(영문) 서울고등법원 2019.10.22. 선고 2019누36775 판결

The Defendant’s order to return KRW 4,793,200 to the Plaintiff on November 17, 2016, the decision to additionally collect KRW 4,793,200, and the disposition to restrict loans for 360 days from the date of the disposition is revoked.

Purport of appeal

Among the judgment of the first instance, the part against the plaintiff corresponding to the revocation order shall be revoked.

The Defendant’s order to return KRW 4,793,200 to the Plaintiff on November 17, 2016, and revocation of the decision to additionally collect KRW 4,793,200 (the Plaintiff did not appeal as to the part seeking revocation of the Defendant’s disposition to restrict loans for 360 days).

Reasons

1. Quotation of the first instance judgment

The reasoning of the court's reasoning concerning this case is as follows, and the judgment of the court of first instance is added as to the plaintiff's assertion, as stated in Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except for adding the judgment of the court of first instance as to the plaintiff's argument as stated in paragraph (2). Thus, the grounds asserted by the court in the appeal of this case are not significantly different from the contents of the plaintiff's assertion in the first instance court, and even if the evidence submitted in the first instance court is newly examined, the judgment of the court of first instance rejecting the plaintiff's assertion is legitimate)

A. The third party 5 was not "C," and the defendant, around May 26, 2016, requested the plaintiff to submit a written investigation and a written confirmation for the investigation of additional facts, but did not present any opinion."

(b)No. 10 of the third place of action is referring to "the Court" as "In Mancheon District Court". (c) The fourth place of action "No. 15" as "No. 15 (including each number; hereinafter the same shall apply)".

D. Each “Plaintiff” of the 5th 8th 9th 8 and 9 will be deleted from “the Plaintiff’s dismissal as the Plaintiff,” and “each of the 9th 7th 7th 2 and 3th 3. The following is added. The Plaintiff’s assertion that, even if the contractual hours between the Plaintiff and the E are less than 3 hours a day, the Plaintiff’s infant care teachers employed by the Plaintiff were subject to the Plaintiff’s self-training. However, the Plaintiff’s assertion that, other than the Plaintiff’s assertion, the class is distinguishable from the lecture hours and the practice hours, and there is no objective evidence to prove that the Plaintiff did not have a superior position during the practice hours, or that the Plaintiff was actually engaged in the practice without a lecturer, is not acceptable.”

F. Chapter 4 through 8 are as follows. "False or other unlawful means prescribed by each sanctions under Articles 55 and 56 of the former Act on the Development of Workplace Skills of Workers (wholly amended by Act No. 12627, May 20, 2014; hereinafter referred to as the "Act on the Development of Workplace Skills of Workers") refers to all active and passive acts that may affect the decision-making on the payment of training fees, in general, are all acts that a person who is not eligible to receive training fees fails to meet the eligibility requirements under the social norms to conceal the fact that he/she is disqualified or that he/she is not eligible to receive training fees (see Supreme Court Decision 2012Du24764, Jul. 24, 2014). In addition, sanctions against violations of administrative laws are imposed by taking objective facts that are administrative laws to achieve administrative purposes, and thus, a realistic offender is not a person who actually violates the relevant statutes, but may be imposed on a person who has not been responsible for the violation (see Supreme Court Decision 2010Do15210.

With respect to this case, as seen earlier, the Plaintiff filed an application for subsidization of training expenses without confirming the completion of training by trainees, and the appropriateness of the application for subsidization of training expenses, as if the affiliated infant care teachers completed the training course properly. This constitutes an act where a person who is not eligible for subsidization of training expenses is presumed to be qualified, or is unable to be correct under social norms by concealing the fact that he/she is not qualified, and even in such a case, it is difficult to ensure the effectiveness of the sanctions regulations if the Plaintiff demanded intent. Therefore, it is reasonable to deem that the Plaintiff received the subsidization of training expenses by fraud or other improper means, even if the Plaintiff was not subject to a non-prosecution disposition against the suspicion of suspicion at the investigative agency or not, it is reasonable to deem that the Defendant received the payment of training expenses by fraud or other improper means. Accordingly, the Defendant may issue an order for return and additional collection against the Plaintiff pursuant to Article 56(2)

G. From the 8 side to the 9th 5th eth eth eth eth eth 7th eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth e

[1] Guidance such as the criteria for administrative disposition on illegal training for business owners [1] A business owner's disposition ○ (prosecution case) prosecutor's investigation results on a case for which prosecution investigation is terminated and for which a suspicion of illegal receipt is confirmed with cooperation from the prosecutor's office * the progress of disposition on illegal receipt of data * if the business owner's suspicion of illegal receipt of data is unclear as a result of prosecutor's investigation results, it shall

The case where it is not clearly confirmed that the illegal act, such as 'not guilty', is not clearly confirmed by the prosecutor's non-prosecution of the prosecutor's office, with respect to the case where the 12 indictment suspension or investigation is being conducted after separate investigation by the employment center, the case where the business owner of the ○○ (self-reported business owner) files a voluntary declaration to the business owner who is confirmed the illegal receipt after the separate investigation by the employment center, the case is exempt from the administrative disposition - (including documentary investigation and documentary verification documents) where the fact of the illegal receipt is not verified through mail delivery and written investigation documents and written confirmation documents submitted by the business owner (including documentary investigation documents and documentary verification documents).

