201Guhap3265 Revocation of disposition, etc. of vocational ability development training costs

A Stock Company

The Commissioner of the Regional Employment and Labor Office in Gwangju

January 26, 2012

February 9, 2012

1. On June 17, 2011, the Defendant’s order to restrict the provision of subsidies and loans for one year from July 14, 2008, which was the date of illegal receipt to the Plaintiff, and the order to return KRW 40,615,90, which was already paid, shall be revoked.

2. On August 4, 2011, the Defendant’s disposition to restrict subsidies and loans for one year from January 31, 2008, which was the date of unjust receipt to the Plaintiff, and the disposition to recover KRW 11,902,140, which was already paid during the period from February 1, 2008 to March 11, 208, excluding training expenses already paid during the period from March 12, 2008 to January 31, 209, respectively.

3. The plaintiff's remaining claims are dismissed.

4. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The order and the Defendant’s order issued on June 17, 201 to return the additionally collected amount of KRW 295,083 and the equivalent amount of KRW 295,083,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00

1. Details of the disposition;

A. A. On June 17, 2011, the Defendant’s “1 training course for the gas industrial engineer” entrusted by the Defendant to the Defendant’s “1 training course for the training course for the “1 training course for the gas industrial engineer” was recognized by the Defendant as the training course for the development of vocational skills (training for the business owner). The Plaintiff received KRW 1,475,415 from the Defendant on July 14, 2008, for five employees, including C, who work for the “1 training course for the gas industrial engineer.”

○ The Defendant was requested by the Board of Audit and Inspection of Korea and the Ministry of Employment and Labor to conduct an investigation on whether or not the trainees who entered or depart from the Republic of Korea during the vocational skills development training period, along with the list of trainees who entered or depart from the Republic of Korea and investigated the Plaintiff. As a result, the Defendant confirmed that the Plaintiff was treated as being present on October 16, 2007 and October 18, 2007, when the above C left the Republic of Korea from October 16, 2007 to October 20, 2007.

○ On June 17, 2011, the Defendant rendered the following dispositions against the Plaintiff on the ground that “The Plaintiff did not participate in the “one training course for the gas industry operator” but was paid training expenses by false or other unlawful means.”

A person shall be appointed.

B. On August 4, 2011, the Defendant’s place of business of the Plaintiff (hereinafter “Plaintiff”) was recognized as a vocational skills development training course by the Defendant, and conducted training from September 17, 2007 to November 22, 2007. The Plaintiff filed an application for training expenses for 12 persons, including D workers belonging to a leisure place of business, for the training course for the career design theory (II), and received KRW 780,372 from the Defendant on January 31, 2008. The Defendant received KRW 780,372 from the Defendant on January 31, 2008, along with the list of trainees who entered and depart from the Republic of Korea from the Board of Audit and Inspection and the Ministry of Employment and Labor, and investigated the Plaintiff as to whether they were illegally released and managed during the training period for vocational skills development. Although the aforementioned D’s result was conducted on November 17, 2007 to November 23, 2007 (Ⅱ).

○ On August 4, 2011, the Defendant rendered the following dispositions against the Plaintiff on the ground that “D was not present at the training course due to the business trip abroad, and was paid training expenses by false or other unlawful means,” on the ground that “the Plaintiff was treated as having been present at the training course due to the business trip abroad.”

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 6 (including each number), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) With respect to paragraphs 1 and 4

The plaintiff entrusted the whole training course of the gas industrial engineer 1 to B, which is not the plaintiff's responsibility not to be responsible for the erroneous management of C's attendance at B school, but to be a person who received support of workplace skill development projects by fraudulent or other illegal means under Article 35 (1) of the former Employment Insurance Act. In the case of the plaintiff, there is only minor negligence that did not discover D's improper receipt of subsidies or loans by simple business process related to the promotional design (II) training course, and it cannot be viewed as a case where the defendant received or attempted to receive subsidies or loans by fraudulent or other illegal means under Article 25 (1) 2 of the former Workers' Vocational Skills Development Act.

(2) Regarding the third disposition

As seen above, the Plaintiff is merely a minor negligence that did not discover the illegal receipt of D due to a simple business process related to the promotional design theory (I), so this cannot be viewed as a case where workplace skill development training was conducted in violation of the contents recognized under Article 25 (1) 3 of the former Workers’ Vocational Skills Development Act. However, the third measure taken by the Defendant on a different premise is unlawful.

