2012 Gohap 1695 Revocation of a restriction on the payment of costs

A Stock Company

Daejeon Head of Local Employment and Labor Agency

August 29, 2012

September 12, 2012

1. The Defendant’s disposition of restricting the payment of expenses from June 10, 2008 to June 9, 2009 against the Plaintiff on January 25, 2012 and disposition of recovering KRW 10,535,940 based on such disposition is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff was recognized as a vocational skills development training course with respect to the consortium course (the training period: the total of 8 hours from November 5, 2007 to November 15, 2007; hereinafter “instant curriculum”) conducted by the Defendant.

B. After implementing the instant curriculum for 20 employees, including B of the Plaintiff’s employees, the Plaintiff applied for subsidies for vocational skills development training expenses related to the instant curriculum to the Defendant, and received subsidies for KRW 731,348. The subsidies were included in KRW 38,490. The Defendant received a request from the Board of Audit and Inspection for an investigation as to whether or not he/she was subject to the management of his/her improper entry into and departure from Korea during the vocational skills development training period, and investigated the Plaintiff. As a result, the Plaintiff’s investigation was conducted on November 13, 2007 through November 16, 207, and confirmed the fact that B, who is an employee of the Plaintiff, did not appear on November 15, 2007 during the pertinent training period (hereinafter “the instant wrongful act”).

D. On January 25, 2012, the Defendant issued to the Plaintiff a disposition to restrict the payment of training expenses for the past one year from June 10, 2008 to June 9, 2009 and recover training expenses for KRW 10,535,940 (hereinafter “each disposition of this case”) during the period of restriction on the payment of training expenses for the past one year from June 10, 2008 to June 9, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis of each of the dispositions in this case, is null and void because it deviates from the limit of delegated legislation and violates the principle of excessive prohibition under the Constitution. Thus, the disposition in this case must be revoked

(b) Related statutes;

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Whether it deviates from the limitation of delegated legislation

In a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of whether the subordinate statute complies with the limits of delegation should be made by comprehensively examining the legislative purpose and content of the pertinent provision, structure of the provision, and relationship with other provisions. In a case where the delegation provision itself clearly states the limits of delegation by using terms with which accurate contents can be identified, whether the delegation provision exceeds the limits of its literal meaning, or whether a new legislation was made beyond the bounds of delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see, e.g., Supreme Court Decision 2009Du17797, Apr. 29, 2010).

Article 35 (1) of the former Employment Insurance Act (amended by Act No. 8429, May 11, 2007; hereinafter the same) which was in force at the time of the instant wrongful act by the Plaintiff may order a person who has received or intends to receive support for employment security and vocational skills development programs under the provisions of this Chapter by fraud or other improper means to restrict such support or return the subsidy already provided, as prescribed by Presidential Decree. Article 35 (2) of the same Act provides that "the Minister of Labor shall order a person who has received or has received support for employment security

In addition, Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2030, Oct. 17, 2007; hereinafter the same) which was enforced at the time of the Plaintiff’s unlawful act provides that “Any person who has received, or attempted to receive, subsidies, incentives, or vocational skills development training costs under the subparagraphs of paragraph (1) by fraud or other improper means pursuant to Article 35(1) of the Act shall not be paid subsidies, incentives, or vocational skills development training costs for one year from the date when he/she received, applied for, or applied for, subsidies, or vocational skills development training costs, or subsidies, incentives, or vocational skills development training costs shall not be paid, and the Minister of Labor shall order the person to return subsidies, incentives, or vocational skills development training costs paid during the period of restriction on payment.”

On the other hand, Article 35 (1) of the former Employment Insurance Act provides that "restrictions on support" and "order to return" as a disciplinary measure against illegal recipients, and Article 35 (2) of the same Act provides that "restrictions on support" shall take effect in the future from the date of such disciplinary measure. In interpreting the legal provision, "restrictions on support" shall clearly indicate the meaning of "in order to restrict retroactive support" in the law and it shall be clearly stated that "in addition," Article 35 (1) of the former Employment Insurance Act shall be recovered through the return order, and Article 35 (2) of the former Employment Insurance Act provides that "in the past, it shall be deemed that the former Enforcement Decree of the Employment Insurance Act shall take effect in the future by stipulating "additional collection restriction" and "in the future, it shall be deemed that the former Enforcement Decree of the Employment Insurance Act shall take effect on the date on which the former Enforcement Decree of the Employment Insurance Act shall apply for restriction on support" and Article 35 (2) of the former Enforcement Decree of the Employment Insurance Act shall take effect in the first fiveth of the former Employment Insurance Act.

