(영문) 서울행정법원 2018.11.28. 선고 2017구단73290 판결

The Defendant’s order to restrict subsidies and loans for 360 days (from July 7, 2017 to July 8, 2018), order to return KRW 10,572,800, and order to additionally collect KRW 10,572,80,00 for 360 days (from July 7, 2017 to January 1, 201) against the Plaintiff is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff entered into a contract for workplace skill development training (title: from February 16, 2016 to April 15, 2016; hereinafter referred to as “training”) with the Plaintiff’s 135 workers, a company engaged in the taxi passenger transport business, which is recognized as the training course for workplace skill development training (hereinafter referred to as “B”), and received 118 trainees (hereinafter referred to as “training trainees of this case”) under the premise that the training of this case was conducted normally and the completion standards for the provision of subsidies for distance training (hereinafter referred to as “the completion standards”) were met, the Plaintiff applied for subsidies to the Human Resources Development Service of Korea for subsidies on the aggregate 10,572,80 won on June 13, 2016.

B. On July 6, 2017, the Defendant: (a) ordered support and loans 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; (b) Article 22 and [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”); (c) for 360 days (from July 7, 2017 to August 1, 2018; and (d) the Plaintiff applied for subsidies and received subsidies from the Human Resources Development Service of Korea; and (e) returned the amount of subsidies and loans to the Human Resources Development Service of Korea; and (e) returned the amount of subsidies and loans to the Plaintiff pursuant to Article 56(2) of the same Act (hereinafter “Act on the Development of Vocational Skills of Workers”); and (e) returned the amount of subsidies and loans to the Plaintiff.

C. On September 27, 2017, the Plaintiff filed the instant lawsuit with the competent court, and filed an administrative appeal with the Central Administrative Appeals Commission on the same day. The Central Administrative Appeals Commission dismissed the claim for administrative appeal on March 23, 2018 while the instant lawsuit is pending.

【Reason for Recognition】 Each entry of the evidence of subparagraphs 1 through 5, 7 through 10, 12, 15, 17, 18, 18, 11 and 18, 11, and 13, 11, and 13, 6, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Since the trainees of this case were most old and difficult to study using computers and prepare answers, they received help from the employees of B and received training in this case normally and met the completion standards, the Plaintiff cannot be deemed to have received subsidies by fraud or other improper means (non-existence of grounds for disposition).

2) In light of the fact that the Plaintiff recruited the crime with B or did not participate in the crime, the Plaintiff did not obtain any benefit in relation to the subsidies by paying full subsidies from the Human Resources Development Service of Korea as training fees B. Since the instant training was conducted by commissioned education, the training courses are directly managed by B, and the Plaintiff did not have any obligation to manage whether the training was conducted by the Plaintiff, and if the trainee was aware that the training was completed normally, and the trainee did not meet the normal training standards and did not meet the completion standards, the Defendant is also responsible for the negligence of supervision, compared to the public interest to be achieved by the instant disposition.

(Violation of the Principle of Holiday)

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination1

1) Whether there is a ground for disposition

A) Relevant legal principles

"False or any other fraudulent means" under Articles 55 (2) 1 and 56 (2) and (3) of the Vocational Skills Development Act refers to all acts that are not correct by social norms in order for a person who is not eligible to receive subsidies to pretend as if he/she is eligible to do so or to conceal the fact that he/she is not eligible to do so, and "expenses" under each of the above provisions means expenses incurred in vocational skills development projects conducted by a business owner, etc. who is recognized as eligible to receive vocational skills development training courses, which are supported by the Minister of Employment and Labor according to the number of trainees who completed the training (see, e.g., Supreme Court Decision 2013Du1980, Oct. 10, 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 (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 (wholly amended by Ordinance of the Ministry of Employment and Labor No. 2015-114, Dec. 31, 2015) defines “distance training” as “cyber training conducted using printed materials and conducted on the web, for which training is conducted by a person who has participated in the training at least 10 days after the date of completion of the training (excluding the case where the total evaluation rate for training is 0 days after the date of completion of the training).”

