(영문) 인천지방법원 2018.10.16. 선고 2018구단50687 판결

The Defendant’s disposition of return of KRW 2240,00 to the Plaintiff on October 31, 2016 and the disposition of additional collection of KRW 2240,000 to the Plaintiff is revoked.

Reasons

1. Details of the disposition;

A. Details of the Plaintiff’s entrusted training

1) The Plaintiff, as the representative of C Child Care Centers, is a business owner, entered into an entrustment training contract with D Co., Ltd. (hereinafter referred to as “D”), and prepared and submitted to the Human Resources Development Service of Korea a document that the childcare teachers met the requirements for completing the entrusted training and paid training expenses in advance to D, thereby receiving the reimbursement of the training expenses from its account in accordance with Article 27 of the Employment Insurance Act, etc.

[In accordance with Article 8 of the Regulations on the Support for Workplace Skill Development Training for Business Operators (Public Notice of the Ministry of Employment and Labor), the training hours must be at least 80% of the training hours and the relevant training courses must be completed.

2) The Plaintiff was provided with KRW 2,240,000 as training expenses by entrusting three workplace skill development training teachers to three workplace skill development training courses, including classical production1, etc. conducted from August 23, 2013 to December 21, 2013.

B. Disposition against the plaintiff

1) In the course of the investigation into D, which is an entrusted training institution, the Incheon Bupyeong Police Station notified the Defendant that “a total of 488 childcare centers including the Plaintiff, did not pre-paid training expenses,” prepared and published a false commission contract and a tax invoice as if the employer paid the pre-paid training expenses, and even if the trainee did not attend the training course for at least 80%, the trainee did not attend the training course and did not meet the completion standards and received training expenses.”

2) On October 31, 2016, the Defendant rendered a disposition of return of 2.240,000 won received by the Plaintiff and additional collection of 2.24,00 won (hereinafter “each disposition of this case”).

1) The representatives of D and related persons were indicted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on the Management of Subsidies on December 15, 2016. On January 1, 2014, the part of the crime of fraud was pronounced guilty (the part of the violation of the Subsidy Management Act was acquitted on the grounds that the Defendants do not constitute the recipient of the subsidy), Seoul High Court 201759, but appealed as the Seoul High Court 2017, but the appeal was dismissed on April 27, 2017, and again appealed as the Supreme Court 2017Do7147, but the first instance court became final and conclusive by dismissal of the appeal on August 18, 2017 (hereinafter referred to as the “criminal judgment”).

2) The main point of the criminal judgment is as follows.

From May 6, 2012 to June 30, 2014, the Defendants submitted to the Corporation a false report on completion of training for 4 hours a day, 30 hours a day, and 5 hours a day a day a day a child care teacher did not attend the training or attend the training. In the case of Sundays 8 hours training, the Defendants did not conduct training for 4 hours a day, 13 hours a day a day, and Sundays 8 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day, a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 10, Eul evidence 1 to 13

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

A. The plaintiff's assertion

The Plaintiff did not directly prepare and submit an application for subsidization of training expenses, but filed an application with the Plaintiff as if the Plaintiff met the complete standards of D, and the Plaintiff’s infant care teachers were present in all curriculum as required by D and did not know whether the actual training hours were less than 80% due to D’s thorough deception. The Plaintiff was subject to a disposition of non-suspect because the Plaintiff did not have conspired with D and thus, the Plaintiff cannot be deemed to have received subsidization by false or unjust means. Accordingly, each of the instant dispositions is unjust.

B. Determination

1) Whether the attendance of less than 80% of the training courses was conducted

In full view of the following circumstances, comprehensively taking into account the evidence presented above and the purport of the entire pleadings, the Plaintiff’s infant care teacher may be deemed to have attended less than 80% of the training course.

A) Above all, even if an administrative trial is not bound by the fact-finding in a criminal trial, the fact that a criminal judgment already finalized on the same factual basis was found guilty is a flexible evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a factual judgment in a criminal trial in light of other evidence submitted in the administrative trial, the facts opposed thereto cannot be recognized (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012).

