2012Guhap20380 Revocation of disposition, etc. of vocational ability development training costs

A Stock Company

1. The Commissioner of the Regional Employment and Labor Office in Gwangju;

2. The head of Seoul Regional Employment and Labor Agency;

September 14, 2012

October 26, 2012

1. As to the Plaintiff:

A. The order to return training expenses of KRW 69,685,910, which was already paid for one year in relation to the Plaintiff’s 6:00 Simma specialized in the development of vocational skills (B) vocational skills (from July 29, 2008 to July 28, 2009) by the Commissioner of the Korean Office of Employment and Labor in Gwangju Special Metropolitan City. The order to return training expenses of KRW 69,685,910, which was paid for the period of suspension of payment (from July 29, 2008 to July 28, 2009) from July 8, 2011. A. The order to return the training expenses of KRW 16,57,600, which was paid for the period of suspension of payment (from July 29, 2008 to July 29, 209).

Each cancellation shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The order for return of 106,264 won and the disposition for additional collection of the same amount that the Commissioner of the Leisure Force of the Korea Employment and Labor Office issued to the Plaintiff on July 5, 2011 shall be revoked.

1. Details of the disposition;

A. On May 1, 2007, the Plaintiff entered into a service agreement with the Association, and entrusted the training of workers belonging to the Plaintiff. On February 25, 2008, the Plaintiff was recognized as a training course for vocational skills development for '6 Magma improvement experts' (hereinafter referred to as the “instant training course”) from the head of the female balance of the National Labor Agency of Gwangju Regional Employment and Labor Agency (hereinafter referred to as Defendant 1) on February 25, 2008. The head of the Gwangju Special Metropolitan City Regional Headquarters for 17 workers belonging to the Plaintiff, including the Plaintiff, conducted the above training course from February 25, 2008 to February 27, 2008.

B. The Plaintiff filed an application for KRW 1,806,48 with Defendant 1 for training expenses for vocational skills development during the above period (hereinafter referred to as “training expenses”). Defendant 1 conducted an investigation as to whether a trainee who had entry into and departure from the Republic of Korea during the training period for vocational skills development and received the payment of KRW 106,264 as training expenses. As a result, Defendant 1 confirmed that the Plaintiff was paid KRW 106,264 as training expenses, even if the trainee of the instant training course was unable to attend the overseas business trip with his/her female on February 24, 2008 to February 27, 2008.

D. Defendant 1 issued an order to return 106,264 won and a disposition to additionally collect the same amount (hereinafter “unlawful supply and demand and additional collection disposition”) pursuant to Article 35(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) on July 5, 201; Article 35(1) and (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply); Article 25(4)1 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008; hereinafter the same shall apply) to the Plaintiff for a period of 106,264 won and the additional collection disposition (hereinafter “unlawful payment order”) from the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21015, Sep. 18, 2008). 208

E. On July 8, 2011, Defendant 1 notified Defendant 1 of the fact that the Plaintiff was unlawfully subsidized training expenses, and ordered the Plaintiff’s head office to refund the amount of KRW 16,557,600, which was already paid to the Plaintiff’s head office during the period of restriction on payment for the said one year (hereinafter “Defendant 2”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 3 (including provisional number), 5, 6, Eul evidence 1, 2, 6, Eul evidence 1, 1, 7, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Each disposition of this case is unlawful for the following reasons.

1) Non-existence of grounds for disposition

In light of the fact that the Plaintiff applied for training expenses without knowing that the instant training courses were entirely entrusted to B Association and were conducted with false attendance to C, and that the Plaintiff is obligated to attend and manage B Association, the Plaintiff does not constitute “a person who received false or other unlawful support” under Article 35(1) of the former Employment Insurance Act.

