2017Gudan50192 Order for return and revocation of a decision for additional collection, etc.

1. A;

2. B

3. C

4. D;

5. E.

Attorney Lee Dong-dong, Counsel for the plaintiffs

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

Government Law Firm Corporation, Attorney Han-soo et al.

May 29, 2018

July 10, 2018

1. Each of the plaintiffs' claims is dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

Defendant’s 3,637,500 won payment order against Plaintiff A on August 11, 2016, support for 360 days. 5,340,120 won payment order against Plaintiff B and 360 days payment order against Plaintiff B;

The payment order of KRW 6,390,660 against Plaintiff C, the 360-day support and loan restriction disposition against Plaintiff D, the 8,081,800 won payment order against Plaintiff D, the 360-day support and loan restriction disposition, the 6,771,160 won payment order against Plaintiff E, and the 330-day support and loan restriction disposition are revoked.

1. Details of the disposition;

A. Details of the plaintiffs' entrusted training

1) The Plaintiffs are all representatives of child-care centers, who are employers, and enter into a consignment training contract with F Co., Ltd. (hereinafter referred to as “F”), and submit to the Human Resources Development Service of Korea a document that the child-care teachers met the requirements for completing the consignment training and pre-paid the training expenses to F, and thereby, receive the compensation for the training expenses from their own account pursuant to Article 27 of the Employment Insurance Act, etc. (Article 8 of the Regulations on the Assistance to Workplace Skill Development (Public Notice of the Ministry of Employment and Labor).

2) Specifically, Plaintiff A (the representative of the G Child Care Center) conducted on May 26, 2012 through February 24, 2014, 35 training courses including the “G Child Care Center”, and 2 Plaintiff B (the representative of the H Child Care Center) conducted on the total of 34 training courses including the “Y Embry Embry 2-11”, 6 teachers (the total number of 139 teachers per annum), 30 teachers affiliated with Plaintiff C (the representative of the Plaintiff C) conducted on the total of 16 teachers affiliated with the Embry 28 Emb. (the total number of 136 teachers affiliated with the Plaintiff, including 20 teachers, up to 17 others, from September 18, 2012 to March 17, 2014, and 2017.

B. During the investigation into F, which is an entrusted training institution, the Incheon Bupyeong Police Station: (a) prepared and published a false commission contract and tax invoice as if the business owner of 488 childcare centers, including the Plaintiff, did not preferentially pay training expenses; (b) did not attend the training course for at least 80%, and (c) did not meet the completion standards even if the trainee’s infant care teacher did not attend the training course, and (d) notified the Defendant that he was paid training expenses.”

2) Accordingly, as indicated below, the Defendant classified the Plaintiffs’ actual illegal receipt amount and the amount of supply and demand, excluding the portion for which the extinctive prescription has lapsed. On August 11, 2016, as indicated in the purport of the claim, the Defendant issued 360 days each of the Plaintiffs with respect to support and loan restriction disposition, order for return of training expenses with the exception of extinctive prescription, and disposition for additional collection of the same amount as the amount of the return order (hereinafter “each of the instant dispositions”) (the amount of payment order issued by the Plaintiffs is regarded as additional collection of the same amount as the amount of the return order).

A person shall be appointed.

A person shall be appointed.

(c) Criminal punishment against the F representative, etc.;

1) On November 17, 2014, related persons, including the representatives of F, were indicted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on the Management of Subsidies. On December 15, 2016, the part of fraud was pronounced guilty (the part of the violation of the Subsidy Management Act was prosecuted for the mere fact that the Defendants were not the recipient of the subsidy), Seoul High Court 201759, but appealed as the Seoul High Court 201759, but the appeal was dismissed on April 27, 2017, and again appealed as the Supreme Court 2017Do7147, but the first instance judgment became final and conclusive by dismissal of the appeal on August 18, 2017 (hereinafter referred to as the “criminal judgment”).

2) The main point of the criminal judgment is as follows.

From May 6, 2012 to June 30, 2014, the Defendants submitted to the Corporation a false report on implementation and completion of training as shown in the attached list of crimes to the effect that childcare teachers did not attend or attend the training, 30 hours in the case of child care teachers for 4 hours a day, 50 hours in the case of 13 hours a day, and 8 hours a day a day a day a day a day a day 50 hours training was conducted, and in the case of Sundays 8 hours training, the actual training hours of child care teachers do not fall short of 80/100 of the training hours a day a day a day 4 hours a day a day a day a day a day a day a day a day 13 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day, a day a day a day an eight hours a day a day a day a day a day 8 hours a day a day a day 8 hours a day a day a day a day a day a day a day a day.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1 to 11

2. Determination on the defense prior to the merits

The defendant asserts that the 360-day support and loan restriction measures against the plaintiffs among each of the dispositions of this case against the plaintiffs in this case are unlawful as there is no legal interest in the lawsuit, since the period was terminated on April 17, 2017 against the plaintiff B.

