(영문) 서울행정법원 2015.11.27. 선고 2015구단10981 판결

The Defendant’s order to return KRW 27,200,000 to the Plaintiff on September 12, 2014 and the principal amount of KRW 15,60,000 to the full-time conversion land shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a corporation established on June 4, 2007 and engaged in the business of manufacturing automation facilities and consulting business, and the Mene Entertainment Korea Co., Ltd. (hereinafter referred to as “Neman Korea”) is an operating institution that concludes an agreement with the Defendant on the entrusted business of youth employment internship with the Defendant and performs the business of youth employment internship (hereinafter referred to as “instant business”).

B. On January 2, 2012 and March 7, 2013, the Plaintiff received KRW 27,200,000 from the non-party company for the reason that the Plaintiff participated in the agreement with the non-party company for internship support (hereinafter referred to as the “instant agreement”) and was employed as an intern for A, B, C, D, E, and F (hereinafter referred to as the “instant workers”), and that it was paid KRW 15,60,000 for full-time conversion subsidy from the non-party company for the reason that it was converted into a full-time employee A, B, C, and D among the instant workers, the Plaintiff was paid KRW 15,60,00 from the Defendant for the reason that the Plaintiff had been employed in the instant company for the year 2013 retirement age for small and medium enterprises (hereinafter referred to as “the non-party 2 guidelines for the implementation of the 2013 youth employment policy”) and that it could not be introduced as the employment recommendation or employment recommendation of the pertinent company as the non-party 2.

D. On September 12, 2014, the Defendant issued an order to return KRW 42,80,000 to the Plaintiff on the basis of Article 35 of the Employment Insurance Act and Article 56 of the Enforcement Decree of the same Act, Articles 30 and 31 of the Subsidy Management Act (hereinafter “Subsidy Management Act”) and the 27,200,000 and the 15,600,000 subsidies for full-time conversion and the 15,60,000 subsidies for full-time conversion, and issued a disposition prohibiting the Plaintiff from newly hiring an intern according to the instant project for the next two years (hereinafter “instant order to return a full-time conversion subsidy”).

E. The Plaintiff filed an administrative appeal on each of the above dispositions, and the Central Administrative Appeals Commission made the Central Administrative Appeals Commission.

On April 28, 2015, the instant Disposition No. 3 was revoked, and a ruling was rendered to dismiss the Plaintiff’s claim on the First and Second Disposition.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 through 6, 9 through 17, and 20, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The instant disposition against the Plaintiff is unlawful since it was made without legal basis. In addition, even if it was erroneous in the receipt of the subsidies for youth conversion, the instant disposition ordering the return of the subsidies for youth conversion to regular workers lawfully received on the grounds of illegality in the process of receiving the subsidies for youth conversion, is also unlawful. The Plaintiff’s trust should be protected as it was unaware of the fact that the Plaintiff used the instant workers as an intern according to the guidance of the Nonparty Company, and was in violation of relevant Acts and subordinate statutes. Considering that the Plaintiff employed the remaining workers other than two retired due to personal circumstances as full-time workers up to the present day, it cannot be deemed that the Plaintiff employed workers against the intent of the instant business.

B. Determination

(1) Whether the first disposition of this case is lawful

(A) Article 25(1) of the Employment Insurance Act provides that "the Minister of Employment and Labor may directly carry out, or subsidize or lend expenses to, the following activities to promote the employment security and promotion of the insured, etc." (Article 25(1)3 provides that "other activities to promote the employment security and promotion of the insured, etc., as prescribed by Presidential Decree." Article 35 of the Enforcement Decree of the Employment Insurance Act provides that "projects to promote the employment security and promotion of the insured, as prescribed by Presidential Decree" (Article 35 of the Enforcement Decree of the Employment Insurance Act provides that "projects to promote the employment of the insured, etc." (Article 25 of the Act and Article 35(2) of the Enforcement Decree of the Employment Insurance Act provides that "the Minister of Employment and Labor shall provide employment assistance programs, such as job placement, job-

Article 35(1)3 of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 25955, Dec. 31, 2014) provides that “The Minister of Employment and Labor may limit the amount of support or return the amount of support received by a person who has received or intends to receive support for employment security and vocational skills development programs under this Chapter by fraud or other improper means, as prescribed by Presidential Decree,” and Article 56(1) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 25955, Dec. 31, 2014) provides that “The Minister of Employment and Labor may order the person who has received or has received support for employment security and vocational skills development programs under this Chapter by fraud or other improper means, to return the amount of support received by the person who has received or has received support by the Minister of Employment and Labor,” and Article 35(1) of the Enforcement Decree of the Employment Insurance Act delegated by him/her.

