(영문) 서울행정법원 2013.5.23. 선고 2012구합12396 판결

1. On January 20, 2012, the Defendant issued an order for return and a disposition for additional collection corresponding to the remainder of the amount, excluding the amount for which return may be ordered and the amount for additional collection as indicated in the second quarter of attached Table 1, 2010 among the disposition for returning KRW 19,776,000, which the Defendant issued to the Plaintiff on January 20, 2012, and KRW 39,552,000, which was issued in the second quarter of attached Table 1, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 50% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

Purport of claim

The Defendant’s disposition to refund KRW 19,776,00 for the reduction of working hours of small and medium enterprises in the second quarter of 2010 and 19,776,000, which was granted to the Plaintiff on January 20, 2012, and the disposition to additionally collect KRW 39,552,000, and the disposition to restrict the payment of employment security subsidies from January 19, 2012 to January 18, 2013 is revoked.

Reasons

1. Basic facts

A. On May 16, 2010, the Plaintiff applied and implemented a system for reducing working hours of 40 hours a week to the company, and entered into a labor contract with A, B, and C, an employee on May 17, 2010.

B. Around August 2010, the Plaintiff applied for subsidies for the reduction of working hours of small and medium enterprises (hereinafter referred to as “subsidies”) pursuant to Article 20 of the Employment Information System Act and Article 13 of the former Enforcement Decree of the Employment Information System Act (amended by Presidential Decree No. 23139, Sept. 15, 2011; hereinafter referred to as “Enforcement Decree of the Employment Insurance Act”). Since then, the Plaintiff received subsidies from the Defendant totaling KRW 19,76,000 from the second quarter to the second quarter of 2010.

D. However, the Defendant: (a) received subsidies by reporting the insured status of employment insurance of A, B, and C prior to the reduction of working hours to the Plaintiff on May 17, 2010; (b) for one year from the date of disposition pursuant to Article 35 of the Enforcement Decree of the Employment Insurance Act (from January 19, 2012 to January 18, 2013), on the ground that the Plaintiff received subsidies by increasing the number of workers after the reduction of working hours (hereinafter referred to as “instant disposition”) different from the actual employment date (A, April 25, 2010; (c) the payment restriction for various subsidies for employment security programs; (d) the refund order for KRW 19,776,000 already paid; and (d) the refund order for KRW 39,52,500,000 already paid to the Plaintiff; and (d) the instant disposition additionally collecting the amount equivalent to KRW 239,50,00 (hereinafter referred to as “instant disposition”).

[Reasons for Recognition] The facts without dispute, Gap evidence 1-2, Eul evidence 2-2, Eul evidence 12-2, 13-2 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) After joining the Plaintiff Company, A, B, and C entered into a labor contract on May 17, 2010 on a daily basis while serving as a daily worker after being employed by the Plaintiff Company. Therefore, the above employees cannot be included in the worker before the reduction of working hours pursuant to Article 13(2) of the Enforcement Decree of the Employment Insurance Act, and thus, the Plaintiff’s calculation of the number of workers before the reduction of working hours and the receipt of subsidies does not constitute “the receipt of subsidies by fraud or other improper means.”

2) Even if there is a legal defect in the Plaintiff’s application for subsidies, the Plaintiff concluded the above employment contract and referred to the subsidy as new ones with the belief that there is no legal person, upon receiving advice from the labor company. Therefore, there is a justifiable reason that is not attributable to the Plaintiff’s failure to perform his/her duties.

3) Even if the Plaintiff received the subsidy by fraud or other improper means, the amount that can be ordered to be returned shall be limited to the amount that has been properly deducted from the subsidy received by the pertinent fraudulent or other improper means. If the Plaintiff deemed that he/she had worked before the reduction of working hours without deeming A, B, or C as a new employee, the subsidy that was duly paid is the amount of the subsidy already paid, and thus, the Plaintiff is not obligated to return the subsidy already received.

B. Relevant statutes

2. Attached Form 2 is as listed in the relevant Acts and subordinate statutes;

C. Facts of recognition

1) On May 16, 2010, the Plaintiff applied to the company for the reduction of working hours by 40 hours a week. On August 2010, the Plaintiff applied for subsidies to the Defendant on or around February 2, 2010, and received KRW 19,76,00 in total, KRW 4,62,00 in the three quarter of 2010, KRW 4,662,00 in the four quarter of 2010, KRW 4,122,00 in the four quarter of 2010, KRW 4,122,00 in the four quarter of 201, and KRW 12,22,00 in the two quarter of 20,00 in the two quarter of 2011.

