(영문) 부산지방법원 2014.6.13. 선고 2014구합428 판결

B. Of the disposition imposing additional collection of KRW 44,800,000, the part exceeding KRW 10,000,000. Of the disposition imposing a restriction on payment by one year (from January 28, 2014 to January 27, 2015), the part exceeding nine months (from January 28, 2014 to October 27, 2014).

Each cancellation shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

On January 28, 2014, the Defendant’s disposition of returning KRW 22,400,000, additional collection of KRW 44,800,000 against the Plaintiff, and disposition of restricting payment for one year (from January 28, 2014 to January 27, 2015) is revoked.

Reasons

1. Details of the disposition;

A. On January 30, 2012, the Plaintiff: (a) filed an application for employment creation support program with the content of remodeling a dormitory with the Defendant on February 14, 2012; and (b) reported that the employment environment improvement was completed on April 16, 2012 with the construction cost of KRW 40 million (excluding value-added tax), and then filed an application for the payment of KRW 22.4 million subsidies for employment creation on July 25, 2012 (i.e., construction cost of KRW 40 million + KRW 1/2 + KRW 2,400,000,000 for support for employment creation on July 25, 2012 (i.e., KRW 40,000 for construction cost of KRW 40,000 + 2,000 for support recipients.

B. On December 3, 2013, the Busan Geum-gu Police Station requested the Defendant to submit data related to the subsidy to the Plaintiff on the ground that the representative director E of the D Co., Ltd. (hereinafter referred to as the “D Co., Ltd.”) who performed the construction of a dormitory, which is a support facility for the Plaintiff’s employment creation, illegally received and wrongfully obtained the subsidy. On January 6, 2014, the Plaintiff conspired with the above E, etc. and obtained the subsidy 22.4 million won by fraud. On January 28, 2014, the Defendant issued a notice of the non-payment of the subsidy to the Defendant. Accordingly, on January 28, 2014, the Defendant issued a notice of the non-payment of the subsidy 22,40,000 won to the Plaintiff on the ground that the subsidy 2,400,000 won was illegally received and received (hereinafter referred to as the “return restriction”), and additionally collected the subsidy 22,400,000 won (hereinafter referred to as the “instant collection”).

2. The assertion and judgment

A. The plaintiff's assertion

1) The Plaintiff, in fact, newly constructed a dormitory by entering into a contract with D Company for a contract of KRW 40 million, and thereafter, received a return of KRW 10 million with knowledge that the construction cost saved from D Company was returned. Since each of the dispositions of this case was not received by fraud or other improper means, each of the dispositions of this case is unlawful.

2) Even if the Plaintiff received subsidies by fraud or other improper means, the amount of KRW 30 million for the Plaintiff’s new construction of a dormitory and the employment of two persons increased, and the amount that the Defendant may order the return of the dormitory or additionally collect should be limited to the amount that the Defendant received by fraud or other improper means. Therefore, the amount that the Defendant may order the return of the Plaintiff is KRW 10 million for the construction cost that the Plaintiff received from the D Company and KRW 5 million for the Defendant’s additional collection is KRW 10 million for the said amount that the Plaintiff received from the D Company, and the amount that the Defendant may additionally collect is KRW 5 million for the said amount that exceeds KRW 5 million for the instant return disposition and the amount that exceeds KRW 10 million for the Additional collection disposition is unlawful.

B. Relevant statutes

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

C. Determination

1) Comprehensively taking account of the overall purport of arguments as to the plaintiff's first argument, Gap evidence 4, Gap evidence 5-2, Gap evidence 7-1, and Eul evidence 7-2, the plaintiff will execute construction works for 30 million won from D companies and return 10 million won. Upon receipt of a proposal, the plaintiff entered into a contract for the extension of a dormitory with D companies on February 21, 2012 (including value-added tax) with the amount of 44 million won (including value-added tax) and later entered into a contract for construction works for the extension of a dormitory with D companies on February 22, 2012, the plaintiff was issued a false subsidy of 40 million won and 50 million won on March 26, 2012, and received a false subsidy of 200 million won or more from the appellate court on March 27, 2012, and received a false subsidy of 200 million won and 400 million won on April 6, 2012.

According to this, the plaintiff can sufficiently recognize that he/she received subsidies by fraud or other improper means. Therefore, this part of the plaintiff's assertion is without merit.

2) On the second argument of the Plaintiff, comprehensively taking account of the following: (a) the Employment Insurance Act and the Enforcement Rule of the same Act; (b) the characteristic of employment security projects and employment creation support fund; (c) the subject and scope of payment; (d) the details of an order for return; (e) additional collection; and (e) the nature of measures to restrict payment in the case of illegal receipt; and (e) the nature of measures to restrict payment in the future; and (g) the amount of employment creation support fund to be paid in cases where the number of workers increases by improving the employment environment through the installation and operation of specific facilities and employing the unemployed; and (e) the return order of employment creation support fund has the nature of restitution to recover the normal loss in the context of insurance; (b) the order to return the subsidy that could have been lawfully received by fraudulent or other unlawful means would have the punitive character in itself; and (c) the amount of money that can be ordered to be returned to the person who received employment security support by the Minister of Employment and Labor is excessively harsh compared with the separate sanctions stipulated by the Employment Insurance Act, such as “the amount in question” (see, etc.

According to the above legal principles, as seen earlier, the Employment Creation Support Fund that the Plaintiff paid to D Company KRW 30 million and thereafter increased the number of workers, as long as it is true that the Plaintiff paid KRW 17.4 million to D Company, shall be deemed to be limited to KRW 17.4 million (i.e., the cost of expanding a dormitory x 1/2 x 2 million x 1.2 million x 1.2 million x 1.2 million) As such, the Employment Creation Support Fund that the Plaintiff received by fraudulent or other unlawful means from the Defendant shall be deemed to be limited to KRW 5 million (hereinafter referred to as “illegal receipt”).

Therefore, on the premise that each of the dispositions in this case is lawful, the Minister of Employment and Labor provides that the person shall order the return of the subsidy already received by false or other unlawful means. As such, the part in this case’s return exceeding five million won is unlawful, and ② Article 35(2) of the Employment Insurance Act and Article 78(1)1 of the Enforcement Rule of the Employment Insurance Act provide that where there is no record of being subject to a restriction on payment or a return order for five years prior to the date on which the act is discovered, the additional collection amount of two times the amount received by false or other unlawful means shall be additionally collected. As such, the portion in this case’s additional collection exceeds 10 million won (=5 million won X2). ③ Article 35(1) of the Employment Insurance Act, Article 56(2) and attached Table 2 of the Enforcement Decree of the Employment Insurance Act provides that the portion in this case’s return of the subsidy exceeding two million won from the date on which the person newly received or attempted to receive the subsidy by false or other unlawful means is 10 million to the Plaintiff.

Therefore, this part of the Plaintiff’s assertion is with merit (the Plaintiff is dissatisfied with the premise that only the return disposition of this case and the additional collection disposition should be deemed to be KRW 22.4 million, not the illegal receipt amount, but also KRW 5 million. However, if the illegal receipt amount is changed, there is a need to see that it is a dispute over the restriction period under the relevant Acts and subordinate statutes. Therefore, even in administrative litigation, it is not possible for the court to render a judgment beyond the scope requested by the parties. However, it is possible to ex officio examine the evidence as to the matters which are discovered on the records within the scope of the party’s claim and determine the facts on which the party did not assert (see, e.g., Supreme Court Decisions 9Du1052, May 25, 199; 9Du1052, and Article 26 of the Administrative Litigation Act). Accordingly, the illegal part of the restriction of payment of this case

3. Conclusion

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