(영문) 인천지방법원 2016.5.26.선고 2014구합31661 판결

The Defendant’s return of 628,200 won to the Plaintiff on October 29, 2013, and the additional collection of 628,200 won against the Plaintiff, and the disposition of restriction on subsidies and loans for 300 days from October 29, 2013 to June 16, 2014, shall be revoked.

Reasons

1. Details of the disposition;

A. Entrustment of vocational skills development training by the plaintiff and subsidization of training expenses by the defendant

1) Around March 22, 2011, the Plaintiff was operating a C Child Care Center located in Gyeyang-gu Incheon, and entered into a contract for commissioned education with the Plaintiff on the training course (hereinafter “instant training course”) called D Co., Ltd. (hereinafter “D”), 'E’, 'F’, 200,000 won per capita for each training course (hereinafter “instant training course”). On June 8, 201, the Plaintiff filed an application with the Defendant for subsidies by stating the outline of the education operation and the report on the result of education as follows, and submitted a tax invoice stating that the Plaintiff paid KRW 1,80,000 for total education expenses to D on March 30, 2011 (hereinafter “tax invoice”).

○ Outline of education management

A person shall be appointed.

O Reporting on the result of education

A person shall be appointed.

3) On June 14, 201, the Defendant approved the payment of subsidies of KRW 628,200 to the Plaintiff’s vocational skills development training expenses incurred by the Plaintiff, and paid KRW 628,200 to the Plaintiff on June 17, 201.

(b) Disposition, etc.;

1) On January 29, 2013, the Gwangju Regional Police Agency announced the investigation results that two training institutions, including D, conducted the Internet workplace skill development training conducted by the Ministry of Employment and Labor from January 201 to October 201, 201, such as 1,114 educational consignment companies, 'prepaid support', 'full refund', 'repaid refund', 'free discount', and 'the amount of subsidies for workplace skill development training', and obtained the subsidies for workplace skill development training by fraudulent means, such as 'the amount of subsidies for workplace skill development training conducted by the Ministry of Employment and Labor,' and 'the amount of subsidies for workplace skill development training by fraudulent means, such as 'the amount of subsidies', 'the amount of full refund', and 'the amount of discount'

2) On February 19, 2013, the leisure earnings and expenses of the Gwangju Regional Employment Agency sent to the Defendant a list of illegal receipt and demand places of business, including the Plaintiff, and notified the Defendant of the measure to be taken in accordance with the relevant laws and regulations.

3) On October 29, 2013, the Defendant: (a) applied Article 55(2)1 and Article 56(2) and Article 56(3)2 of the Act on the Development of Workplace Skills of Workers (hereinafter “Vocational Skills Development Act”) to the Plaintiff on the grounds that the Plaintiff received training expenses with false receipts; (b) issued a disposition to refund 628,200 won; and (c) additionally collect 628,200 won; and (c) impose a restriction on loans for 300 days (from October 29, 2013 to August 24, 2014).

4) After April 7, 2014, the Defendant notified the Plaintiff that the period of sanctions for the restriction on loans would be 300 days, but that the period of sanctions would be corrected from October 29, 2013 to June 16, 2014 (hereinafter referred to as “instant restriction disposition”) and that “the instant restriction disposition” is referred to as “the instant restriction disposition from October 29, 2013 to June 16, 2014,” and “the instant restriction disposition, including the instant restriction disposition, the return of illegally received amount, and the additional collection disposition.”

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 8, the purport of the whole pleadings

2. Whether the part concerning the claim for revocation of the restriction disposition in the lawsuit in this case is legitimate

As the period of sanction (from October 29, 2013 to June 16, 2014) of the instant restrictive disposition has already expired, the Defendant’s defense of safety that the Plaintiff had no legal interest in seeking revocation of the said restrictive disposition.

