(영문) 서울행정법원 2013.12.19. 선고 2012구합31571 판결

The Defendant’s order to return KRW 30,576,380 of the training expenses paid to the Plaintiff on September 2, 201 (from September 13, 2008 to September 12, 2009) shall be revoked.

Reasons

1. Details of the disposition;

A. On April 8, 2008, the Plaintiff conducted workplace skill development training by obtaining recognition from the head of the Daejeon Regional Employment and Labor Office of the Daejeon Regional Employment and Labor Office [the intermediate manager capacity improvement training (from April 15, 2008 to April 18, 2008) (hereinafter “instant training course”) and conducting workplace skill development training.

B. The head of the Daejeon Regional Employment and Labor Office reported the Plaintiff’s attendance processing and completion of the instant training course even if the Plaintiff’s employee B was unable to participate in the training course due to an overseas business trip from April 14, 2008 to April 16, 2008, and confirmed that the Defendant received training expenses from the Defendant on September 12, 2008.

C. Upon receipt of a notice from the head of the Daejeon Regional Employment and Labor Office that the Plaintiff received training expenses for B from the head of the Daejeon Regional Employment and Labor Office, the Defendant issued a disposition to recover training expenses for the Plaintiff’s vocational skills development training expenses from KRW 37,775,00 (i.e., the illegally received training expenses + the additionally collected amount of KRW 227,650 + the additionally collected amount of KRW 227,650 + the additionally collected amount of KRW 37,650 from September 13, 2008 to September 12, 2009) under Article 35(1) and (2) of the former Employment Insurance Act (amended by Presidential Decree No. 21015, Sep. 18, 2008; hereinafter “Enforcement Decree”).

D. The Plaintiff appealed and filed an administrative appeal, and on June 12, 2012, the Central Administrative Appeals Commission rendered a ruling to revoke KRW 6,743,320 exceeding the training expenses paid within the same period during the disposition to recover training expenses subsidized during the period of restriction on payment.

E. The Plaintiff filed a lawsuit seeking revocation of training expenses for the period of restriction on payment (hereinafter referred to as “instant disposition”). Meanwhile, on August 29, 2013, the Constitutional Court decided that Article 35(1) of the former Employment Insurance Act (amended by Act No. 8429, May 11, 2007; Amended by Act No. 9315, Dec. 31, 2008) goes against the principle of comprehensive prohibition (201Hun-Ba390). The Defendant notified the Plaintiff of the revocation of the instant disposition on November 1, 2013.

[Ground of recognition] Evidence Nos. 1 through 4, Evidence Nos. 1 through 9, and the purport of the whole pleadings.

2. Whether the lawsuit of this case is lawful

If an administrative disposition is revoked ex officio, the disposition becomes null and void, and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 2004Du5317, Sept. 28, 2006).

As seen in the background of the above disposition, the defendant revoked the disposition of this case while the lawsuit of this case is pending, and the lawsuit of this case is unlawful.

However, since the cancellation of an retired disposition is due to the cancellation of the litigation cost pursuant to Article 32 of the Administrative Litigation Act.

The defendant bears the burden.

3. Conclusion

If so, the lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.