(영문) 서울고등법원 2019.10.22. 선고 2019누36751 판결

The Defendant’s order to return KRW 1,936,00 to Plaintiff A on October 18, 2016, the order to additionally collect KRW 1,936,00, the order to additionally collect KRW 1,936,00, the order to restrict loan for 330 days from the date of disposition, and the order to return KRW 1,596,30, the order to return KRW 1,596,30, the order to additionally collect KRW 1,596,300, and the disposition to restrict loan for 330 days from the date of disposition is revoked.

Purport of appeal

Among the judgment of the first instance, the part against the plaintiffs falling under the order of revocation shall be revoked.

The Defendant’s order to return KRW 1,936,00 to Plaintiff A on October 18, 2016, the order to return KRW 1,936,00, the order to additionally collect KRW 1,596,300, and the order to return KRW 1,596,300, and the order to additionally collect KRW 1,596,596,30, which was issued against Plaintiff B on December 14, 2016 (the Plaintiff did not file an appeal with respect to each part of the Defendant’s claim for revocation of the disposition to restrict loans for 330 days).

Reasons

1. Quotation of the first instance judgment

The reasoning of this court's reasoning concerning this case is as follows, and the reasoning of the first instance judgment is as stated in the reasoning of the first instance judgment, except for the modification of part of the first instance judgment as follows and the addition of the judgment as to the plaintiffs' allegations as stated in paragraph (2). Thus, the grounds asserted by the plaintiffs in this court while appealed from the first instance court and the main sentence of Article 420 of the Civil Procedure Act are accepted (other grounds asserted by the plaintiffs in this court are not significantly different from the contents asserted by the plaintiffs in the first instance court, and even if the evidence submitted in the first instance court was newly examined, the

A. The third party did not “I did not,” and the defendant did not, around May 26, 2016, request the plaintiffs to submit a written investigation and a written confirmation for the investigation of additional facts, but did not present any opinion.”

B. Part 3, 18 of the 3rd page is "the Court" as "In Mancheon District Court. The following is added between the 4th page 14 and 15. On the other hand, the Prosecutor issued a non-prosecution disposition on December 22, 2014 as to the violation of the Act on the Interest of Subsidies by Plaintiff A relating to the Illegal Payment of Training Expenses."

(d)No. 15 of the 4th page "No. 15" shall be changed to "15 of the 15th page (including each number; hereinafter the same shall apply)".

E. The following contents are added between the 6th and 13th. The Plaintiffs’ assertion that, even if the contractual hours between instructors and E were to fall short of 3 hours a day, the Plaintiffs’ infant care teachers employed by the Plaintiffs have received 4 hours of education since they were under their own practical training. However, the Plaintiffs’ assertion that, other than the Plaintiffs’ assertion, classes are divided into class hours and practical training hours, and the class is divided into class hours, and the class is not superior to the Plaintiff’s absence of attendance or that the Plaintiff was under practical training without a lecturer, is not acceptable.”

F. From Chapter 6, Chapters 14 through 7, up to 18, are as follows. “False or other unlawful means defined as the grounds for each disciplinary measure under Articles 55 and 56 of the former Act on the Development of Workplace Skills of Workers (wholly amended by Act No. 12627, May 20, 2014; hereinafter “Act on the Development of Workplace Skills of Workers”) refers to all active and passive acts that may affect the decision-making on the payment of training fees, in general, are all acts that are not correct under the social norms in order for a person who is not eligible to receive training expenses to see that he/she is qualified or to conceal the fact that he/she is not eligible to receive training expenses (see Supreme Court Decision 2012Du24764, Jul. 24, 2014). In addition, a disciplinary measure imposed on a violation of administrative statutes is a sanction by taking advantage of the objective fact that administrative regulations are violated to achieve administrative purposes, and thus, a realistic person, not a person responsible for the violation, may be imposed (see Supreme Court Decision 21010.

With respect to the instant case, as seen earlier, the Plaintiffs filed an application for subsidization of training expenses without confirming whether each affiliated infant care teacher completed training courses, even though each affiliated infant care teacher was unable to properly complete training courses, and whether the application for subsidization of training expenses was appropriate. This constitutes an act that is not correct under the social norms by concealing the fact that a person ineligible for subsidization of training expenses is not qualified or is not qualified. In such a case, it is difficult to ensure the effectiveness of the regulations on sanctions if the Plaintiffs were to demand intention. Therefore, it is reasonable to deem that the Plaintiffs received the subsidization of training expenses by fraud or other improper means, even if the Plaintiffs were not subject to a non-prosecution disposition by the investigative agency or not having been suspected of being found guilty, so the Defendant may issue an order for return and additional collection against the Plaintiffs pursuant to Article 56(2) and (3) of the Act on the Development of Workers’ Vocational Ability. The Plaintiffs’ assertion in this part is without merit.

G. The fact that the Ministry of Employment and Labor sent to the competent administrative agency including the Defendant, regarding the result of the investigation into the illegal receipt of training expenses by the business owner of the Incheon Bupyeong Police Station on April 12, 2016 is acknowledged as follows (hereinafter referred to as the “instant standard”).

In the case where a business owner's voluntary report is filed with the business owner's disposition (including the case of voluntary report of the business owner) on the case where the investigation results of the prosecutor's office is terminated and the suspicion of illegal receipt is confirmed by cooperation with the data on the investigation results of the prosecutor's office, if it is unclear as a result of the prosecutor's investigation results, the case where it is not clearly confirmed that the illegal act is not clearly confirmed, such as "in the process of the suspension of prosecution and investigation" by confirming the reason for non-prosecution of the prosecutor's office (in the case of the non-prosecution of the prosecution)", etc., corresponding to "in the case of the case where the business owner's voluntary report of the case where the ○ (in the case of the non-prosecution of the administrative disposition), the case where the ○○ (in the case of the voluntary report of the business owner) is being conducted after separate investigation by the employment center and the case where the business owner's voluntary report of the illegal receipt is not confirmed through mail-written investigation and written confirmation documents (including evidence receipt).

