2011Guhap4736 Revocation of orders to refund costs of workplace skill development training

A Stock Company

The Administrator of the Incheon Northern District Office of Central Employment and Labor;

March 8, 2012

March 29, 2012

1. The Defendant’s order to return KRW 208,467,700 to the Plaintiff on July 5, 2011 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. From June 10, 2006 to June 13, 2008, the Plaintiff provided six workers who were recognized as vocational skills development training courses by the Changwon of the Busan Regional Employment and Labor Office (hereinafter referred to as the “instant training courses”) from the supervisor 7XR curriculum on 2007, and was subsidized by the above branch office on 148,520 won (hereinafter referred to as the “training expenses”) in total for the above six workers’ vocational skills development training expenses for the above six workers.

B. However, it was confirmed on June 13, 2008 that the Board of Audit and Inspection's request for investigation as to whether overseas entry and departure training has been conducted or not, and that as a result of the investigation conducted by the Ministry of Employment and Labor, B, an employee of the Plaintiff, was unable to depart from Korea to participate in training abroad from June 12, 2008 to June 15, 2008.

C. On May 26, 201, the Changwon District Office of Busan Regional Employment and Labor shall order the Plaintiff to recover 158,080 won, 158,080 won, additional collection, and one year ( July 14, 2008) of vocational ability development training expenses paid to the Plaintiff by the above branch office during the above period of suspension of vocational ability development training expenses and refund of 330,73,010 won for training expenses already paid to the Plaintiff. On the other hand, the said branch office notified the Plaintiff of this fact to the Busan Regional Employment and Labor Office of the fact and requested the Plaintiff to recover training expenses paid to the Plaintiff by the above branch office during the period of restriction of payment.

D. Accordingly, the Defendant determined the repayment of the total amount of KRW 208,467,700 to the Plaintiff during the period of the above restriction on payment, and the Defendant notified the Plaintiff of the fact on July 5, 2011.

E. Meanwhile, the subsidies that the Plaintiff received with respect to the illegal receipt of the instant training courses are KRW 1.96,5920,000 in total as shown below.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3-1 to 4, Eul evidence 1 to 7, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) Non-existence of grounds for disposition

The plaintiff was unaware of the absence of the training course in this case by the plaintiff, and therefore, the plaintiff did not receive training expenses by fraud or other improper means.

(2) Nullity of applicable legislation

Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same) (hereinafter referred to as the "Enforcement Decree of this case") (hereinafter referred to as the "Enforcement Decree of this case") provides that the payment restriction of subsidies, etc. and the order to return subsidies, etc. already paid for one year from the date of illegal payment uniformly without setting detailed standards according to the content and degree of the act of violation. ① This is invalid against the purport of delegation under Article 35 (1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the "former Enforcement Decree of the Employment Insurance Act"), which is the basis of the act of this case, is invalid in violation of the principle of the minimum damages, including the amount of disposition in this case.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether there is a ground for disposition

Inasmuch as sanctions against violation of administrative laws are sanctions against a violation of administrative laws and regulations based on the objective fact that is, in order to achieve the administrative purpose, and thus, there is no intentional or negligent act on the part of the violator, unless there is a justifiable reason not to mislead the violator into neglecting his/her duty, etc. (see, e.g., Supreme Court Decisions 98Du5972, May 26, 2000; 2002Du5177, Sept. 2, 2003; 2002Du5177, Sept. 2, 2003). “False or other unlawful means” refers to any unlawful act committed by an unqualified business owner in order to conceal the eligibility to receive payment or to reduce the lack of eligibility to receive payment of subsidies (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In addition to the above evidence and the statement in Eul evidence No. 8, it can be acknowledged that the plaintiff's above act had an impact on the defendant's decision-making regarding the payment of training costs on the ground that the number of trainees who participated in the training courses in this case is only six, and thus can easily be confirmed. The plaintiff neglected the management of the training courses by allowing trainees to attend the training courses without separately confirming whether they attend the training courses and not confirming whether they have attended the training courses. The plaintiff is obligated to finally confirm whether the trainee was present before applying for the training courses in this case. The plaintiff is obvious that the plaintiff was not present at the training courses in this case, if he knew of Eul's absence in advance, and eventually, it cannot be seen that the plaintiff's above act was affected by the defendant's decision-making regarding the payment of training costs. On the other hand, considering the above circumstances, it cannot be seen that there was a justifiable reason for the plaintiff's failure to verify whether the trainee was present at the training courses in this case. In light of the above legal principles, the plaintiff's assertion that the plaintiff's act was justified.

(2) Whether the underlying statute is invalid or not

Article 35(1) of the former Employment Insurance Act provides that the Minister of Labor may order a person who has received subsidies for workplace skill development projects by fraud or other improper means to restrict subsidies or return subsidies under the conditions as prescribed by the Presidential Decree. In light of the purpose and purpose of workplace skill development projects, the content thereof, etc., it is reasonable to deem that the Minister of Labor has delegated the Presidential Decree as to whether the Minister of Labor must be obliged to take measures to restrict subsidies or to return subsidies if there is a fraudulent act. Thus, Article 56(1) and (2) of the former Enforcement Decree of the Employment Insurance Act provides that a person who has received or intends to receive workplace skill development training expenses shall not be obliged to pay any remaining training expenses, and that a person shall be ordered to return the already paid training expenses, and that a person shall not be required to pay training expenses for one year from the date he/she has received or intended to receive training expenses shall be deemed to have violated the delegation of the same Act (see, e.g., Supreme Court Decision 200Du6105, Oct. 27, 2006).

