2016Guhap53207 Requests for cancellation, such as an order to return a part-time job creation subsidy

Sariwon Co., Ltd.

The President of the Central Local Labor Agency

January 20, 2017

February 16, 2017

1. All of the Plaintiff’s claims are dismissed. 2. Costs of lawsuit are assessed against the Plaintiff.

On October 2, 2015, the Defendant revoked all orders issued to the Plaintiff to return 4,343,030 won of the illegally received job creation subsidy, 8,686,060 won for the wrongful receipt, and dispositions taken to additionally collect 8,686,060 won for six months (from October 1, 2015 to March 31, 2016).

1. Details of the disposition;

A. On April 24, 2015, the Plaintiff (i) employed two flexible-time workers to the Defendant, and (ii) received subsidies from the Defendant on May 12, 2015, for supporting the creation of jobs on a flexible-time basis (hereinafter “instant project”), which appears to be “an application for subsidies for supporting the creation of jobs on a flexible basis” (hereinafter “instant subsidies”).

B. On October 2, 2015, pursuant to Article 35 of the Employment Insurance Act and Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 26496, Aug. 19, 2015; hereinafter the same), the Defendant issued an order to return KRW 13,029,090 in total, and KRW 8,686,060 in total, and KRW 13,029,09 in total, and KRW 56(1) of the former Enforcement Decree of the Employment Insurance Act, which newly provide support for six months from the date of application for subsidies, to the Plaintiff on the ground that “the Plaintiff used them differently from the approval plan without allowing them to engage in part-time work (within 30 hours a week).” However, the Plaintiff was subject to a disposition of dismissal by the Central Administrative Appeals Commission on October 1, 2015 (hereinafter referred to as “the instant administrative appeal”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

1) The Plaintiff initially sought to employ three flexible-time workers, but only two employees employed through the Defendant’s good offices were employed to enter into a contract for overtime work. The hours of overtime work assigned to them are one hour per day, five hours per week, and not more than five hours per week, and not more than 20 hours per month in the Ministry of Employment and Labor’s guidelines for the implementation of the work for flexible-time workers in 2015, and there is no provision prohibiting regular overtime work in the above implementation guidelines.

2) The actual working hours and the book of records on commuting are not accurately consistent with the way for workers to enter their commuting hours in the book, but the actual working hours are not less than seven hours a day, excluding ‘the meals and rest hours of 1 hour and 30% of the total number of hours every two times a day and ‘times which are not under the Plaintiff’s status and supervision after working at 9 hours a day.

3) The Plaintiff did not intend to receive subsidies in an unlawful manner by stating that the “1 week contractual work hours are less than 30 hours in the course of consultation with the Defendant’s employees on the procedures for application of subsidies, and accordingly, “the proposal for delivery” was inevitably modified in accordance with the requirements explained by the Defendant employees by explaining that the Plaintiff did not intend to receive subsidies by unlawful means. The same applies to the submission of the revised original work attendance book and the labor contract for work hours to be 35 hours a week, which does not affect the result of the granting of subsidies, and thus does not constitute a case where the Plaintiff received subsidies by fraudulent or other unlawful means.

4) Even if it constitutes an illegal receipt, it shall be limited to the amount of support calculated on the basis of working hours exceeding 30 hours a week corresponding to the illegal receipt portion.

5) In light of the above overall circumstances and the fact that the Plaintiff paid all wages to workers, the content of the instant disposition is erroneous in the misapprehension of the discretionary authority by excessively harshing the Plaintiff.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) The instant project aims at creating new jobs on a flexible basis through the restructuring of a work system, the development of new jobs on a flexible basis, etc., and newly employing part-time workers who do not set the employment contract period, thereby contributing to creating jobs on a flexible basis by subsidizing part of the personnel expenses of workers. The term “part-time workers on a flexible basis” in the instant project refers to workers whose daily working hours are between 15 and 30 hours a week (six hours a day based on five days a week).

