(영문) 창원지방법원 2017.1.10.선고 2016구합52680 판결

A. The Plaintiff is a corporation established on June 10, 1992 and engaged in the business of manufacturing and selling air transport equipment. The Gyeongnam Business Association is an operating institution that is entrusted by the Minister of Employment and Labor with the business of youth employment internship for small and medium enterprises (hereinafter “instant business”).

B. On January 27, 2015, the Plaintiff entered into an agreement with the Gyeongnam Management Association to receive subsidies under the instant project, and the main contents thereof are as follows.

Article 1 (Purpose) The Gyeongnam Management Association (hereinafter referred to as the "Operation Agency") and the Plaintiff (hereinafter referred to as the "Implementation Company") shall determine matters necessary for the implementation of the youth employment internship system for small and medium enterprises (hereinafter referred to as the "youth employment internship system") and agree to faithfully comply with it. The number of persons and the amount of payment for which the operating institution under Article 2 (Support for internship) provides internship support services to the implementing enterprise shall be as follows:

Article 10 (Offset of Government Subsidies) (1) If the executing company has received the subsidy unlawfully or unreasonably in violation of the guidelines and this Convention, it shall return it at the request of the local government office or the operating agency.Article 14 (Conversion of Regular Employment) (1) The executing company shall implement the plan for regular employment of the internship operating plan in accordance with the principle of good faith. (2) If an internship is employed as a full-time employee, it shall prepare a labor contract between the parties in accordance with the guidelines and submit a notice of the list of full-time employees accompanying the copy to the operating agency and the competent employment center.Article 15 (Payment of Subsidies for Regular Change) (1) If the executing company notifies the full-time employee conversion to the operating agency and the competent employment center pursuant to Article 14, it shall support the full-time conversion subsidy. (2) If the executing company intends to apply for the full-time conversion subsidy of an intern, it shall submit an application for the full-time employment conversion subsidy to the competent employment center within two months from the date of payment of the wage of the total amount of six months from the full-time conversion.

C. On June 1, 2015, the Plaintiff employed A and B (hereinafter referred to as “A, etc.”) (hereinafter referred to as “instant employment contract”) and drafted a standard internship agreement with the following contents.

The term of the standard internship agreement ○ Employment Contract: Work hours from June 1, 2015 to August 31, 2015: 8:30 to 117:30 (Recess hours: 12:0 to 13:00) Work days/Holidays: From June 1, 2015 to May 31, 2015: 1.350,000 won per month.

D. On September 2015, the Plaintiff applied for the internship subsidy for A and B to the Gyeongnam Association (=1.8 million won for the internship subsidy for A + 1.790,000 won for the internship subsidy for B).

E. On September 1, 2015, the Plaintiff drafted a standard employment contract with A, B, etc., and the main contents thereof are as follows (hereinafter referred to as “the labor contract of September 1, 2015”).

Standard employment contract period of ○○ Labor Contract: ○ Work Hours without a fixed period: 9:018:30 (Recess hours: 12:30) ○ Work Hours/Holiday: Daily Work (day on a holiday, day on a holiday, day on a holiday, day on a holiday, day on a holiday, day on a holiday, day on a holiday, day on a holiday, day on a holiday of 3 hours per week): 1350,000 won per month.

F. On April 5, 2016, the Plaintiff applied for a full-time conversion subsidy to A, etc. to the Defendant for a total of KRW 7.8 million (= KRW 3.9 million for full-time conversion subsidy to A + the principal of KRW 3.9 million for full-time conversion to B).

G. On July 20, 2016, the Defendant: (a) concluded an agreement to provide internship support on the ground that the Plaintiff submitted false application for internship and subsidy documents in violation of relevant guidelines in implementing the youth employment internship system; (b) issued a disposition to recover the amount of illegal receipt (1,1390,000 won) and suspend support; and (c) prohibit the employment of internship for three years (24 June 24, 2016 to June 23, 2019) (hereinafter “disposition to recover the amount of illegal receipt”).

