Whether the “subsidies, etc. granted during the period of restriction on payment” subject to return pursuant to Article 56(2) of the former Enforcement Decree of the Employment Insurance Act based on delegation by Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008) is limited to the amount of subsidies received by fraud or other improper means (affirmative)

Under Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter “former Act”), “subsidies, etc. granted during the period of restriction on payment” that are subject to return pursuant to Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2030, Oct. 17, 2007; hereinafter the same shall apply) is sufficient if the right to claim payment occurred during the period of restriction on payment, and there was no need to have been paid in a false or other unlawful manner. However, the purport of Article 5(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter referred to as “former Act”) should be construed differently from the purport of Article 56(2) of the former Enforcement Decree of the Employment Insurance Act’s provision that was amended by Act No. 103939, Jun. 4, 20108).

Article 35(1) of the former Employment Insurance Act (Amended by Act No. 9315, Dec. 31, 2008); Article 35(1) of the former Employment Insurance Act (Amended by Act No. 1039, Jun. 4, 2010); Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (Amended by Presidential Decree No. 22026, Feb. 8, 2010)

Supreme Court Decision 2009Du22584 Decided April 15, 2010

Plaintiff

The Head of the Seoul Regional Employment and Labor Office site

Seoul High Court Decision 2011Nu43722 decided June 28, 2012

The part of the judgment of the court below against the defendant who revoked the disposition ordering the return of new employment promotion subsidy exceeding 27,806,410 won is reversed, and the judgment of the court of first instance is revoked, and the corresponding plaintiff's claim is dismissed. The remaining appeals are dismissed. 5% of the total costs of the lawsuit are assessed against the plaintiff and the remainder

The grounds of appeal are examined.

Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter “former Act”) provides that “The Minister of Labor may order a person who has received, or intends to receive, subsidies for employment security and vocational skills development programs under the provisions of this Chapter by fraud or other improper means to restrict such subsidies or to return the subsidies already provided, as prescribed by Presidential Decree.” Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2030, Oct. 17, 2007; hereinafter the same shall apply) provides that “The Minister of Labor shall order the person who has received, or has received, subsidies or training expenses by fraud or other improper means to return the subsidies for vocational skills development training expenses under the provisions of Article 35(1) of the Act during the period of 20 years from the date on which he/she received, or to return the subsidies under the provisions of Article 35(2) of the former Enforcement Decree of the Employment Insurance Act.”

However, Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; Act No. 1039, Jun. 4, 2010; hereinafter “amended Act”) provides that “The Minister of Labor may order a person who has received or intends to receive support for employment security and vocational skills development programs under the provisions of this Chapter by fraud or other improper means to restrict such support or to return the amount of support received by false or other unlawful means, as prescribed by Presidential Decree.” Unlike Article 35(1) of the former Act, Article 35(1) of the same Act provides that “The Minister of Labor may order a person who has received or has received support for employment security and vocational skills development programs under the provisions of this Chapter to return the amount of support received by fraudulent or other improper means.” In short, the purport of the language and text of the amended Act limits the scope of the return order to “amount of subsidy received by fraudulent or other wrongful means.”

Meanwhile, a subordinate statute should be interpreted to be consistent with the superior statute by comprehensively examining the contents, legislative purport, and history of the relevant statute, except where such provision clearly conflicts with the superior statute and becomes null and void (see Supreme Court Decision 2011Du20345, Jun. 27, 2013). Therefore, it should be interpreted that “subsidies, etc. granted during the period of restriction on payment” subject to return pursuant to Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, based on delegation under Article 35(1) of the same Act, is limited to the amount received by false or other unlawful means, such as the mother law.

However, the court below interpreted that the order for return of “the subsidy, etc. paid during the period of restriction on payment” under Article 56(2) of the former Enforcement Decree of the Employment Insurance Act was received by fraudulent or other unlawful means, and determined that the provision was unlawful based on the above invalid Enforcement Decree, on the ground that the provision violated Article 35(1) of the amended Act of the parent corporation or did not have any validity beyond the scope of delegation, and that the order for return of the subsidy amounting to KRW 29,040,280, which was paid during the period of restriction on payment, including the illegally received subsidy amounting to KRW 1,233,870

In light of the aforementioned legal principles, the part of the judgment below’s order of return equivalent to the above illegally received amount is unlawful by misapprehending the legal principles as to interpretation or violation of the mother law under Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, and the remainder is inappropriate, but the order of return of subsidies, etc., which is irrelevant to false or other unlawful means, is therefore unlawful.

Therefore, among the judgment of the court below, the part against the defendant who revoked the disposition in excess of 27,806,410 won (29,040,280 won - 1,233,870 won) is reversed, and this part is sufficient to be directly tried by this court. Thus, the plaintiff's claim corresponding to the above part of the judgment of the court of first instance which cited it shall be dismissed for lack of justifiable grounds. Since the judgment of the court of first instance which accepted it is unfair, the judgment of the court of first instance shall be revoked, and the corresponding part of the plaintiff's claim shall be dismissed. The remaining grounds of appeal by the defendant are dismissed, and it is so decided as per Disposition by the assent

Justices Kim Yong-deok (Presiding Justice)