(영문) 서울행정법원 2018.11.27. 선고 2017구단74996 판결

The Defendant’s disposition of 360 days (from July 26, 2017 to July 20, 2018) to grant or restrict loans, return of KRW 14,986,080, and additional collection of KRW 14,986,080, all of the disposition against the Plaintiff is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff, a company engaged in taxi passenger transport business, concluded an entrustment contract with A or B Co., Ltd. (hereinafter collectively referred to as “C”), a company recognized as an employee’s workplace skill development training course, as follows: (a) vocational ability development training is conducted by means of remote training for employees belonging to the Plaintiff (hereinafter referred to as “instant training”; and (b) when a part of the training is called, it is indicated as “first training” by the sequence.

A person shall be appointed.

B. The plaintiff applied for subsidies for training expenses to the Human Resources Development Service of Korea on the premise that the stated number of trainees who completed the above training in the table below (hereinafter referred to as the "training trainees in this case") had completed the training in normal and met the standards for the payment of subsidies for postal remote training, and received subsidies for training expenses in total of 14,986,080 won from the above Corporation as follows:

A person shall be appointed.

C. On July 26, 2017, the Defendant: (a) restricted subsidies and loans for 360 days (from July 26, 2017 to July 20, 2018) pursuant to Article 55(2) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jan. 27, 2016; hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”); (b) pursuant to Article 55(2) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jan. 27, 2016; hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”); and (c) pursuant to Article 22 [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers, the Defendant issued an order to refund 14,986,080 won, and additionally collects the amount of subsidies and subsidies.

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Central Administrative Appeals Commission on April 17, 2018. However, the Central Administrative Appeals Commission dismissed the Plaintiff’s appeal on April 17, 2018. [Grounds for recognition] The Plaintiff’s appeal was dismissed, and the purport of the entire pleadings is as follows: (a) the absence of dispute; (b) the evidence Nos. 1, 1, 28, and 29-1, 30-1, 30-1, 38-2, 8, 13, and 17-2; and (c) the written evidence No.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The trainees of this case were most old and difficult to prepare learning and answers using computers, and the employees of C have attempted to do so, and met the normal completion standards after receiving the instant training. Therefore, the Plaintiff cannot be deemed to have received training costs by fraud or other improper means.

2) The Plaintiff actively solicited or instructed trainees to participate in the training, and there is no way to invite trainees to participate in the training in a fraudulent manner with C. Since the instant training was conducted by commissioned education, the training course is only managed directly by C, and there was no obligation to manage whether the training was conducted by the Plaintiff. The Plaintiff was aware that trainees had completed the training in a normal manner through C’s notice, and there was no other way to ascertain the fulfillment of the completion requirements. Thus, there was no reason for the Plaintiff to not be any reason.

3) The Plaintiff paid the full amount of the subsidies received from the Human Resources Development Service of Korea to C, and there was no benefit in relation to the instant training. The responsibility for the instant training lies in a trustee of the instant training and a trustee of the instant training and a trustee of the instant training and the Plaintiff, a business owner, is not responsible for the instant training, and thus, cannot be the other party to the instant disposition.

4) In light of the aforementioned overall circumstances, the remainder of the disposition excluding the order to return the illegally received amount of KRW 14,986,080 is an error of law that deviates from and abused the discretion by an excessive disposition against the Plaintiff.

B. Relevant statutes

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

C. Determination

1) “False or any other unlawful means” under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act means any active and passive act that may affect the decision-making on subsidization of expenses, in general, with the intention to make sure that a person who is not eligible to receive subsidization of expenses is qualified, or to conceal the fact that he/she is not qualified, through social norms (see, e.g., Supreme Court Decision 2013Du1980, Oct. 30, 2014).

Meanwhile, Article 20(3) of the Vocational Skills Development Act, Article 19(3) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 27393, Jul. 26, 2016); Article 41(4) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 28160, Jun. 27, 2017); Article 60(1) of the Enforcement Rule of the Employment Insurance Act provides for the workplace skill development training support rules (wholly amended by Ordinance of the Ministry of Employment and Labor No. 2015-114, Dec. 31, 2015; hereinafter referred to as the “former provision on the wholly amended provision”), which provides for the “cyber training” under Article 2 subparag. 10 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers; Article 10(1) of the former Enforcement Decree of the Employment Insurance Act provides for the same provision on workplace development training for more than 10%.

Therefore, even if a trainee did not normally undergo vocational skills development training conducted by means of remote training and failed to meet the above standards for completion, a business owner applied for subsidies for training expenses as if the trainee received normal training and met the standards for completion of training and received subsidies. Therefore, even if a business owner did not know the above circumstances, it constitutes “the case where a business owner received subsidies by fraud or other improper means” under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act (see the purport of the above Decision 2013Du1980, supra).

