2011Guhap30496 Demanding revocation of administrative disposition, etc.

Korea Railroad Corporation

1. The head of Seoul Regional Employment and Labor Office;

2. The Commissioner of the Seoul Regional Employment and Labor Office;

December 7, 2011

December 28, 2011

1. As to the plaintiff:

(a) An order to return KRW 26,404,410 as subsidies granted by the Commissioner of the Seoul Regional Employment and Labor Office on July 25, 2011; and (b) an order to return KRW 102,060 as subsidies granted by the Administrator of the Seoul Regional Employment and Labor Office on June 23, 2011

Each cancellation shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

The same is as the order (as stated in the purport of the claim on July 21, 201) (as stated in the order, " July 201," " July 25, 201," and " June 24, 2011," seem to be each clerical error in the text of the order.

1. Details of the disposition;

A. The Plaintiff’s headquarters, from March 11, 2008 to April 3, 2008, performed a video editing process (hereinafter “instant training”) for 18 employees, and received KRW 1,108,560 for training expenses on April 21, 200 of the same year by applying for training expenses in this case to the Administrator of the Daegu Regional Labor Agency.

B. On March 25, 2008, Mar. 27, 2008, and April 21, 201, the Administrator of the Daegu Regional Employment and Labor Agency confirmed that a trainee B left the Republic of Korea during the instant training period and was treated as having attended the instant training but did not participate in the training. On June 21, 2011, the Plaintiff’s headquarters took part in the workplace skill development training course and confirmed that the trainee was provided with training expenses by fraud or other improper means (amended by Act No. 9316, Dec. 31, 2008; hereinafter referred to as the “Occupational Development Act”) and applied Article 25(1)2 of the Workers’ Vocational Skills Development Act, Article 25(1)2 of the Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) and Article 305(2)4 through 2015 of the Employment Insurance Act (hereinafter referred to as the “Act”).

C. According to the instant restriction on payment, the head of the Seoul Regional Employment and Labor Agency ordered the Plaintiff’s headquarters to return grants of KRW 26,404,410 during the period of the restriction on payment (from April 21, 2008 to April 20, 2009) on July 25, 2011, and the head of the Seoul Regional Employment and Labor Agency (Seoul Regional Employment and Labor Agency) ordered the Defendant to return grants of KRW 102,060 paid to the Plaintiff’s headquarters during the said period (hereinafter “instant disposition”).

[Ground for Recognition: The absence of dispute, Gap evidence Nos. 1, 4 through 6, Gap evidence No. 2-1 through 3, Gap evidence No. 3-1, 2, Eul evidence Nos. 1 and 3, and the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

1) The fact that a trainee B was present without attending the instant training during the period of departure from Korea and included in the person subject to the application for training costs is due to the number of employees F in charge of the pertinent duties’ simple process of business operations, and thus does not constitute “any false or other unlawful means.”

2) Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same) (hereinafter referred to as “Enforcement Decree of the instant case”) is unconstitutional or invalid by exceeding the bounds of delegation under Article 35(1) of the Employment Insurance Act, or by excessively infringing the Plaintiff’s property rights.

3) The scope of the disposition of return of the subsidy following the instant restriction on payment should be limited to the scope of the subsidy provided by false or other unlawful means or the workplace in question.

4) In imposing sanctions against the Defendants on the illegal receipt of subsidies, the instant disposition in accordance with the Employment Insurance Act, other than the Occupational Development Act, was deviates from or abused from the scope of discretion.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) As to the first argument

A) "False or any other unlawful means, which is a requirement for a disciplinary measure under Article 35 of the Employment Insurance Act (such as an order to return money already received, restriction on payment, additional collection, etc.), refers to any and all unlawful acts committed by a business owner who is not entitled to receive subsidies, incentives, etc. to pretend his/her qualification or to conceal lack of qualification, etc., which may affect the decision-making on the payment, etc. of subsidies, incentives (see Supreme Court Decision 2001Du2270, Sept. 5, 2003).

