2018Nu5973 Order to return and revocation of a decision to additionally collect additional collection, etc.

1. A;

2. B

3. D.

4. E.

Attorney Lee Dong-dong, Counsel for the plaintiffs

The Deputy Director General of the Central Regional Employment and Labor Office;

Incheon District Court Decision 2017Gudan50178 Decided July 10, 2018

November 16, 2018

January 11, 2019

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

1. Purport of claim

The Defendant’s order for return of KRW 3,158,670 to the Plaintiff on August 19, 2016, the 3,158,670, the 3,158,670, the 2,165,060, the order for return of KRW 2,165,060, the 2,165,060, the order for additional collection of KRW 2,165,060, the 360 from the date of the disposition, the restriction on loan, the order for return of KRW 1,848,40, the 1,848,400, the additional collection of KRW 1,848,40, the decision for additional collection of KRW 360, the 2,233,090, the additional collection of KRW 23,090, and the disposition for restriction on loan of KRW 360,00.

2. Purport of appeal

Of the judgment of the first instance court, the part against the plaintiffs falling under the following part of the order for revocation is revoked. On August 19, 2016, the defendant revoked the order for return of KRW 3,158,670, the order for additional collection of KRW 3,158,670, the order for return of KRW 3,158,158,670, the order for additional collection of KRW 2,160, the order for return of KRW 2,165,060, the order for additional collection of KRW 2,165,060, and the order for return of KRW 1,848,40, the order for additional collection of KRW 1,848,40, and the order for additional collection of KRW 2,23,09, KRW 23,233,090, and the order for additional collection of KRW 90 for the plaintiff Eul was revoked for each 360 days of the defendant's appeal, but the appeal

1. Quotation of the reasons for the judgment of the first instance;

The reasons for this decision are as follows, among the reasons for the judgment of the court of first instance, with the exception that the plaintiffs added the judgment as to the matters alleged in the trial of the court of first instance as set forth in paragraph (2) below, and it is identical to the part of the plaintiffs among the reasons for the judgment of the court of first instance (excluding paragraph (2)). Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act

0. 5 pages 2: “The Court” means “the judgment, etc.” of the 5th 7th 7th 7th 7th 7th 2th 7th 7th 201. The investigation result of a base station investigation conducted by the radio station on the investigation result of the 12th 8th 8th 8th 2th 8th 2000 as follows. The portion of the 15th 16th 16th 2nd 8th 8th 8th 8th 16th 2nd 5th 195 and 56 of the Act on the Development of Workplace Skills of Workers which provides for reasons of sanctions against each person who is not entitled to training expenses, and thus, it is difficult to find that the person who is not entitled to training expenses falls under either affirmative and passive act that could affect the decision-making of training expenses, even if he did not have any specific reason to impose administrative sanctions against the person who did not have been subject to punishment for violating the Act on the Development of Workers of Workers, 20th 2nd 20.

3) Therefore, each of the instant dispositions is lawful.

2. Additional matters to be determined;

A. Unlike the disposition standards of the Ministry of Employment and Labor, the Defendant, which was subject to non-prosecution or not admitted to an investigation agency, the Plaintiffs additionally collected each of the instant dispositions against the Plaintiffs, and the Plaintiffs did not file a voluntary report irrespective of the degree of their causes attributable to the Plaintiffs. The Plaintiffs asserted to the effect that it is unlawful by deviating from and abusing discretion.

B. In full view of the overall purport of the pleadings, evidence Nos. 1-2, 1-9-1, 10, 3, 5, 6, and 27 of the evidence Nos. 1-2 and 9-1, 10, 3, 5, 6, and 27, the prosecutor indicted relevant persons including the representative of G on November 17, 2014, including fraud, and Plaintiff A was subject to a disposition of suspension of indictment, Plaintiff B and the head of childcare center operated by Plaintiff E was subject to a disposition of non-suspect, and Plaintiff D and E was not confined from an investigation agency. Meanwhile, the Ministry of Employment and Labor, in relation to the result of the investigation into the illegal receipt of training fees by the business owner of the Bupyeong-gu Incheon Bupyeong Police Station on April 12, 2016, acknowledged the fact that the Plaintiffs, despite having received a written request from Defendant for the submission of an official report, such as guidance, investigation, etc. related to voluntary report, was not submitted.

