(영문) 서울행정법원 2011.9.2. 선고 2011구합3678 판결

1. On November 26, 2010, the head of the Seoul Southern District Employment and Labor Agency issued a disposition to restrict the payment of one year (from November 28, 2007 to November 27, 2008) to the Plaintiff and the order to return KRW 2,600,528,000 to the Plaintiff shall be revoked.

2. On November 25, 2010, the Administrator of the Busan Regional Employment and Labor Agency revokes a disposition to revoke recognition of a regular and collective safety education course against the Plaintiff on November 25, 201, the revocation of recognition of a regular and collective safety education course, and a disposition to restrict recognition for one year (from November 25, 2010 to November 11, 201), an order to return KRW 101,460, and an order to additionally collect KRW 304,380, respectively.

3. The costs of lawsuit shall be borne by the Defendants.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On August 31, 2007, the Plaintiff was recognized as a vocational skills development training course for three courses, including a regular collective safety training course (training method: training method: 16 hours from September 3, 2007 to 2: 60 hours from September 3, 2007, and the fixed number of classes: 60 days from the expiration date: hereinafter referred to as “instant training course”) conducted by the head of the Busan Regional Employment and Labor Agency (hereinafter referred to as “Defendant 2”), (the Plaintiff filed an additional application for a training period more than nine times on September 4, 2007).

B. According to the contents recognized as vocational skills development training courses from September 3, 2007 to November 1, 2007, the Plaintiff conducted the instant curriculum for the field employees at the maintenance headquarters over a total of ten times. On November 15, 2007, the Plaintiff applied for subsidies for vocational skills development training expenses to Defendant 2 on November 28, 2007.

C. Defendant 2 investigated the Plaintiff upon receipt of a request from the Board of Audit and Inspection and the Ministry of Employment and Labor for an investigation on whether the alien was unlawfully undergoing overseas entry and departure training, and confirmed that the Plaintiff’s employee A and B left the Republic of Korea on the scheduled date of education, and on November 25, 2010, received training expenses by false or other unlawful means, such as reporting on the denial of entry and departure management and the normal completion of training for trainees who did not participate in training.

(1) Disposition cancellation of recognition of the instant curriculum (hereinafter referred to as "disposition 1"): Article 25 (1) 2 and (5) of the former Act on the Development of Occupational Ability (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same shall apply), Article 9 (3) [Attachment 2] 1-B of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 320, Apr. 1, 2009; hereinafter the same shall apply). Article 25 (1) 2 and 5-2 of the same Act (amended by Presidential Decree No. 320, Apr. 1, 2009); Article 25 (1) 1-2 (a) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 10, Nov. 24, 201; hereinafter referred to as "disposition 30-13 (a) of the same Act); Article 25 (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 10-13 (hereinafter the same)

* Defendant 2 did not explicitly indicate the relevant Acts and subordinate statutes by each disposition at the time of the disposition, but based on the prior notice of disposition, etc., which was sent to the Plaintiff prior to the disposition, Defendant 2: (i) deemed that the Plaintiff’s act constituted duplicate under Article 25(1)2 and 3 of the former Act on the Development of Workers’ Vocational Skills Development; and (ii) The 3 and 4 were based on Article 25(4) of the former Act on the Employment Insurance, etc. or on Article 25(2) of the former Act on the Development of Workers’ Vocational Skills Development on the ground that the recognition of training courses was revoked by fraud or other improper means; (iii) according to Defendant 2’s assertion in the pleading, the 3 and 4 dispositions were conducted based on the former Employment Insurance Act, etc. on the ground that he/she was paid training expenses by fraud or other improper means.