B) The following circumstances, which can be acknowledged by comprehensively considering the overall purport of arguments in the statement in Gap evidence Nos. 7, 8, and Eul evidence Nos. 1 through 7, i.e., ① the plaintiff is obligated to finally verify whether the trainee is present before applying for the instant training as the principal agent of the training. ② The F, who was in charge of applying for the instant training, was notified by Eul that he was unable to attend the instant training during the period of his departure from Korea. ③ Nevertheless, the F, in light of the fact that he was unable to attend the training during the period of his departure from Korea, was signed by the Commissioner of the Daegu Regional Labor Agency for the purpose of applying for the instant training expenses, ③ the Plaintiff did not have a signature of some trainees during the process of examining the Plaintiff’s attendance, and that the Plaintiff did not have been present at the Daegu Regional Labor Agency for the entire training period of 18 trainees, and that the Plaintiff did not have been present at least 8% of the instant training expenses upon being signed by the Director of the Daegu Regional Labor Agency for the reason that the Plaintiff did not present training.

2) As to the second argument

A) In light of the content, form, system, etc. of the provision of Article 35(1) of the Employment Insurance Act and the Enforcement Decree of the instant case, the disposition ordering the establishment of the period of restriction on vocational skills development training training costs and the return of subsidies, etc. paid during the period of restriction on subsidies is an act of binding force. However, it is problematic whether the enforcement decree of the instant case, which provides that the person who received or attempted to receive vocational skills development training costs, etc. by fraudulent or other unlawful means (hereinafter referred to as "unlawful recipients") shall be obliged to return subsidies, etc. paid during the period of restriction on payment, without granting subsidies, etc. for one year for which payment is made, is inconsistent with the purport of delegation by the mother law or the principle

B) First, we examine whether the enforcement decree of this case has determined the restriction on subsidization of vocational skills development training costs and the refund of subsidies, etc. accordingly beyond the purport of delegation under Article 35(1) of the Employment Insurance Act.

(1) Even if Article 35(1) of the Employment Insurance Act does not expressly specify the scope of matters delegated to the Presidential Decree, the scope or limitation of inherent delegation pursuant to the legislative intent or purpose, etc. of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Nu6578, Jul. 22, 1997); and

Considering the fact that various types of violations are expected in light of the nature of various kinds of subsidies, etc. and the form of the above provision or legislative purpose, it is reasonable to view that the purpose of delegation under Article 35(1) of the Employment Insurance Act is to reasonably subdivide and regulate the standards for the restriction on support or the return of subsidies according to the type of misconduct, the degree of violation, the details, motive, seriousness of the result, etc., or to stipulate that the competent administrative agency may increase or reduce the amount of subsidies within a certain scope. However, the enforcement decree of this case upon delegation of the above provision is compelling to uniformly order the return of subsidies, etc. to be granted for one year, without setting detailed standards according to the contents and degree of the violation as seen earlier, and there is no room for the increase or decrease of the amount of discretion, and thus, it would result in a conclusion that a lump-sum sanction disposition is inevitable regardless of the degree of violation or circumstances.

(2) In addition, Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010 provides for restrictions on the payment of subsidies, etc. for one year to illegal recipients: Provided, That the same shall not apply to cases where three years have passed since the date of receipt of subsidies or incentives, and where fraudulent acts have been discovered as the amount of money less than three million won for the first time, the restriction on the payment for one year shall not apply to those cases where fraudulent acts have been discovered. Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22603, Dec. 31, 2010; Article 35(1) of the Enforcement Decree of the Employment Insurance Act, which was currently in force, provides for one of the subsidies under paragraph (1) by fraud or other improper means; however, the Minister of Employment and Labor may reduce the amount of subsidies to one-year period as a result of the amendment of the attached Table 1 by up to one-year period.

(3) Therefore, the instant provision is unlawful as it deviates from the purport of delegation under Article 35(1) of the Employment Insurance Act, a mother corporation.

