(영문) 서울행정법원 2018.11.27. 선고 2017구단71164 판결

On June 13, 2017, the defendant ordered the plaintiff to return the illegally received amount and issued a disposition of additional collection shall be revoked.1)

Reasons

1. Details of the disposition;

A. The Plaintiff, a company engaged in taxi passenger transport business, concluded an entrustment contract with A or B Co., Ltd. (hereinafter collectively referred to as “C”), which is a company recognized as an employee’s workplace skill development training course, for the employees belonging to the Plaintiff (hereinafter referred to as “instant training”) by means of remote training for the employees belonging to the Plaintiff (hereinafter referred to as “instant training”), as follows:

A person shall be appointed.

B. The plaintiff applied for subsidies for training expenses to the Human Resources Development Service of Korea on the premise that the stated number of trainees who completed the above training in the table below (hereinafter referred to as the "training trainees in this case") had completed the training in normal and met the standards for the payment of subsidies for postal remote training, and received subsidies for training expenses in total of KRW 15,61,960 from the above Corporation as follows:

A person shall be appointed.

C. On June 13, 2017, the Defendant restricted subsidies and loans for 360 days (from June 14, 2017 to June 8, 2018) pursuant to Article 55(2) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jan. 27, 2016; hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”) and Article 22 [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”) on the grounds that “the instant trainees did not undergo the instant training and failed to meet the standards for the completion thereof,” and that the Plaintiff applied for subsidies for training expenses to the Human Resources Development Service of Korea.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 6-1 to 3, Eul evidence 26, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The trainees of this case were most old and difficult to prepare learning and answers using computers, and the employees of C attempted to help some trainees, etc., and all of them met the training training in this case and meet the normal completion standards. Therefore, the Plaintiff cannot be deemed to have received training costs by fraud or other improper means.

2) Although some of the trainees of this case received normal training and met the completion standards, the Defendant issued the instant disposition by concluding that all of the trainees of this case did not undergo the instant training normally, the Plaintiff was aware that all of the trainees of this case completed the instant training normally, paid the full amount of subsidies received from the Human Resources Development Service of Korea to C, and did not gain any profit in relation to the instant training, and only a fraudulent victim used to C, the instant disposition was unlawful as it deviates from and abused discretionary authority.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) “False or any other unlawful means” under Articles 55(2)1, 56(2), and 56(3) of the Vocational Skills Development Act means active and passive acts that may affect the decision-making on subsidization of expenses, in general, with the intention to make sure that a person who is not eligible to receive subsidization of expenses is qualified, or to conceal the fact that he/she is not qualified, through social norms (see, e.g., Supreme Court Decision 2013Du1980, Oct. 30, 2014).

Meanwhile, Article 20(3) of the Vocational Skills Development Act, Article 19(3) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 27393, Jul. 26, 2016); Article 41(4) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 28160, Jun. 27, 2017); Article 60(1) of the Enforcement Rule of the Employment Insurance Act provides for the workplace skill development training support rules (wholly amended by Ordinance of the Ministry of Employment and Labor No. 2015-114, Dec. 31, 2015; hereinafter referred to as the “former provision on the wholly amended provision”), which provides for the “cyber training” under Article 2 subparag. 10 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers; Article 10(1) of the former Enforcement Decree of the Employment Insurance Act provides for the same provision on workplace development training for more than 10%.

Therefore, even if a trainee did not normally undergo workplace skill development training conducted by means of mail and did not meet the above standards, a business owner applied for subsidies for training expenses as if the trainee completed the training in a normal condition and met the standards for completing the training and received subsidies, and thus, the business owner applied for subsidies for expenses not to be actually paid. Thus, even if he/she did not know the above circumstances, it constitutes "the case where he/she received subsidies by fraud or other improper means" under Articles 55 (2) 1 and 56 (2) and (3) of the Vocational Skills Development Act (see, e.g., Supreme Court Decision 2013Du1980, supra).

B) In light of the following facts and circumstances, it can be acknowledged that health belts, Eul evidence Nos. 2, 13, 14, Eul evidence Nos. 20-1 through 6, Eul evidence Nos. 20-2, and Eul evidence Nos. 23-2, each of the following facts and circumstances can be acknowledged by adding the whole purport of the pleadings. Although the trainee of this case did not undergo the instant training and failed to meet the standards for completion, it can be sufficiently recognized that the plaintiff applied for the subsidization of training expenses and received payment as if all trainees of this case meet the standards for completion, and part of the witness D’s testimony that seems contrary thereto is difficult to believe, the plaintiff’s assertion disputing this is without merit.

On January 5, 2018, the prosecutor of the Seoul Central District Prosecutors' Office prosecuted E, F, and G in the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on the facts charged that "the trainee acquired the total amount of KRW 1,788,460,905, etc. from the Republic of Korea by creating the appearance that the trainee satisfied the completion standards of the postal source training course by driving the training course in a manner that the trainee visited the place of a gold transportation business entity by visiting the place of a gold transportation business entity with personal information of trainees without providing training materials to trainees, and then allowing trainees to conduct the training course by proxy."

