2012Guhap9414 Revocation of orders to refund vocational ability development training costs

A Stock Company

The Commissioner of the Central and Central Regional Labor Agency;

September 13, 2012

October 11, 2012

1. On November 28, 2011, the Defendant’s order to restrict the payment of vocational skills development training expenses and to return subsidies KRW 28,902,136 to the Plaintiff is revoked.

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

The same shall apply to the order.

1. Basic facts

A. On September 2008, according to the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same), the Plaintiff was recognized as a vocational skills development training course by the Defendant for the GVE working-level training course (hereinafter “instant training course”) to be conducted for 48 hours out of the total six days from October 2, 2008 to November 4, 2008.

B. After implementing the instant training course for 17 employees belonging thereto, the Plaintiff applied to the Defendant for the payment of the training expenses, and received the payment of KRW 4,028,250 from the Defendant on December 1, 2008.

C. Upon the request of the Board of Audit and Inspection on August 2010, the Defendant confirmed that, as a result of the investigation on the entry management of trainees who were confirmed to have been disabled abroad during the vocational ability development training period, even though B, an employee of the Plaintiff, stayed abroad for 14 days from October 23, 2008 to November 5, 2008, the Defendant was treated as having attended the instant training course on October 28, 2008 and November 4, 2008, the date on which the instant training course was conducted.

D. Accordingly, on November 28, 2011, the Defendant rendered disposition Nos. 1, 2, and 3 as indicated below against the Plaintiff (hereinafter the Plaintiff’s lawsuit in this case, referred to as “instant disposition”).

A person shall be appointed.

A person shall be appointed.

E. On February 23, 2012, the Plaintiff filed an administrative appeal against the instant disposition with the Central Administrative Appeals Commission, but the claim was dismissed on April 27, 2012.

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

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 35(2) proviso of the former Employment Insurance Act provides that Article 16(5)1 and Article 25(4)1 of the former Employment Insurance Act shall apply mutatis mutandis to persons who conduct vocational skills development training under Article 2 subparag. 1 of the same Act, and Article 25(4)1 of the former Workers’ Vocational Skills Development Act shall apply mutatis mutandis to occupational ability development training conducted by a business owner pursuant to the former Workers’ Vocational Skills Development Act. Thus, Article 25(4)1 of the former Workers’ Vocational Skills Development Act shall apply mutatis mutandis to the subject of the refund of subsidies granted during the period of restriction on the payment of subsidies and the period of restriction on the payment, and Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment

2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of the instant case”) that served as the basis for the instant disposition is null and void because it exceeds the bounds of delegation under Article 35(1) of the former Employment Insurance Act, or is in violation of the principle of excessive prohibition under the Constitution, and thus, the instant disposition based on the enforcement decree of the instant case is also unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) As to the first argument

Article 35 (1) of the former Employment Insurance Act provides that "a person who has received, or has received, support for employment security and vocational skills development programs by fraud or other improper means may order a person who has received, or has received, such support or return already provided, as prescribed by Presidential Decree"; Article 35 (2) of the same Act provides that where a person orders a person who has received, or has received, such support pursuant to paragraph (1) of the same Article, to return the amount not exceeding the amount paid by fraud or other improper means in accordance with the standards prescribed by Ordinance of the Ministry of Labor: Provided, That Articles 16 (5) 1 and 25 (4) 1 of the former Workers' Vocational Skills Development Act shall apply mutatis mutandis to a person who conducts vocational skills development training under subparagraph 1 of Article 2 of the same Act, and Article 25 (4) of the former Workers' Vocational Skills Development Act provides that the person whose recognition of the vocational skills development training course was revoked or a business owner who has received such restriction may order to return all or part of the amount already provided, if the amount is less than 15 million won.

In light of the above relevant laws, the proviso of Article 35(2) of the former Employment Insurance Act and Article 25(4)1 of the former Act on the Development of Workers’ Vocational Skills only stipulate the Plaintiff’s order for additional collection received as the second disposition, and there is no relation to the pertinent disposition. Notwithstanding the main sentence of Article 35(2) of the former Employment Insurance Act, Article 25(4)1 of the former Employment Insurance Act provides that Article 25(4)1 of the former Workers’ Vocational Skills Development Act shall apply mutatis mutandis, which is a provision that allows additional collection of excess amount, and thus, does not preclude the application of the restriction on support and return order under Article 35(1) of the former Employment Insurance Act. Therefore,

2) As to the second argument

A) According to Article 35(1) of the former Employment Insurance Act, Article 35(1) provides that a person who has received, or intended to receive, vocational skills development training costs, etc. by fraud or other improper means (hereinafter referred to as "unlawful recipients") shall be obligated to pay training costs, etc. for one year, and shall be refunded in full with respect to training costs, etc. paid during the period of restriction on payment. The form, structure, and language of the provision provides that a disposition ordering the establishment of a restriction period and the return of subsidies granted during the restriction period constitutes a binding act

B) First, we examine whether the enforcement decree of this case satisfies the legitimacy of legislative purpose and the adequacy requirements of the means.