D. On November 26, 2010, Defendant 2 notified Defendant 2 of the fact that the management of the Plaintiff’s illegal withdrawal by Defendant 2 was conducted by the head of the Seoul Southern District Labor Agency (hereinafter “Defendant 1”), pursuant to Article 35(1) of the former Employment Insurance Act and Article 56(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) for one year (from November 28, 2007 to November 27, 2008) of the instant curriculum, Defendant 2,60,528,000 subsidies paid during the period of the said restriction on payment (hereinafter “instant disposition”), and each of subparagraphs 1 through 5 of the instant disposition was called “each of the instant dispositions”).

[Basis] Evidence Nos. 1 and 11, Evidence No. 13-1 to 3, Evidence No. 1 to 4, Evidence Nos. 1 to 10, and Evidence Nos. 1 to 10, and the purport of the whole pleadings

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

A. The plaintiff's assertion

1) As to Defendant 1 (as to Disposition 5)

Although two workers belonging to the plaintiff did not attend the same curriculum and did not receive the same curriculum as the number of other vehicles reported, this does not mean that the plaintiff received training expenses by fraud or other improper means, so there is no reason for disposition.

2) As to Defendant 2

A) Non-existence of the Reasons for Disposition (as to Disposition 1 or 4)

As alleged against Defendant 1, the Plaintiff cannot be deemed to have received training costs by fraud or other improper means, and further, it cannot be deemed that the Plaintiff conducted workplace skill development training in violation of the details recognized by Defendant 2 pursuant to Article 24 of the former Act on the Development of Workplace Skills of Workers due to the failure to conduct workplace skill development training. Therefore, there is no reason for disposition.

B) A deviation or abuse of discretionary authority (related to Disposition 2)

Even if the grounds for the disposition prescribed in the second disposition are recognized, it cannot be deemed that there was intentional or gross negligence on the part of the Plaintiff, with the Plaintiff’s employees who did not properly report the change in accordance with the date of the actual education. In light of the fact that the Plaintiff treated the trainees as if they did not receive training training and did not receive training expenses, but actually provided training, Defendant 2’s disposition was remarkably harsh to the Plaintiff, and thus, it constitutes abuse of discretionary power or deviates from its limitation.

(b) Related statutes;

It is as shown in the attached Form.

1) A, an employee of the Plaintiff, was organized to participate in the 9th curriculum (2 days from October 29, 2007) of the instant curriculum, and B, the 10th curriculum (2 days from October 31, 2007), and A participated in the 6th curriculum (2 days from October 17, 2007), and the 8th curriculum (2 days from October 24, 2007) of the instant curriculum.

2) Upon completion of education as above, A and B attempted to sign the attendance book, and they did not indicate their names in the attendance book of the date of the education, and they signed on the name side of their names entered in the attendance book of the date on which they were organized to receive education.

3) According to the Plaintiff’s attitude system, in the case of A, the first time of October 17, 2007 and October 18, 2007, the date of actual education was changed to “D57” and “ED2” and “ED5” respectively, and in the case of B, the first time of actual education was changed to “ED2” and “ED5” respectively.

4) However, when the Plaintiff reported the training implementation of the instant curriculum to Defendant 2, the Plaintiff reported the training implementation to Defendant 2 on October 17, 2007 as to the 6th curriculum in which the Plaintiff actually participated in the training. On the other hand, at the time of reporting the training implementation of the training implementation of October 17, 2007, the Plaintiff reported the training implementation of the 9th curriculum as to A, but included A, who is not in the Republic of Korea, in the list of trainees. ② In the case of B, at the time of reporting the training implementation of the 8th curriculum in which the education actually participated, the training implementation of the 10th curriculum was not reported, but included B, who was not in the Republic of Korea, in the list of trainees.

5) On November 21, 2007 and November 22, 2007, the Plaintiff reported Defendant 2 as having completed the training including A and B.