However, in a case where there is a concern that a subsequent disposition is practically subject to an aggravated cause or condition, the other party subject to the prior disposition should sufficiently protect the right to remove such disadvantage through a litigation seeking revocation of the prior disposition even if the period of sanctions prescribed in the prior disposition has expired, and thus, there is a legal interest in seeking revocation of the prior disposition (see, e.g., Supreme Court en banc Decision 2003Du1684, Jun. 22, 2006).

In this case, Article 22 [Attachment 62] subparagraph 1 (a) (iii) of the Enforcement Rule of the Vocational Skills Development Act provides that "where a person subject to the restriction becomes subject to the restriction repeatedly in accordance with the individual criteria of item (b), the restriction may be imposed within the extent of three years," and thus, the plaintiff has a provision on the restriction of the preceding disposition. Therefore, even if the effect of the restriction has ceased to exist due to the lapse of the period of the restriction prescribed in the relevant disposition, there is a legal interest in seeking

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

After the plaintiff paid the full amount of training expenses to D, the defendant presumed that the plaintiff was paid part of training expenses from D only on the basis of the investigation results of D by the police, although there was no fact that part of the training expenses was refunded to D, and the disposition of this case was taken.

Even if the Plaintiff received refund of KRW 1,171,800,000 among the education expenses paid to D and paid KRW 628,200,00 as training expenses, it is difficult to deem that the Plaintiff violated the financial interest of the State by affecting the Defendant’s decision-making on the payment of subsidies by doing the above act, since the training expenses actually paid are identical to KRW 628,20,00 (per person 69,800), which is a subsidy for training expenses of the instant training course, and still is in the status of receiving KRW 628,200 from the Defendant.

Therefore, the disposition of this case based on misunderstanding of facts is illegal by deviating from and abusing discretionary power.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Article 20(1) of the Vocational Skills Development Act provides that a business owner who conducts workplace skill development training may subsidize expenses incurred by the Minister of Employment and Labor. Article 55(2) of the same Act provides that a business owner may restrict subsidies or loans if he/she has received subsidies by fraud or other improper means. Article 56(2) and (3) of the same Act provides that a return of the amount of subsidies received by fraud or other improper means, out of the amount of subsidies already received by the business owner, may be ordered, and the amount of subsidies not exceeding the amount of subsidies can be additionally collected. The term "any fraudulent or other improper means" as provided in the above provision refers to all fraudulent acts conducted by a business owner who is not generally entitled to receive, pretends to be paid, or is ineligible to receive training costs (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

Meanwhile, according to Article 20(1) and (3) of the Vocational Skills Development Act and Article 19(3) of the Enforcement Decree of the same Act, the Minister of Employment and Labor may subsidize expenses incurred in conducting workplace skill development training (including cases where workplace skill development training is conducted on commission) by employers who conduct workplace skill development training. Article 41(4) of the Enforcement Decree of the Employment Insurance Act provides that the scope of subsidies, etc. for workplace skill development training expenses, etc., the upper limit of subsidies and support procedures, and other matters necessary for support shall be prescribed by Ordinance of the Ministry of Employment and Labor. Article 60(1) of the Enforcement Rule of the Employment Insurance Act delegated by the above provision provides that the amount equivalent to part of training expenses, etc. subsidized pursuant to Article 41 of the Enforcement Decree of the Employment Insurance Act shall be based on the amount calculated according to the support criteria determined and publicly notified by the Minister of Employment and Labor,

According to the above provision, the former Regulations on Assistance in the Development of Vocational Skills (amended by the Ministry of Employment and Labor No. 2011-73, Dec. 30, 201; hereinafter referred to as the "Rules on Assistance in the Development of Vocational Skills") for business owners who determine and publicly notify the standards for subsidization of training expenses, etc. pursuant to the above provision provides that Article 4 shall apply to the requirements for recognition of vocational skills development training courses in Article 5, and Article 5 shall apply to the examination of the appropriateness of remote training courses, etc., and Article 11 (1) shall apply to the case where a business owner conducts distance training on behalf of employed workers, etc. by entrusting them to the Internet training for each evaluation grade under Article 5 (2) (attached Table 4) within the scope of the amount obtained by multiplying the relevant training course by the number of trainees who completed the relevant training course. In light of the above provisions, the subsidy for the training course in this case as well as the subsidy for the training is also subject to examination and operation.

