(영문) 서울행정법원 2018.11.27. 선고 2017구단65886 판결

The Defendant’s disposition of 360 days’ support and restriction on loans against the Plaintiff on April 27, 2017, and disposition of returning KRW 55,735,680 to the Plaintiff, and additional collection of KRW 55,735,680, all of which are revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff, a company running passenger transport business, entered into an entrustment contract with B or C Co., Ltd. (hereinafter collectively referred to as “D”), a company recognized as an employee’s vocational ability 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 referred to, “the first training”, etc. according to 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 stated number of trainees who completed the above training in the table below (hereinafter referred to as the "training trainees of this case") had completed the training in normal and met the standards for the payment of subsidies for postal remote training, and received subsidies for training expenses of KRW 55,735,680 in total from the above Corporation as follows:

A person shall be appointed.

C. On April 27, 2017, the Defendant restricted subsidies and loans for 360 days (from April 27, 2017 to April 21, 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”) on the grounds that “the instant trainees did not undergo the instant training and failed to meet the standards for the completion thereof, and the Plaintiff applied for subsidies for training expenses to the Human Resources Development Service of Korea.”

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Gap evidence Nos. 9 and 14, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In rendering the instant disposition, the Defendant violated Article 5 of the Administrative Procedures Act by failing to notify specific and clear details as to what reason the instant trainees failed to meet the completion requirements of the instant training.

2) The instant trainees were engaged in learning and evaluation by taking advantage of the street computer that the training institution was brought to the Plaintiff’s workplace at a designated date for the convenience of training, and met the standard of completion after completing the instant training in a normal condition. As such, the Plaintiff cannot be deemed to have received training expenses by fraud or other improper means. The Defendant’s arbitrary determination that the instant disposition was made by readily concluding that the Defendant did not meet the completion requirement without any procedure or process for selecting trainees who failed to complete the training.

3) The Plaintiff did not engage in a public recruitment for unlawful means with D. Since the instant training was conducted on behalf of the Plaintiff, the Plaintiff is liable for the training misconduct, and the Plaintiff did not know of the training misconduct at all, and made the best efforts to ensure that the training was conducted by actively encouraging the trainees to participate in the training, and there is no cause attributable to the Plaintiff.

4) Considering the fact that some of the instant trainees completed a normal training and met the completion standard, the Plaintiff paid the full amount of the subsidies received from the Human Resources Development Service of Korea to D, and the Defendant is also responsible for neglecting supervision, etc., the instant disposition is unlawful as it deviates from and abused discretion.

B. Relevant statutes

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

C. Determination

1) Whether the Administrative Procedures Act is in violation

Article 5 of the Administrative Procedures Act provides that "the administrative action conducted by an administrative agency shall be specific and clear, and where the contents of Acts and subordinate statutes, etc. which form the basis of the administrative action are unclear, the other party may request the relevant administrative agency for interpretation. In such cases, the relevant administrative agency shall comply with the request unless there are special reasons.

In addition to the purport of the argument in Gap evidence No. 9, the defendant stated that "the fact that constitutes the ground for the disposition" in the disposition of this case is "the plaintiff, while taking the disposition of this case," and "the employee of the training institution did not meet the completion requirements under Article 11 (1) 3 of the Support Regulation on behalf of the worker belonging to the training institution, he/she was treated as having completed it by false or other unlawful means, and "it was treated as having been illegally supported by 5,735,680 won for training expenses," and that "the content that he/she intends to dispose" is "the amount of 5,735,680 won received and collected additionally, 5,735,680 won and the amount of 55,735,680 won from the date of the disposition of this case and 360 days from the date of the disposition (the date of 2018.4. 21, 2017)" and therefore, the plaintiff's assertion that the disposition of this case was not clearly justified.

2) “False or any other unlawful means” under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act means any active and passive act that may affect the decision-making on subsidization of expenses, in general, with the intention to make sure that a person who is not eligible to receive subsidization of expenses is qualified, or to conceal the fact that he/she is not qualified, through social norms (see, e.g., Supreme Court Decision 2013Du1980, Oct. 30, 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 is possible for the instant trainees to be recognized by adding up the overall purport of the pleadings to the statements in the Evidence Nos. 1, 3, 4, 5, and 6-2, 3, and 11 and 12 of the Evidence Nos. 6-2, 3, and 11 and 12 of the instant case. Although the instant trainees failed to undergo the instant training, even if they failed to meet the standards for completion, they can be sufficiently recognized that they applied for the subsidization of training expenses and received payment of training expenses as they meet the standards for completion. Accordingly, the Plaintiff’s assertion disputing this is without merit.

On January 5, 2018, the prosecutor of the Seoul Central District Public Prosecutor's Office (hereinafter "Seoul Central Public Prosecutor's Office") indicted J, K, and L as a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in Seoul Central District Court (hereinafter "Fraud") on the charge that "the plaintiff obtained the appearance of 1,788,460,905 won, etc. from the Republic of Korea by creating the appearance that the trainee satisfied the completion standards of the postal source training course by driving the proxy lottery, without providing training teaching materials to trainees, by visiting the place of a gold transportation business entity as an employee belonging to D, with the personal information of trainees, and making the trainee conduct the proxy lecture and proxy test."

