(영문) 서울고등법원 2018.11.22. 선고 2018누59566 판결

Of the judgment of the court of first instance, the part against the plaintiffs falling under the following cancellation shall be revoked. The defendant's order for payment of KRW 5,334,400 against the plaintiff Eul on August 17, 2016 and the order for payment of KRW 4,370,660 against the plaintiff Eul (hereinafter referred to as "all of the above orders for payment") shall be revoked.

Reasons

1. Quotation of the first instance judgment

The reasoning for the court's explanation on this case is as follows, and the judgment on the plaintiffs' assertion is added in Paragraph (2). Thus, it is identical to the part corresponding to the plaintiffs among the judgment of the court of first instance pursuant to Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (other grounds asserted by the plaintiffs in this court while filing an appeal are not significantly different from the contents asserted by the plaintiffs in the court of first instance, and even if all the evidence submitted in the court of first instance are examined, it is just the findings of fact and the judgment of the court of first instance that rejected

- “In accordance with Articles 55 and 56 of the Act on the Development of Workplace Skills of Workers on August 17, 2016, and Articles 22 and 22-2 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers” in Part 3 of Part 17 of the judgment of the first instance.

- Deleted.

○ The 8th to 5th of the first instance judgment shall be followed as follows.

Article 55 or 56 of the Act on the Development of Workplace Skills of Workers provides for the grounds of sanctions or other fraudulent methods for each of the sanctions. “False or other unlawful means” generally refers to all acts that are not correct under the social norms with intent to see as if a person who is not eligible for training costs is qualified or to conceal the fact that he/she is not qualified, and that may affect the decision-making regarding the payment of training costs (see, e.g., Supreme Court Decisions 2011Du3777, Jun. 13, 2013; 2011Du7175, Jun. 13, 2013; 2012Du24764, Jul. 24, 2014). In addition, the administrative purpose of sanctions against administrative violations is a sanction against the objective fact of violation of administrative regulations, and thus, it is always subject to the imposition of a punishment on a person who is not a real offender, but a person responsible for the violation of statutes, and the imposition of a punishment on a person who has not been negligent.

However, the Plaintiffs did not confirm the completion of training expenses, the appropriateness of the application for subsidization of training expenses, and did not pay training expenses in advance to E even though each of their infant care teachers was unable to properly complete training courses, and filed an application for subsidization of training expenses by attaching false tax accounts and certificates issued. This constitutes an act that a person who is not eligible for subsidization of training expenses does not seem to have qualifications or is not fit under the social norms by detecting the fact that he/she is not qualified, and even in such a case, it is difficult to secure the effectiveness of the regulations on sanctions if the Plaintiffs’ intent

Therefore, it is reasonable to view that the Plaintiffs were provided with support by fraud or other improper means even if they were subject to a disposition of non-guilty suspicion by an investigative agency, and thus, the return order and additional collection disposition pursuant to Article 56(2)1 and (3) of the Act on the Development of Workplace Skills of Workers may be issued.

2. The plaintiffs' assertion and judgment

A. The plaintiffs asserted to the effect that "the payment order of this case was unlawful since the defendant did not confirm the facts such as the plaintiffs' individual training courses, etc. and issued the payment order based only on the investigation results."

In principle, the burden of proof in an administrative litigation that applies mutatis mutandis under the provisions of the Civil Procedure Act is allocated among the parties in accordance with the general principles of civil procedure, and in the case of an appeal litigation, there is the burden of proof as to the legitimacy of the disposition to the defendant who asserts the legality of the disposition according to its nature. In a case where there is a reasonable and acceptable proof of response as to the legality of a certain disposition asserted by the defendant, the disposition is justifiable, and any assertion contrary thereto and proof return to the plaintiffs, the other party, who are the plaintiffs (see, e.g., Supreme Court Decision

However, inasmuch as the Defendant requested the Plaintiffs to submit a written investigation document and a written confirmation to the Plaintiffs on the grounds of the data received from the investigative agency, but failed to do so, and the instant payment order became final and conclusive based on the fact that the investigative agency later notified the Defendant, the premise of the instant payment order is that the Plaintiff’s childcare teachers were compensated for training costs even if they received education less than 80% of the training costs, the premise of the instant payment order was reasonably acceptable. However, even though the Plaintiffs received written statements from the Defendant, such as requesting the submission of a written investigation document prior to the disposition related to the illegal payment of training costs, and providing guidance for voluntary report, they did not submit any opinion (No. 3, 5, and No. 9-2, No. 9-3). This court merely relied on the Defendant’s fact-finding, and actually did not assert or present specific facts about the actual training hours of the Plaintiff childcare teachers affiliated with other Plaintiffs (Evidence No. 8, No. 99).

Therefore, the above argument by the plaintiffs is difficult to accept.

B. The plaintiffs asserted that "the defendant ordered the payment of this case to the plaintiffs who were subject to non-prosecution disposition, other than the disposition standard of the Ministry of Employment and Labor, which is the discretionary standard, and that the payment order was unlawful since it did not make a voluntary report regardless of the degree of causes attributable to the plaintiffs."

According to Gap evidence 2-2, Gap evidence 3-2, Eul evidence 6-2, Eul evidence 2-6, and Eul evidence 24, the prosecutor of the Incheon District Prosecutors' Office prosecuted the relevant persons including the representatives of E on November 17, 2014, and the prosecutor of the Incheon District Prosecutors' Office directed the plaintiff C on December 19, 2014, and issued a non-prosecution disposition on December 22, 2014 with respect to the suspicion of violation of the Subsidy Management Act by the plaintiff on December 22, 2014, the Ministry of Employment and Labor notified the administrative agencies including the defendant of the criteria for administrative disposition (hereinafter referred to as "attached criteria") as shown in the attached Form in relation to the result of the investigation into the illegal receipt of training fees by the business owner of the Incheon Bupyeong Police Station on April 12, 2016.

However, according to the attached standards, an administrative agency may confirm the data of the prosecutor's investigation results and proceed with the procedures for the disposition of illegal receipt to the business owner where it is confirmed that the business owner's suspicion of illegal receipt has been confirmed, and the prosecutor's investigation results alone confirm the fact of illegal receipt through a written investigation and confirmation with the business owner, and if the business owner fails to submit such data, he/she may conduct an additional investigation, such as attendance, and then determine whether to take an administrative disposition after confirming the facts. The notification data of the Bupyeong Police Station confirms that the childcare teachers belonging to the plaintiffs have received education less than 80% (Evidence 2), and the prosecutor indicted the representative of the training institution in accordance with the notification of the Bupyeong Police Station after investigation (Evidence 6), and the defendant sent a written investigation and written confirmation to the plaintiffs, and provided the plaintiffs with an opportunity to clarify the contents of notification of the Bupyeong Police Station, but the plaintiffs did not submit any opinion, such as submission of written confirmation. Therefore, even if the defendant received the plaintiffs's notification from the prosecutor's office, it can be determined that the plaintiffs's compliance with the aforementioned objective criteria.

In addition, where the Defendant voluntarily filed a voluntary report in accordance with the attached criteria, the payment order of this case, including the return of the amount of illegal receipt (the restriction on loan restriction) and the additional collection for the Plaintiffs who did not file a voluntary report. This is consistent with Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (the full or partial reduction of the amount to be additionally collected, notwithstanding subparagraphs 1 and 2). Notwithstanding subparagraphs 1 and 2, such purport is reflected in the attached criteria, and it cannot be deemed that the contents are considerably unreasonable or unreasonable, or that the contents are not proportional to the reasons attributable to the Plaintiffs.

Therefore, the plaintiffs' above assertion is without merit.

Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.