B. However, the legislative purpose of the instant provision is justifiable 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, etc. by preventing misconduct in relation to the payment of training expenses, etc. through the restriction on payment of subsidies, etc. for one year to illegal recipients and the order to return subsidies, etc. paid within the restriction period, and ultimately, promoting the development and improvement of workplace skill development training of workers through the restriction on payment of subsidies, etc. for one year to illegal recipients, and that workplace skill development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act. In addition, the instant provision appears to reduce misconduct in relation to the payment of training expenses, etc. through punitive sanctions under the Enforcement Decree of the instant case, and accordingly, it appears that public resources

However, in light of the following circumstances with regard to whether the enforcement decree of this case satisfies the requirements for the minimum degree of damage or the balance of legal interests, the provision of this case is in violation of the Constitution, even if it is possible to more efficiently achieve the legislative purpose by stipulating punitive sanctions in addition to the additional collection disposition against the illegal recipient, the provision of this case is a provision that excessively infringes on the property rights of the other illegal recipients who lack the requirements for the minimum degree of damage or the 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 as a punitive meaning, and accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008); Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); Article 9(1) of the Enforcement Rule of the same Act (amended by Presidential Decree No. 320, Apr. 1, 2009); and Article 9(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor Ordinance No. 320, Apr. 1, 2009) shall be additionally

② In addition to the aforementioned additional collection disposition, the instant Enforcement Decree prescribes that a person who received subsidies shall be forced to limit his/her subsidies for one year, and at the same time, the said additional collection disposition has the characteristics of disciplinary sanctions like the aforementioned additional collection disposition. Meanwhile, unlike the aforementioned additional collection disposition, the said additional collection is uniformly providing for the restriction on payment for one year and the full return of subsidies paid during the said restriction period without setting detailed standards, such as the addition, mitigation, etc. according to the content and degree of the offense.

(3) The subsidy subject to an ordinary return order may be a larger amount than the amount of illegal receipt. In this case, the result may be excessively harsh in light of the content, degree, etc. of the act of violation (in the case of the plaintiff, the amount of illegal receipt shall be 158,080 won, but the training costs paid during the restriction period shall be 1.96,5920 won in total).

④ In addition, the provision of the Enforcement Decree of this case explicitly states that the initial date of the restriction on payment is not the date of a disciplinary measure, but the date on which the application for payment of training expenses was made, so there is a lot of cases where the illegal recipient can refund the training expenses already paid prior to the disciplinary measure. However, if he had known in advance that the illegal recipient would be limited to the payment of training expenses, etc. for one year, he/she would have been able to reduce the amount to be refunded by providing flexible training courses during that

⑤ Furthermore, the instant enforcement decree provides for a mandatory refund order for training expenses already paid during the period of one year from the date on which the payment of training expenses was received or made, and for a limited payment restriction period, there is a problem that the status of an illegal recipient is unstable for a long time as the said sanctions are not specifically limited.

(6) On the other hand, it is difficult to view that the full amount of vocational skills development training expenses subsidized to a business operator pursuant to the former Employment Insurance Act is justified without room, since they are directly used to develop and improve the vocational ability of workers and enjoy benefits that the business operator indirectly provides skilled labor.

7) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; Presidential Decree No. 22026; Presidential Decree No. 22603; Presidential Decree No. 22603, Dec. 31, 2010; and Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) provides for the discretionary power of the Minister of Employment and Labor with regard to the timing and period of restriction on payment. This

C. Therefore, the disposition of this case is based on the law that violates the Constitution and is null and void (However, for a defective administrative disposition to be null and void as a matter of course, its defect must be a serious violation of the law, and should be objectively obvious. In order for an administrative disposition to be null and void as a matter of course by applying the above-mentioned or invalid enforcement decree, the provision concerns the important part of the administrative disposition, and thus, if the administrative disposition is to be null and void as a matter of course, it must be presumed that there is a defect in the important part of the administrative disposition, and the defect in the administrative disposition accordingly should be objectively apparent because it is objectively apparent that the unconstitutionality or illegality of the provision is objectively apparent. In general, the situation that the enforcement decree is in violation of the Constitution or the law is clear to the extent that there is no room for dispute over the interpretation of the provisions of the enforcement decree, unless the

Unless it is recognized, it cannot be objectively obvious. Thus, the defect of administrative disposition based on such Enforcement Decree constitutes grounds for revocation, and cannot be deemed grounds for invalidation (see, e.g., Supreme Court Decision 2004Du619, Jun. 14, 2007). The Plaintiff’s assertion that the illegality of the disposition in this case leads to the degree of invalidation as a matter of course, is not acceptable, since the Supreme Court’s ruling on the provision in the Enforcement Decree in this case is not rendered, and it cannot be objectively apparent that the unconstitutionality of the provision in this case is not determined

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.

The presiding judge, judges and vice-ranking

Judges Kim Young-young

Judges Kim Gin-jin

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.