(영문) 서울행정법원 2013.12.6. 선고 2011구합43652 판결

1. On December 31, 2008, among the lawsuits against the head of the Seoul Southern District Office of Employment and Labor, each of the claims for the restriction on payment of expenses incurred before December 31, 2008, the revocation of the order to return KRW 2,531,452,523, the part of the claims for the cancellation of the training expenses, the head of the Daejeon Regional Employment and Labor Office of Korea, and the head of the Pyeongtaek Regional Employment and Labor Office of the defendant Jung-gu, respectively.

2. The plaintiff's remaining claims against the head of the Seoul Southern District Employment and Labor Office are dismissed.

3. The plaintiff and the defendant 1/10 of the costs of lawsuit incurred between the plaintiff and the defendant 1/10 of the costs of lawsuit and the remaining costs of lawsuit incurred between the plaintiff and the remaining Defendants are assessed against each of the above defendants.

Purport of claim

The Plaintiff: ① a disposition to additionally collect KRW 2,607,380 for training expenses related to the payment of expenses before December 31, 2008; ② a disposition to restrict the payment; a disposition to return KRW 2,531,452,523 for training expenses (2,531,581,403 is a clerical error); a disposition to additionally collect KRW 5,293,389,130 for the payment of expenses after December 31, 201; and ② a disposition to return KRW 2,531,52,523 for training expenses (2,531,581,403 is a clerical error); a disposition to additionally collect KRW 5,293,389,130 for the payment of expenses; a disposition to restrict the payment of KRW 120 (from September 24, 201 to January 21, 201); and ② the Administrator of the Daejeon Regional Labor Agency’s order to return KRW 27,14,213,2101,7

Reasons

1. Details of the disposition;

(a) Recognition of training courses and payment of training expenses;

(1) The Plaintiff was recognized as a vocational skills development training course for each vocational skills development training course regarding the “communication system” from the head of the Cheongju District Office of Daejeon Regional Employment and Labor (hereinafter referred to as the “head of the Cheongju District Office”) with respect to each training described in the [Attachment] from the head of the Seoul Southern District Office (hereinafter referred to as the “head of the Cheongju District Office”), and from the head of the Cheongju District Office of Employment and Labor (hereinafter referred to as the “head of the Cheongju District Office”) of the Defendant Central Office of Employment and Labor (hereinafter referred to as the “Chief District Office”).

(2) The Plaintiff conducted the above training course and received training expenses from the head of the Seoul Southern District Office (hereinafter referred to as “payment date”) as stated in the column for “expenses payment date” from October 7, 2008 to November 26, 2008, 5,293,389 won for training expenses from March 20, 2009 to July 30, 2010, 234,470 won for training expenses, and 32,72,780 won from the Administrator of the Seoul Southern District Office, respectively.

(b) Restrictions on payment, orders for return, etc.;

(1) On August 2010, the Board of Audit and Inspection and the Ministry of Employment and Labor notified the Defendants of the list of trainees who entered or depart from the Republic of Korea during the vocational ability development training period, and requested the Defendants to conduct an investigation on the management of illegal entry.

The Defendants confirmed that they were present on the day of the training course even if they did not depart from the Republic of Korea during the training period and did not attend the training course. Accordingly, Defendant Cheongju Branch Office, the head of Pyeongtaek Housing Site Office, etc. issued an order to revoke or correct the training course recognized by Defendant Cheongju Branch Office, and notified this to the head of Seoul Southern Branch Office.

(2) On September 23, 2011, the head of the Seoul Southern District Office rendered the following dispositions against the Plaintiff. After that, the head of the Seoul Southern District Office reduced the training expenses of KRW 2,531,581,403 during the period of restriction on payment on October 18, 201 to KRW 2,531,452,523 on the ground that the training expenses received during the period of restriction on payment were calculated by mistake (hereinafter referred to as “reduction training expenses”).

A person shall be appointed.

** 208, 12, and 31 - 'Expenses payment improvement school (from November 21, 2007 to November 23, 2007)’ 'MC Business Headquarters Education (from March 11, 2010 to March 21, 2010)’, 'on-site new cel utilization process (from December 14, 2009 to December 18, 2009 to 23 processes excluding the process of using new celel (from December 14, 2009 to December 18, 2009) . Accordingly, the order to return the 203rd period of payment restriction (from January 30, 2008 to November 23, 2007) is denied, and the order to return the 203rd period from January 30, 2008 to 10, 2017.