(2) As to the laws and regulations on the basis of the provisional disposition regarding Nos. 2 and 5

The proviso of Article 35 (2) of the former Employment Insurance Act provides that Article 16 (5) 1 and Article 25 (4) 1 of the same Act shall apply mutatis mutandis to those who conduct workplace skill development training under Article 2 subparagraph 1 of the Act on the Development of Workplace Skills. Since the "gas industrial engineer training course" and "promotional design (II) training course" are vocational ability development training under the former Workers' Vocational Skills Development Act, Article 25 (4) 1 of the former Workers' Vocational Skills Development Act, which provide for the purport that even if unlawful matters are conducted in the workplace skill development training course under the above provision, their disposition shall apply mutatis mutandis to each workplace where the training course is conducted, and Article 25 (5) of the former Workers' Vocational Skills Development Act and Article 9 (3) [Attachment 2] of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers shall apply mutatis mutandis to those who conduct workplace skill development training under Article 2 subparagraph 1 of the same Act. Thus, the defendant's order to return the subsidy to the Plaintiff during the two-year period.

Whether the violation has been violated

Even if Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act can serve as the basis for the second and fifth dispositions, Article 56(2) of the former Enforcement Decree of the Employment Insurance Act provides that C’s order for the return of conditions with respect to all subsidies, etc. unrelated to any false or other unlawful means paid during the period of restriction on payment for one year is against C’s unlawful receipt due to the fact that the amount of unlawful receipt is 295,083 won and the amount of unlawful receipt for D is 65,031, in light of the fact that the amount of unlawful receipt for payment for 295,083 won and the amount of unlawful receipt for 65,031, and is invalid in violation of the purpose of delegation under Article 35(1) of the former Employment Insurance Act. Thus, the second and fifth dispositions

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) In imposing sanctions on the assertion regarding dispositions 1 and 4, the Act on the Employment Insurance and the former Workers’ Vocational Skills Development shall apply in principle to the cases of imposing sanctions on the ground of an illegal act, and since it cannot be governed by the amended Act and subordinate statutes after the act is conducted (see Supreme Court Decision 82Nu1, Dec. 2, 1982). In applying the former Employment Insurance Act and the former Workers’ Vocational Skills Development Act to the Defendant’s disposition 1 and 4, which are sanctions against the Plaintiff, the former Employment Insurance Act and the former Workers’ Vocational Skills Development Act shall apply. In addition, inasmuch as sanctions against an administrative violation are sanctions based on the objective fact of violation of administrative laws and regulations to achieve administrative purposes, barring special circumstances, such as where there is no intention or negligence on the part of the violator, barring special circumstances such as the failure to cause the breach of duty, it may be imposed even if there is no intention or negligence on the part of the person who committed the violation.

In light of the following circumstances revealed by the aforementioned evidence, i.e., (i) the Plaintiff’s employees C, who were the employees of the Plaintiff’s leisure workplace, were written differently from the fact that he participated in the attendance at the attendance on November 22, 2007 among the “the training course of the “gas industrial engineer 1” on October 16, 2007 and October 18, 2007,” and (ii) the same employees D were written differently from the fact that he did not participate in the attendance at the attendance on November 22, 2007, and (iii) the Plaintiff was present at the Defendant as the business owner who conducted the above training course.

Before applying for subsidies for training expenses, it is reasonable to view that C and D did not participate in the training courses as an overseas business trip requiring the Plaintiff’s approval, and even if they were not aware of the fact that C and D did not participate in the training courses, it was sufficiently known that the number of trainees could have been sufficiently known if they did not attend the training courses. ③ Meanwhile, even if the Plaintiff was negligent by the Plaintiff and the Plaintiff did not have any other justifiable reason for not verifying whether C and D had participated in the training courses, ④ the Plaintiff’s act of not having participated in the training courses as the Plaintiff’s act of not having participated in the training courses as a result of the Plaintiff’s business trip requiring the Plaintiff’s approval. The Plaintiff did not know of the fact that C and D did not participate in the training courses. The Plaintiff’s act of not having participated in the training courses due to the Plaintiff’s failure to comply with the Plaintiff’s application for subsidies for training expenses and the Plaintiff’s act of not having participated in the training courses. (5) The Plaintiff’s act of not having participated in the training courses.)

Therefore, this part of the plaintiff's assertion is without merit.

