(영문) 대전지방법원 2013.8.28. 선고 2012구합4144 판결

The defendant's each disposition in the "date" column in the attached Table 1 against the plaintiffs on each of the dates stated in the attached Table 1 shall be revoked.

Reasons

1. Details of the disposition;

A. The plaintiffs entered into an entrustment contract with A Co., Ltd. (hereinafter referred to as "A") which has obtained recognition of vocational ability training courses from the Minister of Employment and Labor (hereinafter referred to as "the Minister of Employment and Labor") and conducted the same training course as stated in attached Table 2 No. 1 to No. 7 "the name of each training course" and "training period" (hereinafter referred to as "each of the training courses in this case"). All of the training courses in this case were conducted by "the remote training for which A can complete its evaluation results at least 60 points in all during the training period by delivering training materials using printing media to trainees and allowing trainees to do self-learning, and conducting evaluation on the Internet at least once a month."

B. After that, the Plaintiffs filed an application with the Defendant for subsidies for vocational skills development training expenses for each of the instant training courses, and received the same subsidies as indicated in the “each training expenses listed in the attached Table 1 to Table 7” from the Defendant.

C. However, the Daejeon District Police Agency revealed, as a result of the investigation into the misconduct of the remote training institution in the jurisdiction and the relevant illegal supply and demand workplace, that the trainee was found to have committed an unlawful act, such as filing a false report on the completion of the training (hereinafter referred to as “the instant unlawful act”) to the Defendant, as if the trainee was able to undergo the instant training course, by leading the representative B of A to find the Plaintiffs’ workplace and leading the trainees to access the A website and apply for the evaluation.

D. Accordingly, on the date stated in the separate sheet No. 1, the defendant, on the grounds that training expenses were paid to the plaintiffs by false or other unlawful means, returned the amount of unlawful receipt and payment as stated in the separate sheet No. 1 in accordance with each Act and subordinate statutes in the separate sheet No. 1 (hereinafter referred to as "each return disposition of this case") and the additional collection disposition (hereinafter referred to as "each additional collection disposition of this case") and the restriction disposition of support (hereinafter referred to as "each restriction disposition of this case") (hereinafter referred to as "each disposition of this case").

[Ground of recognition] Facts without dispute, Gap evidence 1 and 4 (including branch numbers for those with additional numbers; hereinafter the same shall apply), Eul evidence 1 and 7, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) Non-performance of disposal requirements

A) Since the Plaintiffs were exclusively in charge of each of the instant training courses conducted by A, they were not aware of whether A’s representative B completed the training courses by unlawful means, and there was no participation or conspiracy. Furthermore, based on the materials received from A, the Defendant applied for the payment of training expenses, and subsequently, the Plaintiffs received a non-prosecution disposition that is not suspected of being suspected in the relevant criminal cases against the persons in charge of the Plaintiffs, and thus, it is unlawful to impose each of the instant dispositions on the Plaintiffs.

B) The Plaintiffs did not take any economic benefit since they received subsidies from the Defendant after paying the training expenses to A in advance, and the Defendant deposited the amount equivalent to the above amount of illegal receipt with the Defendant as the depositee. Each of the dispositions of this case that erroneously designated the other party to the disposition as the Plaintiffs was unlawful.

2) According to Article 56(2) of the Act on the Development of Workplace Skills of Workers (hereinafter “the Act”), the object of the return of illegally received subsidies is “the amount of subsidies or loans received by false or other unlawful means out of the amount of such subsidies or loans.” According to Article 56(3) of the same Act, the subject of additional collection is also “the amount of subsidies or loans received by false or other unlawful means.” Since the Plaintiffs received training through normal procedures, they should be subject to the return or additional collection disposition only for the amount of subsidies received by the Defendant out of the amount of subsidies received by the Defendant, and thus, the Defendant’s return and additional collection disposition are unlawful. 3) According to Article 22-2(1)2 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter “the Act”), the additional collection disposition is discretionary act, and Article 22(2)2(1)2 of the Enforcement Rule of the Act (hereinafter “the Enforcement Rule”), which does not require additional collection from the amount of subsidies.