2) The invalidation of the statute based on the disposition exceeds the delegation purport under Article 35(1) of the former Employment Insurance Act as a mother, and is null and void as a provision that violates the principle of excessive prohibition under the Constitution.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the non-existence of grounds for disposition

A) In imposing a punitive administrative disposition on the ground of an illegal act, in principle, the sanction and criteria should be governed by the statutes at the time of the act, and cannot be governed by the amended statutes after the act (see, e.g., Supreme Court Decision 82Nu1, Dec. 28, 1982). In addition, each of the dispositions in this case, which is a punitive administrative disposition against the Plaintiff, the former Employment Insurance Act shall apply to the Defendants. In addition, the sanctions imposed on the violation of administrative statutes, based on the objective fact that the violation of administrative statutes is committed to achieve the administrative purpose, can be imposed even if there is no intention or negligence on the violator, barring special circumstances, such as where the breach of duty is not caused by an intentional act or negligence (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). The phrase “other improper means” under Article 35(1) of the former Employment Insurance Act, which applies to each of the dispositions in this case, means that the Defendants are not qualified or entitled to receive training expenses.

B) In light of the above legal principles, it is reasonable to view that the Plaintiff was paid training expenses by fraud or other improper means, in light of the following circumstances, which are acknowledged as comprehensively taking account of the overall purport of the pleadings in the evidence Nos. 1, 3, and 5. Accordingly, the Plaintiff’s assertion on this part is groundless

① The Plaintiff’s application for subsidization (No. 1) submitted while filing an application for training expenses for the instant training course with Defendant 1 (B/Mure: January 18, 2008); (B/Alyze: B: B/Alyze from February 25, 2008 to February 27, 2008); and (B/Imve: B/Imve: (B/Imve: from March 18, 2008 to March 20, 208; (3) the Plaintiff could not be deemed to have become aware of the period of attendance for each of the instant training courses; (4) the Plaintiff could not be deemed to have become aware of the fact that the Plaintiff was not present for each of the instant training courses; and (5) the Plaintiff could not be deemed to have become aware of the period of attendance for each of the instant training courses during which the Plaintiff did not appear to have been present for a reasonable period of time from February 27, 2008 to March 27, 2008.

② As such, even though the Plaintiff failed to meet the requirements for application for C’s training costs, it applied for subsidies to C and received them from Defendant 1. If Defendant 1 had known of such fact in advance, it would not have paid subsidies to the Plaintiff. Therefore, it is reasonable to deem that the Plaintiff’s act was a fraudulent act committed by a business owner who is not entitled to subsidies to C and thus, affected Defendant 1’s decision-making regarding the payment of subsidies.

2) Whether the underlying statute is unconstitutional or unlawful

Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of this case”) provide that a disposition ordering the establishment of the period of restriction on payment and the return of subsidies granted during the period of restriction on payment is a binding act. However, there is a question as to whether the enforcement Decree of this case, which provides that a person who has received, or intended to receive, vocational skills development training expenses, etc. (hereinafter “unlawful recipients”) by fraud or other improper means under Article 35(1) of the former Employment Insurance Act, must be obliged to pay training expenses, etc. for one year and order the refund of training expenses, etc. paid during the period of restriction on payment, does not violate the principle

In light of the fact that workplace skill development training is conducted through limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act, etc., the legislative purpose of the instant provision is justifiable in light of the following: (a) the restriction on the payment of training costs, etc. for one year for illegal recipients and the order to refund subsidies paid within the restriction period; and (b) the purpose of the instant provision is to prevent misconduct in relation to the payment of training expenses, etc., and ultimately to promote the development and improvement of workplace skill of workers, and (c) vocational ability development training is conducted through limited public resources, such as the Employment Insurance Fund under the Employment Insurance Act. In addition, the instant provision appears to have reduced misconduct in relation to the payment of training expenses, etc. through punitive sanctions prescribed

