2011Guhap546 Revocation of orders to refund workplace skill development training fees

A (the trade name before its change: B)

Daejeon Head of Local Employment and Labor Agency

May 30, 2012

July 4, 2012

1. As to the plaintiff:

(a) Defendant (Appointed Party) KRW 1,913,260, Oct. 1, 201;

B. On October 28, 201, the head of the competent regional employment and labor office among the selected parties shall be KRW 152,150 as of October 28, 201. The order of return of KRW 1,004,950, and KRW 16,930 as of October 2, 201, issued by the head of the competent regional employment and labor office in Busan, the head of the competent regional employment and labor office in Busan, and KRW 1,004,950 as of October 2, 201, and KRW 16,930 as of October 20, 201, and KRW 637,874 as of October 25, 201 is revoked.

2. The costs of lawsuit shall be borne by the defendant (appointed party).

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff was recognized on January 11, 2008 from the defendant (appointed party) as the "improvement of the capacity of the new head of the team (from May 19, 2008 to May 30, 2008; hereinafter referred to as the "training period")" and the "improvement of the capacity of the head of the team (from August 18, 2008 to August 29, 2008; hereinafter referred to as the "second of the training course of this case")" respectively.

B. After the Plaintiff’s vocational training institute conducted one of the instant training courses at the Plaintiff Company’s vocational training institute, on September 9, 2008 and August 2008, the Plaintiff applied for subsidies for vocational skills development training costs for 1 of the instant training course including C’s training costs, and on September 9, 2008, the Seoul Regional Employment Agency paid KRW 10,028,330 to the Plaintiff for 1 of the instant training course including KRW 527,80 for trainees’ training costs. On November 4, 2008, the Plaintiff’s internal training institute conducted the instant training course 2 at the Plaintiff Company’s vocational training institute 0,000,000 for 20,0000,00000,0000,0000,0000,000,0000,0000,0000,000,0000,000,000.

D. On August 31, 201, the head of the Seoul Regional Employment and Labor Administration ordered the Plaintiff to refund KRW 1,035,340, and KRW 1,035,340, and additional collection; ② from September 10, 2008 to December 2, 2009, the Plaintiff issued an order to refund KRW 237,284,450 (the amount paid by the head of the Seoul Regional Employment and Labor Agency) for training expenses paid during the period of restriction on payment and restriction on payment for one year from September 10, 208 to December 2, 2009.

E. Upon receiving a request from the head of the Seoul Regional Labor Office to refund training expenses paid to the Plaintiff during the period of restriction on payment, the Defendant (appointed party) and the appointed parties pursuant to Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) and Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sep. 18, 2008; hereinafter the same shall apply), the Defendant (political party) and the head of the regional labor office within the country of origin of Gwangju Regional Labor Office (hereinafter the same shall apply), on October 26, 201, 26, 1, 913, 260, 150, 150, 150, 150, 201, 30, 16, 250, 16, 16, 27, 201.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2 (including additional number), Eul evidence 1 to 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which is the basis for each of the dispositions of this case, is null and void because it deviates from the limitation of delegated legislation and violates the principle of excessive prohibition under the Constitution. On a different premise, each of the dispositions of this case by the defendant should be revoked illegally

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the delegation legislation limits are exceeded

In a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of whether the subordinate statute complies with the limits of delegation should be made by comprehensively examining the legislative purpose and content of the pertinent provision, structure of the provision, and relationship with other provisions. In a case where the delegation provision itself clearly states the limits of delegation by using terms with which accurate contents can be identified, whether the delegation provision exceeds the limits of its literal meaning, or whether a new legislation was made beyond the bounds of delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see, e.g., Supreme Court Decision 2009Du17797, Apr. 29, 2010).

Article 35 (1) of the former Employment Insurance 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 under this Chapter by fraud or other improper means to restrict such support or return the subsidy already provided, as prescribed by Presidential Decree," and Article 35 (2) of the former Employment Insurance Act provides that "the Minister of Labor may order a person who has received or has received support for workplace skill development programs under this Chapter by fraud or other improper means to return the subsidy or to return the subsidy already provided, in accordance with the guidelines prescribed by Ordinance of the Ministry of Labor." In addition, Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act provides that "the Minister of Labor may order a person who has received or intends to receive the subsidy, subsidy, or vocational skills development training expenses under each subparagraph of paragraph (1) by fraud or other improper means for one year from the date on which he/she received the subsidy, subsidy, or vocational skills development training expenses, and the Minister of Labor shall order the person to return the subsidy, subsidy, or training

On the other hand, Article 35 (1) of the former Employment Insurance Act provides that "restriction on support" and "an order to return" are "an additional collection disposition" and Article 35 (2) of the same Act provides that "an additional collection disposition" shall take effect in the future from the date of such disposition. In interpreting the provision of the law, "restriction on support" must clearly indicate the meaning of "in order to restrict retroactive support" in the law. Article 35 (1) of the former Employment Insurance Act provides that "an order to return subsidies already paid shall be recovered through the return order," and Article 35 (2) of the former Employment Insurance Act provides that "an additional collection order" and "an additional collection order shall take effect in the future," and Article 35 (2) of the former Employment Insurance Act provides that "an additional collection order shall take effect in the future from the date of such disposition to the date of its initial enforcement," and Article 35 (1) of the former Enforcement Decree of the Employment Insurance Act provides that "an additional collection order shall take effect in the future."