Therefore, if a trainee did not normally undergo vocational skills development training conducted by mail and did not meet the standards for completion, and an employer was paid subsidies on the premise that the trainee was receiving vocational skills development training normally and met the standards for completion, the employer applied for subsidies that should not be actually provided. Thus, even if the employer was unaware of the aforementioned circumstances, the employer should be deemed to fall under “the case where subsidies were received by fraudulent or other illegal means” as prescribed in Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act (see Supreme Court Decision 2013Du1980, supra).

In addition, in an administrative litigation to which the provisions of the Civil Procedure Act apply mutatis mutandis, the burden of proof is, in principle, allocated between the parties in accordance with the general principles of civil procedure, and in the case of an appeal litigation, the defendant who asserts the legality of the disposition is obliged to bear the burden of proof as to the legitimacy of the disposition. However, if there is a reasonable and acceptable proof of the legitimacy of a certain disposition asserted by the defendant, the disposition is justifiable, and the assertion and proof contrary thereto return to the plaintiff, who is the other party (see, e.g., Supreme Court Decision 2015Du39156, Jun

In light of the following facts, which can be acknowledged by comprehensively considering the purport of the entire arguments in relation to the instant case in light of the above legal principles, the trainee of the instant case did not undergo the instant training, and even if the trainee failed to meet the completion standards, it can be sufficiently recognized that the Plaintiff applied for subsidies to the Human Resources Development Service of Korea as if the trainee satisfied the completion standards and received the payment of subsidies, and that part of the evidence Nos. 11 and 13, which seems contrary to the above, are not trusted. Thus, the Plaintiff’s assertion disputing the existence of the instant disposition grounds is without merit.

On January 5, 2018, the prosecutor of the Seoul Central District Public Prosecutor's Office (hereinafter "Seoul Central Public Prosecutor's Office") indicted D, E, and F as a crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and prosecuted D, E, and F for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the Seoul Central District Public Prosecutor's Office, as the facts charged that the inside director D, head E, and head F, who is the representative of B, visited the place of a gold transportation business entity by visiting trainees to create a ID by personal information of trainees, and conduct an agency training and proxy test, and subsequently, obtained the appearance of trainees by means of conducting the proxy lottery as if they meet the completion standards.

In the instant case, the Defendants led to the confession of all the facts charged, and the said court found Defendant D guilty on April 6, 2018 and sentenced Defendant D to four years of imprisonment, Defendant E, and F with prison labor for each of the four years, six years, and three years of suspension of execution. The part related to the instant disposition in the order of the first instance court (Evidence A No. 15 and Evidence B No. 6) No. 199 is the same.

Of the judgment of the first instance court, Defendant E and F were confirmed as they were because both Defendants and prosecutors did not appeal, and Defendant D appealed appealed on April 11, 2018 as Seoul High Court 2018No1112, but only stated the grounds for appeal in the statement of grounds for appeal as grounds for appeal. 2) OB employees visited the company that entrusted workplace skill development training to B under the direction of the Seoul Regional Employment and Labor Agency Seoul Western District Office and the investigative agency, “D et al., before filing the prosecution.” They stated to the effect that they carried out a proxy and proxy test by creating a ID as personal information of trainees, and carried out a proxy lecture and proxy test only once to get off the image of proxy lecture and proxy examination.

The following circumstances have also been confirmed through the result of the analysis of the system for managing the learning of trainees in the instant training, which can be a typical feature of the training course and the vicarious examination.

- On February 23, 2016, March 8, 2016, March 22 of the same year, and April 1 of the same year, the situation where several trainees have simultaneously worked in the same computer IP address in the same time as the trainees (hereinafter referred to as "rogator") under the name of several trainees. There are cases where the trainees in this case are composed of the names of the trainees or the names of the trainees in the order.

- On March 4, 2016, in order to ensure that the Plaintiff’s employees and B’s employees do not work in the name of the retired employee of the Plaintiff Company, the list of retired employees is confirmed.

- To instruct E to correct part of the draft of the examination and response submitted in the name of the trainee in this case in March 15, 2016.

- On April 14, 2016, E instructs B to proceed simultaneously with the task and test in the name of the trainee in this case.

