2015Guhap106027 Action demanding cancellation order, etc.

A Stock Company

The Director General of the Daejeon Regional Employment and Labor Office

June 16, 2016

September 8, 2016

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On June 30, 2015, the Defendant ordered the Plaintiff to return the subsidy and the imposition of the additional collection amount of KRW 404,205,160, respectively, shall be revoked.

1. Details of the disposition;

A. On July 13, 2012, the Plaintiff Company was established for the purpose of real estate development and implementation, real estate leasing business, etc., and decided to jointly operate workplace child care centers (hereinafter “child care centers of this case”) by organizing a business association with three companies, such as B value departments, C hospital, and D hospital, which are neighboring places of business, around October 2012. As the child care centers of this case were established in the area of the Plaintiff Company’s workplace, the child care centers of this case were operated as representative business owners.

B. The Plaintiff Company received subsidies for operating expenses of KRW 238,485,400 in total from the Defendant while operating the instant childcare center.

C. On June 30, 2015, the Defendant issued an order to return KRW 202,10,580, after deducting KRW 36,382,82,580, which is an amount calculated by subtracting the number of children, who are children, other than the insured, from the total number of children, from the amount of subsidies received by the Plaintiff Company, on the ground that “the Plaintiff Company illegally received the subsidies for operating expenses of workplace child care by falsely reporting the parents of children, other than the insured, as the insured” (hereinafter “instant disposition”). On the other hand, the Defendant issued an order to additionally collect KRW 404,205,160 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, Eul evidence No. 1, and the purport of the whole pleadings

The plaintiff company employed a parent as a worker to guide her children, such as the safety of her children, and actually received benefits in the form of being exempt from various expenses, etc. to be paid to her child care center in return for providing labor at the specified time, so it is difficult to view that the plaintiff company received subsidies by 'false or other unlawful means'. Even if her family worker status is not recognized, the plaintiff company can only order the return of subsidies to her parents whose gender is at issue out of subsidies provided on the premise of the number of all her child care children. In addition, it cannot be deemed that the fact that the plaintiff company employed her employee by 's 's 's 's 's 's 's 's 's 's 's '' and 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's ' and ' ' ''''

1) Defenses prior to the merits

On August 25, 2015, the Defendant sent the notice of disposition to the Plaintiff Company and the Child Care Center of this case by registered mail, and received the said notice on August 26, 2015, and on December 23, 2015, 90 days thereafter, filed the instant lawsuit on December 23, 2015, which is unlawful due to the lapse of the period for filing the lawsuit.

2) Determination

Comprehensively taking account of the following facts and circumstances acknowledged by Gap evidence 3, Eul evidence 1, Eul evidence 1, 2, and 3 as a whole and the purport of the entire arguments, the notice of disposition of this case was lawfully delivered to the plaintiff company on August 26, 2015. Thus, the defendant's objection prior to the merits that the time limit for filing a lawsuit has expired has merit.

(A) Article 20(1) of the Administrative Litigation Act provides, “A revocation lawsuit shall be instituted within 90 days from the date on which the party becomes aware of the disposition, etc.: Provided, That where the proviso of Article 18(1) provides, or where an administrative appeal may be filed, or where an administrative agency has mistakenly notified that a request for administrative appeal may be filed, the period from the date on which the original copy of the written adjudication is served shall be reckoned from the date on which the relevant administrative appeal is served.” Here, “the date on which the party becomes aware of the disposition” refers to the date on which the party becomes aware of the fact that the relevant disposition was made by means of notice, public notice, or other means (see Supreme Court Decision 2005Du14851, Apr. 28, 200

Meanwhile, an administrative act requiring notification to the other party is effective only when it is objectively notified by means of keeping the other party in a form that is able to identify them. The arrival as an effective requirement of an administrative disposition is not necessary for the other party to actual quantity, and it is sufficient for the other party to be in a situation that the other party is able to keep their contents (see, e.g., Supreme Court Decisions 75Nu63, Jun. 8, 1976; 8Nu940, Jan. 31, 1989). In addition, Article 14(1) of the Administrative Procedures Act provides, “Service shall be made by means of mail or information and communications network use, and shall be made by the domicile, domicile, business office, or e-mail address of the person who is served (including the representative or agent; hereinafter the same shall apply). The address refers to a place on which it serves as a basis of life in principle, but the registered domicile of the other party is also included, and it is not necessary for the person to receive mail or other documents lawfully delegated them to the other person.

