(영문) 서울고등법원 2014.4.1. 선고 2012누7631 판결

1. The part against the defendant in the judgment of the court of first instance (the part concerning a disposition to restrict payment of training expenses and a claim to revoke a disposition to revoke a disposition to recover training expenses subsidy of 341,94,480 won from July 31, 2008 to July 30, 2009) shall be revoked, and all the plaintiff's lawsuit corresponding to that part shall be dismissed.

2. The costs of appeal among the total costs of the lawsuit are borne by the Defendant, and one-half of the costs of the lawsuit in the first instance shall be borne by the Plaintiff, and the remainder by the Defendant respectively

Purport of claim and appeal

1. Purport of claim

On July 27, 2011, the Defendant’s corrective order, revocation of recognition, order of 222,540 won for the process of special education on customer service duties, order of repayment of 222,540 won for unjust training expenses, order of additional collection of 22,540 won, and disposition of restricting payment of training expenses and disposition of recovering KRW 341,94,480 for training expenses from July 31, 2008 to July 30, 2009 shall be revoked.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked. The plaintiff's claim corresponding to the above revocation shall be dismissed.

Reasons

1. Scope of the judgment of this court;

The plaintiff sought a judgment identical to the purport of the above claim, but the court of first instance rejected the part of the corrective order for the process of special education for customer service duty, ② revocation of recognition, ③ order for return of improper training costs of KRW 222,540, and claim for revocation against additional collection of KRW 222,540, respectively, from July 31, 2008 to July 30, 2009. Accordingly, the part of the claim for revocation against restriction on payment of training costs and reimbursement of KRW 341,94,480 were cited. Since the defendant only appealed against this, this part of the claim is limited to the part of the above paragraph 4.

2. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part of the reasoning is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

3. Determination

A. If an administrative disposition is revoked, the disposition becomes null and void and no longer exists, and a revocation lawsuit against non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2009Du16879, Apr. 29, 2010).

B. In full view of the following, the Constitutional Court rendered a decision of unconstitutionality on the ground that Article 35(1) of the former Employment Insurance Act, which served as the basis for the disposition to restrict the payment of training expenses and the disposition to recover training expenses subsidies from July 31, 2008 to July 30, 2009, violates the principle of prohibition of comprehensive delegation under Article 75 of the Constitution (see Constitutional Court Decision 201Hun-Ba390, Aug. 29, 2013). Accordingly, the Defendant’s revocation ex officio revocation of each of the above dispositions under Article 35(4) can be recognized.

C. Therefore, among the instant lawsuit, the part seeking the disposition to restrict the payment of training expenses and the revocation of the disposition to recover training expenses subsidies of KRW 341,994,480 from July 31, 2008 to July 30, 2009, which is subject to the disposition that does not exist, was unlawful as there was no benefit of lawsuit.

4. Conclusion

Therefore, among the lawsuit in this case, the part that seeks revocation of the disposition to restrict payment of training expenses and the subsidy of 341,94,480 won from July 31, 2008 to July 30, 2009 shall be dismissed, and since the part that lost the defendant in the judgment of the court of first instance is unfair with different conclusions, the part that lost the defendant in the judgment of the court of first instance shall be revoked and all of the plaintiff's lawsuit corresponding to that part shall be dismissed, and it is so decided as per Disposition (the total cost of the lawsuit shall be borne as per the order in consideration of the purport of Article 32 of the Administrative Litigation Act).