2) On September 23, 2014, the Plaintiff applied for the instant business participation and obtained approval of the instant business plan on October 31, 2014. The instant business plan submitted to the Defendant stated as follows: “The type of “production” in the instant business plan: Three production workers: three production workers; 16:00 to 16:00 (one day if excluded from the occupancy time) and wage level: 1,150,000 won per month; and “the attendance time different from the existing employees shall be 09:00 after the retirement time, and the retirement time shall be 17:00 before and after the retirement of job seekers who have difficulties to commute to and from work by actively employing job-seeking workers in the future.”

3) After obtaining the approval of the instant business plan, the Plaintiff employed A and B. At the time, the term “work hours of 09:00 to 16:00, rest hours of 15:00 to 15:30 (day-day work hours between 15:00 to 15:30 (day-day work hours), wages of 1,476,00 won per month in case of A, and 1,200,000 won in case of B, and each “the extended work allowance” included.

4) During the period covered by the Plaintiff’s application for the instant subsidy, the Plaintiff worked before and after 08:15 and retired from work after 17:30. B was to work before and after 08:40, and to work after 17:30. The Plaintiff’s work hours were the same as that of the general workers who worked at the Plaintiff’s workplace, except that the work hours of A are more than those of other workers. On September 2, 2015, the Defendant visited the Plaintiff’s workplace and inspected on-site. The confirmation written by Amph B was written at the time, and the work hours of A are written at the time, “one day worked for eight hours per day,” “09:0-17:30 of daily work hours,” and “12:0-130-130 of daily work hours, and 15:15-20 of daily work hours,” respectively.

5) On April 24, 2015, when the Plaintiff applied for the instant subsidy to the Defendant, the Plaintiff indicated “not” as “not to ask for overtime work of a part-time employee newly employed on the application form,” and written the contractual work hours per week between A and B in the “applicant worker” column as 30 hours (which is 6 hours per day, due to being decided to work for 5 days a week). ② A labor contract and “time of absence” newly written in a manner that does not contain any phrase “including extended work allowances” are submitted to the Defendant, and the hours of retirement are 08:30 to 08:55, and 16:0 to 16:20.

6) The Guideline for the Implementation of the Work-Based Job Creation Support Program (hereinafter referred to as the “Implementation Guidelines in 2014”), which seems to be against April 15, 2014 by the Minister of Employment and Labor, stipulates that one of the reasons for the exclusion of subsidies is “where the contractual working hours exceed 12 hours per week” as one of the reasons for the exclusion of subsidies, and that is also indicated in the “Guidance and Written Confirmation of Matters Following the Support for the Job Creation Support Program provided to the Plaintiff at the time of approving the instant project plan against the Plaintiff.”

7) On August 24, 2015, the Ministry of Employment and Labor’s “influence on the implementation site of the work for flexible-time workers in 2015” (hereinafter referred to as “2015 implementation guidelines”) included the contents of overtime work; “Influence on overtime work in 2015, overtime work in excess of the contractual hours per week should not be more than five hours per week; “in cases of overtime work in excess of 20 hours per month, subsidies shall not be granted; and in cases of overtime work in excess of 20 hours per month, the relevant worker shall be excluded from those eligible for support”.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 7, Eul evidence 1 to 11, the purport of the whole pleadings

D. Determination

1) Determination on the assertion to comply with the enforcement guidelines (determination on the first and second arguments)

A part-time worker is a kind of part-time worker. A part-time worker refers to a worker whose contractual work hours per week are shorter than those of a worker engaged in the same kind of work at the workplace (Article 2(1) Subparagraph 8 of the Labor Standards Act). If an employer has a part-time worker work in excess of contractual work hours, he/she shall obtain the consent of the worker concerned, and in such a case, he/she shall not be allowed to work in excess of 12 hours per week (the Act on the Protection, etc. of Fixed-Term and Part-Time Workers). Not only the part-time worker to be supported by the project in this case is part-time work but also the purpose of the project in this case is to allow the worker to select and work some of the ordinary contractual work hours and thereby to create more diverse and more opportunities for work. Thus, whether a part-time worker is a part-time worker subject to support of the project in this case should be more strict