As such, a business owner is entitled to receive some of the training expenses paid only when he/she has received accredited Internet remote training and meets the standards for completion thereof. As such, even if a business owner paid a less amount than the designated training expenses to an entrusted training institution, he/she shall be deemed to be eligible to receive the full amount of the designated training expenses, and where he/she applied for the subsidization of training expenses by stating as if he/she was able to receive the training, and

(ii) the facts of recognition

The following facts can be acknowledged in full view of the aforementioned evidence as stated in the evidence Nos. 9 through 13 and the purport of the whole pleadings. The only of the evidence Nos. 2 and 3 is insufficient to reverse the above recognition.

(1) D provided workplace skill development training services to employers who subscribed to employment insurance by means of distance training on the Internet, and provided employers with the amount of subsidies from the Employment Insurance Fund for workplace skill development training compared to the expenses of workplace skill development training by employers, which are less than the cost of workplace skill development training and attempted not to receive workplace skill training.

② Accordingly, G, director H, and head of a branch office, etc., who are D representative director, can obtain a high level of points for the employee’s vocational skills development training in the course of conducting workplace skill development training by means of Internet remote training, thereby having good grades at the time of external evaluation of the company. Although the Ministry of Employment and Labor reported that they received a full amount as educational expenses from D, they would receive a certain amount of subsidy from D in the way of “pre-paid support, refund of the difference,” and discount, thereby allowing the Ministry of Employment and Labor to pay only the amount to be received as educational expenses, and thus, they would not have any expenses actually borne by the employer.

③ Around March 22, 2011, D entered into a contract with the Plaintiff for the commissioned education of KRW 1,800,000 for the instant training course with the number of nine trainees, and paid KRW 1,80,000 on March 22, 2011 by account transfer, and repaid KRW 1,171,80 among the Plaintiff around March 23, 201.

④ Nevertheless, on March 30, 201, D issued the instant tax invoice to the Plaintiff to the effect that it received KRW 1,800,000 as total education expenses for the instant training course. On June 8, 2011, the Plaintiff, based on the instant tax invoice, filed an application with the Defendant for subsidies of KRW 628,200 for expenses incurred in the vocational skills development training, and received the said subsidies from the Defendant.

⑤ G, H, and J were indicted for committing the crime of fraud by the aforementioned act. G from the Gwangju District Court (2015Dadan2149) to March 24, 2016, G was sentenced to one year and two months of imprisonment, two years of suspended execution in August, and two years of suspended execution in June, and the J was sentenced to two years of suspended execution. G, H and the Prosecutor appealed, and currently pending in the appellate court (Seoul District Court 2016No1014).

3) Determination on the instant case

Based on the aforementioned legal principles, the following facts are revealed by the purport of the entire argument and facts, namely, ① the Plaintiff did not receive refund of KRW 1,171,800 out of the total education expenses paid from D with respect to the instant training course, whereas the Plaintiff was convicted of committing a fraudulent act by J related to the Plaintiff (the first instance judgment against J was appealed only), ② the Plaintiff did not receive refund of KRW 1,800 out of KRW 1,171,800,000 from D and actually paid KRW 628,200,000 from the total education expenses to 60,000,000 won for the instant training course, and the Plaintiff did not appear to have received subsidies from the Defendant for the instant training course by 60,000,000 won per head, 30,0000,000 won per head, and the Plaintiff did not appear to have actually received subsidies from the Plaintiff by 60,000,000 won per head.

It cannot be said that there is an error of deviation or abuse of discretion due to mistake of facts, etc. in the disposition of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.