(영문) 서울행정법원 2018.11.27. 선고 2017구단73252 판결

On August 3, 2017, the defendant ordered the plaintiff to return the illegally received amount and issued a disposition of additional collection shall be revoked.1)

Reasons

1. Details of the disposition;

A. The Plaintiff, a company running a passenger transport business, entered into an entrustment contract with A or B Co., Ltd. (hereinafter collectively referred to as “C”), a company recognized as an employee’s workplace skill development training course, as follows: (a) vocational ability development training is conducted by means of remote training for employees belonging to the Plaintiff (hereinafter referred to as “instant training”; and (b) when a part of the training is called, it is indicated as “first training” by the sequence.

A person shall be appointed.

B. The plaintiff applied for subsidies for training expenses to the Human Resources Development Service of Korea on the premise that the aforementioned trainees completed the training in this case and meet the normal completion standards for payment of subsidies for postal remote training. The plaintiff received subsidies for training expenses of KRW 26,275,680 in total from the above Corporation, as follows:

A person shall be appointed.

C. On August 3, 2017, the Defendant restricted subsidies and loans for 360 days (from August 4, 2017 to July 29, 2018) pursuant to Article 55(2) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jan. 27, 2016; hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”) and Article 22 [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”) on the grounds that “the instant trainees did not normally complete the instant training and failed to meet the standards for the completion thereof,” and that the Plaintiff applied for subsidies for training expenses to the Human Resources Development Service of Korea.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 11, Eul evidence 45-1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The trainees of this case were most old, and therefore, C’s employees had help some trainees, etc., and completed the instant training course and met the normal completion standard, and thus, the Plaintiff cannot be deemed to have received training costs by fraud or other improper means.

2) Although some of the trainees of this case received normal training and met the completion standards, the Defendant issued the instant disposition by concluding that all of the trainees of this case did not undergo the instant training normally, the Plaintiff was aware that all of the trainees of this case completed the instant training normally, paid the full amount of subsidies received from the Human Resources Development Service of Korea to C, and did not gain any profit in relation to the instant training, and only a fraudulent victim used to C, the instant disposition was unlawful as it deviates from and abused discretionary authority.

B. Relevant legislation

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

C. Determination

(i) whether training costs have been subsidized by fraud or other improper means;

A) “False or other unlawful means” under Articles 55(2)1, 56(2), and 56(3) of the Vocational Skills Development Act refers to all active and passive acts that may affect the decision-making on subsidization of expenses, by social norms, with an intention to see as if a person who is not eligible to receive subsidization of expenses, or to conceal the fact that he/she is not eligible (see, e.g., Supreme Court Decision 2013Du1980, Jan. 10, 2014).

Meanwhile, Article 20(3) of the Vocational Skills Development Act, Article 19(3) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 27393, Jul. 26, 2016); Article 41(4) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 28160, Jun. 27, 2017); Article 60(1) of the Enforcement Rule of the Employment Insurance Act provides for the workplace skill development training support rules (wholly amended by Ordinance of the Ministry of Employment and Labor No. 2015-114, Dec. 31, 2015; hereinafter referred to as the “former provision on the wholly amended provision”), which provides for the “cyber training” under Article 2 subparag. 10 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers; Article 10(1) of the former Enforcement Decree of the Employment Insurance Act provides for the same provision on workplace development training for more than 10%.

Therefore, even if a trainee did not normally undergo vocational skills development training conducted by means of remote training and failed to meet the above standards for completion, a business owner applied for subsidies for training expenses as if the trainee had received normal training and satisfied the standards for completion of training and received subsidies. Therefore, even if a business owner did not know the above circumstances, it constitutes “the case where a business owner received subsidies by fraudulent or other illegal means” under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act (see the purport of the above Decision 2013Du1980, supra).

B) In light of the following facts and circumstances, it can be recognized that the instant trainees do not normally undergo the instant training, and even if they do not meet the completion standards, they applied for training expenses to the Plaintiff as if they meet all completion standards, Eul evidence 3, Eul evidence 6-1 through 7, Eul evidence 9, Eul evidence 7-1 through 7, Eul evidence 10, Eul evidence 16, Eul evidence 20-1, Eul evidence 20-2, Eul evidence 21-30, Eul evidence 35, Eul evidence 35-1, each of the following facts and circumstances can be acknowledged by adding the purpose of oral argument to Eul evidence 1, 2, Eul evidence 2, Eul evidence 20-1, 7, 7, 8, 7, 8, 7, 8, 8, 6, 8, 6, 8, 6, 8, 6, 8, 6, 8, 6, 8, 6, 6, 6, 8, 6, 7, 7, 6, 7, 2, 7, 2.

○ In the instant case, the Defendants led to the entire confession of the facts charged, and the said court convicted D of the above facts charged on April 6, 2018 and sentenced D to imprisonment for four years, E, and F with prison labor for one year and six months, and three years of suspended execution for each of the above facts charged (No. B, No. 10 (written judgment) (No. 97, 164, and 204).