Guidance, including criteria for administrative disposition on illegal training;

[1] A business owner whose suspicion of illegal receipt is confirmed with cooperation from the prosecutor's investigation results on the case where the prosecution investigation is terminated after receiving the data from the prosecutor's office's investigation results * the process of taking a disposition for illegal receipt : (i) the case where the business owner's suspicion of illegal receipt - the case where it is unclear as a result of the prosecutor's investigation results, such as "where the business owner's suspicion of illegal receipt - the grounds for non-prosecution of the prosecutor's office (in the absence of a prosecution case)" is not clearly verified, such as "where the business owner's suspicion of illegal receipt - is unclear as a result of investigation - / [2] the case where the suspension of prosecution or investigation is being conducted after separate investigation at the employment center and the case where the business owner's illegal receipt - the case is confirmed after the business owner's voluntary declaration after the investigation at the employment center (in the absence of a voluntary report - the case where it is not verified through post investigation documents and written confirmation documents submitted by the business owner (including evidential data).

C. In light of the following circumstances, each of the instant dispositions cannot be deemed to have violated the instant standards, and further, it cannot be deemed to have violated the discretionary authority, by abusing and abusing discretionary power, in light of the overall purport of the pleadings. Accordingly, the Plaintiffs’ above assertion is without merit.

1) According to the instant standard, in a case where a prosecutor’s investigation was completed and prosecuted, the administrative agency may proceed with the business owner’s disposition procedures upon confirmation of the business owner’s suspicion of illegal receipt by verifying the investigation results by the prosecutor’s office. However, in a case where the suspicion of illegal receipt is unclear solely based on the prosecutor’s investigation results, the investigation results by the prosecutor’s office confirm whether the business owner is illegal receipt by means of a written investigation and a written confirmation, etc., and, if the business owner fails to submit it, the business owner may make a decision on whether to take an administrative disposition by conducting an additional investigation, such as an appearance investigation. As seen earlier, the representative of G was indicted, and the Defendant provided the Plaintiffs, who were the business owner, with an opportunity to send a written investigation and a written confirmation, on the ground that the Plaintiffs’ infant care teacher appeared at less than 80% of the training course, based on the data received from the investigative agency pursuant to the instant standard. However, the Plaintiffs did not present any opinion. Accordingly, the Defendant can

2) In the event that the Defendant voluntarily filed a report in accordance with the instant standard, the Defendant took measures to return only the amount of illegal receipt; however, each of the instant dispositions against the Plaintiffs who did not file a voluntary report, including additional collection and disposition with respect to an order for return; the instant standard and each of the instant dispositions based thereon conforms to Article 22-2(1)3 of the Enforcement Rule of the Act on the Development of Workers’ Vocational Skills, and it is difficult to view that the content thereof is considerably unreasonable

3) The Act on the Development of Workplace Skills of Workers stipulates that a business owner, etc. who performs a workplace skill development project shall, in order to promote and support workplace skill development throughout the workers’ life and train technical and skilled human resources needed in the industrial field, subsidize expenses necessary for the project, and a certain disciplinary measure may be taken if the expenses are subsidized by unlawful means. However, in most cases of training expenses actually provided by the Plaintiffs by unlawful means, the extinctive prescription for most of the training expenses were over and impossible to be returned and collected additionally. Considering the aforementioned circumstances, the disadvantages suffered by the Plaintiffs by each disposition of this case cannot be deemed excessive in light of the purpose or intent to achieve

3. Conclusion

Therefore, the plaintiffs' claims in this case, except for the part of the defendant's 360-day support and the part of the defendant's 360-day support and loan-restricted disposition, shall be dismissed in its entirety, and the judgment of the court of first instance is just in this conclusion, and the plaintiffs' appeal is dismissed in its entirety as it is so decided

The presiding judge, appointed judge;

Judges Shin Jin-hee

Judges Lee Jae-chul