The purpose of the enforcement decree of this case is to prevent fraudulent acts related to the payment of training expenses, etc. and ultimately to promote the development and improvement of workers’ vocational ability through the restriction on payment of training expenses, etc. for one year for fraudulent recipients and the order to refund training expenses, etc. paid within the period of restriction on payment. In addition, considering 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 purpose of the enforcement decree of this case is justifiable. In addition, it appears that fraudulent 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,

C) Next, it is reasonable to view that the provision of this case’s enforcement decree recognizes broad discretion to the administrative agency in choosing the means to impose sanctions against the violation of laws and regulations with respect to the minimum requirements for damage. If the method of choice is not clearly erroneous in prediction or evaluation, it cannot be deemed that the provision of this case’s enforcement decree violates the minimum principle of damage. This does not impose additional obligations on the illegal recipient, but merely recovers training expenses paid to the illegal recipient, etc., and thus, it is difficult to see that the choice of the means of sanctions is clearly erroneous.

D) Lastly, we examine whether the instant provision satisfies the requirements for balance of legal interests.

Article 35(2) of the former Employment Insurance Act provides that a person may collect an amount not exceeding an amount equivalent to 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, Article 22-2 of the former Enforcement Decree of the Workers’ Vocational Skills Development Act, and Article 9(1) of the former Enforcement Rule of the Workers’ Vocational Skills Development Act provides that the amount to be additionally collected shall be subdivided based on the number of times he/she applied for the expenses during the past five years, etc. In addition, the aforementioned additional collection disposition provides that separate from the aforementioned additional collection disposition, the amount of subsidies paid within the said restriction period shall be limited to the mandatory support for one year for the illegal recipient, and the said additional collection disposition shall be returned to the illegal recipient during the said restriction period. However, unlike the aforementioned additional collection disposition, the aforementioned additional collection disposition provides that the payment restriction for one year and the amount of subsidies paid during the said restriction period shall be limited to the total amount

In addition, the subsidy subject to an ordinary return order due to the provision of the Enforcement Decree of this case can be the larger amount than the amount of the illegal receipt. In this case, the illegal recipient may remarkably exceed the estimated scope of the illegal receipt and bring about an excessive harsh result in light of the content, degree, etc. of the violation. In reality, even though the illegal receipt amount is not more than 236,950 won in case of the plaintiff, the amount to be returned by the disposition of this case is 28,316,470 won in spite of the illegal receipt of the subsidy during the period of restriction on payment due to the illegal receipt of the subsidy, as seen above. Further, since the provision of this case specifies the initial date of the restriction on payment as "the date on payment was received or applied for payment" rather than the date on which the illegal recipient received training expenses or applied for payment was applied, if he had known in advance that the illegal recipient would be restricted to the payment of training expenses for one year, he could be able to conduct the training course flexibly during that period.

Meanwhile, 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) provides for restricting the payment to illegal recipients for one year: “However, if three years have passed since the date of receipt of the subsidy or subsidy, or if there was an initial fraudulent act as less than three million won in a false or other unlawful manner, it shall not apply to a restriction on the payment for one year.” Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010; Presidential Decree No. 22603, Feb. 1, 2010; Presidential Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026); however, Article 56(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026) limits the amount of subsidy falling under any of the subsidy under paragraph (1).

In full view of the above circumstances, even if the legislative purpose of this case can be more efficiently achieved by prescribing punitive sanctions in addition to the additional collection disposition against the illegal recipient, it is reasonable to view the provision of this case as null and void because it has considerably lost balance between the public interest to be achieved and the private disadvantage suffered by the illegal recipient.

3) Sub-committee

Therefore, the defendant's disposition of this case based on the invalid provision of the Enforcement Decree of this case shall be revoked as it is unlawful.

3. Conclusion

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

The chief judge, chief judge and associate judge

Judges Yellow Jae-ho

Judges Kim Gin-han

1) In order to complete the instant training course, at least 80% of the attendance is required. B was present only 50% of the instant training course, and thus did not complete the instant training course. Therefore, the total amount of KRW 236,956 of the training costs in relation to B, premised on the completion of the instant training course, is the amount unlawfully received.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.