(2) Whether the principle of excessive prohibition is violated

Article 35(1) of the former Employment Insurance Act and Article 56(2) of the Enforcement Decree of the same Act (hereinafter “Enforcement Decree of this case”) provide for the form of the provision, system, or language of the provision of Article 35(1) of the same Act, and the establishment of the period of restriction on payment, and the return of subsidies granted during the period of restriction on payment, are an act of continuous payment. As such, it is a matter of whether the enforcement Decree of this case, which provides that, under Article 35(1) of the former Employment Insurance Act, an illegal recipient who received, or intends to receive, vocational skills development training expenses, etc. by fraud or other improper means, must be obliged to refund training expenses, etc.

In this case, the enforcement decree of this case provides for training expenses, etc. for one year for fraudulent recipients.

The legislative purpose of this case is to prevent unlawful acts related to the payment of training expenses, etc. and ultimately to promote the development and improvement of workers’ vocational ability by issuing an order to refund subsidies within the period of restriction on payment and the payment restriction, and in light of the fact that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, the legislative purpose of this case is justifiable. In addition, it appears that unlawful acts related to the payment of training expenses, etc. are to be reduced through disciplinary sanctions prescribed in the Enforcement Decree of this case, and accordingly, it is deemed that the amount of public resources, such as the Fund, will be improved compared to

However, as seen below, the enforcement decree of this case is in violation of the Constitution as a provision that excessively infringes on the property rights of the remaining illegal recipients who lack the requirement of "minimum degree of damage" or "a balance of legal interests."

① Article 35(2) of the former Employment Insurance Act provides that a person may collect an amount equivalent to or less than the amount received by fraud or other improper means within a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act and Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009) and Article 9(1) of the Enforcement Rule of the same Act stipulate that the amount to be additionally collected shall be calculated based on the number of times a person has applied for expenses by fraud or other improper means during the past five years. Meanwhile, separate from the aforesaid additional collection disposition, the provision of the Enforcement Decree of the same case provides that the amount of subsidies paid within the said restriction period shall be limited to the amount of subsidies paid to the illegal recipient for one year, and at the same time, the order to return the subsidies within the said restriction period shall be imposed uniformly, unlike the aforementioned additional collection disposition, on the other hand, the Plaintiff and the small amount of subsidies that are subject to additional collection may not be denied.

(2) In addition, since the provision of this case specifies the initial date of the restriction on payment as "the date on which the application for payment was made" rather than the date on which the restriction on payment was made, the illegal recipient shall return retroactively the amount already received prior to the date on which the restriction on payment was made. However, if the illegal recipient had known in advance that the payment of training expenses, etc. would be restricted for one year, he could be able to reduce the amount of the order to return by flexibly implementing the training course during the restriction period, and it would not be unreasonable to operate the training course. Ultimately, even if the provision of the Enforcement Decree of this case prescribes the restriction on payment as a continuous act, it cannot be deemed that the initial date was in compliance with the principle of "minimum amount of damage caused by illegal recipients by prescribing different dates."

③ In addition, Article 56(2) of the Enforcement Decree of the Employment Insurance Act provides for a restriction on payment for one year from the date on which the training expenses were received or the application for payment was made, and for a mandatory return order with respect to subsidies already paid during the period of restriction on payment, and thus, the status of an illegal recipient becomes unstable for a long time. (4) Even if the legislative purpose of this case can be more efficient by providing for a restriction on payment for one year without setting detailed standards in accordance with the pattern of illegal recipient’s offense, the provision of the Enforcement Decree of this case’s restriction on payment for one year and the return order for subsidies paid during the restriction on payment for one year constitutes an infringement by excessively restricting the property rights of the fraudulent recipient (see, e.g., Article 56(1) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010; however, Article 56(1) of the Enforcement Decree of the Employment Insurance Act provides for a restriction on payment for one year to an illegal recipient; (3).

(4) Therefore, each of the instant dispositions based on Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which deviates from the limitation of delegated legislation, and is null and void due to a violation of the principle of excessive prohibition under the Constitution,

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

The presiding judge, judge and officer

Judges Jeon Jae-il

Judges Lee Jae-sung

1) Although the Plaintiff sought the revocation of the disposition taken on October 31, 2011, the Plaintiff appears to be a clerical error in October 26, 2011.

2) Although the Plaintiff sought the revocation of the disposition taken on October 7, 2011, the Plaintiff appears to be a clerical error in October 6, 201.

3) Although the Plaintiff sought the revocation of the disposition taken on October 10, 2011, the Plaintiff appears to be a clerical error in October 25, 2011.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.