(영문) 서울행정법원 2018.11.21. 선고 2017구단72488 판결

The Defendant’s decision to restrict loans for 360 days (from July 17, 2017 to July 11, 2018) against the Plaintiff on July 17, 2017, issued an order to return KRW 33,763,140 and to additionally collect KRW 33,763,140.

Reasons

1. Details of the disposition;

A. The plaintiff, a taxi transportation company, entered into a contract with B or C (hereinafter referred to as "D") for vocational skills development training for the plaintiff's workers by means of remote training for the plaintiff's workers as shown below (hereinafter referred to as "training in this case" and, if part of the training is complied with, indicated as "first training" by the sequence), and completed the training in this case normally and satisfies the completion standards for the provision of subsidies for remote training (hereinafter referred to as "the completion standards for the provision of subsidies for remote training"), on the premise that the number of trainees in this case stated as "the completion of the training" among the above trainees in the Human Resources Development Service of Korea (hereinafter referred to as "training trainees in this case"), and received subsidies for remote training in total 33,763,140 won from the above Corporation.

A person shall be appointed.

B. On July 17, 2017, the Defendant issued an order for subsidies for remote training to the Human Resources Development Service of Korea for the following reasons: ① the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jan. 27, 2016; hereinafter referred to as the “Vocational Skills Development Act”); Article 5(2) of the same Act; Article 22 of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter referred to as the “Enforcement Rule of the Vocational Skills Development”), Article 22 and [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter referred to as the “Enforcement Rule of the Vocational Skills Development”), Article 360 (1) of the former Enforcement Rule of the Vocational Skills Development Act (amended by Act No. 13902, Jul. 28, 2016; hereinafter referred to as the “Act”); Article 55(1)1 to 366(1) of the same Act, and 36(2) of the Act

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant trainees were most old and difficult to prepare learning and answers using computers, and were provided with help from D’s employees, and completed the instant training in a normal condition, and met the completion standards. As such, the instant disposition that the Plaintiff received subsidies for remote training by fraud or other improper means cannot be deemed to exist.

2) Even if the grounds for the instant disposition exist, in light of the following: (a) the Plaintiff conspireds with D to commit fraud or did not take part in the crime; (b) the Plaintiff paid the training expenses received from the Human Resources Development Service of Korea to D in full; and (c) no benefit was acquired in relation to the training expenses; (c) the instant training was conducted, and so, the training courses were conducted by D and did not have any obligation to manage the Plaintiff as to whether or not the training was conducted in a normal manner; and (d) the Plaintiff was aware that the trainee was aware of the completion of the training in a normal manner; and (b) if the trainee failed to meet the standards for the completion of training without completing the training normally, the Defendant is also liable for the failure to perform his/her duty of supervision; and (c) the instant disposition should be deemed to have a justifiable reason that does not cause the Plaintiff to breach of his/her duty; and even if not, the instant disposition

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination2

1) Whether there is a ground for disposition

"False or any other fraudulent means" under Articles 55 (2) 1 and 56 (2) and (3) of the Vocational Skills Development Act means all acts that a person who is not eligible to receive subsidies generally leads to a person who is not eligible to do so, or who are not correct under the social norms to conceal the fact that he/she is not eligible to do so, and that may affect the decision-making on subsidization of expenses. "Expenses" under each of the above provisions means expenses incurred in vocational skills development projects conducted by a business owner, etc. who is recognized as a vocational skills development training course, which are supported by the Minister of Employment and Labor according to the number of trainees of training (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 (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 for workplace skill development training support (wholly amended by Ordinance of the Ministry of Employment and Labor No. 2015-114, Dec. 31, 2015; hereinafter referred to as the “former provision before the wholly amended”) provides that the “cyber training is carried out by using teaching materials with a printed medium,” Article 2 subparag. 11 of the former Enforcement Decree of the Act on the Development of Workplace Skills, and that the evaluation of the content of the training is conducted by the Corporation at least 10 percent of the fixed number of learning programs.

