(영문) 대구고등법원 2011.4.8. 선고 2010누2358 판결

A. On September 20, 2001, the Plaintiff is a stock company with capital of 200 million won established for the purpose of the manufacturing and export and import business of optical cable raw materials. On August 29, 2007, the Plaintiff prepared and submitted a report on a plan to improve the employment environment of small and medium enterprises (hereinafter referred to as “plan report”) to the Defendant on August 29, 2007, as the content of the improvement is a construction work for expanding a dormitory, etc., with the cost check amount as KRW 197,969,00, as the cost check amount as the implementation plan period from September 1, 2007 to December 1, 2007. However, “the time limit for receiving clean project subsidies” was written as a disturbance, and only the implementation period thereafter is from September 1, 2007 to January 20, 2008.

B. On October 9, 2007, the Plaintiff approved the improvement plan for the employment environment by the above application from the Defendant, and submitted a report on the completion of the employment environment improvement (hereinafter referred to as the "report on completion") to the Defendant as of December 28, 2007 and as of January 2, 2008, that "the completion of the employment environment improvement" was completed, the Plaintiff applied for subsidies for the improvement of the employment environment for small and medium enterprises (hereinafter referred to as "subsidies") to the Defendant on the 20th of the same month, and received subsidies from the Defendant on April 10 of the same year.

C. On May 6, 2009, the Defendant issued a disposition that, on September 16, 2005, the Plaintiff omitted the fact that the Plaintiff was recognized as a clean workplace from the president of the Korea Occupational Safety and Health Agency prior to the Korea Occupational Safety and Health Agency’s establishment, and reported the employment environment improvement plan, the Defendant’s receipt of subsidies of KRW 31,596,000 constitutes unjust enrichment, and thus, the Defendant issued a disposition that, under Articles 20 and 106 of the former Employment Insurance Act (amended by Act No. 1039, Jun. 4, 2010; hereinafter “former Employment Insurance Act”), and Article 15 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22269, Jul. 12, 2010), “the decision of collection is notified” (hereinafter “instant disposition”).

D. The Plaintiff filed an administrative appeal against the instant disposition on July 13, 2009, but received the dismissal ruling on March 10, 2010.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 2, 6, 7, Eul evidence Nos. 9 through 11, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

(A) Articles 20 and 106 of the former Employment Insurance Act, and Article 15 of the Enforcement Decree of the same Act, which are cited by the Defendant as the basis for the instant disposition, cannot be the legal basis for the instant disposition. Thus, the instant disposition is unlawful as it is without any legal basis or ground.

(B) It is true that the plaintiff submitted the "scrow project subsidy" column for the "scrow project report" column, but the defendant accepted and reviewed the plan report and approved the environmental improvement plan without any order to supplement it. The plaintiff applied for the subsidy after completing the expansion of a dormitory in accordance with the approved employment environment improvement plan and submitting the completion report in accordance with the approved employment environment improvement plan. Thus, it does not constitute a case where the plaintiff received the subsidy by "a fraudulent or other illegal means" under Article 35 of the former Employment Insurance

(C) Upon receipt of a notice of approval of a plan from the Defendant, the Defendant made a large amount of investment in the dormitory expansion construction by recommending the Defendant to submit a completion report after completing the dormitory expansion construction, which is in violation of the principle of trust protection.

(D) Furthermore, ordering the full return of the improvement subsidy not only is a part of the improvement subsidy is unfair in violation of the principle of excessive prohibition.

(2) The defendant's assertion

The instant disposition does not collect subsidies from the Plaintiff on the ground that the Plaintiff was provided with false or other unlawful means under Article 35 of the former Employment Insurance Act, but rather, the instant disposition is legitimate since it constitutes unjust enrichment, which was collected pursuant to Article 106 of the former Employment Insurance Act, under Article 20 of the former Employment Insurance Act and Article 15 of the Enforcement Decree of the same Act, for business owners for whom three years have not passed since the date of recognition of a clean workplace under Article 5 subparagraph 1 of the Public Notice of the Regulations on the Payment of Principal for the Employment Improvement of Small and Medium Enterprises (amended by the Public Notice of Ministry of Labor No. 2009-20 of May 14, 2009; hereinafter referred to as the “Public Notice of this case”).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination (whether to provide grounds and grounds for the instant disposition)