B) In light of the following facts and circumstances, it may be sufficiently recognized that the instant trainees did not undergo the instant training, and even if they failed to meet the standards for completion, the Plaintiff applied for the subsidization of training costs and received payment as if they satisfied the standards for completion, and some testimonys of the witness D, which seem to go against this, are difficult to believe, and thus, the Plaintiff’s assertion against this is without merit.

On January 5, 2018, the prosecutor of the Seoul Central District Prosecutors' Office (hereinafter "Seoul Central District Prosecutors' Office") charged E, F, and G with the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and charged E, F, and G to the Seoul Central District Court for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud 2018 Gohap30), and charged the Plaintiff with the total amount of KRW 14,986,080,080,080, which was paid to the Plaintiff, by visiting the place of a gold transportation business entity as an employee of C without providing training teaching materials, making the trainee personal information by using his/her training materials.

In the instant case, the Defendants led to the confession of all the facts charged, and the said court found the Defendants guilty of the above facts charged on April 6, 2018 and sentenced E to four years of imprisonment, F, and G with prison labor for each of one year and six months of imprisonment and three years of suspended execution (No. 95, 180 of the No. 19 (Judgment)).

On April 19, 2017, the Defendant visited the Plaintiff’s workplace to question and investigated eight trainees, including H, who participated in the instant training, and sent answers to the purport that all eight persons were not exposed directly on the website of the training institution, and that the training institution’s employee visited the workplace of the training institution to provide education in the form of 1:1 door-to door-to door-to-door from the dispatch room after the shift time or the end of work, and conducted the same method of examination. C employees visited the company that entrusted workplace skill development training to C under the direction of E, etc. at the Seoul Regional Employment and Labor Agency of Seoul, Seoul, and the investigative agency prior to the institution of the indictment, and conducted a proxy and proxy examination by creating a ID by visiting the company that entrusted workplace skill development training to C with the personal information of trainees. There was no production and order of teaching materials for C, and entered the date on which the trainees’ teaching materials were received in a lump sum from the website manager on the website.

In the process of the above investigation and investigation, it was confirmed that C prepared a document stating the "measures to be taken when the Ministry of Employment and Labor conducts a field investigation" and distributed it to each entrusted workplace. In addition, as a result of the analysis of the trainee learning management system for the training of this case, there are many records of less than 10 minutes for one trainee after one trainee learning, and the duration required for Jindo learning was considerably short as average 12 seconds and 29 seconds for the first training, and during the second month of the training period, the details of the continuous study and evaluation as a specific IP during a specific day and time period, and the characteristics of the typical proxy lecture and examination, such as the discovery of a majority of the details of the training course with the same IP as the worker (unemployed) on the day.

2) Whether there exists a cause attributable to an conspiracy, etc.

Inasmuch as sanctions against violations of administrative laws are sanctions against the objective facts that are contrary to administrative laws in order to achieve administrative purposes, barring any special circumstance, such as where a failure to perform the duty of the violator is not caused by an intentional act or negligence, barring special circumstances (see, e.g., Supreme Court Decision 2012Du1297, May 10, 2012). The burden of proving the existence of such special circumstances is imposed on the violator of administrative laws and regulations.

Article 4(2) of the Vocational Skills Development Act provides that a business owner shall conduct workplace skill development training for workers, participate in workplace skill development training for workers, and make efforts to create conditions for workplace skill development training, such as granting leave for workplace skill development training to workers or appointing a person in charge of workplace skill development training (including cases of conducting workplace skill development training on commission). Accordingly, the Minister of Employment and Labor may provide subsidies or loans to employers who conduct workplace skill development training (Article 20(1)1). The workplace skill development training is a business owner who conducts workplace skill development training and is subject to workplace skill development training for workers, and this is also a case where workplace skill development training is conducted by 'entrusted training'. Therefore, the Plaintiff was responsible for self-verification of whether the instant trainees meet the completion standards for receiving subsidies prior to applying for subsidies as a business owner who received workplace skill development training. Moreover, since the instant training was conducted for workers belonging to the Plaintiff’s workplace, it can be easily confirmed whether the instant training was conducted in a normal manner by observing the training process or directly verifying the employees belonging to the Plaintiff.

The plaintiff was aware that the trainees of this case did not undergo the training in normal condition and did not meet the completion standards, or could have easily known that they did not meet the completion standards. Thus, there is no justifiable reason for not misunderstanding their duty. The plaintiff's assertion on this part is without merit.

