(영문) 서울고등법원 2019.10.22. 선고 2019누36782 판결

The judgment of the first instance is revoked. The Defendant’s order to return KRW 2,545,500 against the Plaintiff on November 17, 2016 and the decision to additionally collect KRW 2,545,500, respectively, shall be revoked.

Reasons

1. Quotation of the first instance judgment

The reasoning for the court's explanation concerning this case is as follows, and the reasoning for the first instance judgment is as stated in the reasoning of the first instance judgment, except for the modification of part of the first instance judgment as follows and the addition of the judgment as to the plaintiff's assertion as stated in paragraph (2). Thus, the grounds for appeal by the plaintiff are accepted pursuant to Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (other grounds for appeal by the plaintiff are not significantly different from the contents of the plaintiff's assertion in the first instance court, and even if the evidence presented in the

A. The third party 5 was not "C," and the defendant, around May 26, 2016, requested the plaintiff to submit a written investigation and a written confirmation for the investigation of additional facts, but did not present any opinion."

B. On December 29, 2014, the Prosecutor issued a non-prosecution disposition on the violation of the Plaintiff’s Subsidy Management Act relating to the illegal receipt of training expenses (Evidence of Evidence) on December 29, 2014.

(d)No. 13 of the 4th page "No. 7" is added to "No. 13" (including each number; hereinafter the same shall apply).

E. Each “80%” of the 4th and 6th and 8th and 8th and each “80%” is “80%,” and “the 4th and 17th and 18th and each “the 18th” is deleted. G. The following is added between the 6th and 9th and the 10th and the 10th. The Plaintiff’s contract period between the Plaintiff and E is less than three hours a day. Even if the Plaintiff’s contract period between the Plaintiff and E was less than three hours a day, it may be argued that the Plaintiff’s infant care teachers employed by the Plaintiff have received 4 hours a day. However, the Plaintiff’s assertion that the class is distinguishable from the Plaintiff’s assertion that the class was not superior to the Plaintiff’s absence of attendance during the practice period, or that the Plaintiff was actually engaged in the practice without a lecturer is not accepted.”

H. From the 6th one to the 13th one is as follows. “False or other unlawful means defined as the grounds for each disciplinary measure under Articles 55 and 56 of the former Act on the Development of Workplace Skills of Workers (wholly amended by Act No. 12627, May 20, 2014; hereinafter referred to as “the Act on the Development of Workplace Skills of Workers”) refers to all active and passive acts that may affect the decision-making on the payment of training fees, in general, are all acts that are not correct under the social norms with intent to see that a person who is not eligible to receive training fees is qualified, or that is not qualified, as if he/she were qualified, or to conceal the fact that he/she is not qualified (see Supreme Court Decision 2012Du24764, Jul. 24, 2014). In addition, a disciplinary measure imposed on a violation of administrative regulations is imposed based on the objective fact that it violates administrative regulations to achieve administrative purposes, and thus, is imposed on a person who is not a real manager, but a violation (see Supreme Court Decision 21010.

With respect to this case, as seen earlier, the Plaintiff filed an application for subsidization of training expenses without confirming the completion of training by trainees and the appropriateness of the application for subsidization of training expenses, as if he/she had completed the training course. This constitutes an act that does not correct under the social norms by concealing the fact that a person who is not eligible for subsidization of training expenses is qualified, or by concealing the fact that he/she is not qualified, and even in such a case, it is difficult to ensure the effectiveness of the sanctions regulations if the Plaintiff demanded the Plaintiff’s intention. Therefore, it is reasonable to deem that the Plaintiff received the subsidization of training expenses by fraud or other improper means, as such, even if the Plaintiff was subject to a non-prosecution disposition against the suspicion of non-prosecution by the investigative agency. Accordingly, the Defendant may issue a return order and an additional collection disposition against the Plaintiff pursuant to Article 56(2) and (3) of the Act on the Development of Workplace Skills

I. From the 8th to 10th century, the above evidence is acknowledged that the Ministry of Employment and Labor sent to the competent administrative agency including the defendant with regard to the result of the investigation into the illegal receipt of training fees for the business owner of the Incheon Bupyeong Police Station on April 12, 2016, including the defendant (hereinafter referred to as the "base of this case").

1) Guidance1 such as the criteria for administrative disposition on the case for which the business owner's illegal training and investigation is terminated, and the business owner whose suspicion of illegal receipt is confirmed by cooperation with the investigation results of the prosecutor's office (in the case of indictment) on the case for which the investigation by the prosecutor's office is terminated, the case where it is not clearly confirmed that the illegal act is not clearly confirmed, such as "the fact that the business owner's non-prosecution of prosecution (in the case of non-prosecution) after confirming the reason for the non-prosecution of the prosecutor's office in accordance with the case of "the suspension of prosecution and the investigation under the process of prosecution where the suspicion of illegal receipt is unclear," etc., is the case for which

Where a voluntary report is filed by the ○ (business owner who has failed to file a voluntary report) the measures to return only the amount of illegal receipt (the restriction on loans) ○ (the business owner who has not filed a voluntary report) the business owner who has failed to file a voluntary report is exempt from the administrative disposition if it is not verified that the illegal receipt has not been made through mail delivery - a written investigation and a written confirmation document (including evidentiary documents) submitted by the business owner, etc. - (the business owner who has failed to submit a written investigation and a written confirmation document) the business owner who has failed to submit a written investigation and a written confirmation document