4) A deviation from and abuse of discretionary power

① In light of the background of the instant wrongful act, the degree of involvement of the Plaintiffs, the details of the receipt of the instant training fee, and the circumstances in which B’s illegal receipt was deposited in the Defendant’s future, each of the instant dispositions is excessively harsh to the Plaintiffs. ② The degree of violation of each of the instant restrictions is insignificant, and thus, each of the instant dispositions is to be mitigated within the scope of 1/2 as stipulated in attached Table 6-2 of Article 22 of the Enforcement Rule. Each of the instant dispositions is deemed to have deviated from

B. Relevant statutes

Attached Table 3 shall be as stated in the relevant statutes.

C. Determination

1) Whether the disposal requirements are not met

A) Whether the plaintiffs participated in the unlawful act of this case

(1) Sanction against violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws to achieve administrative purposes, and thus, it may be imposed even if there is no intentional or negligent act on the part of the violator, barring special circumstances such as where the violator does not cause any negligence (see Supreme Court Decision 2002Du5177, Sept. 2, 2003). "A measure against which sanctions may be taken pursuant to the relevant provisions of the individual Acts and subordinate statutes applicable to each of the dispositions of this case" means any unlawful act conducted by a person who is not generally entitled to receive, in order to conceal the eligibility for payment or the lack of eligibility to receive training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009), which means all active and passive acts that may affect the decision-making on the payment of training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

(2) According to the overall purport of the statement and arguments as to this case, 1. A's representative B, upon entering the answer of the trainee C, etc. in advance by accessing A's homepage, was an agent for the trainee as if the trainee applied for a direct evaluation by visiting each workplace of the plaintiffs and accessing A's work site and submitting the answer in advance from a computer located there to the E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E's E'.

The above facts and the evidence revealed as follows: ① the application for the evaluation of each of the training courses of this case and its completion are very important and essential matters in each of the training courses of this case as they are the prerequisite for the support of the training expenses concerned; ② Even if the plaintiffs entrusted the training courses of this case to A, the plaintiffs directly apply for the subsidies, and thus, the plaintiffs have the duty to manage and confirm whether the trainees of each of the training courses of this case have applied for the examination and passed the examination at the time of applying for the subsidies, and to finally manage and confirm whether they passed the examination at the time of the examination. However, even though they failed to perform their duty, it cannot be deemed that the errors in the management behavior of the plaintiffs were insignificant. ③ The plaintiffs' act of receiving the training courses of this case, the number of training courses of this case, training period, and the improper act of this case did not have any legitimate reasons to deem that the plaintiffs did not have any legitimate reasons to be paid to the plaintiffs, considering the fact that the plaintiffs did not have any direct knowledge of the plaintiffs' application for the examination of this case.

B) Whether it is unlawful to designate the other party to the disposition as the plaintiffs

However, according to Articles 55(2) and 56(2) of the Act, each of the dispositions of this case is legitimate, since each of the dispositions of this case against the plaintiffs is legitimate, and there is no economic benefit that the plaintiffs actually acquired, or the representative B deposited the amount corresponding to the amount the plaintiffs received in the criminal case due to the unlawful act of this case, the application of Articles 55(2) and 56(2) of the Act cannot be deemed excluded. The plaintiffs' assertion of this part is without merit.

2) As to the scope of return following the disposition of return of this case, Article 56 (2) of the Act provides that "the amount of subsidy or loan received by false or other unlawful means out of the amount of subsidy already received," and Article 56 (3) of the Act provides that "the amount of additional collection shall also be "the amount of subsidy or loan received by false or other unlawful means." However, according to the above evidence, the evaluation of each of the training courses of this case is conducted en bloc through the employees A rather than the training students belonging to the plaintiffs, and the fact that the amount recognized in the case of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) for B related to the unlawful act of this case is the total amount of subsidy illegally received by the plaintiffs. Thus, it is lawful to consider the entire subsidy received by the plaintiffs as the subsidy received by the plaintiffs, and to take the return disposition and additional collection disposition of each of the above cases, and it is insufficient to conclude this part of the plaintiffs' assertion in this part.