2) From March 25, 2010, A, from April 5, 2010, B, from April 5, 2010, and C, from April 7, 2010 to April 7, 2010, each Plaintiff was working for each of the Plaintiff, and all of the above three persons was written on May 17, 2010. 3) A, B, and C’s receipt for tax withholding for wage and salary income in 2010 are written on May 20, 201, and the starting date of the service is written on May 20, 201, and the national pension subscription certificate is written on May 17, 2010.

4) According to the Plaintiff Company’s wage ledger in April 2010, there was no record of receipt of benefits by A, B, and C, and the Plaintiff’s wage in April 2010 was paid from the Plaintiff’s account in the name of D personal representative.

5) Meanwhile, the certificate of career and the certificate of use issued by the Plaintiff are written as B’s service period or service period from April 5, 2010 to July 20, 201 (the probation period: one month from the date of employment).

In addition, the annual salary contract entered into between the Plaintiff and B on April 5, 2011 is written from April 5, 2011 to April 4, 2012.

6) Meanwhile, around July 201, B filed an objection after being dismissed from the Plaintiff Company, and around August 14, 2011, B stated to the effect that “The first month’s benefit at the time of entry was paid in the Plaintiff’s personal passbook of representative director D, not the Plaintiff’s passbook,” and that “it is a private person allowing the Plaintiff to buy four-time insurance for the contents of the subsidy provided in the Dong department at the time of entry, and it is not a private person, even if the part at issue under tax law is not a private person.”

7) On October 21, 201, B reported to the Defendant, “The Plaintiff reported the date of entry A, B, and C to May 17, 2010, and received subsidies in an unlawful manner by including E, which was recorded as an executive officer.” Accordingly, according to the content of F and F, which had been in charge of personnel management at the time of the Plaintiff’s application for subsidies on December 16, 201, the Defendant stated that “F was immediately reported on the date of initial employment, and was able to receive subsidies upon the commencement of the employment contract, and was later reported at the end of the report in the case of B, C, and C, which was later reported. At the time of the actual employment, two persons were reported on March, 200, but they were reported on the date of entry after the date of the application for subsidies.”

8) E, recorded as an auditor on the Plaintiff’s corporate register, filed a lawsuit against the Plaintiff seeking the payment of an officer retirement allowance against the Seoul Western District Court 201Kahap8003. The competent division which deliberated on the instant case, dismissed the Plaintiff’s claim on the ground that E is difficult to be deemed as having the Plaintiff’s auditor or director’s status (this decision was concluded at the court of appeal). In addition, the Plaintiff’s representative director D filed a lawsuit against the Plaintiff to request confirmation of the Plaintiff’s shareholder on the ground that D had a title trust of part of the Plaintiff’s shares to the Plaintiff, but revoked, and the judgment was affirmed in the Seoul High Court 2012Na7665, which was the appellate court, and thereafter became final and conclusive as is.

[Based on Recognition] In the absence of dispute, Gap evidence 1-1, 2, 3-1 through 3, 4-1 through 5-1 through 3, 6, 7, 12, 13, Eul evidence 2-2, 3, 4-2, 5-1 through 3, 8-1 through 3, 9, 10, 14-2, 15-2, and the purport of the whole pleadings

D. Determination

1) As to whether the Plaintiff received subsidies by “a false or fraudulent means”

A) In full view of the purport of the entire pleadings, the following circumstances are revealed.

① On May 17, 2010, the date on which the actual employment date of the Plaintiff is different B, C, and C, and C, and the date on which the reduction of working hours is applied, the reasons why the Plaintiff concluded a fixed employment contract and the reasons why the Plaintiff acquired the employment insurance. Rather, in light of the Plaintiff’s representative director D’s payment of wages for the 4th month in a passbook under the name of an individual, and the content of the e-mail sent by B and the above statement by F, there is doubt as to whether the Plaintiff, in fact, did not form the same appearance as the date of the reduction of working hours immediately after the date of the application of the reduction of working hours for the purpose of receiving subsidies even if he/she had worked before May 16, 2010. Accordingly, the Plaintiff asserted to the effect that the Plaintiff’s representative director B was threatening the Plaintiff by citing the Plaintiff’s complaint and false facts, and thus, he/she cannot be able to believe the Plaintiff’s statement of B and F.