In light of the legal principles as seen earlier, if trainees did not normally undergo workplace skill development training conducted by mail and failed to meet the standards for completion, and an employer received subsidies by filing an application for subsidies for remote training on the premise that they met the standards for completion of vocational skills development training conducted by mail, then the employer was provided with subsidies for remote training that should not be actually provided. Thus, even if the employer knew of the above circumstances, it constitutes "the case where subsidies were received by fraudulent or other illegal means" as provided in Articles 55 (2) 1 and 56 (2) and (3) of the Vocational Skills Development Act (see Supreme Court Decision 2013Du1980, supra). In this case, it is not necessary for the employer to be recruited to receive subsidies without normally conducting remote training with workplace skill development training companies and mail.

In addition, in an administrative litigation to which the provisions of the Civil Procedure Act apply mutatis mutandis, the burden of proof is, in principle, allocated between the parties in accordance with the general principles of civil procedure, and in the case of an appeal litigation, the defendant bears the burden of proving the legality of the disposition based on its nature. However, in a case where there is a reasonable and acceptable proof of compliance with the specific disposition asserted by the defendant, the disposition is justifiable, and the contrary assertion and proof are return to the plaintiff, who is the other party (see, e.g., Supreme Court Decision 2015Du39156, Jun. 15, 2017). In light of the following facts that can be recognized by taking into account the overall purport of the arguments and the whole purport of the arguments as to the instant case based on the above legal principles, the trainee of the instant case did not undergo the instant regular training, and even if he did not meet the standards, the plaintiff cannot reasonably accept that the plaintiff applied for the payment of the remote training subsidy under a different premise to the Human Resources Development Service of Korea, and there is no ground for disposition.

On January 5, 2018, the prosecutor of the Seoul Central District Prosecutors' Office prosecuted E, F, and G as a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in Seoul Central District Court on the charge that "in-house directors E, head of department F, and head G, who are the representative of D, visited the place of a gold transportation business entity by visiting trainees into the place of a gold transportation business entity without providing training teaching materials and make them conduct a proxy lecture and proxy exam with personal information of trainees, and acquired them a total of KRW 1,78,460,905, etc. from the Republic of Korea by creating the appearance that the trainees meet the completion standards for the postal source training course through the method of conducting a proxy lottery," which is charged with the crime of violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud 2018 Gohap30), and the content of the crime of obtaining the above charge includes the part of KRW 33,763,140, paid to the Plaintiff.

In the instant case, the Defendants led to the confession of all the facts charged, and the said court found Defendant E guilty of the facts charged on April 6, 2018 and sentenced Defendant F and G to four years of imprisonment, one year and six months of imprisonment, and three years of suspended execution (Article 115, 167, 200, and 225 of the Criminal List No. 8-3).

Of the judgment of the first instance court, Defendant F and G were confirmed as they were, because both the Defendants and the Prosecutor did not appeal. Defendant E appealed as Seoul High Court 2018No112, but the grounds for appeal were limited to unfair sentencing, and the judgment dismissing the appeal was rendered on September 20, 2018. On the other hand, D employees visited the company that entrusted workplace skill development training to D with workplace skill development training under the direction of E, etc. at the Seoul Regional Employment and Labor Agency Seoul Western District Office and the investigative agency prior to the institution of the indictment, and conducted a proxy and proxy test by creating IDs with personal information of trainees, and conducted a so-called - one-called - one-way interview training to ask questions to some of the trainees formally.”

○ In the process of the instant investigation, on August 16, 2016, the details of the note asked D staff in charge of the instant training to determine whether to conduct a test under the name of the number of trainees appearing in operation of the taxi among the trainees, and on September 22, 2016, the above F sent the note to D staff in charge of the instant training to instruct D staff in charge of the instant training to enter certain contents in the trainees’ test answer, and on September 2, 2016, it was not confirmed that D staff in charge of the instant training did not know that D staff in charge of the instant training to the trainee’s name in order to avoid the hours during which the trainees were operated, and that 14th of the training was conducted under the name of the trainee’s name, such as the condition that the Plaintiff informed D staff in charge of the instant training the training trainee’s dispatch time during a specific period of time and the name of the trainee, the details of the training conducted by the trainee’s 15th of the initial training or 24th of the training.

B. The imposition of sanctions against a breach of duty is a sanction against the objective fact that is contrary to the administrative law in order to achieve the administrative purpose. Thus, barring special circumstances, such as where a breach of duty is not caused by an intentional act or negligence, barring special circumstances, such as where a breach of duty is not caused by an intentional act or negligence (see, e.g., Supreme Court Decision 2012Du1297, May 10, 2012). The burden of proof on the existence of special circumstances as above exists against the violator of the administrative law.