3) Whether Article 22-2(1)2 of the Enforcement Rule is unlawful

Article 56 (3) of the Act means the State, local governments, or the Minister of Labor pursuant to paragraphs (1) and (2).

Where ordering a return, the following amount may be additionally collected with regard to the amount of subsidies or loans received by fraud or other improper means in accordance with the standards prescribed by Ordinance of the Ministry of Labor. Article 55 (2) 2 of the same Act provides that "the workers, business operators, organizations of business owners, etc. whose subsidies or loans are restricted pursuant to Article 55, and the council on the development of human resources by industry or the association on the development of human resources: An amount not exceeding the amount of unlawful receipt," and Article 22-2 (1) 2 of the Enforcement Rule provides that "in cases falling under Article 56 (3) 1 (b) and 2 of the Act: Additional collection of the amount equivalent to the amount of subsidies or loans received

In light of the above provisions, Article 22-2(1)2 of the Enforcement Rule provides that, in cases where an administrative agency decides to additionally collect money from a business owner, etc. pursuant to the main sentence of Article 56(3) of the Act, the amount of money to be additionally collected shall be "amount equivalent to the amount received by unlawful means" in cases falling under Article 56(2)2 of the Act with regard to the specific standard. Thus, it is reasonable to view that Article 22-2(1)2 of the Enforcement Rule does not necessarily stipulate the act of additional collection as an act of binding that requires additional collection, unlike the act of discretionary action prescribed by the law of the administrative agency. Therefore, this part of the plaintiffs' assertion on the premise that the above provision falls under the necessary provision or it is stipulated as an act of binding action without any room for discretion

4) Whether the discretion is deviates or abused or abused

A) First of all, as the degree of violation of the plaintiffs' respective restrictions may be mitigated pursuant to the provisions of attached Table 6-2 of the Enforcement Rule of Article 22 of the Enforcement Rule, the Health Team, and the general standard of 1. A. 2 of attached Table 6-2 of the Act, where the plaintiffs intend to obtain subsidies or loans by fraud or other improper means pursuant to Article 5(2)1 of the Act, or where the plaintiffs already received subsidies or loans, they shall not provide subsidies or loans pursuant to Articles 17, 18, 20, 22, and 23 of the Act for the period from the date of the restriction to the individual standards of item (b). However, if there is no intentional or gross negligence or if the degree of violation is minor, the evaluation in each of the respective training courses of this case may be mitigated by up to 1/2 of the standards established in the individual standards. However, in light of the fact that the business owners' faithful management and supervision requirements are the most essential requirement for receiving subsidies, it is difficult to deem that there is any error in the plaintiffs's provisions.

B) In addition, as seen earlier, ① the Plaintiffs were unlawfully provided and received subsidies by unlawful means, and the frequency and amount of the instant fraudulent act has been prolonged for a long time, ② the amount of illegal receipt ordered by the Defendant to return or the amount of additional collection, subsidies, and orders to restrict loans, etc. are all conducted in accordance with the standards prescribed by relevant Acts and subordinate statutes; ③ The public interest to strictly control and manage subsidies for the purpose of improving the finances of workplace skill development training subsidies and the efficient and transparent operation of the support system cannot be deemed to be less than the Plaintiffs’ private interest restricted from each of the dispositions of this case; ④ Even if the Defendants deposited the amount illegally received as deposits in related criminal cases, such circumstance does not preclude the application of the provisions of each of the dispositions of this case, even if considering the various circumstances alleged by the Plaintiffs, it is difficult to criticize the Plaintiffs as unlawful disposition that deviates from and abused the discretionary power.

The plaintiffs' assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit. It is so decided as per Disposition.