[Ground of recognition] Facts without dispute, Eul's entry in the evidence of subparagraphs 1 through 9 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The standard internship support agreement made between the Plaintiff and the Gyeongnam Management Association states that working hours, agreed wages, etc. may be determined by the parties. Based on this, the Plaintiff entered into the instant employment contract with A, etc. on the basis of the agreement. In addition, it includes the overtime work allowances of KRW 1,350,000 per week for KRW 1,350,00 per week, as stated in the standard internship agreement, and if 12 hours are extended to one week, more than KRW 1,350,00 per week, it cannot be deemed as disadvantageous to the Si’s employment contract, and A, etc. also agrees to the conclusion of the Si’s employment contract by taking into account these points. Accordingly, the Plaintiff is unlawful because there was no intentional rejection of government subsidies, and thus there is no reason for disposition.

2) Even if the grounds for disposition are recognized, in light of the fact that the Plaintiff used the subsidy received as a salary for A, etc., and paid all unpaid wages upon A, etc.’s request, the instant disposition is unlawful as it deviates from and abused the discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

1) The main contents of the Guidelines for the Implementation of Youth Employment Finding System (hereinafter “instant Guidelines”) announced by the Minister of Employment and Labor in 2015 are as follows.

1. General provisions; 1. To provide for matters necessary to implement the project for youth employment internship system for small and medium enterprises, so that youth internships, which are entrusted institutions of the employment center, may be used for the operation of the system, can be used as the basis for the operation of the system; Ⅳ; 2. The agreement on the recruitment of internships, the selection and conclusion of the agreement (the operating institution of the employment center) on the internship support (the contents of the agreement) and the agreement on the internship support (the contents of the agreement) which are 2-2 (the contents of the agreement) shall be prepared as corresponding to the standard internship support agreement (Form

The matters concerning sanctions, guidance and inspection, measures to be taken in the event of breach of contract, and internship agreement shall be included.V, conclusion of internship agreements (working company-in-service) and internship management 2. The legal status of internships and insurance-related internships shall have the status of short-term contract workers for a period not exceeding 3 months under the Labor Standards Act. The executing company shall subscribe to the four short-term social insurance as prescribed by the social insurance-related Acts and subordinate statutes. 3. The agreed wage for internships who are paid the internship pay 3-1 (e.g., agreed wage) shall be clearly determined autonomously between the parties by clarifying the kinds and amount of wages in the internship agreement. The ○○○ shall pay the agreed wage or more, the basic salary and allowances to be paid on a regular basis, etc. shall be divided into bonuses (number of times of installment payments), additional wages, living allowances, welfare benefits, money and other valuables (food expenses, transportation goods, purchase expenses, etc.) and the total amount to be paid shall be at least 1280,00 won per month.

2) In concluding the instant employment contract with A, etc., the Plaintiff, separate from the standard internship agreement, separately prepared the following content of the employment contract (hereinafter referred to as “the employment contract signed on June 1, 2015”).

The term of the employment contract ○ Employment Contract: From June 1, 2015 to August 31, 2016: 8:30 to 17:30 (Recess hours: 12:0 to 13:00) / Holidays / Holidays: Week day to Saturdays/ Sundays agreed wage: 5,580 won at the hour.

3) On September 2015, the Plaintiff’s application for the internship subsidy submitted to the Gyeongnam Business Association, stating that the Plaintiff paid KRW 1350,000 per month wages pursuant to the internship agreement to A, etc. from June 2015 to August 2015, and accordingly, the corresponding salary specifications and deposit statements were attached.

4) On April 5, 2016, the Plaintiff’s application for subsidies for conversion to regular positions submitted to the Defendant on April 5, 2016, stated that the Plaintiff paid A, etc. 1,350,000 won monthly wages according to the said employment contract from September 2015 to February 1, 2016, and accordingly, the corresponding payment statement and the account transfer statement were attached.

5) However, from June 1, 2015 to August 2015 (the term of a labor contract under the standard internship agreement), the Plaintiff paid 1,350,000 won per month, which is the wage prescribed in the said internship agreement. However, from September 1, 2015 to February 1, 2016, the Plaintiff paid 1,350,000 won per month of the wage under the said internship agreement, and received a refund from A, etc., the balance calculated by deducting the wage calculated in accordance with the urgency (5,580 won) prescribed in the said internship agreement.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 4 and 9, purport of the whole pleadings