According to the instant standard, in the event that the investigation conducted by the prosecutor was completed and prosecuted, the administrative agency may proceed with the procedure for disposition against the business owner when the business owner's suspicion of illegal receipt is confirmed after verifying the data of the prosecutor's investigation results by the prosecutor's office. However, if the suspicion of illegal receipt is unclear only with the investigation results by the prosecutor's office, it is confirmed whether the business owner received illegal receipt through a written investigation and a written confirmation, etc., and if the business owner fails to submit it, it may decide whether to take an administrative disposition by conducting an additional investigation, such as an appearance investigation. However, as seen earlier, although the representative of E was prosecuted by the prosecutor's office, and even if the Plaintiff was subject to a disposition that was suspected of suspicion by the prosecutor's office, the Defendant provided the Plaintiff, who was the business owner, with an opportunity to send a written investigation and a written confirmation, on the ground that the Plaintiff's infant care teacher was paid training fees by an illegal means, based on the data transmitted by the investigative agency under the instant standard, but the Plaintiff did not present any opinion.

(j) eliminate the 8th page 11(b).

(k) The 8th page 13 “Plaintiffs” refers to “Plaintiffs.” The 9th page 2 through 6 of the 9th page “Feas described below.” However, even if the Plaintiff was unaware of the progress of the training course due to the Plaintiff’s failure to meet the E standard as so argued, if the Plaintiff did not intend to do so, it would be easy for the Plaintiff to have known that the training course was normally being conducted, such as the failure to conduct training, in the case of Sundays, etc., if the Plaintiff was paid attention, it would be easy for the Plaintiff to have easily known that the training course was normally conducted, and the period for which the Plaintiff was unlawfully received is not short of the period of extinctive prescription (the considerable part of the training cost subsidized by illegal means is the situation in which the return order and additional collection are impossible because the period of extinctive prescription expires).” In view of the need for strict sanctions where training costs are subsidized by improper means for transparent implementation of the enormous financing for vocational skills development training program.”

2. The portion to be determined additionally in the trial;

A. Determination as to the illegal prior notice argument

1) The Plaintiff asserts that each of the dispositions of this case is unlawful, since the Plaintiff did not guarantee the submission period of opinion with a considerable period of time in giving prior notice of each of the dispositions of this case.

2) However, considering the overall purport of evidence Nos. 1 and 5 evidence Nos. 3, 5, and 8 as well as the overall purport of the arguments, the defendant notified the plaintiff of the "Guidance on Administrative Dispositions, etc. on April 12, 2016", "Guidance on Voluntary Reporting on the Payment of Expenses for Vocational Skills Development Training" on April 22, 2016, "Request for Submission of Documents for Illegal Demand and Supply" on May 26, 2016, and then notified the plaintiff of the "Advance notice of administrative dispositions and guidance on the submission of opinions" on August 31, 2016, and thereafter, it can be recognized that the plaintiff issued each disposition of this case against the plaintiff on November 17, 2016.

According to the above facts, since the defendant notified the plaintiff that each of the dispositions of this case can be made continuously from April 2016, and demanded the plaintiff to submit his opinion, the plaintiff was guaranteed a sufficient period to submit his opinion. This part of the plaintiff's assertion is without merit.

B. Determination as to the unspecified assertion of facts based on the disposition

1) The Plaintiff did not specifically verify the facts, such as individual training courses of infant care teachers belonging to the Plaintiff and imposed sanctions on all business owners including the Plaintiff on the basis of the results of the investigation related to E, on the basis of the illegal receipt of training costs. The Plaintiff asserts that it is unlawful since the Defendant did not specify the factual basis of the disposition and transferred the burden of proof to the Plaintiff.

2) In principle, the burden of proof in an administrative litigation that is applied mutatis mutandis under the provisions of the Civil Procedure Act is allocated among the parties in accordance with the general principles of civil procedure. 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. In a case where there is a reasonable and acceptable proof as to the legality of a certain disposition asserted by the defendant, the disposition can be deemed justifiable, and the assertion and proof of exceptional circumstances return to the plaintiff, who is the other party (see Supreme Court Decision 2015Du42817, Oct. 27, 201

3) As to the instant case, the Defendant requested the Plaintiff to submit a written investigation and a written confirmation to the investigative agency on the basis of the data received from the investigative agency, but failed to do so, and thus, the Defendant issued each instant disposition based on the data notified to the investigation agency. Since the criminal judgment was finalized against the representative of the training agency, the premise of each instant disposition that “the Plaintiff’s childcare teacher was paid training expenses by unlawful means despite the Plaintiff’s attendance at less than 80% of the training course and failed to meet the completion standards,” it is determined that the premise of each of the instant dispositions was reasonably acceptable evidence. Accordingly, the Plaintiff’s burden of proving that the childcare teacher employed by the Plaintiff was receiving training expenses more than 80% of the attendance rate. Accordingly, the Plaintiff did not submit any opinion despite receiving the Defendant’s request from the Defendant for guidance on the illegal payment of training expenses and the submission of written investigation. Nevertheless, the Plaintiff did not err by the Defendant’s fact-finding up to the trial, and did not assert specific facts about the actual training hours of the Plaintiff’s childcare teacher or submit the evidence.

3. Conclusion

Therefore, all of the plaintiff's claims of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.