However, as seen below, the enforcement decree of this case is a provision that excessively infringes on the property rights of the remaining illegal recipients who lack the requirement of "minimum degree of damage" or "a balance of legal interests" and is in violation of the Constitution. Therefore, each disposition of this case based on the provision of the enforcement decree of this case which is null and void in violation of the Constitution is unlawful, so the plaintiff's assertion in this part is with merit

A) Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount received by false or other unlawful means may be collected as a punitive meaning. Accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act, Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); and Article 9(1) of the Enforcement Rule of the same Act provides that the amount to be additionally collected shall be subdivided based on the number of times the applicant applied for expenses by false or other unlawful means during the past five years. Meanwhile, the instant provision, separate from the aforesaid additional collection, prescribes that the amount of subsidies paid within the said restriction period shall be limited to the amount of subsidies paid for one year, and at the same time, orders the return of subsidies paid within the said restriction period shall be issued. On the other hand, the instant provision, unlike the aforementioned additional collection disposition, has the characteristics of punitive sanctions, provides only for the restriction of payment and the return restriction period for one year.

Therefore, the Defendants, like the Plaintiff, have no choice but to impose sanctions such as: (i) and (ii) the order to return the fixed amount of illegal receipt; (ii) the subsidies subject to the order to return are considerably larger than the amount of illegal receipt, which may be expected by the illegal recipient; and (iii) thereby, may cause an excessive harsh result in light of the content and degree of the relevant offense (in the case of the Plaintiff, the amount of illegal receipt is 106,264; (iv) while the subsidies received during the period of restriction on payment are 86,243,510 won; and accordingly, (v) the order to return the fixed amount of illegal receipt to the Plaintiff KRW 811,243,510.

B) In addition, since the provision of this case specifies the initial date of the restriction on payment as "the date on which the application for payment was made" rather than the date on which a sanction was imposed, the illegal recipient shall return retroactively the amount already received before the sanction was imposed. However, if the illegal recipient knew in advance that the payment of training expenses, etc. would be restricted for one year, he could reduce the amount of the order to return by flexibly implementing the training course during the restriction period, and it is not unreasonable to operate the training course. Ultimately, even if the provision of the Enforcement Decree of this case stipulates the restriction on payment as a binding act, it cannot be deemed that the initial date of setting the date of payment or the date of application for payment as the date of receiving training expenses, etc. may reduce the damage suffered by the illegal recipient by prescribing different dates.

C) In addition, Article 1 of the Enforcement Decree of the instant case provides for a mandatory return order with respect to subsidies already paid during the period of one year from the date on which the training expenses were paid or the application for payment was filed, and there is a problem that the status of an illegal recipient is unstable for a long time due to the lack of special restrictions on the period during which the said sanctions may be imposed

D) Therefore, even if the legislative purpose of this case can be more efficiently achieved by stipulating the provision of the Enforcement Decree of this case, which is a disciplinary measure in addition to the additional collection disposition against an illegal recipient, the provision of the Enforcement Decree of this case, which provides for the restriction on payment for one year and the order of return of subsidies paid during the restriction period, without setting detailed standards depending on the attitude of the illegal recipient’s act, was violated by excessively restricting the property rights of the illegal recipient (in response, Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026 of February 8, 2010, which provides for one-year restriction on payment to the illegal recipient, and Article 56(2) of the Enforcement Decree of the Employment Insurance Act, which provides for the restriction on payment for one-year period for which three years have passed from the date of receipt of subsidies or incentives and which is less than three million won and which constitutes one-year restriction on payment under Article 15(1) of the Enforcement Decree of the Employment Insurance Act, which appears to be applicable to one-year restriction on payment or one-year period.

3. Conclusion

Therefore, the part of the Plaintiff’s claim regarding the order to return the term of payment ①, and ② is justified, and the part concerning the return of illegal receipt and the disposition of additional collection is dismissed as it is without merit. It is so decided as per Disposition.

Number of judges of the presiding judge;

Judges Jeong Jae-hee

Judges Yang Jae-chul

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.