In the instant case, the Defendants led to the confession of all the facts charged, and the said court found the Defendants guilty of the above facts charged on April 6, 2018 and sentenced E to four years of imprisonment, F, and G with prison labor for each of the four years, six months, and three years of suspension of execution (No. 128,154, and 195 of the part relating to the instant disposition in the list of crimes No. 14 (Judgment)). OC employees visited the company that entrusted workplace skill development training to C under the direction of E, etc. at the Seoul Western District Office of the Seoul Regional Employment and Labor Agency and the investigative agency for the training of trainees by visiting the company that was entrusted with workplace skill development training, thereby creating a ID and conducting a proxy and proxy test, and by producing and ordering teaching materials for C’s training, and by entering the date on which trainees’ teaching materials were received in a lump sum from the website manager.

In the process of the above investigation and investigation, in order to prevent the employee in charge of the training in this case from putting out a list of trainees and those absent from work, the status of the employee in charge of the training in this case was confirmed by the following: (a) the document stating the C's "in a case where the Ministry of Employment and Labor conducts a field investigation" was prepared and distributed to each entrusted workplace; and (b) the C's employee in charge of the training in this case was assigned to C.

As a result of the analysis of the trainee learning management system for the instant training, the training was ordinarily short of the training average of 25 seconds, average of 30 seconds, average of 30 seconds, and average of 1 minute 22 seconds during the training period in the second month, and there were many details of continuous study and evaluation as to certain IP during a specific day and specific time period during the training period in the second month. In particular, on November 6, 2014 and May, 201, the number of employees of the Plaintiff who retired before and after his/her retirement were following his/her retirement were found to have the characteristics of a typical proxy test, such as classical and proxy tests, which verified the academic ability on November 6, 2014.

2) Whether the discretion is deviates or abused

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant disposition, by objectively examining the content of the offense as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances. In this case, even if the criteria for a punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed in the administrative agency’s internal rules for handling affairs, and it is externally binding upon citizens or courts. Therefore, the legality of the relevant disposition should be determined not only by the above criteria for disposition but also by the provisions and purport of the relevant Acts and subordinate statutes. Therefore, the relevant disposition cannot be immediately deemed legitimate, unless the said criteria are consistent with the Constitution or laws, or unless there are reasonable grounds to believe that the result of the application of the said criteria is considerably unreasonable in light of the content of the offense as the grounds for disposition and the relevant Acts and subordinate statutes and the purport thereof, it should not be readily determined that the disposition in accordance with such criteria has exceeded the discretion or abused discretion (see, etc.

B) In light of the following circumstances, it cannot be deemed that the instant disposition was a deviation or abuse of discretionary power, in light of the health team, the facts and circumstances acknowledged earlier, and the purport of the entire pleadings. The Plaintiff’s assertion on this part is without merit.

The Act on the Development of Vocational Skills stipulates that employers shall conduct workplace skill development training for workers, participate in workplace skill development training for workers, and make efforts to create conditions for workplace skill development training by appointing workers in charge of workplace skill development training (Article 4(2)). Accordingly, the Minister of Employment and Labor may provide workers who conduct workplace skill development training (including the case of conducting workplace skill development training on commission) with subsidies or loans for expenses incurred in the business (Article 20(1)1). The workplace skill development training for workers is basically a business owner, and is also a business owner eligible for subsidies. However, the training entrusted is recognized as one of the methods of workplace skill development training. As such, the Plaintiff was responsible for self-verification of whether the instant trainees completed the standards for receiving subsidies and subsidies before applying for subsidies. Furthermore, since the instant training was conducted for workers belonging to the Plaintiff’s workplace, the Plaintiff’s training was conducted at least for workers, and thus, the Plaintiff could not easily be aware that the instant training was conducted through regular observation of the instant training course or directly verification of its employees.

Although the Plaintiff asserted that some of the trainees of this case completed their normal training and met the standards for completion, the Plaintiff rendered the instant disposition by concluding that the Defendant did not undergo the instant training normally, as seen earlier, the instant training course was conducted in an overall and unfair manner, and otherwise, the Plaintiff did not specify the trainees who underwent the instant training course and submit objective data on them.

The purpose of workplace skill development training is to contribute to the development of society and economy by facilitating and supporting workplace skill development through the life of workers. The act of receiving workplace skill development training subsidies by fraud or other improper means is to contribute to the stabilization of employment of workers, the improvement of social and economic status, the improvement of corporate productivity, and the realization of a competence-oriented society. Since the act of receiving workplace skill development training subsidies by fraud or other improper means causes the insolvency of the employment insurance fund, and may inflict damage on the insured who paid the employment insurance premium in good

○○ Operation of the workplace skill development training support system in a fair and transparent manner, thereby promoting the employment stability of workers, improvement of social and economic status, and establishment of the Employment Insurance Fund, shall not be deemed to be less than the Plaintiff’s private interest restricted by the instant disposition.

○ The instant disposition conforms to the disposition standards prescribed by Articles 55(2) and 56(2) and (3) of the Vocational Skills Development Act, and Article 22(1)2 of the Enforcement Rule of the Vocational Skills Development Act. The said disposition standards do not conform with the Constitution or laws, or as a result of the application of the said standards does not seem to be remarkably unreasonable in light of the content of the Plaintiff’s act and the purport of the relevant statutes.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Kim Gin-young

Note tin

1) The Plaintiff sought the revocation of the first 360-day subsidy and the loan restriction disposition. However, at the fifth date for pleading, the Plaintiff withdrawn the claim for the corresponding portion.