(2) Whether the principle of excessive prohibition is violated

As to whether Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter referred to as the "Enforcement Decree of this case") violates the principle of excessive prohibition, first of all, the provision of this case aims to prevent fraudulent acts related to the payment of training expenses, etc. for one year against illegal recipients, and ultimately to promote the development and improvement of workers' vocational ability through the restriction on payment of training expenses, etc. for one year and the order to return subsidies paid within the restriction period, and ultimately, to promote the development and improvement of workers' vocational ability. In addition, the legislative purpose of this case is justifiable in light of the fact that vocational ability adaptation training is conducted by limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act. Furthermore, it appears that fraudulent acts related to the payment of training expenses, etc. through punitive sanctions under the Enforcement Decree of this case are reduced, and accordingly, it appears that public resources such as the Fund, etc., such as funds, etc., are more

However, in light of the following points, the provision of this case is a provision that excessively infringes on the property rights of the other illegal recipients who lack ‘the balance of legal interest' or ‘minimum of damage', and thus, it should be regarded as null and void.

① The Enforcement Decree of the instant case uniformly limits support to illegal recipients for one year, and stipulates that subsidies granted within the said restriction period shall be recovered, and does not have detailed mitigation standards depending on the content and degree of fraudulent act. Accordingly, the Defendant, like the Plaintiff, is bound to uniformly impose such sanctions against small-sum business owners whose amount of illegal receipt is extremely small, as the Plaintiff. The subsidies subject to the order to return is considerably larger than the amount of illegal receipt, and thus, the amount of subsidies subject to the order to return considerably exceeds the scope expected by the illegal recipient, and thereby, may result in an excessive harsh outcome in light of the content and degree of the offense.

(2) In addition, since the provision of the Enforcement Decree of this case specifies the initial date of the restriction on payment as "the date on which the application for payment was received or made" rather than the date on which the restriction on payment was imposed, the illegal recipient shall return retroactively the amount already received before the restriction was imposed. However, the initial date of the restriction on payment is sufficient to stipulate it as the date on which the restriction on payment was made. However, the provision of the Enforcement Decree of this case completely deprives the illegal recipient of the opportunity to suffer damage by flexibly operating the training course during the restriction period.

③ In addition, the provision of the Enforcement Decree of this case also provides for a "training expenses or an order of mandatory return of subsidies already paid during the period of one year from the date of receiving the training expenses or applying for the payment of such expenses, 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 unstable for a long time

(3) Sub-decisions

Therefore, each of the dispositions of this case based on Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act, which was null and void because it deviates from the limitation of delegated legislation, as well as violates the principle of excessive prohibition, cannot avoid its revocation.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition with the assent of all participating Justices.

The presiding judge, the Giman Judge

Judges Jeon Jae-il

Judges Lee Jae-sung

1) Article 35 of the above Act provides that the defendant's disposition of this case in each of the disposition of this case, which was mistakenly stated in the evidence protocol, shall be the law of March 21, 2008.

There is no difference between Article 35 of the former Employment Insurance Act and its content amended by Act No. 8959.

2) Article 56 of the Enforcement Decree of the above mentioned above is that the defendant's disposition of this case in each of the disposition of this case was mistakenly stated in the ground protocol on June 5, 2008.

There is no difference between Article 56 of the former Enforcement Decree of the Employment Insurance Act and its contents, amended by Ordinance No. 20799.

3) As reference, Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) amended by Presidential Decree No. 22026

for the one year period of payment restriction. "However, in case where three years have elapsed since the receipt of the subsidy or subsidy,

The first installment that is less than three million won and is to receive or intend to receive by fraud or other improper means;

The restriction on payment is not applicable to the case where a certain act is discovered, and the restriction was imposed on the one-year period.

31. Article 56(2) of the Enforcement Decree of the Employment Insurance Act, which is currently in force after being amended by Presidential Decree No. 22603, “Article 35(1)”

one of the subsidies referred to in paragraph (1) shall be granted by fraud or other improper means pursuant to paragraph (1).

The Minister of Employment and Labor shall order a person who intends to obtain a return order or restrict payment under paragraph (1), one year from the date he/she issues such order.

any of the subsidies referred to in paragraph (1) that will be newly supported within the scope of the

payment shall be restricted during the period specified in attached Table 1: Provided, That consideration shall be given to the degree, motive, result, etc. of the improper method.

The amendment was made to the effect that it may be mitigated by up to one-third of the period of restriction on payment, which is the provision of the Enforcement Decree of this case.

The result seems to be the result of reflective consideration of the problem.

A person shall be appointed.