3) Whether a person is subject to illegal receipt

In cases where a business owner entrusts workplace skill development training to workers, the business owner is the person who is entitled to receive subsidies for training expenses, and the actual Human Resources Development Service of Korea has paid subsidies for training of this case to the Plaintiff’s account that is the business owner on August 13, 2014 and February 24, 2016. In addition, the Act on the Development of Vocational Skills does not provide subsidies or loans under Article 20 for a period prescribed by Ordinance of the Ministry of Employment and Labor within three years from the date of receiving such subsidies (Article 55(2)1), or for a period prescribed by Ordinance of the Ministry of Employment and Labor within three years from the date of receiving such subsidies (Article 55(2)1), or for a business owner whose subsidies and loans are restricted pursuant to Article 5(2) by fraud or other improper means (Article 56(2)2). In cases where a refund order is issued, it is ordered by the Minister of Employment and Labor in accordance with the standards prescribed by Ordinance of the Ministry of Employment and Labor for the amount received by fraud or other improper means.

Article 56(3)2 of the Act provides that an amount below the amount of illegal receipt may be additionally collected (Article 56(3)2) provides that the restriction on subsidies and loans, the return of the amount of illegal receipt, and the subject of additional collection shall be referred to as “business owner”. Therefore, it is apparent that the Plaintiff is subject to the restriction on loans, the return of the amount of illegal receipt, and the additional collection as the recipient of subsidies. The Plaintiff’

4) Whether the discretion is deviates or abused or abused

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant disposition, by objectively examining the content of the offense as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances. In this case, even if the criteria for a punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed in the administrative agency’s internal rules for handling affairs, and it is externally binding upon citizens or courts. Therefore, the legality of the relevant disposition should be determined not only by the above criteria for disposition but also by the provisions and purport of the relevant Acts and subordinate statutes. Therefore, the relevant disposition cannot be immediately deemed legitimate, unless the said criteria are consistent with the Constitution or laws, or unless there are reasonable grounds to believe that the result of the application of the said criteria is considerably unreasonable in light of the content of the offense as the grounds for disposition and the relevant Acts and subordinate statutes and the purport thereof, it should not be readily determined that the disposition in accordance with such criteria has exceeded the discretion or abused discretion (see, etc.

B) In light of the following circumstances, it cannot be deemed that the instant disposition was a deviation or abuse of discretionary power, in light of the health team, the facts and circumstances acknowledged earlier, and the purport of the entire pleadings. The Plaintiff’s assertion on this part is without merit.

The purpose of workplace skill development training is to contribute to the development of society and economy by facilitating and supporting workplace skill development through the life of workers. The act of receiving workplace skill development training subsidies by fraud or other improper means is to contribute to the stabilization of employment of workers, the improvement of social and economic status, the improvement of corporate productivity, and the realization of a competence-oriented society. Since the act of receiving workplace skill development training subsidies by fraud or other improper means causes the insolvency of the employment insurance fund, and may inflict damage on the insured who paid the employment insurance premium in good

○○ Operation of the workplace skill development training support system in a fair and transparent manner, thereby promoting the employment stability of workers, improvement of social and economic status, and establishment of the Employment Insurance Fund, shall not be deemed to be less than the Plaintiff’s private interest restricted by the instant disposition.

○ Of the instant dispositions, the part regarding the restriction on subsidies and loans shall comply with the disposition standards prescribed in Article 22 [Attachment 6-2] of the Enforcement Rule of the Vocational Skills Development Act; and the additionally collected part shall conform to the disposition standards prescribed in Article 22(1)2 of the same Enforcement Rule; and it shall not be deemed significantly unreasonable in light of the contents of the Plaintiff’s act and the purport of the relevant Act and subordinate statutes.

The proviso to Article 6-2 of the Enforcement Rule of the Act on the Development of Vocational Skills (Attachment Table 6-2) provides that "if there is no intention or gross negligence, or if the degree of violation is minor, a disposition to restrict loans may be mitigated within the limit of 1/2 of the standard set by the individual standard." However, the above provision is not only a discretionary mitigation provision, but also a discretionary mitigation provision, as seen earlier, the training in this case was known or could be easily known that the process of the training in this case is not normal, because it was involved in the organized training in the training in the training in this case, and the process of the training in this case is not normal. Therefore, the Plaintiff is recognized as intentional or gross negligence, and even in light of the frequency or amount of the illegal receipt, the degree of violation is serious, and there is no room for the Plaintiff to reduce the measures to restrict loans under the above provision.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.