D. Determination

1) Legal grounds for the instant disposition

Article 25(1) of the Enforcement Decree of the Employment Insurance Act provides that “The Minister of Employment and Labor may directly carry out or lend the following programs to the insured workers, etc.” Article 25(2) of the Enforcement Decree of the Employment Insurance Act provides that “other programs to stabilize and promote employment of the insured workers, etc. are prescribed by Presidential Decree.” Article 35 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27352, Jul. 19, 2016; hereinafter the same shall apply) provides that “The amount of such programs shall be returned to the insured workers, etc.” Article 25(1)5 of the Enforcement Decree of the Employment Insurance Act provides that “The Minister of Employment and Labor shall not receive the subsidies under Article 25(1)5 of the Act or Article 36(1)5 of the Enforcement Decree of the Employment Insurance Act by means of fraudulent means.” Article 36(2) of the former Enforcement Decree of the Employment Insurance Act provides that “The Minister of Employment and Labor may receive the subsidies under Article 25(3) from the following:

Therefore, Article 35(1) of the Employment Insurance Act and Article 56(1) of the former Enforcement Decree of the Employment Insurance Act.

(ii) the existence of the reasons for the measure

"False or other unlawful means," which can be subject to sanctions for return orders and additional collection under Article 35 of the Employment Insurance Act, refers to any and all unlawful acts conducted by an unqualified business owner in order to conceal the eligibility to be paid or the eligibility to be paid by such business owner, which may affect the decision-making on the payment of internship subsidies and regular conversion subsidies (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In full view of the following circumstances that can be recognized by comprehensively taking account of the evidence mentioned above and the purport of the entire argument, the Plaintiff is deemed to have received the application for payment by pretending that the Plaintiff is eligible to receive the internship subsidy and the full-time conversion subsidy even without being entitled to receive it, and constitutes “a person who has received support for employment security and vocational skills development activities by fraud or other improper means” under Article 35 of the Employment Insurance Act, and thus, the instant disposition is lawful.

The plaintiff's assertion is without merit.

① Article 25(2) of the Employment Insurance Act delegates matters necessary for the implementation of the instant business and lending of subsidies to cover expenses to the Presidential Decree. Article 36(2) of the former Enforcement Decree of the Employment Insurance Act provides that “The Minister of Labor intends to provide support pursuant to paragraph (1), he/she shall publicly notify the type and content of the pertinent business, the scope of the insured, etc. subject to subsidization, the details and level of the relevant subsidization, and the method of filing an application, etc.” Accordingly, the Minister of Employment and Labor has publicly announced the instant guidelines containing the requirements, contents, level, and scope of the subsidization every year. As such, the requirements for support under the instant guidelines are externally binding unless

② According to the standard internship support agreement concluded between the Plaintiff and the Gyeongnam Association pursuant to the instant guidelines, the executor company may modify part of the internship agreement by mutual agreement with the internship, but the modified internship agreement shall be submitted to the operating institution (Article 3(3) of the Standard internship support agreement). However, the Plaintiff prepared the standard internship agreement with the first monthly wage system and did not submit it to the operating institution even if it actually changed the content of the first contract by newly preparing the employment contract as of June 1, 2015, which was as of June 1, 2015. Accordingly, the Plaintiff violated Article 3(3) of the Standard deemed to have been paid for less than KRW 1280,000,000 for 300,000 won per month after deducting the amount of KRW 135,50,000,000 from the amount of the standard employment contract as of February 22-2 of the instant case and the amount of less than KRW 135,000,000,000 for 3.

Therefore, the Plaintiff violated the instant guide V. 3-1.

④ According to the standard internship support agreement concluded in accordance with the instant guidelines, a licensee shall not engage in illegal receipt, such as softening the agreed wage with an internship or receiving a refund of wages from the relevant internship, for the purpose of receiving a large amount of government subsidies (Article 8(11) of the Standard internship support agreement). Nevertheless, the Plaintiff received a refund of the balance calculated by deducting the wage calculated as an hourly rate from the above amount after paying a monthly wage under the monthly salary system to A, etc. Accordingly, the Plaintiff violated Article 8(11) of the Standardton Support Convention concluded on February 22, 5 and that accordingly.

3) Whether the discretionary authority is deviates or abused

Article 35(1) of the Employment Insurance Act provides that "the Minister of Employment and Labor shall order a person who has received, or intends to receive, support from vocational skills development projects under this Chapter by fraud or other improper means to return the amount of subsidy." Article 56(1) of the former Enforcement Decree of the Employment Insurance Act also provides that "the Minister of Employment and Labor shall order the person to return the subsidy already received by fraud or other improper means pursuant to Article 35(1) of the Act." Since it is apparent that it is a binding act in itself, the assertion that the person’s discretion is excluded or abused 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.