[Basis] Evidence Nos. 5-1, 2, 6, 7-1, 2, 8-1 through 3, 16-1, 2, 11 through 15, 17 through 19, and the purport of the whole pleadings

D. Determination

1) Whether there is a ground for disposition

A) Whether the Plaintiff was subsidized with training costs by fraud or other improper means (1) the Plaintiff deemed that the Plaintiff was subsidized with vocational skills development training costs by fraud or other improper means, and Defendant 1 was subject to Disposition 5, and Defendant 2 was subject to Disposition 1, 3, and 4. Thus, the issue is whether the Plaintiff’s act constitutes “any false or other unlawful means.” The issue is whether the Plaintiff’s act constitutes “in imposing sanctions against the Plaintiff on the ground of an unlawful act” (see Supreme Court Decision 821, Dec. 28, 1982) and the amended Act and subordinate statutes after the act should not be followed (see Supreme Court Decision 821, Dec. 28, 1982). Therefore, the Plaintiff’s assertion to the effect that, in imposing sanctions against the Plaintiff, the pertinent Act and subordinate statutes at the time of the disposition and its guidelines should be followed is rejected.

(2) "False or other fraudulent means" that can be subject to sanctions under the former Employment Insurance Act and the former Workers' Vocational Skills Development Act, which apply to the instant case, refer to all unlawful acts committed by a business owner who is not generally entitled to receive, to the extent that the business owner is presumed eligible to receive or is not eligible to receive, which may affect the decision-making on the payment of training costs (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

In this case, the following circumstances are acknowledged based on the above facts and evidence. ① In a case where an employee belonging to the Plaintiff wishes to participate in a number of different classes of vehicles other than the number of vehicles already reported, there was no problem in receiving training expenses if it was reported in advance by Defendant 2. If the Plaintiff’s fault, it is merely a failure of the Plaintiff to properly report administrative matters, such as reporting changes in the list of trainees, even though the Plaintiff completed a training course other than the number of vehicles reported by two employees belonging to the Plaintiff. ② Even if the Plaintiff’s change following a change in the list of trainees was properly reported, the Plaintiff did not have any difference in the total training expenses subsidized by the Plaintiff. ③ Even if the Plaintiff’s change in the list of trainees completed the training course, it is clear that two employees in question completed the training course in this case, even if the Plaintiff’s negligence was actually recognized, it cannot be deemed that the degree of the Plaintiff’s failure to intentionally neglect it from the wrongful motive, it cannot be deemed that the Plaintiff received training expenses by false or other unlawful means.

Therefore, there is no grounds for the disposition by Defendant 1, and by Defendant 2, Nos. 1, 3, and 4.

B) Whether a workplace skill development training was conducted in violation of the Plaintiff’s recognized contents (1) 2 is a case where the Plaintiff conducted workplace skill development training in violation of the details recognized under Article 25(1)3 of the former Workers’ Vocational Skills Development Act. Defendant 2 is a case where the Plaintiff’s act constitutes “where the Plaintiff violated the contents recognized as violating the purpose of training concerning the contents, duration, and important matters of the training,” and Article 25(1)3 and (2) of the former Workers’ Vocational Skills Development Act, Article 9(3) [Attachment 2] 1-B of the Enforcement Rule of the same Act, Article 9(3) [Attachment 2] of the former Workers’ Vocational Skills Development Act, and Article 9(2) [Attachment 2] 1-B of the former Workers’ Vocational Skills Development Act. (2) In this case, this case was examined

The following circumstances: ① by the Minister of Labor around August 2005, rules of the Act on the Development of Workers’ Vocational Skills

According to the "standard for the application of the disposition of the violation of the workplace skill development training institution's vocational training institution's vocational training institution's vocational training institution's vocational training facility's detailed criteria for the disposition", Article 25 (1) 3 of the former Act and Article 9 (3) [Attachment 2] 1-B of the Enforcement Rule of the same Act stipulate "in the case of a violation of the material facts recognized to the extent that it violates the purpose of training, such as training contents, etc., by fraud or other improper means". As seen above, the plaintiff's act cannot be deemed to be done by fraud or other improper means. ② If the plaintiff's error was committed, the plaintiff's failure to report the change of the trainee's name and failed to properly manage the part of the worker's attendance, ③ the error in the management of the above degree is not a violation of Article 9 (3) [Attachment 2] 1-3 of the Enforcement Rule of the same Act, and thus, the plaintiff's corrective order cannot be viewed as a violation of the purpose of training.