Meanwhile, whether a disciplinary 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 act of violation as the ground 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 disciplinary administrative disposition are prescribed in the Enforcement Rule, it is nothing more than that prescribed in the administrative agency’s internal rules for handling affairs, and thus, it is not effective externally to the public or the court. Thus, the legality of the pertinent disposition is determined not only by the above criteria for disposition but also by the relevant Acts and subordinate statutes. Thus, the pertinent disposition cannot be immediately deemed legitimate in conformity with the criteria for disposition. However, unless there is a reasonable ground to acknowledge that the criteria are unreasonable in light of the content of the act of violation, which is the ground for disposition, and the relevant Acts and subordinate statutes and subordinate statutes, it shall not be deemed that the disposition in question goes beyond the scope of discretion or constitutes abuse of discretion (see, eging the Plaintiff’s evidence and purport of this case.).

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

○○ Workplace Skill Development Promotion Act requires public interest to promote employment stability of workers, improvement of social and economic status, and establishment of the Employment Insurance Fund by operating the workplace skill development training system fairly and transparently. This seems to be important due to the instant disposition. Article 4(2) provides that an employer shall conduct workplace skill development training for workers, participate in workplace skill development training, and make efforts to create conditions for workplace skill development training, such as granting leave for workplace skill development training to workers, or appointing a person in charge of workplace skill development training (Article 4(2)). Accordingly, the Minister of Employment and Labor provides that an employer who conducts workplace skill development training (including a case where workplace skill development training is conducted on commission) may provide subsidies or loans for expenses incurred in the relevant business (Article 20(1)1). The Plaintiff was responsible for verifying whether the instant trainees met the standards for receiving subsidies, prior to applying for subsidies as the principal agent of workplace skill development training and the person who received subsidies. At least, the instant training was conducted for the Plaintiff’s workplace, so that the Plaintiff did not have been informed of the instant training course and applied for distance training in a way.

○ Of the instant dispositions, the part on support and loan restriction is in compliance with the disposition standards prescribed under Article 55(2) of the Vocational Skills Development Act, Article 22 and [Attachment 6-2] of the Enforcement Rule of the Vocational Skills Development Act, Article 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, and Article 22(2)2 of the Enforcement Rule of the Vocational Skills Development Act. The pertinent disposition standards per se do not conform to the Constitution or laws, or the application of the said standards is considerably unreasonable in light of the contents of

The proviso of Article 6-2 of the Enforcement Rule of the Vocational Skills Development Act provides that “If there is no intention or gross negligence or if the degree of violation is minor, a disposition to restrict loans may be taken by reducing the amount of loans within the limit of 1/2 of the standard set by the individual standard.” However, the above provision is not only a discretionary reduction provision, but also a voluntary reduction provision, and as seen earlier, the Plaintiff had intention to commit the act and the number of illegal payments reaches KRW 33,763,140, and the degree of violation is significant. Therefore, there is no room for the Plaintiff to reduce the amount of subsidies and loans pursuant to the above provision.

3. Conclusion

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

Judges

Judges Kang Jae-soo

Note tin

1) The applicable laws and regulations of dispositions relating to the grant of subsidies for training (date of payment: November 2, 2016) shall be in accordance with the order of disposition type in the main text. 1.

Article 5(2) of the Act, Article 56(2)1 of the Act, Article 56(2)1 of the Act, and Article 56(3)2 and (5) of the Act, and its provisions

Since the workplace skill development act is substantially the same as that provided in the workplace skill development act, it shall not be indicated separately.

2) The restriction period prescribed in a disposition of restriction on loans (from July 17, 2017 to July 11, 2018) has already been Do, but the Vocational Skills Development Act was implemented.

Article 22 [Attachment 6-2] 1.7.3 of the Rule provides that the power of support and restriction on loans shall be the basis of an increase in future unfavorable measures.

ㅇㅁ로, 이 부분 처분의 적법 여부에 관하여 본안 판단을 한다(대법원 2007. 1. 11. 선고 2006두13312 판결 등 참조).