(영문) 서울남부지방법원 2020.3.26. 선고 2019나54816 판결

1. Of the judgment of the court of first instance, the part against the defendant ordering payment in excess of the following amount, is revoked and the plaintiff's claim corresponding to the revoked part is dismissed.

The defendant shall pay to the plaintiff 32,711,163 won with 15% interest per annum from March 1, 2019 to the day of complete payment.

2. The defendant's remaining appeal is dismissed.

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

Purport of claim and appeal

1. Purport of claim

The defendant jointly with the non-party B and paid to the plaintiff 90,200,000 won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment. The claim against the non-party B (hereinafter only referred to as the "B organization of the first instance trial") was confirmed and concluded by the court of first instance as of December 27, 2018.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Basic facts

A. On October 6, 2016, the Defendant was sentenced to a suspended sentence of three years for one year and six months from the Incheon District Court to imprisonment with labor for fraud and attempted fraud (No. 2016Sang3762), and the above judgment became final and conclusive around that time.

The defendant is a person who operates a brain-frequency equipment development company in the trade name of "L" in the Daegu-gu J building K (L). A person who intends to conduct workplace skill development training for which workers may receive subsidies or loans for training costs shall obtain recognition from the Minister of Employment and Labor for the workplace skill development training course, and a person eligible to receive subsidies for workplace skill development training shall be an insured worker who falls under each subparagraph of Article 43 (1) of the Enforcement Decree of the Employment Insurance Act, and a daily worker shall have worked for at least 10 days within 90 days. The defendant is divided into two (B) organizations and two (8) organizations within the Geumcheon-gu Seoul Metropolitan Government M building N which are recognized by the Minister of Employment and Labor for the workplace skill development training course, and the defendant concluded a contract to take exclusive charge of the workplace skill development training course, and then, the defendant would request a person who is not eligible to receive subsidies for workplace skill development training costs from the Minister of Employment and Labor as daily workers and receive training costs after receiving them from the Incheon Employment Insurance Association for at least 10 days. The defendant was a daily worker who worked in the above Association.

After joining the two organizations, the victim Republic of Korea (Ministry of Employment and Labor) registered as trainees in the computer network for vocational ability training (hhd.go.go.kr) of the victim Republic of Korea (the Ministry of Employment and Labor) through the organization B, and pretended to apply for vocational ability development training costs as normal ones.However, the fact was that G registered as trainees was not eligible for training costs from the victim Republic of Korea (Ministry of Employment and Labor) due to the lack of work experience in the company I, and that the defendant was not eligible for training costs.On July 14, 2014, the defendant received 60,000 won from the victim of G (the Ministry of Employment and Labor), as subsidies for training costs, from July 14, 2014 to December 9 of the same year, from 321, to 157,90,000,000 won for total amount of training costs paid to the victim who was not eligible for vocational skills development training, and from 200,000 won for total amount of training costs.

B. (1) Around 2017, the head of the Seoul Regional Employment Agency (Seoul Regional Employment Agency), whose authority was delegated by the Minister of Employment and Labor, issued an order to refund training subsidies to all trainees included in the instant criminal facts (hereinafter “the first disposition”) pursuant to Article 35(1) of the Employment Insurance Act.

(2) When multiple administrative appeals have been raised after the first disposition and the public opinion was formed that it is unreasonable to take measures to recover trainees en bloc, the Seoul Regional Employment and Labor Agency (Seoul Regional Employment and Labor Agency) conducted a reinvestigation on the relevant part of the instant criminal facts to 101 trainees who purchased employment insurance through P (hereinafter “relevant trainees”) among the instant criminal facts from November 9, 2017 to December 22, 2017, and determined that the relevant trainees were not aware of the fact of illegality.

(3) On January 17, 2018, the head of the Seoul Regional Employment and Labor Agency revoked the part of the instant training trainee (the total amount of subsidies KRW 90,200,00,00; hereinafter referred to as “the instant illegal receipt”) among the first disposition (hereinafter referred to as “the second disposition”), and the total amount of the refund already paid by 26 trainees related to the instant case (hereinafter referred to as “the instant refund”) was returned to the relevant trainee, respectively.

C. Meanwhile, on the other hand, the court of first instance rendered a ruling of recommending reconciliation that “B organization shall pay KRW 70,203,336 to the Plaintiff by February 28, 2019,” and the said ruling became final and conclusive on January 12, 2019, and the B organization paid KRW 70,203,330 to the Plaintiff on February 28, 2019, according to the said ruling.