○ In the instant case, the Defendants led to the confession of all the facts charged, and the said court found the Defendants guilty on April 6, 2018, sentenced the J to four years of imprisonment, K and L with prison labor for each of the four years, K and L, and three years of suspended execution (Article 80, 104, 217 of the No. 12 of the No. 12 of the Act No. 12 (the text of the judgment)).

On February 1, 2017, the defendant visited the plaintiff's place of business and responded to 22 trainees, including M, who participated in the training in the training in this case, that they did not directly go on the website of the training institution. The defendant responded to 'the method of oral answers with the training institution', 'the most of the training methods were conducted by the training institution', 'the method of oral answers with the training institution', 'the task of the test is not submitted, and 'the trainee does not know whether the training is completed or not.'

D Employees visited the company that entrusted workplace skill development training to D in accordance with the direction of J, etc. at the Seoul Western Labor Office of Seoul and the investigative agency of the Seoul Western Labor Office, and stated to the effect that the training materials of D were produced and ordered, and that the training materials of D were not produced and ordered, and that the date of receiving the teaching materials of trainees was entered in a lump sum at the website manager guide.

As a result of the analysis of the learning management system for the training of this case, there are a number of records with 10 minutes or less for the next trainees after one trainee study, 84.28% for the first training, 84.46% for the second training, 23.67% for the third training, and 23.67% for the second training, and there are many kinds of typical proxy lectures and proxy tests for the second training, such as the number of students with 30 seconds or less for the second training, and the number of students with 30 seconds or less for the second training is 2 months.

3) Whether there exists a cause attributable to an conspiracy, etc.

Sanction against violation of administrative laws is a sanction against the objective fact that is contrary to the administrative law in order to achieve the administrative purpose. Thus, barring any special circumstance, such as where a failure to perform the duty of the offender is not attributable to the negligence, there is no intention or negligence on the part of the violator (see, e.g., Supreme Court Decision 2012Du1297, May 10, 2012). The burden of proof on the existence of such special circumstance in this context lies on the violator of the administrative law.

Article 4(2) of the Vocational Skills Development Act provides that a business owner shall conduct workplace skill development training for workers, participate in workplace skill development training, and make efforts to create conditions for workplace skill development training, such as granting leave for workplace skill development training to workers or appointing a person in charge of workplace skill development training (including cases of conducting workplace skill development training on commission). Accordingly, the Minister of Employment and Labor may provide workplace skill development training for workers (Article 20(1)1). The workplace skill development training for workers is basically a business owner, and is also a business owner who is also eligible for workplace skill development training, and the training entrusted is recognized as one of the methods of workplace skill development training. Accordingly, the Plaintiff is responsible for self-verification as to whether the instant trainees completed the standards for workplace skill development training before applying for subsidies as the principal agent of workplace skill development training and the person who received subsidies. Moreover, since the instant training was conducted for workers belonging to the Plaintiff’s workplace at least, the Plaintiff’s training cannot be easily acknowledged that the training was conducted through regular observation of the instant training process or directly verification of its employees.

4) Whether the discretion is deviates or abused 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 offense as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all the 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 it is externally binding upon citizens or courts. Therefore, the legality of the relevant disposition should be determined not only by the above criteria for disposition but also by the provisions and purport of the relevant Acts and subordinate statutes. Therefore, the relevant disposition cannot be immediately deemed legitimate, unless the said criteria are consistent with the Constitution or laws, or unless there are reasonable grounds to believe that the result of the application of the said criteria is considerably unreasonable in light of the content of the offense as the grounds for disposition and the relevant Acts and subordinate statutes and the purport thereof, it should not be readily determined that the disposition in accordance with such criteria has exceeded the discretion or abused discretion (see, etc.

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 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

○ In order to promote the employment security of workers, improvement of social and economic status, and establishment of the Employment Insurance Fund by operating the workplace skill development training support system fairly and transparently, it cannot be deemed that the public interest is less than the Plaintiff’s private interest restricted by the instant disposition.

As seen earlier, even if a business owner entrusted workplace skill development training to a worker, the business owner is the subject of the training and the subject of the subsidy. As such, the Plaintiff, the business owner, prior to applying for the payment of the subsidy, was responsible for self-verification as to whether the trainee satisfies the completion standards for receiving the subsidy, and could have easily confirmed the completion standards.

○ The instant disposition is in conformity with the disposition standards set forth in Article 55(2) of the Vocational Skills Development Act, Article 2 [Attachment 6-2] of the Enforcement Rule of the Vocational Skills Development Act, Article 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 instant disposition does not conform with the Constitution or laws, or its application results in the Plaintiff’s act’s application.

In light of the purport of statutes, etc., it cannot be deemed significantly unreasonable.

The proviso to Article 6-2 of the Enforcement Rule of the Act on the Development of Vocational Skills (Attachment Table 6-2) provides that "if there is no intention or gross negligence, or if the degree of violation is insignificant, a disposition to restrict support and loan may be taken by reducing the measure within the limit of 1/2 of the standard set by the individual standard." However, as seen earlier, the above provision is not only a discretionary mitigation provision, but also a training in this case is not limited to a discretionary mitigation provision, and as seen earlier, the Plaintiff was aware of, or could be easily informed of, the fact that the process of the training in this case is not normal. Therefore, the Plaintiff was recognized as intentional or gross negligence, and the degree of violation is serious in light of the frequency or amount of the illegal receipt and payment. Therefore, there is no room to reduce the measure to restrict loan pursuant to the above provision.

3. Conclusion

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