On June 2, 2017, the defendant visited the plaintiff's place of business and asked questions to the 7 trainees who participated in the training of this case, and responded to the "six persons on the website", and the remaining one person responded to the "not being able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to able

OC employees made a statement to the effect that they visited a business entity that entrusted workplace skill development training to C with workplace skill development training under the direction of D, etc. at the Seoul Western Labor Office, Seoul Western District Office, and the investigative agency, and conducted a proxy lecture and a proxy test by creating a ID in the personal information of trainees, there is no production or order of C’s training teaching materials, and input the date of receiving teaching materials of trainees en bloc from the website manager guide.

On April 25, 2016, E sent a message to C employee in charge of the instant training on April 25, 2016 in the course of the said investigation and investigation, and confirmed the situation where C employee in charge of the instant training sent a list of retired or long-term absences among C employees, in order to prevent the employee in charge of the instant training from carrying out the training of retired workers, etc. and the acting test.

As a result of the analysis of the trainee learning management system for the instant training, the training was ordinarily short of the training average of 13.5 seconds, average of 28.5 seconds, average of 3 training average of 28.5 seconds, and average of 209.1 seconds during the training period of 2 months, there were a number of details in which the training and evaluation was conducted on a specific daily basis during the training period of 2 months, and in particular, on August 17, 2015, 129 trainees were confirmed from around 13:55 to 18:08 on the same IP, and on April 11, 2016, there were typical proxy lectures and proxy tests such as confirmation of similar details.

2) Whether the discretion is deviates or abused

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant disposition, by objectively examining the content of the act of violation as the grounds for the disposition, the public interest to be achieved by the relevant act of disposal, and all relevant circumstances. In this case, even if the criteria for a punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed in the administrative agency’s internal rules for handling affairs, and thus, it is not effective externally to the public or the court. Thus, the legality of the relevant disposition should be determined not only in accordance with the above criteria for disposition but also in accordance with the provisions and purport of the relevant Acts and subordinate statutes. Therefore, it cannot be immediately said that the relevant disposition is legitimate, unless the above criteria for disposition do not conform with the Constitution or laws, or unless there are reasonable grounds to believe that the result of the application of the criteria is significantly unreasonable in light of the content of the act of violation and the purport of the relevant Acts and subordinate statutes (see, e.g., Supreme Court Decision 2007Du67Du96.

B) In light of the following circumstances, it cannot be deemed that the instant disposition was a deviation or abuse of discretionary power, in light of the health team, the facts and circumstances acknowledged earlier, and the purport of the entire pleadings. The Plaintiff’s assertion on this part is without merit.

The Act on the Development of Vocational Skills stipulates that employers shall conduct workplace skill development training for workers, participate in workplace skill development training for workers, and make efforts to create conditions for workplace skill development training by appointing workers in charge of workplace skill development training (Article 4(2)). Accordingly, the Minister of Employment and Labor may provide workers who conduct workplace skill development training (including the case of conducting workplace skill development training on commission) with subsidies or loans for expenses incurred in the business (Article 20(1)1). The workplace skill development training for workers is basically a business owner, and is also a business owner eligible for subsidies. However, the training entrusted is recognized as one of the methods of workplace skill development training. As such, the Plaintiff was responsible for self-verification of whether the instant trainees completed the standards for receiving subsidies and subsidies before applying for subsidies. Furthermore, since the instant training was conducted for workers belonging to the Plaintiff’s workplace, the Plaintiff’s training was conducted at least for workers, and thus, the Plaintiff could not easily be aware that the instant training was conducted through regular observation of the instant training course or directly verification of its employees.

Although the Plaintiff asserted that some of the trainees of this case completed normal training and met the completion standards, the Defendant rendered the instant disposition by concluding that all of the trainees did not undergo the instant training normally, as seen earlier, the instant training course was conducted in an overall and unfair manner, and otherwise, the Plaintiff did not specify trainees who underwent the instant training course and submit objective data on them.

The purpose of workplace skill development training is to contribute to the development of society and economy by facilitating and supporting workplace skill development through the life of workers. The act of receiving workplace skill development training subsidies by fraud or other improper means is to contribute to the stabilization of employment of workers, the improvement of social and economic status, the improvement of corporate productivity, and the realization of a competence-oriented society. Since the act of receiving workplace skill development training subsidies by fraud or other improper means causes the insolvency of the employment insurance fund, and may inflict damage on the insured who paid the employment insurance premium in good

○○ Operation of the workplace skill development training support system in a fair and transparent manner, thereby promoting the employment stability of workers, improvement of social and economic status, and establishment of the Employment Insurance Fund, shall not be deemed to be less than the Plaintiff’s private interest restricted by the instant disposition.

○ The instant disposition conforms to the disposition standards prescribed by Articles 55(2) and 56(2) and (3) of the Vocational Skills Development Act, and Article 22(1)2 of the Enforcement Rule of the Vocational Skills Development Act. The said disposition standards do not conform with the Constitution or laws, or as a result of the application of the said standards does not seem to be remarkably unreasonable in light of the content of the Plaintiff’s act and the purport of the relevant statutes.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Kim Gin-young

Note tin

1) The Plaintiff sought the revocation of the first 360-day subsidy and the loan restriction disposition. However, the Plaintiff withdrawn the claim for the corresponding portion on the sixth date for pleading.