(영문) 서울행정법원 2016.8.11. 선고 2015구단14235 판결

1. Of the instant lawsuit, the part that the Defendant sought revocation of the disposition to recover the creative and start-up allowance for the designated parties B on November 20, 2014 shall be dismissed.

2. The Defendant’s disposition to recover the creative and start-up promotion allowances made against the Plaintiff’s designated parties, and the Appointed C shall be revoked.

3. Of the costs of lawsuit, 40% is assessed against the Plaintiff’s Designating Party, and the remainder is assessed against the Defendant, respectively.

Purport of claim

Disposition No. 2 and the defendant's disposition to recover creative and business start-up promotion allowances against Plaintiff Selection B on November 20, 2014 shall be revoked.

Reasons

1. Details of the disposition;

On November 20, 2014, the Defendant: (a) filed a redemption claim against each of the allowances of KRW 2 million paid to the Plaintiffs on the ground that: (b) the Plaintiff’s designated party, the appointed party B, and D worked as an intern in practice; and (c) filed a false application for creative and business start-up promotion allowances even though they did not have worked as an intern or start-up business; and (d) filed a false application for the payment of the allowances to be paid to the Plaintiffs (each of the instant dispositions

[Ground of recognition] Facts without dispute, entry in each subparagraph of sub-paragraphs 1 through 3, purport of whole pleadings

2. Determination as to the legitimacy of the Plaintiff’s claim among the instant lawsuits

A. Whether the claim against the Appointor B is lawful

According to the evidence Nos. 1-2 and 2-1 of evidence Nos. 1-2 and 2-1, the defendant recovered the creative position and start-up promotion allowance of this case from the selected party B on Nov. 20, 2014, and the selected party B received the above disposition on Dec. 2, 2014. Nevertheless, the selected party B applied for a ruling seeking cancellation of the disposition of this case to the Central Administrative Appeals Commission on Apr. 24, 2015 after 90 days from the date of receipt of the disposition. The Central Administrative Appeals Commission rendered a ruling dismissing the appeal of this case on Jul. 14, 2015 as illegal at the time when 90 days have passed from the date of receipt of the disposition. Thus, the lawsuit of this case by the selected party B without legitimate administrative appeal of this case is unlawful because it failed to comply with the period of 90 days from the date of receipt of the disposition.

B. Whether the lawsuit filed by the designated party D is lawful

Although the Defendant received the instant disposition on December 1, 2014, the Defendant claimed an administrative appeal on April 24, 2015, which was 90 days thereafter, and the period for filing the instant disposition was excessive. However, according to the purport of subparagraph 2-2 and the entire pleadings, the Defendant served the instant disposition on the designated person D’s resident registration address, which became aware of through the employment insurance association, and served on the designated person D’s business office, and on December 1, 2014, it is difficult to conclude that the designated person D received the instant disposition on December 1, 2014, solely on the ground that the designated person D worked on “Co., Ltd.’s business” around December 24, 2014, it is inappropriate to conclude that the Defendant entrusted the authority to receive the instant disposition or delegated D’s actual receipt of the instant disposition to D’s business entity, and that the Defendant filed an administrative appeal on April 25, 2015.

Therefore, the lawsuit of this case filed within 90 days from the date of ruling on administrative appeal is lawful.

3. Determination as to the claim against the Plaintiff Appointed and the Appointed D

A. The parties' assertion

The plaintiff's designated parties and the designated parties D (hereinafter referred to as the "Plaintiffs") made a deposit passbook and card by deceiving from F and G, and delivered them to G, etc., and the defendant did not have applied for the creative and start-up promotion allowance or received the allowance through the Korean Association of Digital Consenters, the defendant asserts that even if the plaintiffs filed an application for creative or start-up allowance with the defendant through the Korean Association of Digital Consenters, or did not directly receive the subsidy, the defendant constitutes "the person who received the subsidy" under Article 35 of the Employment Insurance Act because he knew that the deposit passbook and cash card in the name of the plaintiffs were used for the above purpose, and therefore, it is necessary to return the subsidy received pursuant to Article 30 (1) 3 of the Subsidy Management Act.

B. Relevant statutes

Article 30 of the Subsidy Management Act (Revocation of Decisions to Grant Subsidies in Violation of Acts and Subordinate Statutes)

(1) If a subsidy program operator falls under any of the following cases, the head of a central government agency may fully or partially revoke the decision to grant subsidies:

1. Where he/she has used subsidies for other purposes;

2. Have violated statutes, the details of the decision to grant subsidies, or the dispositions of the head of a central government agency;

3. Where he/she has received subsidies by making a false application or by other unlawful means;

(2) Where an indirect subsidy program operator falls under any of the following cases, the head of a central government agency may fully or partially revoke his/her decision to grant subsidies related to the indirect subsidy program operator:

1. Where he/she uses an indirect subsidy for other purposes;

2. Where it violates statutes;

3. Where he/she receives an indirect subsidy by filing a false application or by other wrongful means.

(3) Article 19 shall apply mutatis mutandis where a decision to grant subsidies is revoked pursuant to paragraphs (1) and (2).