C) Meanwhile, Defendant 2 asserted that the Plaintiff’s act during the instant lawsuit constitutes “where he/she fails to comply with an order to submit a report under Article 40 of the former Workers’ Vocational Skills Development Act and Article 9(3) [Attachment 2] 1-B of the Enforcement Rule of the same Act.”

In an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or change other grounds within the scope that are deemed identical to the original grounds for disposition. However, the same factual basis refers to the same basic social factual basis based on the specific facts prior to the legal evaluation of the grounds for disposition. If the disposition agency only adds or alters statutes only to the extent that it does not change specific facts at the time of the disposition, or explicitly indicates the grounds for the initial disposition, it cannot be deemed that it added or alters a new ground for disposition (see, e.g., Supreme Court Decision 2007Du13791, 13807, Feb. 28, 2008). However, it appears to the purport that it is reasonable to view that Defendant 2 did not comply with an order to submit additional documents or comply with the order to submit additional documents pursuant to Article 25(1)5 of the former Workers’ Vocational Skills Development Act and Article 9(3) [Attachment 2] 1-2 of the Enforcement Rule of the same Act.

Articles 24(1) and 40(1)2 of the former Workers’ Vocational Skills Development Act provide that a business owner who intends to receive support for the workplace skill development training conducted by workers shall obtain recognition from the Minister of Labor for the workplace skill development training course, shall make a necessary report to the Minister of Labor or submit materials, and specifically Article 6 of the Regulations on the Training Courses and Requirements, etc. for Training Facilities (No. 2008-120) notified by the Ministry of Labor shall be the head of the competent regional labor office.

(1) A training implementation report accompanied by a list of trainees, training schedule, and related documents to confirm whether trainees are qualified to participate in the training until the commencement date of the training, and a report on completion of the training shall be filed by 14 days after the completion date.

In light of the above facts and arguments, it is difficult to view that the Plaintiff intentionally or falsely reported to Defendant 2 in light of the degree of the violation, and as seen earlier, insofar as the Plaintiff did not deem the Plaintiff to have received training fees by fraud or other improper means, Defendant 2’s assertion on a different premise cannot be accepted.

2) Whether the discretion is deviates or abused

Even if the plaintiff's act violates the purpose of training, the training period, and the important matters of the training method, or the case where the plaintiff's act complies with the order to report falsely, as alleged by the defendant 2, the second disposition seems to have exceeded and abused the discretionary power on the following grounds.

In other words, according to Article 9(3) [Attachment 2] 1-A of the former Enforcement Rule of the Workers' Vocational Skills Development Act, a corrective order, cancellation of recognition, or restriction on recognition shall be imposed according to the "individual standards", but where there is no intention or gross negligence or where the degree of violation is minor, it may be reduced (in the case of cancellation of recognition, an order of correction) within the limit of 1/2 of the standards set by the individual standards. In this case, even though some trainees did not attend the same curriculum as the number of other trainees without attending the scheduled curriculum, the plaintiff did not clearly manage the conclusion by changing the list of trainees in advance, and the plaintiff did not report the completion of the training and report the completion of the training, and even though the contents of the violation did not accurately report the actual educational date of some trainees, considering the circumstances arising from the same curriculum of the number of different curricula not scheduled for travelling to their family members, it can be deemed that there is a minor violation, and it is reasonable to deem that there is an intention or gross negligence on the part of the plaintiff.

Therefore, it is too harsh to the Plaintiff even if Defendant 2 did not consider the room for mitigation as above and took into account the need for public interest.

3) Intermediate conclusion

Ultimately, each of the instant dispositions by the Defendants is unlawful.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified, and it is so decided as per Disposition with the assent of all.