(2) As to the argument regarding No. 3 Disposition

Article 25 (1) 3 of the former Workers' Vocational Skills Development Act provides that "where workplace skill development training is conducted in violation of the details recognized under Article 24" shall be one of the grounds for cancellation of recognition. Article 25 (2) of the same Act provides that a person whose recognition has been revoked under paragraph (1) shall not be recognized under Article 24 within the scope of five years from the date of cancellation, and Article 25 (5) of the same Act delegates matters necessary for the cancellation of recognition and restrictions on recognition to the Minister of Labor.

Considering the following circumstances known in light of the content of related statutes, namely, vocational ability development training is conducted with limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, and the Ministry of Employment and Labor confirms whether trainees attend the training through the attendance of the employer and pays training expenses, it is necessary to thoroughly manage the entry of trainees in order to achieve the purpose of vocational ability development training and prevent unfair claim for training expenses. Furthermore, since the trust and fairness in the entry management are likely to undermine the foundation of the vocational ability development training system itself, the entry management in the vocational ability development training process constitutes very important and essential matters.

Therefore, since the plaintiff's denial of access management against D violates the purpose of training to the extent that it violates Article 25 (1) 3 of the former Workers' Vocational Skills Development Act and Article 9 (3) [Attachment Table 2] 1-B of the former Enforcement Rule of the Workers' Vocational Skills Development Act, it constitutes a violation of Article 25 (1) 3 of the former Workers' Vocational Skills Development Act, and Article 9 (3) [Attachment Table 2] 1-2 of the former Enforcement Rule of the Workers' Vocational Skills Development Act, which can be revoked due to the disciplinary measure and the restriction of recognition for one year for the pertinent training courses. Thus, it is legitimate for the defendant to consider the plaintiff's denial of access management of D as a minor act (other cases) in violation of Article 9 (3) [Attachment Table 2] 1-2 of the former Enforcement Rule of the Workers' Vocational Skills Development Act.

Therefore, this part of the plaintiff's assertion is without merit.

(3) As to the assertion regarding dispositions Nos. 2 and 5

(A) Determination as to the assertion on the grounds of disposition

(1) Article 35 (1) of the former Employment Insurance Act provides that the Minister of Labor may order a person who has received or intends to receive support for employment security and vocational skills development programs referred to in this Chapter ( Chapter III) by fraud or other improper means to restrict the support or return the support already provided, as prescribed by Presidential Decree. Article 35 (2) of the same Act provides that where the Minister of Labor orders a person to return pursuant to paragraph (1), he/she may additionally collect an amount equivalent to the amount paid by fraud or other improper means according to the standards prescribed by Ordinance of the Ministry of Labor. Article 16 (5) 1 of the same Act (Article 16 (1) of the same Act) and Article 25 (4) 1 of the same Act (Article 35 (1) of the former Employment Insurance Act provides that Article 56 (1) of the Enforcement Decree of the former Employment Insurance Act shall apply mutatis mutandis to a person who conducts vocational skills development training referred to in subparagraph 1 of Article 2 of the same Act.

Article 56(2) of the former Employment Insurance Act provides that a person who has received or intends to receive the subsidy by fraud or other improper means shall not be paid the remainder of the subsidy or the subsidy that he/she intends to receive, and that a person who has received or intends to receive the subsidy under paragraph (1) by fraud or other improper means shall be ordered to return the subsidy or subsidy. Article 56(2) of the former Employment Insurance Act provides that a person who has received or intends to receive the subsidy or subsidy shall not be paid for one year from

On the other hand, Article 25 (4) of the former Workers' Vocational Skills Development Act provides that the Minister of Labor may order a person whose recognition has been revoked pursuant to paragraph (1) or a business owner, workers, business owners' organizations, or vocational skills development organizations whose recognition has been restricted pursuant to paragraph (3) to return all or part of the amount already provided or loaned. In such a case, the amount already provided pursuant to the standards prescribed by the Ordinance of the Ministry of Labor may be additionally collected according to the following classification, while Article 25 (4) of the former Workers' Vocational Skills Development Act provides that the person whose recognition has been revoked pursuant to subparagraph 1 shall be additionally collected according to the amount of subsidies received by fraud or other improper means:

(2) Comprehensively considering the provisions of each of the above regulations and the former Employment Insurance Act, where a business owner obtains training costs (in such cases, training costs shall be paid from the Employment Insurance Fund created with employment insurance premiums, etc. under the former Employment Insurance Act) by false or other unlawful means in conducting workplace skill development training by obtaining recognition of workplace skill development training courses from the Minister of Labor pursuant to the former Act on the Development of Workers’ Vocational Skills, the employer shall not issue an order to return subsidies for those who have received or intend to receive training costs by false or other unlawful means under Article 35 (1) of the former Employment Insurance Act and Article 56 (1) and (2) of the former Enforcement Decree of the Employment Insurance Act, and Article 56 (1) and (2) of the former Enforcement Decree of the Employment Insurance Act shall apply mutatis mutandis to those who have received or were to receive training costs by fraudulent or other unlawful means, and Article 56 (1) and (3) of the former Employment Insurance Act shall apply mutatis mutandis to those who have received or were to receive subsidies by fraudulent or other unlawful means (Article 56 (2) of the former Employment Insurance Act).

(3) Therefore, since the laws and regulations on the grounds of dispositions Nos. 2 and 5 are reasonable, this part of the plaintiff's assertion on different premise is without merit.In addition, determination on whether the principle of proportionality under Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act or the purport of delegation by mother

Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of this case”) provide that a disposition ordering the establishment of a period of restriction on payment and the return of subsidies, etc. paid during the period of restriction on payment is an act of binding force. However, it is problematic whether the enforcement decree of this case, which provides that a person who has received or attempted to receive vocational skills development training expenses, etc. by false or other unlawful means (hereinafter “illegal recipients”) according to delegation under Article 35(1) of the former Employment Insurance Act, shall be obliged to pay subsidies, etc. for one year, and shall order the return of subsidies, etc. paid during the period of restriction on payment, does not violate the principle of proportionality or the purport of delegation by the mother law.

In this case, the provisions of the Enforcement Decree of this case provide subsidies, etc. for one-year period for fraudulent recipients.

The legislative purpose of this case is to prevent unlawful acts related to the payment of subsidies, etc., ultimately to prevent unemployment, to promote employment, and to develop and improve the vocational ability of workers through the restriction on payment and the order to return subsidies, etc. paid during the period of restriction on payment. In addition, in light of the fact that subsidies, etc. are made by the limited public resources of the Employment Insurance Fund under the Employment Insurance Act, the legislative purpose of this case is justifiable. In addition, it appears that fraudulent acts related to the payment of subsidies, etc. are to be reduced through the punitive sanctions prescribed in the Enforcement Decree of this case, and accordingly, the Employment Insurance Fund will be more solidized. Thus,

그러나, 이 사건 시행령 조항의 내용은 아래에서 보는 여러 사정들에 비추어 볼 떄 '피해의 최소성' 내지 '법익의 균형성'이라는 요건을 결여한 나머지 부정수급자의 재산권을 과도하게 침해하는 규정으로서 비례의 원칙이나 모법의 위임취지에 위배된다.

(1) Article 35 (2) of the former Employment Insurance Act shall provide subsidies, etc. already paid pursuant to paragraph (1).

In addition to ordering a return, the amount equivalent to or less than the amount that was received by false or other unlawful means as a punitive sanction may be collected. 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 a person has applied for the expenses for the past five years, by fraud or other unlawful means. Meanwhile, the Enforcement Rule of the instant case provides that, apart from the aforesaid additional collection disposition, the payment of subsidies shall be restricted to the illegal recipient for one year, and if subsidies, etc. were granted during the period of restriction on payment, such subsidies shall be returned in entirety regardless of whether they were paid by fraud or other wrongful means. Although the enforcement decree of the instant case has a more punitive character than the provision on the grounds for additional collection disposition, unlike

Without determining detailed standards, only a uniform provision stipulates the restriction on payment and the order to return subsidies, etc. paid during the period of the restriction on payment. Therefore, the Defendant, like the Plaintiff, has to uniformly impose the same sanctions against the business owner who is extremely small amount of illegal payment. The subsidies, etc. subject to the order to return is considerably larger than the ordinary amount of illegal payment, which may be expected to be a sanction against illegal payment by the illegal recipient, and even considering the legislative purpose of the instant provision, which is to achieve through the enforcement decree of this case, it may result in excessive harsh treatment against the illegal recipient compared to the content and degree of the offense (as for the Plaintiff, according to the above evidence, C’s improper payment amount is 259,083, and C’s improper payment amount is 149,831,004, and D’s improper payment amount is 65,031, and D’s improper payment amount is 17,546,000,000 won with the initial refund order issued due to the second disposition.