According to the instant standard, in the event that prosecutor's investigation was completed and prosecuted, the administrative agency may proceed with the procedure for disposition against the business owner when the business owner's suspicion of illegal receipt is confirmed after confirming the data of the prosecutor's investigation results by the prosecutor's office. However, if the suspicion of illegal receipt is unclear solely based on the investigation results by the prosecutor's office, it is confirmed whether the business owner received illegal receipt through a written investigation and a written confirmation, etc., and if the business owner fails to submit it, it may make a decision on whether to take an administrative disposition by conducting an additional investigation, such as appearance. However, as seen earlier, although the representative of E was prosecuted by the prosecutor's office, and even if the plaintiffs were not subject to a disposition that is unsuspected by the prosecutor's office, the defendant provided the Plaintiffs with training expenses by illegal means, on the basis of the data delivered by the investigative agency, and provided them with an opportunity to present their opinions, but the plaintiffs did not present any opinion. Therefore, this part of the plaintiffs' assertion is without merit.

H. From that of the 7th page of the 9th page, “if any, the Plaintiff would be as follows.” “If the Plaintiffs had no intention on the part of the Plaintiffs, as alleged by the Plaintiffs, because they were unaware of the progress of the training course due to lack of E standards, even if they did not know of the progress of the training course due to their lack of E standards, in the case of Sundays, they would have easily known that the training course was normally being conducted, and if they were paid due attention, they would have been conducted due to the fact that the training was conducted due to the fact that the Plaintiffs could have easily known of the fact that the training course was conducted due to the fact that the training was conducted due to the fact that the training was conducted in the case of Sundays, and the period for which the Plaintiffs were unlawfully received was denied (the considerable portion of the training cost subsidized by the Plaintiff by improper means is the situation where the return order and additional collection are impossible because the period of extinctive prescription expires).”

2. The portion to be determined additionally in the trial;

A. Determination as to the illegal prior notice argument

1) The Plaintiffs asserted that each of the dispositions of this case was unlawful since they did not guarantee the period for submitting opinions within a reasonable period of time in advance notice of each of the dispositions of this case. However, considering the overall purport of Gap evidence Nos. 1, 2-1, 3, Eul evidence Nos. 3, 5, 9-1, and 9-2, the Defendant notified the Plaintiffs of the criteria, etc. for the disposition for non-payment of occupational ability development training expenses on April 12, 2016, "Guidance for non-payment of occupational ability development training expenses" on April 22, 2016, "Request for submission of an illegal receipt of a written investigation" on May 26, 2016, and "Request for submission of an illegal receipt of a written investigation" on August 31, 2016 to the Plaintiff on Oct. 7, 2016, and notified the Plaintiff of each of the dispositions of this case to the Plaintiff on the Plaintiff's prior notice and the Plaintiff's submission of opinions.

According to the above facts of recognition, since the defendant notification to the plaintiffs that each of the dispositions of this case can be made continuously from April 2016 and demanded the plaintiffs to submit their opinions, the plaintiffs are guaranteed to submit their opinions. This part of the plaintiffs' assertion is without merit.

C. Determination on the unspecified assertion of the facts based on the disposition

1) The plaintiffs did not specifically verify the facts, such as individual training courses of infant care teachers belonging to the plaintiffs, but, on the basis of the investigation results related to E, uniformly imposed sanctions against all employers including the plaintiffs on the ground of unjust payment of training expenses. They asserted to the effect that the burden of proof is unlawful since they did not specify the factual grounds for the disposition, but transferred the burden to the plaintiffs.

2) In principle, the burden of proof in an administrative litigation that is applied mutatis mutandis under the provisions of the Civil Procedure Act is allocated among the parties in accordance with the general principles of civil procedure. In the case of an appeal litigation, the Defendant, who asserts the legality of the disposition, bears the burden of proof as to the legal ground. In a case where there is a reasonable and acceptable proof as to the legality of a certain disposition asserted by the Defendant, the disposition can be deemed justifiable, and the assertion and proof of exceptional circumstances return to the Plaintiff, who is the other party (see Supreme Court Decision 2015Du42817, Oct. 27, 2016)

3) As to the instant case, the Defendant requested the Plaintiffs to submit a written investigation and a written confirmation to the investigative agency on the basis of the data received from the investigative agency, but failed to do so, and thus, the Defendant issued each instant disposition based on the data notified to the investigative agency. Since a criminal judgment was finalized against the representatives of the training agency, as the investigative agency later notified the Defendant, the premise of each of the instant dispositions that “nicking teachers affiliated with the Plaintiffs were provided with subsidies for training costs in an unlawful manner even though they failed to meet the completion standards by attending less than 80% of the training course,” is determined to have been reasonably acceptable evidence. Accordingly, the burden of proving the fact that the childcare teachers affiliated with the Plaintiffs received education at least 80% of the attendance rate shall return to the Plaintiffs. Nevertheless, the Plaintiffs did not submit any opinion even after receiving the Defendant’s voluntary report and written investigation from the Defendant regarding the illegal receipt of training costs, and did not err by the Defendant’s fact-finding, and did not assert specific facts about the actual training hours of the Plaintiffs, or did not present any evidence.

3. Conclusion

Therefore, all of the plaintiffs' claims of this case (excluding the part for which the revocation of the restriction on loans is sought) shall be dismissed for lack of reason. Accordingly, the judgment of the court of first instance on this issue is just and consistent with this conclusion. Thus, all of the plaintiffs' appeals are dismissed for lack of reason, and it is so decided