According to the instant standard, in the event that the investigation conducted by the prosecutor was completed and prosecuted, the administrative agency may proceed with the procedure for disposition against the business owner when the business owner's suspicion of illegal receipt is confirmed after verifying the data of the prosecutor's investigation results by the prosecutor's office. However, if the suspicion of illegal receipt is unclear solely based on the investigation results by the prosecutor's office, it is confirmed whether the business owner received illegal receipt through a written investigation and a written confirmation, etc., and if the business owner fails to submit it, it may decide whether to take an administrative disposition by conducting an additional investigation, such as appearance. However, as seen earlier, although the representative of E was prosecuted, and even if the Plaintiff was not subject to a disposition that was suspected of suspicion by the prosecutor's office, even if the Plaintiff was present at the prosecutor's office, based on the data delivered by the investigative agency, the Defendant provided the Plaintiff with training expenses by illegal means, and provided the Plaintiff with an opportunity to present his opinion, but the Plaintiff did not present any opinion. Accordingly, the Defendant cannot be seen as having conducted each of the instant dispositions to the Plaintiff "the Plaintiff".

(i) From the 9th bottom, the part of the training costs provided under Section 4 in Section 1 of Section 4 "from such 10 to 10 is as follows: "If the Plaintiff had no intention to do so due to the Plaintiff's lack of E standards, as alleged by the Plaintiff, even though the Plaintiff did not know that the training courses were conducted due to the Plaintiff's lack of E standards, in the case of Sundays, the Plaintiff could have easily known that the training courses were conducted in an abnormal manner, such as the Plaintiff's failure to conduct training, and thus, the training was performed normally. The Plaintiff's improper receipt of the training costs is not so short of the period of extinctive prescription (the equivalent part of the training costs provided by illegal means is the situation in which the return order and additional collection is impossible because the period of extinctive prescription expires)."

2. The portion to be determined additionally in the trial;

A. Determination as to the illegal prior notice argument

1) The Plaintiff asserts that each of the dispositions of this case is unlawful, since the Plaintiff did not guarantee the submission period of opinion with a considerable period of time in giving prior notice of each of the dispositions of this case.

2) However, considering the overall purport of evidence Nos. 1 and 2 evidence Nos. 3, 5, and 9 as well as the overall purport of the arguments, the defendant notified the plaintiff of the "Guidance on Administrative Dispositions, etc. on April 12, 2016", "Guidance on Illegal Payment of and Voluntary Reporting on Expenses for Vocational Skills Development Training" on April 22, 2016, "Request for Submission of Documents for Illegal Payment" on May 26, 2016, and later notified the plaintiff of the "Advance notification of administrative dispositions and guidance on submission of opinions" on August 31, 2016, and thereafter, it can be recognized that the defendant issued each disposition of this case against the plaintiff.

According to the above facts, since the defendant notified the plaintiff that each of the dispositions of this case can be made continuously from April 2016, and demanded the plaintiff to submit his opinion, the plaintiff was guaranteed a sufficient period to submit his opinion. This part of the plaintiff's assertion is without merit.

C. Determination as to the unspecified assertion of facts based on the disposition

1) The Plaintiff did not specifically verify the facts, such as individual training courses of infant care teachers belonging to the Plaintiff and imposed sanctions on all business owners including the Plaintiff on the basis of the results of the investigation related to E, on the basis of the illegal receipt of training costs. The Plaintiff asserts that it is unlawful since the Defendant did not specify the factual basis of the disposition and transferred the burden of proof to the Plaintiff.

2) In principle, the burden of proof in an administrative litigation that is applied mutatis mutandis under the provisions of the Civil Procedure Act is allocated among the parties in accordance with the general principles of civil procedure. In the case of an appeal litigation, the Defendant, who asserts the legality of the disposition, bears the burden of proof as to the legal ground. In a case where there is a reasonable and acceptable proof as to the legality of a certain disposition asserted by the Defendant, the disposition can be deemed justifiable, and the assertion and proof of exceptional circumstances return to the Plaintiff, who is the other party (see Supreme Court Decision 2015Du42817, Oct. 27, 2016)

3) As to the instant case, the Defendant requested the Plaintiff to submit a written investigation report and a written confirmation to the investigative agency on the basis of the data received from the investigative agency, but failed to do so, and thus, the Defendant issued each instant disposition based on the data notified to the investigation agency. Since a criminal judgment was finalized for the representatives of the training agency based on the facts notified to the Defendant by the investigative agency, the premise of each instant disposition that “the Plaintiff’s infant care teacher was paid training fees in an unlawful manner despite the Plaintiff’s failure to meet the completion standards by attending less than 80% of the training course is determined to have been proved to have been reasonably acceptable. Accordingly, the Plaintiff’s burden of proving that the Plaintiff’s infant care teacher was receiving training at least 80% of the attendance rate shall return to the Plaintiff. Nevertheless, the Plaintiff did not submit any opinion despite receiving a request from the Defendant for the submission of a written investigation report and written investigation, and did not err by the Defendant’s fact-finding by the time of the actual training of the Plaintiff’s infant care teacher up to the trial. This part of the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case (excluding the part seeking the revocation of the restriction on financing) shall be dismissed for the reason that it is without merit. Since the judgment of the court of first instance on this issue is justified with this conclusion, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per