(3) On October 19, 201, the head of the Cheongju District Office ordered the Plaintiff to return training fees as follows.

A person shall be appointed.

(4) On December 2, 201, the Administrator of Pyeongtaek Housing Site issued an order to return training fees to the Plaintiff as follows:

A person shall be appointed.

C. Constitutional Court's decision of unconstitutionality and revocation of disposition

(1) The Constitutional Court (2011Hun-Ba390) rendered a decision of unconstitutionality on August 29, 2013 on the ground that Article 35(1) of the Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008) violates the principle of prohibition of comprehensive delegation under Article 75 of the Constitution.

(2) As to training expenses paid within the payment restriction period, the head of the Seoul Southern District Office revoked the order to return KRW 2,531,452,523, which was received before December 31, 2008, and the head of the defendant Chungcheong District Office revoked the order to return KRW 2,531,452,523, and the head of the defendant Pyeongtaek District Office revoked the order to return KRW 30 October 30, 2013, and the head of the defendant Pyeongtaek Housing Site Office.

[Ground of Recognition] Unstrifed Facts, Gap evidence 1, 2, 3 (including paper numbers), Eul evidence 3 (including paper numbers), Eul evidence 1, 2 (including paper numbers), Eul evidence 1, 1, 6 (including paper numbers), and Eul evidence 1 to 6 (including paper numbers)

2. Whether some of the lawsuits are lawful.

A. Ex officio, where an administrative disposition is revoked, such disposition loses its validity, 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 20045317, Sept. 28, 2006).

B. First of all, as to the restriction on the payment of expenses incurred before December 31, 2008 by the Administrator of the Seoul Southern District Office, according to the health team and the disposition (Evidence A-1-1-1-), "*" was subject to the restriction on the payment of expenses incurred before December 31, 2008 to May 20, 2009, among the cases of the payment of expenses incurred before May 18, 201 to May 21, 2008, it cannot be deemed that the order to return only the training expenses paid during the training period from May 21, 2009 to December 1, 2009 was written as the above order to return the training expenses received during the period of payment restriction (from October 7, 2008 to December 11, 2009).

In addition, the defendants revoked the order to return training expenses. Accordingly, among the lawsuits against the head of Seoul Southern Site, the part of the claim for the cancellation of the restriction on the payment of the expenses before December 31, 2008, the order to return KRW 2,531,452,523, among the lawsuits against the head of Seoul Southern Site, the part of the claim for cancellation of the order to return KRW 2,531,452,523, the head of the Seoul Southern Site Office, and the head of the defendant Pyeongtaek Housing Site Office, each lawsuit against the head of the Seoul Southern Site Office is unlawful as

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Non-existence of grounds for disposition

In the Employment Insurance Act and the Act on the Development of Workplace Skills of Workers, “False or other unlawful means, which serve as a ground for an order to return training fees, additional collection, and restriction on payment” refers to cases where an employer received subsidies by pretending to be eligible for support, or committed an illegal act actively to receive subsidies in excess of the subsidies. However, some trainees or club trainees were stated as attending the attendance book during the departure period from Korea, and the Plaintiff merely claimed subsidies under the knowledge of such fact, and thus, the Plaintiff did not actively deceive the head of the Seoul Southern Site.

In the disposition of this case, there is no ground for disposition.

(2) A deviation from or abuse of discretionary power

Article 22 [Attachment Table 6-2] Article 22 [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (amended by Ordinance of the Ministry of Employment and Labor No. 5 of August 30, 2010) provides that the Plaintiff may take measures by reducing the scope of 1/2 of the standards set forth in the individual standards without reducing the amount, in consideration of the fact that the Plaintiff failed to verify the mistake or actual waterway trainees or the substitute attendance of the same trainee in the course of the attendance, and thus, the Plaintiff claims training expenses, the right to receive subsidies for the workplace skill development training normally operated, the concept of justice, and the degree of violation is also consistent with the concept of justice. However, the instant disposition violates the principle of proportionality because the benefits infringed on the purpose of the instant disposition, compared to the purpose of the instant disposition, is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(1) As to the absence of the grounds for disposition