[Ground of recognition] Facts without dispute, Gap evidence 1, 12, and 13; the purport of the whole pleadings

2. Judgment on the ground of the Plaintiff’s claim

A. According to the above facts, the defendant, in collusion with B, shall be deemed to have caused damages to the plaintiff by deceiving the plaintiff as to the facts of the crime of this case, and thus, the defendant shall be jointly with B to pay the plaintiff the amount equivalent to the amount of the illegal receipt of this case. As such, the defendant shall be jointly with the above 90,200,000 won and the damages for delay calculated at the rate of 15% per annum from March 23, 2018 to the date of delivery of the copy of the complaint of this case as requested by the plaintiff.

B. Meanwhile, the Plaintiff was a person who received KRW 70,203,330 from the B organization on February 28, 2019, and the purpose of the joint tort liability is to satisfy the claim even in the case of the joint tort liability, which is deemed joint tort liability, so one of the joint tort liability has the effect of joint tort liability for all the obligors within the extent of the amount repaid (Supreme Court Decision 81Da298 Decided August 11, 1981), and the above KRW 70,203,30, as long as there is no evidence to deem that the Plaintiff agreed to repay the damages incurred until February 28, 2019 to the specific portion of the tort liability, the said amount is appropriated to the Plaintiff at the rate of KRW 12,714,493 (=90,200,000 x 150,343/365 days x 365 days x 150,381,3781,287.38).

3. Judgment on the defendant's assertion

A. The assertion

① Since the Plaintiff did not properly verify the authenticity of documents submitted by the Defendant and failed to subsidize training costs to trainees who are not legally qualified under the law, the Defendant’s responsibility should be limited. ② The amount equivalent to the refund out of the Plaintiff’s damages shall be deemed to have already been compensated, and the Plaintiff, at least on February 13, 2015, was aware of the fact that the Defendant led to the Defendant’s illegal act in the relevant criminal case, and at least on February 13, 2015, the Plaintiff already terminated the period of three years.

B. Determination

(1) 1 The argument

It is not permissible for a person who intentionally committed an illegal act by taking advantage of the victim’s care to claim a reduction of his/her responsibility on the ground of the victim’s care (see Supreme Court Decision 2005Da32999, Jun. 14, 2007). Thus, even if the Plaintiff was negligent as alleged by the Defendant, it is not allowed to seek a limitation of liability on the ground of the Plaintiff’s negligence, which is the victim, in this case seeking compensation for damages due to the Defendant’s illegal payment of training expenses

The defendant's above assertion is without merit.

(2) 2) Claim

The fact that 26 trainees paid the refund in this case, but the amount equivalent to the refund in the second disposition was returned to the relevant trainee as seen earlier by the Defendant’s second disposition, and as long as the Defendant’s illegal act resulted in the result of having the relevant trainee disburse the amount equivalent to the subsidies for vocational ability development training, it is difficult to view that the causal relationship between the Defendant’s illegal act and the Plaintiff’s losses was severed, on the ground that the Plaintiff cancelled the redemption order for the relevant trainee who was unaware of the illegal receipt of the refund and returned the amount equivalent to the refund in this case that was partially paid. The Defendant’s aforementioned assertion

(3) The assertion

(A) Article 766(1) of the Civil Act, which serves as the starting point for calculating the short-term extinctive prescription for damage liability arising from a tort, refers to the time when the victim, etc., practically and specifically, has recognized the facts requiring the tort, such as the occurrence of damage, the existence of an illegal harmful act, and proximate causal relation between the occurrence of the harmful act and the damage. Whether the victim, etc., was deemed to have actually and specifically recognized the facts requiring the tort should be reasonably acknowledged in consideration of various objective circumstances in individual cases and the situation in which the claim for damages is practically possible (see, e.g., Supreme Court Decision 2013Da53205, Sept. 4, 2014).

(B) According to Gap evidence No. 4, the defendant's investigation on February 13, 2015, stated that "the defendant falsely reported vocational skills development trainees as daily workers" as of February 13, 2015. However, it is reasonable to view that the defendant's investigation on February 13, 2015, stated that "the aforementioned evidence and various circumstances recognized as evidence No. 2-, No. 1, 2, 3, or 11, should be returned to the person who received vocational skills development subsidies by fraud or other improper means, and that the defendant should return the amount of subsidies. The defendant's investigation on February 13, 2015, stated that the relevant trainees were registered as daily workers. However, it is reasonable to view that the plaintiff could not be viewed as being aware that the pertinent trainees were not guilty, and that the plaintiff could not be found as being aware of the supply and demand of the case after re-inspection on November 9, 2017 to December 2, 2017.

4. Conclusion

The plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance is partially unfair with the conclusion, part of the defendant's appeal shall be accepted, and the part against the defendant in excess of the amount ordered by this court among the judgment of the court of first instance shall be revoked, the plaintiff's claim corresponding to the revoked part