2011Guhap1264 Demanding revocation of administrative disposition, etc.

Korea Railroad Corporation

The head of Daejeon Regional Employment and Labor Agency shall be the head of Daejeon Regional Employment and Labor Office

April 12, 2012

May 3, 2012

1. The Defendant’s order of return of KRW 11,441,170 to the Plaintiff on March 31, 201 shall be revoked. 2. The costs of lawsuit shall be borne by the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On February 4, 2008, the Plaintiff received training courses "B (14-07, and 1)" from the head of the Gyeonggi-gu Regional Employment and Labor Agency for the purpose of training of railroad safety experts from the branch office A affiliated with the Plaintiff as a training course [the training method: from February 5, 2008 to February 29, 2008 (1j), from February 12, 2008 to February 25, 2008 (2j), from February 14, 2008 to February 26, 2008, from February 14, 2008 to February 26, 2008 (3j), from May 5 to 40, 2008, and from March 26, 2008 to 3rd of the training course].

B. From February 14, 2008 to February 26, 2008, the Plaintiff conducted the instant training course for 34 employees. On March 17, 2008, the Plaintiff applied Article 14,364,60 won to the Minister of Employment and Labor for the total of the above training course including the instant training course. On March 21, 2008, the Administrator of the Gyeonggi District Employment and Labor Agency notified the Plaintiff of the fact that the training course was conducted abroad for 14,93,298 won for the instant training course and 200 won for 14,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for each of the instant training course.

A person shall be appointed.

E. The Defendant ordered the Plaintiff to return KRW 11,441,170 of training expenses subsidized by the Defendant to the E headquarters affiliated with the Plaintiff during the period of restriction on payment (from March 24, 2008 to March 23, 2009) pursuant to the disposition of restricting the payment set forth in the table Nos. 4 of the said table by the Administrator of the Gyeonggi-do Office for Local Employment and Labor (hereinafter “instant disposition”).

【In the absence of dispute over the grounds for recognition, Gap evidence 1 through Gap evidence 5, Gap evidence 10, Gap evidence 11, Eul evidence 1, Eul evidence 4 through Eul evidence 8, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The inclusion of C in the subject of the application for training costs is due to the administrative mistake of F, which was first in charge of the relevant work at the time, and does not intend to receive training costs by fraud or other improper means, and thus, the instant disposition based on this premise is unlawful.

2) Article 56(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) (hereinafter “Enforcement Decree of the instant case”) which served as the basis of the instant disposition is not only contrary to the purport of delegation under Article 35(1) of the former Employment Insurance Act, a parent corporation, but also contrary to the principle of excessive prohibition under the Constitution and is null and void. Thus, the instant disposition based thereon is unlawful.

3) Even if the Plaintiff’s act constitutes a case where the Plaintiff’s act was subsidized with training costs by fraud or other improper means, and the provision of the Enforcement Decree of the instant case is valid, the other party to the disposition should be limited to individual branch offices that committed the act based on

4) Considering that the Plaintiff’s act of violation was due to administrative mistake and its degree is very minor, the instant disposition was in violation of law that deviates from and abused discretion by excessively harshing the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The instant training course is conducted by the Plaintiff’s branch office A, the business owner of the Plaintiff, and the duties, such as the establishment of training plans and the application for support for training expenses, etc., of the said branch office F, was in charge of the personnel labor team of the said branch office, and F, while taking charge of the duties related to the occupational ability development, including the instant training course, from January 14, 2008, was in charge of the occupational ability development training, including the instant training course.

2) A, included in the list of trainees of the instant training course, has been employed as a annual paid leave from February 15, 2008 to February 26, 2008 for foreign travel. Of the trainees of the instant training course, C was a trainee of the instant training course.

On February 14, 2008, Feb. 15, 2008, Feb. 2008, Feb. 20, 2008, Feb. 21, 2008, and Feb. 21, 2008, G substituted the signature of C in the attendance book as if C had been present for 4 days (G was not asked by C, but it was stated that C was present at the attendance and was signed by him/her on the part of his/her business relationship and was inside of his/her business relationship).

3) The number of trainees of the training courses B (14-07 and 1), including the instant training courses, was 102, and four persons present for less than five days, including C, were treated as “unclaimed injury” or “unclaimed injury.”

4) After the completion of the instant training course, F entered 9 trainees (not including three remaining trainees, other than C), including trainees C, into the vocational skills development information network (HRD-Net) and submitted an application for subsidies for vocational skills development subsidies to the head of the Gyeonggi-gu Regional Employment and Labor Agency for the aforementioned 9 persons.

