(영문) 대구지방법원 2010.7.21. 선고 2010구합414 판결

On November 28, 2008, the defendant issued an order to return the workplace childcare subsidy to the plaintiff on November 28, 2008, the decision to collect additional collection, the decision to restrict the payment, and the order to return the workplace childcare subsidy paid

Reasons

1. Details of the disposition;

A. From April 1, 2007, the Plaintiff operated C Child Care Centers, a nursery facility, in Daegu-gun, Daegu-gun.

B. On November 28, 2008, the Defendant: (a) received personnel expenses for the Plaintiff, including D and 12 childcare teachers, from the Plaintiff, in an unlawful manner; (b) Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter referred to as the “former Employment Insurance Act”); (c) Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sept. 18, 2008; hereinafter referred to as the “former Enforcement Decree”); (d) Article 78 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 319, Apr. 1, 2009; hereinafter referred to as the “former Enforcement Rule”); and (d) each of the subsidies paid from KRW 17,384,420, 1784,420, 207 to June 36, 2007.

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 4, the purport of the whole pleadings

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

A. The plaintiff's assertion

(1) According to Article 35 of the former Employment Insurance Act, even if the subsidy was received by unlawful means, the scope of the order to return the subsidy is limited to the “amount received by false or other unlawful means” and cannot be ordered to return the subsidy. Thus, the order to return the subsidy amount of KRW 63,318,060, which was properly paid during the period of restriction on payment, is unlawful.

(2) Since Article 56(2) of the former Enforcement Decree was deleted upon the amendment of the Enforcement Decree on February 8, 2010, the provision of the amended Enforcement Decree shall apply to the instant case. Therefore, the order of return of the subsidy granted during the period of restriction on payment made pursuant to Article 56(2) of the former Enforcement Decree is unlawful.

(3) Even if an order to return subsidies paid during the period of restriction on payment is lawful, in light of various circumstances, the Plaintiff’s child’s child may result in insufficient operational expenses in the wind operated by only 50%, and the actual use of the subsidies illegally received, and the Plaintiff’s actual use of the subsidies if each disposition of this case is maintained, and the Plaintiff’s actual abandonment of the operation of the child care center is inevitable. Each disposition of this case is unjust for the Plaintiff.

(b) Related statutes;

It is as shown in the attached Form.

(1) The Plaintiff applied for a subsidy to childcare facilities pursuant to Article 26 of the Employment Insurance Act and received the subsidy from the Defendant as follows.

A person shall be appointed.

(2) On July 1, 2008, the Plaintiff applied for subsidies of KRW 28,00,000 for the second quarter (from April 1, 2008 to June 30, 2008) in February 2008. However, in the case of some workers, the public officials of the Daegu Regional Labor Agency discovered that the employment insurance coverage period differs from that of the actual employment insurance period, such as the employment insurance coverage double acquisition of double insurance eligibility, and investigated whether the Plaintiff’s fraudulent receipt of subsidies.

(3) As a result of the investigation, D (E) only worked for about 2,3 days at C Child Care Center on April 4, 2007, and the Plaintiff did not have paid wages to D (E) and transferred KRW 761,530 from C Child Care Center on May 25, 2007, but later transferred the same amount to C Child Care Center account on May 26, 2007, and returned the same amount to C Child Care Center account), as if the Plaintiff had worked for 30 days from April 2, 2007 to April 30, 207, the Plaintiff continued to receive 54,800 won from the Daegu Regional Labor Office on April 7, 207, as if it had worked for 30 days from 70 days from 70 days from 70 days from 70 days from 70 days from 207 to 70 days from 70 days from 70 days from 70 days from 207.

(4) On July 31, 2007, the date when the Plaintiff received the quarterly subsidy in the second quarter of 2007, and on June 30, 2009, the expiration date, the date when the Plaintiff filed an application for the payment of quarterly subsidy in the second quarter of 2008. As of July 1, 2008, the remaining amount 63,318,060 won, excluding the subsidies received by unlawful means among the subsidies that have occurred during the period of restriction on the payment of the above subsidies, is the total sum of 63,318,060 won.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 1 to 18, purport of the whole pleadings

D. Determination

(1) We examine whether a disposition ordering the return of the subsidy, regardless of any unlawful means, during the period of restriction on payment, is unlawful.

Article 35(1) of the former Employment Insurance Act provides that a person who has received or intends to receive support by fraud or other improper means may restrict support or order a person who has received or intends to receive support, as prescribed by Presidential Decree, to return the already provided support. Accordingly, Article 56(2) of the former Enforcement Decree provides that a person who has received or intends to receive support by fraud or other improper means shall restrict the payment of support for one year from the date of receipt or application for payment, and shall order the person to return the subsidy during the period of restriction on payment. Thus, the provision of Article 56(2) of the former Enforcement Decree does not seem to exceed the scope delegated by the mother Act.

In addition, unlike the fact that Article 56 (1) of the former Enforcement Decree intends to accomplish the purpose of restitution by restricting the payment of the remaining subsidy or subsidy that a person who received or intends to receive the subsidy by false or other unlawful means and ordering the return of the subsidy already received or intended, it is reasonable to deem that Article 56 (2) of the same Enforcement Decree does not provide any and all the subsidies regardless of whether they are related to false or other unlawful means for one year from the date of receipt or application for payment, and if they were erroneously paid, it is a provision prepared to order the return of the subsidy to achieve the purpose of sanction against the unjust recipient and to prevent the future payment of the subsidy (see, e.g., Supreme Court Decision 2009Du6476, Aug. 20, 209).

Therefore, the plaintiff applied for subsidies from the second quarter of 2007 to the first quarter of 2008, received some of the subsidies by fraudulent means, applied for subsidies in a fraudulent manner in the second quarter of 2008, and applied for subsidies by illegal means. The plaintiff has a duty to return all the subsidies that occurred during the period of restriction on payment regardless of whether the plaintiff received 63,318,060 won from the subsidies incurred by the right to claim payment during the period of restriction on payment, regardless of whether the plaintiff received 63,318,060 won or not. Therefore, the plaintiff's allegation in this

(2) Next, with respect to the Plaintiff’s assertion that Article 56 of the Enforcement Decree of the Employment Insurance Act should be applied, it is true that Article 56 of the former Enforcement Decree was deleted from the provision that orders the return of the subsidy granted during the payment restriction period upon the amendment of February 8, 2010. However, Article 11 of the Addenda of the Employment Insurance Act (No. 22026, Feb. 8, 2010) provides that the transitional provision provides that “If Article 56 of the former Enforcement Decree applies the order of return and payment restriction on fraudulent acts before the enforcement of the Enforcement Decree, it shall be governed by the former provision, notwithstanding the amended provision of Article 56.” In this case, it is apparent that Article 56 of the former Enforcement Decree is applicable.

(3) In light of the various circumstances, the Plaintiff asserts that each of the dispositions of this case should be revoked because it is too harsh to the Plaintiff, which is based on the premise that each of the dispositions of this case is a discretionary act. However, each of the dispositions of this case is based on the premise that it is a discretionary act, and there is no room for administrative agency to have discretion as a binding act in light of the form, structure, or language of Article 35(1) and (2) of the former Employment Insurance Act, Article 56(1) and (2) of the former Enforcement Decree, and Article 78(1) of the former Enforcement Rule. Therefore, the Plaintiff’s assertion on this part is without merit

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.