③ The Plaintiff asserts that, in light of the characteristics of trade business, the Plaintiff concluded a labor contract on a regular basis by considering the level of skilled workers employed by skilled workers B, C, and A as their daily workers.

However, even according to these arguments, the plaintiff's actual commencement date of work is not easily explained by all other three years and the reasons for concluding a collective employment contract on May 17, 2010 immediately following the date of the reduction of working hours.

(4) Where the monthly average number of workers of a business (hereinafter referred to as “number of workers after reduction”) during each quarter exceeds the monthly average number of workers for the three months immediately preceding the month in which the date on which the reduction of working hours falls (hereinafter referred to as “average number of workers before reduction of working hours”), an enterprise applying for a subsidy shall pay an amount calculated by multiplying the excess number by the amount publicly notified by the Minister of Employment and Labor, and an enterprise that has applied for a subsidy shall meet the requirements for granting a subsidy or attracts them to report by

⑤ Based on the premise that new employment is scheduled at the time of the reduction of working hours, and that the number of workers after the reduction is anticipated to increase continuously, the Plaintiff asserts that the amount of subsidies that the Plaintiff may receive is equivalent to the amount of subsidies already paid, or that there is no reason to report as if the Plaintiff was employed after the reduction of working hours. However, there is no objective evidence suggesting that the continuous increase of the number of workers after the reduction of working hours was clearly anticipated.

B) In full view of the various circumstances such as Dwork, the Plaintiff concluded a labor contract with A, B, and C who had worked as an employee before the reduction of working hours for the purpose of receiving subsidies on the following day after the reduction of working hours. Thus, this constitutes “the case where the Plaintiff received subsidies by fraud or other improper means” under Article 56(1) of the Enforcement Decree of the Employment Insurance Act.

2) As to whether there is a justifiable reason that cannot be caused by the Plaintiff’s negligence of duty

A) Sanction against a violation of an administrative law is a sanction against the objective fact that is a violation of an administrative law in order to achieve administrative purposes. Thus, it may be imposed even if the violator does not have knowledge of his/her duty, barring any special circumstance, such as where there are circumstances that make it unreasonable for him/her to present it legitimate, or where there are circumstances that make it unreasonable for him/her to expect the performance of his/her duty to do so, or where there are justifiable grounds that make it unreasonable for him/her to do so, barring any special circumstance, such as where it is unreasonable to expect him/her to perform his/her duty, etc. (see, e.g., Supreme Court Decision 2010Du24371, Jun.

B) In full view of the purport of the entire pleadings, the following circumstances are revealed.

① The Plaintiff asserted that he did not know about the process of applying for subsidies, and that the Plaintiff and the representative director D did not know about the process of applying for subsidies. However, the labor contract between the Plaintiff, B, C, and the Plaintiff was concluded in the name of representative directorD, as well as D actively participated in the process of applying for subsidies, such as paying wages for April 20, 200 from the account in the name of an individual.

② In addition, according to the F’s above statement, the Plaintiff reported as if he/she was in body after the reduction of B, C, and A in order to receive subsidies, constitutes a manifestly false report.

C) In full view of the aforementioned various circumstances, the Plaintiff actively participated in receiving subsidies by false means, and thus, there is no justifiable reason to believe that it is not attributable to the Plaintiff’s failure to perform his/her duties.

3) Scope of return of subsidies received by unlawful means and scope of additional collection

A) In full view of the nature of the subsidy for the reduction of working hours, the subject and scope of the subsidy, the content and form of the provision of the statutes on the restriction on support due to fraudulent acts, the return order in the case of illegal receipt and the nature of the future restriction on payment, etc., it is reasonable to deem that the amount that the Minister of Employment and Labor may order the recipient of the subsidy to return by fraudulent or other illegal means is limited to the amount that was provided by the “the pertinent fraudulent or other illegal means” (see, e.g., Supreme Court Decisions 2003Du9640, Nov. 28, 2003; 2006Du6105, Oct. 27, 2004).