(B) On August 26, 2015, the notice of disposition in this case was served respectively on the domicile of the Plaintiff Company and the Plaintiff Company as the representative business owner. The notice of disposition that was served to the Plaintiff Company was served on the Plaintiff Company E, and F, the head of the instant childcare center, and G, the F, who was the head of the instant childcare center, received the notice of disposition that was served on the Plaintiff Company, E, and F and Dong S, respectively. G, as an employee of the Plaintiff Company, was organized by the mail of the office from July 2012 to the beginning of 2013, while engaging in general affairs such as telephone call service and retired from the office while assisting the Plaintiff Company in the work of the instant childcare center. From April 2014, G began to work again as the childcare teacher of the instant childcare center and started to work again.

(C) On March 16, 2015, the Defendant: (a) notified the Plaintiff’s workplace childcare support center of the fact that the Plaintiff was aware of the fact that the Plaintiff was receiving various kinds of subsidies from the Korea Workers’ Compensation & Welfare Service, the Korea Workers’ Compensation and Welfare Service, and the Ministry of Employment and Labor; and (b) started an investigation into the illegal receipt of subsidies for the instant children’s house. Accordingly, on March 12, 2015, the Defendant: (c) visited the Plaintiff’s workplace on the name of the representative director of the Plaintiff Company; (d) requested the Plaintiff to submit a written statement of wage payment from the Plaintiff, the employee list, the wage ledger, and the bank; and (e) on March 16, 2015, the Defendant visited the Plaintiff to the second workplace to conduct the second investigation; and (e) did not request the Plaintiff to attend the Plaintiff’s workplace on the ground that the Plaintiff’s child and the child’s parents were not present at the Plaintiff’s workplace; and (e) did not request the Defendant to conduct the second investigation.

(D) On April 28, 2015 and April 28, 2012, the following: “F, as a manager of the leading person of fraudulent act and the overall manager of child care centers, who intentionally acquired the insured status of 18 children who were the H’s spouse by false acquisition of employment insurance for 18 children, and fraudulently received personnel expenses for workplace care centers. It is difficult to view the Plaintiff as an employee. 18 parents of child care centers whose insured status was reported under the Plaintiff’s employment insurance has not been subject to considerable direction and supervision by the business owner; it is difficult to recognize the Plaintiff as an employee in light of the fact that she did not receive additional management; 15 hours per week’s contractual work hours were not less than 15 hours; thus, in order to acquire the insured status, the Plaintiff was able to report the parents of child care centers of this case as the insured and receive additional collection for 20 months or more from 200 to 200 years, 200 to 214,208.

(E) As such, since March 2014, the main investigation was conducted on whether the child care center subsidies of this case were illegally received from March 1, 2014, as long as the future administrative disposition and criminal complaint plan based on the result of the investigation was established specifically, it appears that mail, such as the notice of disposition of the administrative agency, could have been sufficiently anticipated to be served as the registered domicile of the Plaintiff company or the child care center of this case. The notice of disposition of this case was delivered to Seo-gu, Seo-gu, Seo-gu, Y, 103, and Seo-gu, Seo-gu, Seo-gu, Incheon, the domicile of the Plaintiff company, and the child care center of this case. It is reasonable to view that the Defendant’s restriction of payment of subsidy, return order, and additional collection notice (No. 1) were issued to the Plaintiff Company’s representative director for reasons of false report from April 29, 2015 to April 28, 2016, the Plaintiff Company’s notice of disposition of this case was issued as the Plaintiff Company’s temporary employee of this case.

Accordingly, the Plaintiff did not confirm the existence of the instant notice of disposition among many postal items. On September 25, 2015, the Plaintiff visited the Defendant and received the instant notice of disposition on the day when he became aware of the instant disposition, or even if G received the instant notice of disposition, it cannot be readily concluded that the Plaintiff was aware of the instant disposition. However, as seen earlier, the Plaintiff’s assertion premised on the Plaintiff’s failure to receive the instant notice of disposition on the premise that F and G were entitled to receive the instant notice of disposition on behalf of the Plaintiff company, is without merit. Furthermore, the Plaintiff’s assertion based on the circumstance cited by the Plaintiff cannot be deemed to have justifiable grounds for failing to institute the instant lawsuit within the filing period, for the reason that the Plaintiff was unable to comply with the filing period, even if he had exercised due diligence to do so.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful and thus it is decided as per Disposition.

The presiding judge and the associate judge;

Judges Cho Hon

Judges Kim Gin-han