C) Next, the legislative purpose of this case is justifiable in light of the fact that the provision of the Enforcement Decree of this case is aimed at preventing unlawful acts related to the payment of subsidies, etc. through restrictions on payment of subsidies, etc. for one year to illegal recipients and orders to return subsidies, etc. paid during the period of restriction on payment, and ultimately preventing unemployment, promoting employment, and promoting the development and improvement of workers’ vocational abilities, and that subsidies, etc. are carried out by limited public resources, which are employment insurance fund under the Employment Insurance Act. Furthermore, it appears that fraudulent acts related to the payment of subsidies, etc. are to be reduced through punitive sanctions under the Enforcement Decree of this case, and accordingly, the Employment Insurance Fund will be more solid than that of the Employment Insurance Fund. Accordingly, the provision of this case can be deemed as a means suitable for accomplishing the legislative purpose. However, in light of the various circumstances seen below, the content of the provision of this case violates the principle of excessive prohibition as excessive infringement on property rights of the remaining illegal recipients who lack the requirements of "minimum damage" or "legal interests."

(1) Article 35(2) of the Employment Insurance Act provides that an amount not exceeding the amount equivalent to the amount received by false or other unlawful means within a punitive meaning shall be collected. Accordingly, Article 25(4)1 of the Vocational Development Act, Article 22-2 of the Enforcement Decree of the Vocational Development Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); Article 9(1) of the Enforcement Rule of the Vocational Development Act (amended by Ordinance No. 320, Apr. 1, 2009) provides that the amount to be additionally collected based on the number of times the Plaintiff applied for the payment of subsidies for the past five years. Meanwhile, the provision of the Enforcement Decree of the instant case provides that the amount of subsidies shall be uniformly refunded to the illegal recipient for one year, separate from the aforesaid additional collection disposition, regardless of whether the subsidies were paid by false or other unlawful means, and that the amount of subsidies may be refunded to the Plaintiff for more than that of the instant case’s wrongful payment order, which is more than that of the Defendants’ unlawful payment order may be more than that of the instant provision.

(2) In addition, since the provision of the Enforcement Decree of this case provides that the initial date of the restriction on payment shall not be the date on which the application for the payment was received or made, which is not the date on which the application was made for the restriction on payment, the illegal recipient shall return retroactively the subsidy already received prior to the restriction on payment. However, if the illegal recipient becomes aware of the fact that the payment of the subsidy would be restricted for one year, it may be flexibly conducted during the restriction on payment period and may reduce the loss, and it cannot be deemed unfair to operate workplace skill development business as such. Thus, even if the provision of the Enforcement Decree of this case provides for the restriction on payment as a binding act, it cannot be deemed that the illegal recipient complies with the principle of "minimum of damage" in light of the fact that the date of commencement can be minimized by setting the date of receipt or application

(3) In addition, the instant enforcement decree also provides for a mandatory payment restriction and an order to return subsidies paid during the period of restriction on payment for one year from the date on which the person received or applied for the payment of subsidies, etc., but does not impose any special restrictions on the period during which the said sanctions may be imposed, thereby creating a problem that the status of an illegal recipient is

(4) As seen earlier, Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) or Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) which was currently in force can be deemed as a result of reflecting the content and degree of the violation and the return of subsidies, etc. accordingly.

D) Therefore, the disposition of this case based on the provision of the Enforcement Decree of this case which is null and void because it violates the purport of delegation of the mother law or violates the principle of excessive prohibition under the Constitution is unlawful. Therefore, this part of the Plaintiff’s assertion is justified.

3) Sub-determination

Therefore, the instant disposition is based on the invalid provision of the Enforcement Decree of the instant case, and thus, it should be revoked as it is unlawful without examining the remaining arguments of the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for all reasons, and it is so decided as per Disposition.

The presiding judge, judge and deputy judge

Judge Chuncheon

Judge Lee Chang-chul

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.