Furthermore, the Minister of Employment and Labor provides that one of the reasons for exclusion from the grant of the instant subsidies for the creation of jobs on a flexible basis in the 2014 Guidelines provides that "if the contractual working hours exceed 12 hours a week, the extended work shall not exceed 5 hours a week, and if the overtime work hours exceed 20 hours a month, the relevant month shall not be paid." However, the purpose of the instant project is to prevent the employer who has obtained approval of the instant project from employing a flexible-time worker through overtime work in order to prevent the employer from providing a part-time worker with work without any difference in the number of ordinary workers, thereby creating jobs through a part-time work.

As to the instant case, the following circumstances revealed by the above recognition. ① The Plaintiff entered into an employment contract with the worker A, 09:00 to 16:00, and 15:301, which provides that overtime work hours shall be fixed monthly wages, including overtime work hours, as a matter of course, from the time of entering into the employment contract with the worker A and B, and the Plaintiff entered into an employment contract with the worker B as a premise of overtime work hours. ② The Plaintiff stated that it would be 09:00 and later 17:00 of the work hours, and that it would be 30 hours before and after the worker’s work hours are 17:0,000 of the worker’s work hours under the premise that it would not have any difference between the worker A and B’s work hours (see, e.g., Supreme Court Decision 208:16 hours before and after the worker’s work hours are 9:30 hours before the worker’s work hours are extended.

Therefore, unlike the business plan of this case approved by the Plaintiff that the Plaintiff employed a flexible-time worker at six hours (30 hours a week) excluding 09:00 to 16:00 hours a day from the Defendant, the actual employment of B or A, unlike the business plan of this case, shall be deemed to be ordinarily excluded from working hours of 7:30 minutes a day (1 hours a day from 09:0 to 17:30 minutes a day, and 7:30 hours a day is excluded from working hours a day, even if 30 hours a day is excluded from 0:0 to 30 hours a day, 1 hours a day from 0:0 to 17:30 hours a day, and even if 30 minutes a day is excluded from 9 hours a day from 0:0 hours a day, the Plaintiff cannot be viewed to have worked for more than 20 hours a day-time worker, but it cannot be viewed to have worked for more than 10:00 hours a day-time worker per day a day-time worker.

Therefore, this part of the plaintiff's assertion is without merit.

2) Determination as to the assertion that it does not constitute a “false or other unlawful means” (determination as to the third argument)

Sanction against violation of administrative laws is a sanction against a violation of the objective fact of violation of administrative laws and regulations in order to achieve administrative purposes, and thus, there is no intention or negligence on the part of the violator, barring any special circumstance, such as where the violation is not attributable to his/her failure to perform his/her duties, and there is no justifiable reason not to do so. "False or other unlawful means" means any and all unlawful acts conducted by an unqualified business owner in order to conceal the eligibility to receive a refund order and a sanction for additional collection as prescribed in Article 35 of the Employment Insurance Act, and that may affect the decision-making on the payment of subsidies (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In other words, the following circumstances revealed by the above facts, i.e., ① the Plaintiff entered into a labor contract with A to have full-time overtime work, and the Plaintiff did not have different ordinary workers and working hours. However, the Plaintiff applied for the payment of the instant subsidy, and actively indicated on the application the work hours of A and B at one day (30 hours a week) without overtime work, and newly prepared and submitted to the Defendant a new work contract stating working hours at one point to pretend that they worked as if they were employed, and ② the Plaintiff would have received subsidies only within 30 hours per week in the consultation process on the application procedure for the subsidies with the Defendant, which would have been corrected in accordance with the actual requirements of the Plaintiff’s employment contract, by providing the Plaintiff with an explanation that there was no difference between the Plaintiff’s actual work hours and the Plaintiff’s submission of the documents to the Plaintiff, such as the Plaintiff’s submission of false documents, and the Plaintiff’s submission of false documents or the Plaintiff’s submission of the documents to the Plaintiff, which would have been inconsistent with the aforementioned requirements of the employment contract.