Articles 17, 19, 22, 24 through 26, 28, 29, 33, 37, 38, and 55 shall not be paid to a person who has received, or intends to receive, subsidies under Article 17, 19, 22, 24 through 26, and 29, 33, 37, 38, and 55 by fraud or other improper means, and shall be ordered to return the subsidies already received. The provisions related to the return of subsidies under the Enforcement Decree of the Employment Insurance Act do not include the instant project based on Article 35 subparagraph 2 of the Enforcement Decree of the Employment Insurance Act in the business subject to the return of subsidies due to fraudulent receipt. Accordingly, the provisions related to the return of subsidies under the Employment Insurance Act and the Enforcement Decree of the Employment Insurance Act do not

(B) The term "subsidies" under the Subsidy Management Act means the subsidies, charges, and other benefits (Article 2 subparag. 1 of the Subsidy Management Act) that are granted by the State to create or provide financial assistance to the affairs or projects performed by non-State entities. The term "subsidized projects" means those who carry out the affairs or projects (Article 2 subparag. 2), and the term "subsidized project operator" means those who receive subsidies from non-party 2 (Article 2 subparag. 3), and the term "subsidized project operator" (Article 2 subparag. 8). The term "subsidized project operator" means those who directly received subsidies from the State to receive subsidies from non-party 1, the term "Support Project operator" under the Subsidy Management Act. The defendant issued subsidies and the entrusted project operator's order to return the subsidy to non-party 2, who is a subsidy recipient, pursuant to the provision of the Subsidy Management Act, and the defendant's order to return the subsidy to non-party 3, which is an operating entity of the Act on the Management and Operation of the Subsidies to the 9th Youth Project.

(C) Next, we examine whether the Guidelines for Implementation in 2012 and 2013 can be the basis of the instant Disposition 1.

Article 25(1)3 of the Employment Insurance Act and Article 25(2) of the Enforcement Decree of the Employment Insurance Act merely delegate matters concerning the implementation of employment support projects, such as support for employment of internships for employment promotion, and subsidization of expenses to the Presidential Decree. Article 36(2) of the Enforcement Decree of the Employment Insurance Act delegated by the former Enforcement Decree refers to matters concerning the type, content, scope of insured workers, etc. subject to support, details and level of support, application method, etc., and do not delegate matters concerning sanctions following illegal receipt. However, as seen earlier, the provision on the return of subsidies under the Enforcement Decree of the Employment Insurance Act does not include the instant project based on subparagraph 2 of Article 35 of the Enforcement Decree in the business subject to illegal receipt of subsidies. Therefore, even if the Minister of Employment and Labor prescribes the return, etc. of youth internships as a matter of sanctions based on illegal receipt of subsidies in 2012 and 2013 guidelines, this cannot be deemed to be within the scope of the Employment Insurance Act’s regulation, and therefore, the above guidelines cannot be deemed as grounds (see Supreme Court Decision 2019Du194.

(D) Therefore, the Employment Insurance Act, the Subsidy Management Act, and the 2012 and the 2013 Implementation Guidelines cannot be the basis for the first lower portion of the instant case, and there is no other statute that may serve as the basis therefor. Therefore, the instant disposition was made without any ground and is unlawful.

(2) Whether the disposition No. 2 of this case is legitimate

(A) As seen earlier, the provisions pertaining to the return of subsidies under the School Use Insurance Act and the Enforcement Decree of the Employment Insurance Act do not include the instant business in the business subject to the return of subsidies due to illegal receipt of subsidies, so the Employment Insurance Act cannot be the basis provision for the Employment Insurance Act. In addition, “subsidies” under the Subsidy Management Act are subsidies (Article 2 subparag. 1 of the Subsidy Management Act) granted by the State for the business or business conducted by a person other than the State, as seen earlier, and the Plaintiff was directly requested by the Defendant. Unlike the internship subsidy, the Defendant is carrying out the business or business directly without being entrusted to the operating agency, so there is no room to apply the Subsidy Management Act to the return of subsidies for conversion to regular positions.

(B) However, a disposition agency which has conducted an administrative act may cancel it on its own, even without a separate legal basis, even if there is a defect in the act. However, when cancelling a disposition of beneficial nature, it may cancel it only where the necessity of the public interest, which should be cancelled, and the disadvantage such as the infringement of the right to obtain trust and the stability of legal life, etc., which would be borne by the parties due to the cancellation, are strong enough to justify the disadvantage that the public interest needs to sustain. However, if the defect of the disposition of beneficial nature arises from the act of filing an application by means of concealment or other fraudulent methods, the party could have known that the defect of the disposition was illegally acquired. Thus, even if the administrative agency did not consider it, it does not abuse discretion even if it did not consider it, and in this case, the party's fact was passive through a third party, and the application by other fraudulent methods was not different from the order to return the subsidy of beneficial nature to the Plaintiff by a separate method, and if the Defendant did not have any other legal basis for returning the subsidy of the Plaintiff to regular position (see Supreme Court Decision 2008Du6868, etc.).

(C) Article 25(2) of the Employment Insurance Act delegates matters necessary for the implementation of the pertinent business and subsidization and lending of expenses to the Presidential Decree. Article 36(2) of the Enforcement Decree of the Employment Insurance Act provides that “The Minister of Employment and Labor intends to provide support pursuant to paragraph (1), he/she shall publicly notify the type and content of the pertinent business, the scope of the insured, etc. subject to the provision, the contents and level of the support, and the method of application, etc., in advance. Accordingly, the Minister of Employment and Labor publicly announced the implementation guidelines in 2012 and 2013 that the provision of the subsidy should be included in the scope and scope of the subsidy. Thus, even if the Plaintiff did not meet the requirements of each of the above guidelines, if he/she received the subsidy with concealed it, it constitutes an application by means of abolition or fraudulent method, and the Defendant may cancel the provision of the subsidy and order the Plaintiff to return the subsidy to the Plaintiff, even if so, it is recognized that the Plaintiff did not directly receive the subsidy from the above regular employee.

(3) Sub-determination

Therefore, the Disposition No. 1 of this case is unlawful, and thus, it should be revoked. The Disposition No. 2 of this case is legitimate.

3. Conclusion

The plaintiff's claim is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.