Article 33-2 (Recovery, etc. of Subsidies to Subsidy Recipients)

(1) Where a relevant subsidy recipient falls under any of the following cases, a subsidy program operator or indirect subsidy program operator shall order him/her to fully or partially subsidize him/her by specifying a deadline:

1. Where he/she has received subsidies by filing a false application or by other unlawful means;

2. Where it is used for any purpose other than the payment of subsidies;

3. Where he/she fails to meet the requirements for receiving subsidies.

/Operational Guidelines for Youth Creative and Start-Up 2010 and for Youth Creative and Start-Up Space Support Project: 1.3. Definitions

○ Creative means the creation of independent forms of jobs in the industrial sector of cultural content, etc.

○ The term “small and medium enterprises start-up” means a new establishment of small and medium enterprises, and the scope of start-up shall apply mutatis mutandis to the original method

○ youth establishment and start-up internship system refers to the government project that promotes creative start-up by providing opportunities for internships who can recruit young people who wish to start-up and start-up jobs and to secure knowledge, experience, etc. necessary for creative and start-up businesses. The term "institution entrusted with the operation of ○" refers to an institution that is selected as an institution operating youth start-up and start-up internships through a public recruitment examination as prescribed by the Ministry of Labor and that is entrusted with affairs concerning business operation.

○ Training implementer means an individual or an enterprise that employs young people who wish to start a new job or start a new business as an intern and provides them with training opportunities necessary for starting a new job.

○○ton refers to a person who has entered into an internship agreement with a training implementer and acquires practical affairs necessary for the creation and business start-up while working at a place designated by the training implementer.

W. 2. Payment of a creative or start-up promotion allowance 2. (Support Level) If a participant in a creative or start-up intern has succeeded in a creative or start-up establishment during the internship period or after the expiry of the internship period, he/she shall be paid an allowance of KRW 2,00,000 per person for creative or start-up promotion.

(1) In an appeal seeking the revocation of an administrative disposition, there is a burden of proof as to whether the pertinent disposition is lawful (see, e.g., Supreme Court Decision 2006Du12937, Jan. 12, 2007). Therefore, the Defendant, the disposition agency, must prove that the Plaintiffs received subsidies by false application or other unlawful means.

(2) According to the guidelines for the operation of youth creative and start-up internships, if an intern participant submits a business registration certificate, a copy of sales evidence or a letter of confirmation of selection of business start-up business of the Small and Medium Business Administration or a copy of a deposit passbook to the competent center via the competent agency, the entrusted agency shall provide creative and start-up support allowances through examination based on the documents submitted by the relevant agency. However, even though the Plaintiffs did not actually work or have completed education, and there was no fact that shopping mall or content was developed, there is no dispute as to the fact that the Plaintiffs worked for a company operated by F, etc. as an intern, and then completed education, the application for creative support allowances as provided in subparagraph 6 was prepared and submitted to the J association, and accordingly, each of them was paid with the passbook in the name of the Plaintiffs.

(3) However, according to the following circumstances, Gap evidence Nos. 5 through 13, Eul evidence Nos. 3 through 5, Eul evidence Nos. 9, and Eul evidence Nos. 1 to be recognized by comprehensively taking into account the overall purport of arguments, i.e., "F., Eul et al." (i., "F.," "K et al.," and "the person introduced through the above branch office" was falsely admitted to the above company, and the J., "the Association" was entrusted by the Ministry of Employment and Labor; hereinafter the "the Association") decided to receive various kinds of internship support money; the plaintiffs, the head of the Association office, did not know that the defendant's application form and evidence Nos. 1 to the KF card Nos. 6 were insufficient to recognize that the defendant's application form and evidence Nos. 1 to the KF card Nos. 1 to the Association were not prepared, and there was no other evidence to recognize that the plaintiff Nos. 2 and the defendant Nos. 1 to the above defendant Nos. 2 were found to be punished as the defendant Nos.

4. Conclusion

Therefore, the part of the claim of this case by the plaintiff (Appointed Party) concerning the plaintiff Appointed Party D is justified, and the claim against the Appointed Party B is unlawful and thus, it is so decided as per Disposition.