(2) In addition, the provision of the Enforcement Decree of this case provides that the initial date of the restriction on payment shall not be the date on which an application for the payment was filed, but the illegal recipient shall return the subsidy, etc. already received prior to the date on which the application was made. However, if the illegal recipient becomes aware of the fact that the payment of the subsidy, etc. would be restricted for one year, it may flexibly conduct vocational skills development projects during the restriction period and reduce the loss, and it cannot be deemed unfair to operate workplace skill development projects. Therefore, even if the provision of the Enforcement Decree of this case provides for the restriction on payment as a continuous act, it did not comply with the principle of "minimum of damage caused by failure to fulfill all efforts to minimize the damage suffered by the illegal recipient by prescribing the date on which the application was made. In addition, the provision of the Enforcement Decree of this case provides that the initial date of the restriction on payment is not the date on payment, but the date on which the application was made or the date on which the application was made, which would result in an unreasonable difference in the number of eligible recipients of the subsidy, etc.

③ In addition, the instant enforcement decree also provides for the restriction on payment and the order to return subsidies paid during the period of restriction on payment for one year from the date on which the person received or applied for the payment of subsidies, etc., but does not impose any special restrictions on the period during which the said sanctions may be imposed, resulting in the unstable situation for a long time.

④ Meanwhile, even if Article 35(1) of the former Employment Insurance Act explicitly does not specify the scope of delegation to the Presidential Decree, the scope or limitation of inherent delegation by the legislative intent, purpose, etc. of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Nu6578, Jul. 22, 1997). Considering the fact that various types of violations are likely to occur in light of the nature of various kinds of subsidy granted under the former Employment Insurance Act, legislative purpose of the above provision, constitutional principle of excessive prohibition, etc., the purport of delegation under Article 35(1) of the former Employment Insurance Act is that the purpose of delegation under Article 35(1) of the former Employment Insurance Act can be reasonably subdivided and prescribed in accordance with the type of misconduct, its degree, motive, and consequence, etc., and it is consistent with the legislative intent of the aforementioned provision that allows the competent administrative agency to increase or decrease the scope of delegation within a certain scope, regardless of delegation period.

Article 56 (2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides for restrictions on the payment of subsidies for one year to illegal recipients: Provided, That the same shall not apply to cases where three years have passed since the date of receipt of subsidies or incentives, or where the amount of subsidies received or intended to receive by false or other unlawful means is less than three million won and where fraudulent acts have been discovered for the first time, the restriction on payment for one year shall not apply. Article 56 (2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) is currently in force after it was amended by Presidential Decree No. 22603, Dec. 31, 2010; Article 35 (1) of the Enforcement Decree of the Employment Insurance Act provides that "the Minister of Employment and Labor may take into account any of the subsidies newly provided for in paragraph (1) within the scope of one year from the date of return order or payment restriction under paragraph (1)."

(6) Therefore, in addition to Article 35(2) of the former Employment Insurance Act, which can impose an additional collection disposition against an illegal recipient as a disciplinary measure, the legislative purpose of this case can be more efficiently achieved by prescribing the provisions of the Enforcement Decree of this case in duplicate, but the provisions of the Enforcement Decree of this case stipulate the order to restrict the payment and to return subsidies, etc. paid during the period of restriction on the payment to the illegal recipient for a period of one year, without reasonably subdividing and stipulating the standards according to the type of the illegal recipient’s act.

Ultimately, Article 2 and 5 of the Enforcement Decree of the instant case, which are null and void due to a violation of the principle of proportionality and the purport of delegation of the parent law, is unlawful.

(4) The theory of lawsuit

Therefore, the second and fifth dispositions are illegal, and the remaining dispositions are all legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judge and assistant judge;

Judges Mobileho

Judges Park Jae-young

1) However, the defendant shall return the training expenses already ordered to be returned due to a disposition restricting the payment to the plaintiff's workplace.

The amount to be recovered was changed to 40,615,990 won by excluding from the decision amount.

2) However, the defendant shall return the training expenses already ordered to be returned due to a disposition restricting the payment to the plaintiff's workplace.

The amount recovered was changed to 11,902,140 won by exclusion from the decision amount.

3) In the case of “gas industrial engineer 1 training course”, the training course is subject to the proviso of Article 24(1) of the former Act on Projects for the Development of Workers’ Capacity.

The Court decided that the B-school, the truster, was from the Defendant.

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.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.