However, the criminal judgment held to the effect that D, which provided education and training for infant care teachers at the request of the plaintiff, provided 4 hours training for 3 hours a day and 5 hours a day a day and 13 hours training for 8 hours a day a day a day and that 1,531,57,419 won a total of subsidies paid to 48 child care teachers including the plaintiff, under the premise that there is no infant care teachers who attended at least 80/100 of all training courses, and completed 8 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a

B) In addition, not only D’s chapter E, but also D’s instructors agreed to provide lectures at three hours a day and five hours a Saturday, and on Sundays, there was no lectures, and there was no infant care teacher who has completed all training courses normally.

C) According to the investigation report by the Incheon Bupyeong Police Station (as a result of the analysis of the location of the base station for the provision of infant care teachers’ currency, Eul evidence 1), it is confirmed that the Plaintiff’s infant care teacher F is located in Gyeyang-gu, Incheon, Gyeyang-gu, etc. using the Ri, within the education period (as of December 7, 2013), and other processes were not consistent with the education center.

C) Ultimately, according to the fact-finding of each of the training courses, recognition training hours, actual training hours, etc. in which the Plaintiff’s infant care teachers participated, the training hours are as listed below, and the training hours included in Saturdays and Sundays are less than 80% as a matter of course, and it can be recognized that the training hours included in Saturdays and Sundays fall short of 80% as part of 9 hours out of total 12 hours.

A person shall be appointed.

2) Whether it constitutes an illegal receipt

Article 16 (2) 2 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316 of Dec. 31, 2008; hereinafter referred to as the "former Act on the Development of Workplace Skills") generally refers to the affirmative and passive act that may affect the decision-making on the payment of training costs by a person who is not eligible to receive training costs, as if he/she were qualified, or as an act that is not correct in social norms to conceal the fact that he/she is not qualified. Article 16 (1), (2), and (3) of the former Act and Article 16 (6) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 21398 of Mar. 31, 2009; hereinafter referred to as the "former Act"), and Article 13 (4) 1 of the former Act on the Development of Workplace Skills of Workers provides that the same method of intentional or gross negligence shall be applied to each person who has violated the Act (see, e.g. 515).

However, as seen earlier, the Plaintiff confirmed whether D had performed the training in a proper manner with its own responsibility, and then paid D training fees in advance to D, and then applied for and received subsidies to the Human Resources Development Service of Korea with receipts attached thereto. In addition, even though the Plaintiff was obligated to verify whether D had performed the training normally, the Plaintiff did not confirm that D had already applied for training expenses. Accordingly, if D had proved that it had not performed the training properly, the Plaintiff would return training expenses that it received to the Human Resources Development Service of Korea, and the Defendant would be able to refund the training expenses to the Plaintiff.

In addition, since the beneficiary of training costs is naturally the same business owner as the Plaintiff, it is clear that the beneficiary is also the Plaintiff. Ultimately, as seen earlier, it is recognized that childcare teachers attend less than 80% of the training courses, the portion of the refund of training costs in each of the dispositions of this case

Furthermore, in full view of the fact that the Plaintiff did not perform the obligation to verify the completion of trainees’ training expenses and the appropriateness of the application for training expenses in relation to the application for subsidization of training expenses, and that the Plaintiff applied for subsidization of training expenses in a manner such as attaching false tax invoices or receipts without advance payment to D (as a result of the Plaintiff’s assertion, the Plaintiff’s gross negligence is recognized, and thus, constitutes a case where the Plaintiff received subsidies by false or other unlawful means. This does not necessarily mean that the Plaintiff was subject to a disposition of non-guilty suspicion by an investigative agency as long as it does not require awareness of illegal receipt or intent of public offering. Ultimately, the disposition of additional collection based on the premise of the supply and demand by unlawful means is justifiable in the instant disposition.

3) Therefore, the instant disposition is lawful.

4. Conclusion

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