2) Whether the principle of proportionality is violated

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 act of violation as the grounds for the disposition, the public interest to be achieved by the relevant act of act, and all the relevant circumstances. In this case, even if the criteria for a punitive administrative disposition are stipulated in the Enforcement Rule, it is nothing more than that prescribed in the internal rules of the secretariat of an administrative agency, and it is externally binding upon citizens or courts. Thus, the legality of the pertinent 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. Thus, the pertinent disposition cannot be deemed legitimate merely because it conforms to the said criteria for disposition, unless there are reasonable grounds to believe that the above criteria do not conform with the Constitution or laws, or that the result of the application of the said criteria is significantly unreasonable in light of the content of the act of violation and the purport of the relevant Acts and subordinate statutes (see, e.g., Supreme Court Decision 2007Du696.

B) In full view of the following circumstances revealed by the facts charged to the instant case and by the overall purport of the evidence and pleadings as seen earlier, the instant disposition cannot be deemed to constitute a case where the Plaintiff was excessively harshly harsh to the Plaintiff, compared to the public interest to be achieved by the instant disposition. 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

In order to promote the employment security of workers, improvement of social and economic status, and the establishment of the Employment Insurance Fund by operating the workplace skill development training support system fairly and transparently, it seems important for the Plaintiff to not be disadvantaged due to the instant disposition. Even if the ○○ Plaintiff did not fully refund the difference between the training fees paid to B and the subsidies paid from the Human Resources Development Service of Korea, the Plaintiff, a business owner, is obligated to conduct workplace skill development training (Article 4(2) of the Vocational Skills Development Act), and the Plaintiff, a business owner, by improving the worker’s vocational ability through the workplace skill development training conducted as above, shall enjoy benefits from the improvement of the worker’s vocational ability through the workplace skill development training conducted (Article 4(2) of the Vocational Skills Development Act), and the Defendant shall only subsidize the necessary expenses. Considering these circumstances, it is difficult to evaluate that the Plaintiff suffered considerable damages equivalent to the difference

The Act on the Development of Vocational Skills stipulates that employers shall conduct workplace skill development training for workers, have many workers participate in workplace skill development training, and endeavor to create conditions for workplace skill development training by selecting workers and persons in charge of workplace skill development training (Article 4(2)). The Minister of Employment and Labor provides that employers who conduct workplace skill development training (including cases of conducting workplace skill development training on commission) may provide subsidies or loans for expenses incurred in the business (Article 20(1)1). The same applies to employers who conduct workplace skill development training in the manner of "entrusted training". Accordingly, the same applies to employers who are employers who conduct workplace skill development training in the manner of "entrusted training". Accordingly, the Plaintiff was responsible for self-verification of whether the trainees of this case met the standards for receiving subsidies prior to applying for subsidies to the Human Resources Development Service of Korea.

Since the instant training was conducted on the part of the Plaintiff’s employees at the Plaintiff’s workplace, the Plaintiff appears to have easily known the process of the training by observing the training course or directly checking the employees. However, the Plaintiff seems to have been aware of the fact that the trainees did not undergo the instant training but did not meet the completion standards at least.

○ Of the instant dispositions, the part on support and loan restriction is in compliance with the disposition standards prescribed under Article 55(2) of the Vocational Skills Development Act, Article 22 and [Attachment 6-2] of the Enforcement Rule of the Vocational Skills Development Act, Article 56(2) and (3) of the Vocational Skills Development Act, and Article 22(1)2 of the Enforcement Rule of the Vocational Skills Development Act, and Article 22(2)2 of the Enforcement Rule of the Vocational Skills Development Act. The pertinent disposition standards per se do not conform to the Constitution or laws, or the application of the said standards is considerably unreasonable in light of the contents of

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 subsidies and loans may be taken by reducing the amount of subsidies and loans within the limit of 1/2 of the standard set by the individual standard.” However, as seen earlier, the above provision is not only a discretionary mitigation provision but also a discretionary mitigation provision, and as seen earlier, the Plaintiff had an intention to receive illegal payments and reached the amount of illegal payments in KRW 10,572,80, and the degree of violation is significant. Therefore, there is no room

3. Conclusion

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