B) If so, in the instant case, the scope of the order of return that the Plaintiff could make to the Plaintiff on the ground that the Plaintiff was unfairly paid subsidies by fraud or other improper means is the amount exceeding the subsidies that the Defendant could have received when he/she was duly reported according to the starting date of his/her work as an employee before shortening A, B, and C.

C) We examine whether E, which is first the Plaintiff’s auditor, is a worker. While E is written as an auditor on the Plaintiff’s corporate register, in the case of Seoul Western District Court 201Gahap8003, the Seoul Western District Court 201Gahap8003, it was recognized that E was not a director or auditor of the Plaintiff, and that E was not a director or auditor of the Plaintiff’s shares in the case of Seoul High Court 201Gahap247665, as seen earlier. In full view of the overall purport of the arguments, the following circumstances are as follows: (i) E, like the Plaintiff’s other workers, prepares an annual salary contract; (ii) there is no difference between E and other workers’ working conditions concerning work hours, recess hours, holidays, etc.; and (iii) there is no evidence to recognize that E was actually performing an auditor’s duties other than the Plaintiff’s certified copy on the Plaintiff’s corporate register, it is reasonable that E worked as a general employee, unlike the Plaintiff’

D) As such, the number of workers before the reduction of A, B, and C and the number of workers after the reduction of the number of workers employed by the Plaintiff and the number of workers after the reduction of the number of workers employed by the Plaintiff is as follows, and the quarterly incentive per worker is KRW 1,800,000 (Notice of Ministry of Employment and Labor No. 2010-58).

A person shall be appointed.

E) The amount of subsidies that the Plaintiff could have reasonably received pursuant to the foregoing Schedule is as follows:

A person shall be appointed.

F) If the amount of the subsidy that the Plaintiff could have reasonably received exceeds the amount of the subsidy that the Plaintiff received, among the subsidies for the second quarter of 2010, 60,000 won, the amount exceeding the amount of the subsidy corresponding to the above part, and on such premise, it is necessary to order or impose the additional collection amount on the Plaintiff pursuant to Article 35(2) of the Employment Insurance Act and Article 78(1)1 of the Enforcement Rule of the same Act. Furthermore, in the case of a quarter other than the second quarter of 2010, the amount of the subsidy that the Plaintiff could reasonably have been paid exceeds the amount of the subsidy already received, the Defendant cannot order the Plaintiff to return the subsidy for each quarter or impose the additional collection amount on the Plaintiff (On the other hand, in accordance with the preparatory document submitted by the Defendant on April 19, 2013, the reasonable amount of the subsidy for the second quarter of 200,000 won is calculated on the Plaintiff’s calculation amount. However, as seen earlier, even if the Plaintiff did not have any difference from the Plaintiff’s employees for more than 3608.

G) Ultimately, the amount that can be ordered to be returned to the Plaintiff for the same reasons as above and the amount that can be collected additionally are indicated in the corresponding column in attached Form 1.

4) Sub-committee

Therefore, inasmuch as the instant disposition is recognized as the grounds for the instant disposition, the disposition of restricting the payment of various subsidies for employment security projects is lawful for one year from the date of the instant disposition (from January 19, 2012 to January 18, 2013). However, in the case of an order to return subsidies already paid and a disposition of additional collection equivalent to twice the said two times, the order to return subsidies and the disposition of additional payment corresponding to the remainder other than the amount that can be ordered to return and the amount that can be collected additionally in the second quarter of 2010 out of the attached Table 1. are all unlawful.

3. Conclusion

Thus, the Cheong-gu of this case is quoted within the above scope of recognition, and the remainder is without merit, and it is dismissed. It is so decided as per Disposition.

Judges

Judges of the presiding judge, leapability

Judges Yoon Young-man

Judge Lee Jin-hun

Note tin

1) Three employees with the upper limit of support (i.e., average 10 employees before the reduction x Article 13(3) proviso of the Enforcement Decree of the Employment Insurance Act

If there are more than 30/100), the number of employees with limit of support shall be calculated, and if the number of employees in excess is less than the number of employees with limit of support, the number of employees in excess shall be calculated according to

(Article 13(3) proviso of Enforcement Decree of the Employment Insurance Act)