(A) Sanction against violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws in order to achieve administrative purposes. Thus, a sanction may be imposed even if the violator has no intention or negligence, barring special circumstances, such as where he/she is unable to cause any negligence on the part of his/her duty. Moreover, the phrase “any false or other unlawful means” refers to any unlawful act conducted in order to conceal the eligibility of a business owner who is not generally entitled to receive or is not entitled to receive training fees, which may affect the decision-making on the payment of vocational skills development training fees (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

(B) We examine the instant case as the implementing body of the training course: (a) the Plaintiff applied for the training fee according to the statement in the attendance book while neglecting his duty to finally verify whether the trainee was present at the training course before applying for the training fee; (b) the number of trainees was 20 to 40; (c) so it is not difficult to verify whether the trainee was present at the training center; and (d) the trainee who was absent appears to have been on an overseas business trip with the Plaintiff’s approval; (c) the Plaintiff was able to know the trainee who was absent at the overseas business trip; (d) the training course period was 2 to 10 days; (e) the Plaintiff was 1 to 5 days; and (e) the Plaintiff appears to have not been present at the training site; and (e) the Plaintiff could not be deemed to have any justifiable reason for not verifying whether the trainee was present at the training site; and (e) the Defendant’s act of not having been present at the training site constitutes a false decision-making or other unlawful method.

(2) As to the deviation and abuse of discretionary power

(A) Article 35(1) of the Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; Act No. 10337, May 31, 2010) provides that “Any person who has received subsidies from vocational skills development projects by fraud or other improper means may be ordered to return (the amount received by false or other improper means) subsidies, as prescribed by Presidential Decree.” Paragraph (2) of the same Article provides that “The amount not exceeding five times the amount received by such fraudulent or other improper means shall be collected (the amount shall not exceed five times the amount received by such fraudulent or other improper means)” and Article 25(4)1 (b) of the Act on the Development of Workplace Skills of Workers (amended by Act No. 9316, Dec. 31, 2008; Act No. 10066, Dec. 13, 2010; Ordinance of the Ministry of Employment and Labor has already been revoked with respect to the amount of subsidies already received by the Ministry of Employment and Labor.

Therefore, Article 56(1) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provides that “the Minister of Labor shall order a person who has received vocational skills development subsidies by fraud or other improper means”; Article 78(1) of the Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 319, Apr. 1, 2009); Article 338 of the Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 338, Feb. 9, 2010; Article 78(1)1 of the Enforcement Rule of the Employment Insurance Act provides that “The amount already amended by Ordinance of the Ministry of Employment and Labor No. 1, Jul. 12, 2010; the amount additionally collected pursuant to Article 35(2) of the Act shall be the amount that he/she received by fraud or other improper means; and the amount that he/she received or intends to receive by fraud or other unlawful means.”

(B) Workplace skill development training is conducted with limited financial resources, such as the budget and the Employment Insurance Fund under the Employment Insurance Act, and there is a substantial public interest in promoting the employment security of workers and the enhancement of corporate productivity due to the above disposition. In particular, workplace skill development training should be thoroughly managed in order to achieve the purpose of workplace skill development training and to prevent unfair claim for training expenses. In addition, if trust and fairness in the employment management is shaken, it is highly likely to undermine the foundation of the workplace skill development training system itself. If the Plaintiff did not know of the attendance of the trainee’s agent, the Plaintiff’s failure to know of the attendance of the trainee’s agent is due to neglect of the duty to manage the workplace, and the act of illegally receiving the training expenses from the date the trainee is absent, and the disposition of restricting the payment is conducted within the reasonable scope pursuant to the relevant laws and regulations, it cannot be deemed that the disposition of restricting the payment for 120 days constitutes abuse of discretionary power.

4. Conclusion

Therefore, among the lawsuits against the head of Seoul Southern District Office, each lawsuit against the head of the Seoul Southern District Office's claim for the cancellation of the restriction on payment of the expenses before December 31, 2008, training expenses 2,531,452,523 won, and the head of the Seoul Southern District Office's claim for the cancellation of the return order, and each lawsuit against the head of the defendant Young District Office's branch office's claim is dismissed, respectively, and the remainder of the plaintiff's claim against the head of the Seoul Southern District Office's branch office's branch office's head is dismissed as it is without merit, and it is so decided as per Disposition (the lawsuit against this part