2015Guhap5959 Confirmation, etc. of the existence of an obligation

A Stock Company

Korea

October 15, 2015

December 10, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On December 12, 2013, the head of the Busan Regional Employment and Labor Office did not have any obligation of KRW 68,388,000 based on the notice of approval for the installment payment of the Employment Insurance Fund on December 26, 2013.

The defendant shall pay to the plaintiff 39,893,00 won with 5% per annum from January 27, 2014 to the date of the instant judgment, and 20% per annum from the next day to the date of full payment ("38,893,00 won" stated in the correction of the purport of the claim and in the supplementary statement of cause as of May 26, 2015 is a clerical error).

1. Facts of recognition;

A. On March 28, 2012, the Plaintiff submitted a written application for employment creation support projects and a plan for employment creation support projects to the head of the Busan Regional Labor Agency (hereinafter referred to as the “head of the Yangsan Regional Labor Agency”) to provide repair of intra-company educational facilities on March 28, 2012. The head of both mountainous districts were approved on April 18, 2012.

B. On July 9, 2012, the Plaintiff filed a report on the completion of the employment environment improvement project. On September 11, 2012, the Plaintiff applied for the employment improvement support project (employment environment improvement) subsidy of KRW 68,200,00, and on October 10, 2012, the head of the Yangsan Branch paid KRW 22,796,000 to the Plaintiff on October 10, 2012. The head of the Yangsan Branch on December 12, 2013, even though the Plaintiff paid KRW 68,20,00 as expenses for the improvement of the employment environment, on the ground that the Plaintiff received the said subsidy by deceiving the head of the both mountainous districts head as if there were such facts, he/she limited the payment of various subsidies and incentives for employment stability projects from December 12, 2013 to December 11, 2014, additionally collected the amount equivalent to KRW 22,79,200,50.

D. From January 27, 2014 to July 15, 2014, the Plaintiff paid KRW 39,893,000 in total on seven occasions among the amount of illegal receipt and the amount of additional collection to the head of both mountainous districts, from January 27, 2014 to July 15, 2014. The Plaintiff paid KRW 68,38,00 in total, on seven occasions. [Grounds for recognition] The Plaintiff did not dispute, Gap’s evidence Nos. 1 to 8, and Eul’s evidence No. 1 to 5,

2. The plaintiff's assertion

(1) The Plaintiff asserts that the instant disposition is null and void due to its illegality or abuse of discretionary power without a tax payment notice, or that it should be revoked by unlawful or unjust means. ② The Plaintiff does not have a duty to pay KRW 68,388,00 (the amount of unlawful receipt + the amount of additional collection + KRW 45,592,000) to the head of both mountainous districts, and thus, the head of both mountainous district would not have a duty to pay the Plaintiff the amount of KRW 68,796,00 (the amount of unlawful receipt + the amount of additional collection + the amount of KRW 45,592,000) collected from the Plaintiff on the basis of the instant disposition.

3. Determination

A. The part concerning the assertion premised on the ground that the disposition in this case was revoked

In cases where the existence or absence of an administrative disposition is deliberated on the preliminary question of a civil procedure, even if the administrative disposition is unlawful, if it is unreasonable for the reason for revocation, not in cases where the defect is grave and obvious, and there are grounds to be deemed null and void, the validity of such disposition shall not be denied unless the disposition is revoked (see Supreme Court Decision 94Da2800, Nov. 11, 1994).

On the other hand, there is no evidence to prove that the disposition in this case was revoked, and even if there are grounds for revocation, the plaintiff is not a litigation seeking revocation of the disposition in this case, but a lawsuit seeking confirmation of existence of an obligation and a civil lawsuit claiming monetary payment premised on this premise. Thus, the plaintiff's assertion in this part is without merit. However, if the disposition in this case can be deemed null and void as a result of significant and obvious defects, the invalidity of the disposition in this case is subject to the judgment of this court, and it is examined in this part

C. The part of the assertion premised on the invalidity of the instant disposition

1) In an administrative litigation claiming the invalidity of an administrative disposition as a matter of course and seeking the invalidity confirmation thereof, the Plaintiff is liable to assert and prove the grounds for such administrative disposition’s invalidity (see, e.g., Supreme Court Decision 9Du11851, Mar. 23, 2000).

2) In addition, the defect of an administrative disposition should, in principle, be resolved through an administrative litigation, but in a civil lawsuit, when the propriety of an administrative disposition becomes a preliminary question, it may be judged and judged under the premise that it is the invalidation of an administrative disposition, and it shall not be necessarily subject to the revocation or invalidity of the administrative disposition by the procedure of administrative litigation, etc. (see, e.g., Supreme Court Decision 2009Da90092, Apr. 8, 2010). However, in order for a defective administrative disposition to be null and void as a matter of course, the defect must be objectively obvious and objectively obvious as it violates the important part of the law. In order to determine whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined in terms of purpose and rational consideration of the specificity of the specific case itself (see, e.g., Supreme Court Decision 94Nu4615, Jul. 11, 1995).

3) We examine the following circumstances, i.e., (i) C, the representative director of the Plaintiff, was investigated by the Busan Northern Police Station, and was actually paid KRW 39,00,000,00, and was found to have been granted subsidies of KRW 22,796,000 from the head of both mountainous districts. (ii) C was returned the difference in the construction cost on June 6, 2012 through the account in the name of Dong Jae-in. (iii) on November 27, 2013, the Defendant did not provide the Plaintiff with an opportunity to present his opinion by November 12, 2013; and (iv) the Plaintiff did not provide the Plaintiff with an opportunity to submit his opinion by 30,000,000,000, and notified the Plaintiff of an application for approval for the completion of the payment of the amount of subsidies by 62,796,000,000.

4) Therefore, the Plaintiff’s claim premised on the invalidity of the instant disposition is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed. It is so decided as per Disposition.

The presiding judge and appointed judge;

Judges Postals

Judge Lee Jae-ju