According to the Enforcement Rule of the Act on the Development of Workplace Skills of Workers [Attachment 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers [Attachment 6-2] 1-A, 3 of the period of support, financing, and restriction on taking lectures (related to Article 22), where a person subject to the restriction is subject to the restriction repeatedly, the restriction may be imposed within the extent of three years.”

Even after the expiration of the period of a restrictive measure, there is a disadvantage in the provisional arbitration system on the basis of the past record of violation of the law, so the plaintiffs still have a benefit to seek the cancellation of such restrictive measure.

Therefore, this part of the defendant's assertion that there is no benefit of lawsuit even after the actual cancellation is without merit.

3. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The defendant did not properly confirm the facts leading to the disposition by each plaintiff on the basis of the criminal punishment against the F representative, etc. and concluded that the defendant constitutes an appearance under 80% of the conditions without any intention to the plaintiffs in the receipt of training expenses. The criminal judgment against the F representative, etc. was revealed. The plaintiff A, B, C, and D was investigated as a suspect and received a decision of non-guilty charges by false or other unlawful means, and thus, they concluded that the plaintiffs were provided with support and loan restriction, return order, and additional collection. Each disposition of this case was made on the basis of the erroneous facts and is unlawful.

B. Determination

1) Whether the attendance of less than 80% of the training courses was conducted

Considering the following circumstances comprehensively, the Plaintiffs’ infant care teachers may be deemed to have attended less than 80% of the training courses.

A) Above all, even if a criminal judgment is not bound by the fact-finding in a criminal trial, the fact that a criminal judgment already became final and conclusive was guilty on the same factual basis is significant evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a factual judgment in the criminal trial in light of other evidence submitted in the administrative trial (see, e.g., Supreme Court Decision 2011Du28240, May 24, 2012). However, the criminal judgment held that: (a) the F, who provided education and training to childcare teachers upon entrustment by the plaintiffs, did not do so for 3 hours in the case of 4 hours a day, 5 hours in the case of 13 hours a day and 13 hours a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a week a day a day a day a day a day a day a day a day asss.

B) Each of the training courses in which the plaintiffs' infant care teachers belong consist of 13 hours a day (1, Tol-ting 1), total 14 hours a day (tol-6, Tol-rating 2-11, etc.), total 12 hours a day (tol-making 3-1), total 40 hours a day (tol-making 10-1, 10-1, 10-1, etc.). Even if the short period of training is less than 13 hours a day and most remaining hours are less than 40 hours a day, the plaintiffs are not required to provide training for 13 hours a day and 14 hours a day a day a total of 13 hours a day a day is less than 14 hours a day a day, 13 hours a day a day a day a day and 14 hours a day a day a day a day a day is less than 10-day a day a day, 3 hours a day a day a day a day a day is less than 14 hours a day a day a day a day.

C) In addition, F’s chapter L as well as F’s chapter L, the instructors belonging to F have entered into a compulsory medical agreement at three hours a day, five hours a Saturday, and on Sundays, there was no lecture, and there was no infant care teacher who had completed all training courses normally (No. 12-1, 2, and 3).

D) In addition, it was revealed that among the child care teachers affiliated with Plaintiff E, D, and C, the communications officers with respect to the results of the investigation by the base station for M, N, and P were not F during the training hours (Evidence B No. 21).

2) Whether the contractor is an illegal contractor

Article 16 (2) 2 of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 9316 of March 31, 2008; hereinafter referred to as the "former Act on the Development of Workplace Skills") generally refers to the affirmative and passive act that may affect the decision-making on the payment of training costs by a person who is not eligible to receive training costs, as if he/she were qualified or not able to conceal the fact that he/she is not qualified. Article 16 (1), (2), and (3) of the former Act on the Development of Workplace Skills of Workers and Article 16 (6) of the former Enforcement Decree of the former Act on the Development of Workplace Skills (amended by Act No. 9316 of March 31, 2009; hereinafter referred to as the "former Act on the Development of Workplace Skills") provides that "any intentional or gross negligence committed by a person who has violated the Act shall be construed as one of the matters to be considered in determining the specific criteria for disciplinary measures, and thus, Article 13 (4) 15) of the same Act shall also apply.

However, as seen earlier, the Plaintiffs received subsidies by fraudulent or other unlawful means, even though they were unable to claim training costs because they failed to complete the training course properly. As such, the Plaintiffs may be deemed to have received subsidies by illegal means. This does not necessarily change to the extent that they were not necessarily required to be intentional. Furthermore, the Plaintiffs did not perform their duty to verify whether they completed training courses in relation to the application for the payment of training costs, whether they completed training courses, and whether they applied for training costs, and rather, did not perform their duty to verify the appropriateness of the application for the payment of training costs. Rather, in full view of the fact that the Plaintiffs received subsidies by means of submitting false tax invoices and receiving them and remitting them to F, it is reasonable to deem that they received subsidies by fraudulent or other unlawful means.

3) Therefore, the instant disposition is lawful.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Yong-sik