitute a subject of sanctions under Article 35(1) of the former Employment Insurance Act (see Supreme Court Decision 2011Du3777, Jun. 13, 2013).

On the other hand, the Plaintiff’s trustee entrusted with the workplace skill development training course by the State or a local government is not subject to sanctions under Article 35(1) of the former Employment Insurance Act, and thus, the disposition of restricting the payment is unlawful.

D) Disposition to return training costs of KRW 1,770,510;

Article 16 (5) of the former Vocational Development Act shall order a person whose entrustment contract is terminated pursuant to paragraph (2) to return the amount paid or subsidized by fraud or other improper means among training expenses paid or training allowances provided in connection with workplace skill development training.

As seen earlier, since training costs paid to the Plaintiff by fraud or other improper means are KRW 381,240 (E 369,230 + F 12,010), the Defendant is entitled to order only the return of the amount. Therefore, the portion exceeding KRW 381,240 out of the return disposition of KRW 1,770,510 should be revoked in an unlawful manner.

(E)an additional collection of KRW 1,770,510.

According to Article 16 (6) 1 of the former Vocational Development Act and Article 13-2 of the Enforcement Decree of the same Act, an administrative agency may additionally collect an amount not exceeding five times the amount provided by fraud or other improper means from a person whose entrustment contract is terminated, if the amount provided by such person is less than 1,00,000 won, and if the amount provided by such person is more than 1,00,000 won, an amount not exceeding such amount may

On the other hand, the defendant considered the plaintiff's illegal receipt amount as KRW 1,770,510 and additionally collected the amount corresponding thereto. As seen earlier, the defendant's disposition on this part is merely 381,240 won for training expenses that the plaintiff received by her gring or other unlawful means. In light of the above provisions, the defendant's disposition on this part is unlawful, and in light of the above provisions, the defendant has discretion to additionally collect an amount not exceeding five times the above 381,240 won, and thus, the above unlawful disposition on additional collection was affected by the whole additional collection disposition. Accordingly, the disposition on additional collection should be revoked in entirety

4. Suspension of execution.

In full view of the records in the instant case, it is recognized that there is an urgent need to prevent damage that may be caused to the Plaintiff due to the execution of the revocation of the designation of a vocational training establishment among the dispositions in the instant case, and there is no evidence to deem that the suspension of execution may cause a serious damage to the public welfare due to the suspension of execution. Thus, the restriction on the recognition of entrustment for three months in the entire course and the revocation of the designation of

5. Conclusion

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