(영문) 대구고등법원 2013.11.15. 선고 2012누1892 판결

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of restricting the payment of subsidies and the order to return subsidies KRW 4,368,613 for one year (from September 10, 2008 to September 9, 2009) against the plaintiff on July 13, 201.

Reasons

1. Details of the disposition;

A. The plaintiff is the representative of the "B" of the Elderly Care Center for the Aged.

B. The Plaintiff entered into a contract for workplace skill development training with a business owner’s workplace skill development training with the Republic of Korea Luxembourg VI University (hereinafter “NE”).

C. From March 20, 2008 to April 24, 2008, the non-party university conducted the changed management process through the duty analysis for 13 employees belonging to the non-party university (hereinafter referred to as the “instant training course”).

D. On August 14, 2008, the non-party university applied for the expenses for workplace skill development training with the Defendant on behalf of the Plaintiff and received subsidies of KRW 70,436 on September 457, 2008. The above training expenses included KRW 70,436 of training expenses for C and D, who are the Plaintiff’s employees.

E. The Defendant: (a) on July 13, 2011, Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008); (b) Article 56(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21015, Sept. 18, 2008); and (c) Article 25 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316, Apr. 21, 2008) (amended by Presidential Decree No. 21015, Apr. 25, 2008); (b) on the ground that the Plaintiff was unable to participate in the instant training course due to his/her departure from Korea from Korea from April 21, 2008 to April 25, 208, the Plaintiff was treated as having been present and received training expenses by falsity or other unlawful means; and (c) ordered the Plaintiff to refund subsidies to the Plaintiff from 30.

F. On August 8, 2011, the Plaintiff dissatisfied with the instant disposition and filed an appeal with the Central Administrative Appeals Commission, which was dismissed on February 7, 2012.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 4, 10 evidence, Eul evidence 1 and 2 (including provisional number), the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

When an administrative disposition is revoked, such disposition shall lose its validity and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 20045317, Sept. 28, 2006).

In full view of the purport of the argument in Eul evidence No. 6, the Constitutional Court held that Article 35 (1) of the former Employment Insurance Act (amended by Act No. 8429 of May 11, 2007, and amended by Act No. 9315 of December 31, 2008) of the same Act is against the Constitution on the ground that it violates the principle of prohibition of comprehensive delegation under Article 75 of the Constitution (201Hun-Ba390), and accordingly, it is recognized that the defendant revoked ex officio the instant disposition on October 18, 2013.

Thus, the lawsuit of this case is unlawful because it seeks revocation of the cancelled disposition, and there is no benefit of lawsuit.

3. Conclusion

Therefore, the lawsuit of this case is unlawful and dismissed, and the judgment of the court of first instance has different conclusions due to the revocation of ex officio of the disposition of this case, and it is revoked and dismissed the lawsuit of this case, and the total costs of the lawsuit are to be borne by the defendant under Article 32 of the Administrative Litigation Act. It is so decided as per Disposition