(영문) 서울행정법원 2010.8.26. 선고 2010구합18413 판결

On August 6, 2009, the Defendant’s disposition of returning KRW 59,893,590 of the new employment promotion subsidy to the Plaintiff on August 6, 2009, among “the return of unfair supply and demand of employment stabilization business, the order of additional collection and the decision of restricting payment”

Reasons

1. Details of the disposition;

A. From June 1, 2005, the Plaintiff operated a software development project and a business selling computer peripheral devices in the name of "C" on the fourth floor of the Gangseo-gu Seoul Metropolitan Government B building from June 1, 2005.

B. On June 1, 2006, the Plaintiff initially employed D and applied for the payment of the new employment promotion subsidy to the Defendant, and the Defendant paid the Plaintiff a total of KRW 7.2 million from August 8, 2006 to August 2, 2007.

C. On July 5, 2006, the Plaintiff newly employed E, and applied for the payment of the new employment promotion subsidy to the Defendant, and the Defendant paid the Plaintiff a total of KRW 1.2 million subsidy from September 1, 2006 to September 10, 2006.

D. The Plaintiff, from July 15, 2006 to June 30, 2007, employed 19 workers, including F, applied for the payment of new employment promotion grants to the Defendant, and the Defendant paid the Plaintiff new employment promotion grants totaling KRW 61,790,310 from September 11, 2006 to August 2, 2007.

E. However, as a result of the investigation conducted in relation to the plaintiff's illegal receipt of the new employment promotion subsidy, the defendant confirmed that the above D and E, which the plaintiff had already employed and paid wages, had been newly employed after excess of the unemployment period in order to meet the eligibility requirements for the promotion subsidy for new employment promotion, and received new employment promotion subsidy from the defendant by falsely reporting the employment date and receiving new employment promotion subsidy from the defendant.

F. Accordingly, on August 6, 2009, the defendant ordered the plaintiff to return the new employment promotion subsidy of KRW 840,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,00.

【Fact-finding, Gap's 1, 2, 3 evidence, Eul's 1 through 7 (including additional numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the following reasons, pursuant to Article 35(1) of the former Act and Article 56(2) of the former Enforcement Decree of the former Act, the scope of the amount for which the Minister of Labor may order a person who received a new employment promotion subsidy by fraud or other improper means to return shall be limited to the amount provided as the "the person who received a new employment promotion subsidy by fraud or other improper means", but the defendant ordered the plaintiff to return the subsidy of this case that the plaintiff received by the plaintiff lawfully, so the disposition of this case shall be revoked

(1) According to the language and text of Article 35(1) of the former Act, the Minister of Labor is only entitled to order the return of the subsidy provided in a false or other unlawful manner, and it is difficult to deem that the subsidy provided in a false or other unlawful manner can also be ordered to return the subsidy. In particular, the scope of the return order under Article 35(1) of the former Act is clearly clearly clearly specified, stating that “in relation to additional collection by fraud or other improper means” is “in addition, the additional collection by fraud or other improper means.” Thus, the expansion of the scope of the return order under Article 56(2) of the former Enforcement Decree to order the return of the subsidy not provided in a false or other unlawful manner constitutes a analogical interpretation beyond the scope of the language and text.

(2) Although Article 35(1) of the former Act provides for a restriction on subsidization or the return of subsidies by an independent disposition, Article 56(2) of the former Enforcement Decree of the Act provides that when restricting subsidization, the Minister of Labor shall again order the return of subsidies, grants, or training expenses for vocational skills development (hereinafter referred to as “subsidies, etc.”) paid during the period of restriction on payment to the Minister of Labor, and the return order is not a discretionary act but a binding act. Thus, in light of Article 35(1) and (2) of the former Act’s Article 35(1) of the same Act’s Article 35(1) of the same Act’s Article 3

(3) In particular, an order to return various subsidies or incentives for employment security and vocational ability development projects has the nature of restitution to recover the loss of the insurance company. Therefore, even though the purpose of restitution can be sufficiently achieved by returning the subsidies received by ‘false or other unlawful means', if the order to return the subsidies is issued to legitimate subsidies, not by ‘false or other unlawful means', it has a punitive nature in itself, and if the former Act additionally collects the amount of the subsidies received by ‘other fraudulent means' as punitive meaning, and also provides that the restriction on the support may also be imposed in the future, it may be an excessive disposition against the relevant business entity. Thus, this is also contrary to the principle of excessive prohibition because it infringes on the property rights and freedom of occupation guaranteed by the Constitution without the explicit grounds of law.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Interpretation of Article 56(2) of the former Enforcement Decree of the Act

Article 56(1) of the former Enforcement Decree of the Act provides that the restriction on the return of subsidies, etc. already paid or the payment of subsidies, etc. is merely a case where a person has received or intended to receive subsidies, etc. by false or other unlawful means. On the other hand, Article 56(2) of the same Act provides that a person who has received or intended to receive subsidies, etc. by false or other unlawful means shall be subject to sanctions against the unfair receipt of subsidies, etc. by ordering the return of the subsidies, etc. if a person has received or attempted to receive them within the restriction period, regardless of the fact that he/she had received or attempted to receive them by false or other unlawful means. Therefore, the Supreme Court en banc Decision 209Du2584 Decided April 15, 2010 and the Supreme Court en banc Decision 209Du2584 Decided June 26, 2009 cannot be deemed to have been issued for the same period as that of the previous Supreme Court en banc Decision 209Du20684 Decided, supra.

(2) Whether Article 56(2) of the former Enforcement Decree of the Act exceeds the scope of delegation as exemplary.

Article 35 (1) of the former Act provides that the Minister of Labor may order a person who has received or intends to receive support for employment security and vocational skills development programs by fraud or other improper means to restrict such support or return the already provided support, as prescribed by Presidential Decree. In light of the content and purpose of the above Act, the purpose and contents of the employment security and vocational skills development programs, and the contents thereof, etc., it is reasonable to deem that the Minister of Labor must have to issue a restriction on support or an order for return, and that the scope of a restriction on support or an order for return is delegated to the Presidential Decree. Therefore, the above assertion by the Plaintiff is without merit.

(3) Whether it violates the principle of excessive prohibition

Unlike the purpose of restitution by restricting the return of subsidies, etc. and the payment of accounts payable by fraud or other improper means under Article 56(1) of the former Enforcement Decree of the Act, as seen earlier, Article 56(2) of the former Enforcement Decree of the Act, which served as the basis of the instant disposition, does not provide any or all subsidies, etc. to a person who has received or intends to receive the subsidies, etc. by fraud or other improper means during a given period, regardless of whether they are related to a false or other unlawful means, and does not order the return of the subsidies, etc. to order the person who received or intends to receive the subsidies, etc. during the given period, thereby achieving the purpose of sanctions against the unfair recipients of the subsidies, etc., and achieving the purpose of preventing the unfair payment of the future subsidies, etc., if it was discovered that the receipt or the receipt of the subsidies, etc. was made by fraud or other improper means, which prevents the return of the subsidies, etc. during a limited payment period due to the fact that the Plaintiff received or attempted to receive them by fraud or other improper means does not comply with the principle of equity.

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.