(1) Article 23(1) of the Administrative Procedures Act provides that, except in special cases, an administrative agency shall present the basis and reasons for the administrative disposition to the parties. This is the legislative intent of the administrative agency to prevent a person by ensuring carefulness and rationality, and to ensure that the other party of the administrative disposition can properly cope with the administrative remedy procedure by granting convenience to the decision on whether to object to appeal and by allowing the other party of the disposition to know the reasons for the disposition. Thus, in the case of the disposition of this case ordering the return of the subsidy not to refuse the authorization, permission, etc. by clearly stating the grounds for appeal, the pertinent disposition-based laws and regulations shall be accurately stated among the reasons for presenting it, and the fact relevance shall also be stated in the main facts of the underlying laws and regulations, but the abstract facts alone are insufficient

(2) In the instant case, Article 20 of the former Employment Insurance Act and Article 15 of the Enforcement Decree of the same Act, which are stated in the written disposition (Evidence A No. 4) stating the content of the instant disposition, are the grounds for support for the improvement of employment environment of small and medium enterprises, and they cannot be the legal basis for the disposition ordering the return of the improvement subsidy, and Article 106 of the same Act does not apply mutatis mutandis to the collection procedure of the "Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance" in imposing collection under the Employment Insurance Act, and it cannot be viewed as the grounds for the instant disposition. Furthermore, the factual basis stated in the written disposition alone cannot be inferred.

(3) Meanwhile, even though the Defendant did not explicitly state the relevant disposition, in light of the fact that the Act on the Grounds of the instant disposition was stipulated as the former Employment Insurance Act and ordered the return of the subsidy, Article 35 of the former Employment Insurance Act and Article 56(1) and (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21590, Jun. 30, 2009), the Minister of Labor may order the person who received or intended to receive the subsidy by fraud or other improper means to restrict the payment of the subsidy or to return the subsidy, as prescribed by Presidential Decree. Article 56(1) of the former Enforcement Decree of the Employment Insurance Act provides that “If the Plaintiff received or intended to receive the subsidy by fraud or other improper means, the right to receive the subsidy or to receive the subsidy shall be deemed to have been restricted by 20 years from the date on which the Plaintiff received the subsidy or to receive the subsidy by false or other improper means.” Article 56(2) of the former Enforcement Decree of the same Act provides that the subsidy or other improper means 20 years from the date.

(4) As such, in the instant case where the Defendant asserted that the Defendant was to collect unjust enrichment only without presenting the relevant laws and regulations from the date of the instant disposition to the date of closing argument in the trial, and thus, it is unlawful to determine whether the Plaintiff was a person who received or intends to receive support for employment stability, etc. by fraud or other improper means, and the amount of subsidies that order the return thereof cannot be specified or not, unless otherwise expressly and specifically, the Plaintiff, the other party to the disposition, as the Plaintiff, cannot specify the decision on whether to object and the scope of objection. Thus, the instant disposition with such defect is unlawful.

(5) As seen earlier, even if the provision on the basis of the instant disposition is the provision that orders the return of subsidies under the former Employment Insurance Act, Article 35 of the former Employment Insurance Act and Article 56(1) and Article 56(2) of the Enforcement Decree of the same Act, the Plaintiff’s first falls under a person who received or intends to receive support, such as employment stability, by false or other unlawful means, and the above “any other unlawful means” refers to any and the affirmative and passive acts that may affect the decision-making on the payment of subsidies, which are conducted by an unqualified business owner in general in order to conceal the eligibility to receive benefits or the lack of such eligibility (see, e.g., Supreme Court Decisions 2001Du270, Sept. 5, 2003; 2004Du6105, Oct. 27, 2006; 2006Du16984, Mar. 30, 2007).

However, in the case of this case, the "report on the plan to improve the employment environment" submitted by the plaintiff is conducted prior to the improvement of the employment environment, and is distinguishable from the "application for the subsidy to improve the employment environment" that takes place after the completion of improvement of the employment environment by examining the plan and granting approval of the plan, and Article 5 of the Notification of this case imposes a substantive duty to examine the report on the plan to improve the employment environment on the defendant who is an administrative agency. In light of the fact that Article 5 of the Notification of this case imposes a substantive duty to examine the report on the plan to improve the employment environment, it is difficult to view that the submission by the plaintiff to the defendant who has the obligation to examine by disturbing the part of the report on

(6) Therefore, the Defendant’s disposition of this case must be revoked in an unlawful manner.

3. Conclusion

The judgment of the court of first instance which accepted the plaintiff's claim is just, and the defendant's appeal is dismissed.