Therefore, the plaintiff's assertion on this part is without merit.

3) Determination of the allegation on the calculation of the amount of subsidy to be returned (the fourth argument)

Article 35(1) of the Employment Insurance Act provides that the subject of return is "amount subsidized by fraud or other improper means" and Article 35(2) of the same Act provides that a person may collect not more than five times the amount received as such. A subsidy for the instant project is partially subsidized for the relevant employee's personnel expenses if the Plaintiff satisfies all the requirements under Article 35 of the Employment Insurance Act and Article 56 of the former Enforcement Decree of the Employment Insurance Act, as seen earlier, the Plaintiff received the instant subsidy by fraud or other improper means, and the entire amount of the instant subsidy received by the Plaintiff was received through the submission of a false labor contract and work book. In light of the above, the scope of the subject of return for the instant subsidy is the amount that the Plaintiff received by fraud or other improper means, and the scope of additional collection is interpreted to mean the amount that the Plaintiff received by fraud or other improper means, and the Plaintiff's allegation in this part is without merit.

4) Determination on the assertion of deviation or abuse of discretionary power (the fifth argument)

Whether a disciplinary administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual by objectively examining the content of the violation, which is the reason for the disposition, and the public interest to be achieved by the relevant act of disposal, and all the relevant circumstances (see, e.g., Supreme Court Decision 98Du11779, Apr. 7, 2000). If the disposition standards are prescribed by Presidential Decree or Ordinance of the Ministries, the disposition standards per se are not consistent with the Constitution or laws, or if there are no reasonable grounds to believe that the disciplinary administrative disposition in accordance with the above disposition standards is considerably unreasonable in light of the content of the violation and the content and purport of the relevant statutes (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 2007).

In light of the following circumstances, i.e., (i) the amount of the subsidy received by the Plaintiff by unlawful means reaches KRW 4,343,030, and (ii) the business owner newly prepares a false labor contract and attendance book in order to receive the subsidy of this case, and (iii) the purpose of the instant project is to create jobs on a flexible-time basis through the restructuring of the work system or the development of new duties. Although the substance of the instant project is the same as ordinary work, it damages the soundness of the subsidy system by abusing the subsidy system of the instant project by taking advantage of the external appearance such as creating jobs on a regular basis. ③ The instant disposition is consistent with the criteria prescribed in Article 35(1) and (2) of the Employment Insurance Act, Article 56(2) [Attachment 2] of the former Enforcement Decree of the Employment Insurance Act, Article 78(1) [Attachment 2] of the Enforcement Rule of the Employment Insurance Act, and the instant disposition does not in itself comply with the Constitution or law, or is considerably unreasonable.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

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

The presiding judge, Kim Jong-hun

Judges Park Jong-dae

Judges Yellow Jin-jin

1) In calculating working hours, Article 50(3) of the Labor Standards Act is waiting time under the direction and supervision of the employer for work.

The work hours under the Labor Standards Act shall be deemed to be the work hours, and the work hours under the Labor Standards Act shall be under the direction and supervision of the employer.

the time when the employee does not engage in the work in reality during the working hours, the waiting time, rest, and sleep that the employee does not engage in the work in reality.

Even if it is closed, it does not guarantee the free use of workers as a recess, but actually directs and leads by the employer.

If time is set under Germany, this would be included in work hours (see, e.g., Supreme Court Decision 2006Da41990, Mar. 23, 2006);

A and B additional hours of recesss other than the occupancy-type time, which have been offered to A and B, shall be free from the direction and supervision of the user.

Unless there are special circumstances that this guarantee is granted, it shall be included in working hours.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.