5) Meanwhile, C was present and completed at the second class B training course conducted from March 25, 2008 to April 18, 2008, and completed it for 5 days. The ground for recognition is without any dispute, Gap evidence 4 to Gap evidence 13, Gap evidence 17, Gap evidence 19, Gap evidence 21 to Gap evidence 24, Eul evidence 1, Eul evidence 2, Eul evidence 4, Eul evidence 5, Eul evidence 7, the purport of the whole pleadings, and the purport of the whole pleadings.

D. Determination

1) Whether training costs have been subsidized by false or other unlawful means

A) Sanction against violation of administrative laws is a sanction against the objective fact of violation of administrative laws in order to achieve administrative purposes. Inasmuch as a sanction is imposed upon the violator’s failure to perform his/her duties, barring any special circumstance, such as where there are justifiable grounds not to cause any negligence, etc., it may be imposed even if the violator is not intentional or negligent. The term “false or other unlawful means” which can be punished under the former Employment Insurance Act, which applies to the instant disposition, means any and all unlawful acts conducted by an unqualified business owner in order to conceal the eligibility for payment or non-qualified eligibility for payment, which may affect the decision-making on the payment of vocational skills development training costs (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

B) As to the instant case, the following circumstances, which can be acknowledged by comprehensively considering the purport of the entire argument, are as follows: ① the attendance management is very important and essential in the vocational skills development training course; the Plaintiff was obligated to finally verify whether a trainee was actually present and trained before applying for the instant training course; ② the trainee of the instant training course is merely 34, so it is difficult to manage the withdrawal of the trainee; ③ C was using annual paid leave during the instant training course; thus, it is impossible to normally attend the instant training course without confirming the attendance of C; ④ The Plaintiff’s assertion that the Minister of Labor and Labor as the head of the Jungbu District Office did not have any justifiable reason to deem that the Plaintiff had any justifiable reason to apply for the training expenses; ④ the Plaintiff’s act of paying the training expenses in advance did not have any influence on the Plaintiff’s decision-making of the instant training course. As such, the Plaintiff’s assertion that the Plaintiff did not have been aware of the aforementioned portion of the training course.

2) Whether the provisions of the Enforcement Decree of the instant case are invalid

A) In light of the content, form, system, etc. of the provision of Article 35(1) of the former Employment Insurance Act and the Enforcement Decree of the instant case, a disposition ordering the establishment of the period of restriction on vocational skills development training expenses and the return of subsidies, etc. paid during the period of restriction on subsidies constitutes a binding act. However, it is problematic whether the enforcement decree of the instant case does not violate the purpose of delegation of the mother law or the principle of prohibition of excessive restriction under the Constitution, which provides that a person who received, or attempted to receive, vocational skills development training expenses, etc. by fraudulent or other unlawful means (hereinafter referred to as “unlawful recipients”) shall be obliged to return subsidies, etc. paid during the period of restriction on payment, without granting subsidies, etc. for one

B) First, we examine whether the enforcement decree of this case has determined the restriction on subsidization of vocational skills development training costs and the refund of subsidies, etc. accordingly beyond the purport of delegation under Article 35(1) of the former Employment Insurance Act.

(1) Even if Article 35(1) of the former Employment Insurance Act does not explicitly specify the scope of delegation to Presidential Decree, it is reasonable to view that the scope or limitation of inherent delegation by the legislative purport, purpose, etc. of the above provision can be sufficiently recognized (see, e.g., Supreme Court Decisions 95Nu11405, Apr. 9, 196; 96Nu6578, Jul. 22, 1997). In light of the fact that various types of violations are likely to occur in light of the nature of various kinds of subsidy granted under the former Employment Insurance Act, and the form, legislative purpose, etc. of the above provision, the purport of delegation under Article 35(1) of the former Employment Insurance Act is to reasonably subdivide the criteria for the return of subsidy or subsidy according to the type, degree, motive, and seriousness of the outcome thereof, and to allow the competent administrative agency to increase or decrease the scope of delegation within a certain scope, regardless of the degree of statutory restriction or restriction of payment, etc., as stated in the above provision.

(2) In addition, Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22026, Feb. 8, 2010 provides for restrictions on the payment of subsidies, etc. for one-year period to illegal recipients: Provided, That the same shall not apply to cases where three years have passed since the date of receipt of subsidies or incentives, and where fraudulent acts have been discovered as an amount less than three million won for the first time, the restriction on the payment for one-year period shall not apply to those cases where fraudulent acts have been discovered. Article 56(2) of the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22603, Dec. 31, 2010; Article 35(1) of the same Enforcement Decree of the Employment Insurance Act, which was currently in force, could be considered as a result of the revision of the Enforcement Decree of the Employment Insurance Act within the scope of one-year period from the date of return order or payment restriction under paragraph (1).

(3) Therefore, the instant provision is unlawful as it deviates from the purport of delegation under Article 35(1) of the former Employment Insurance Act, a mother corporation.

C) Next, the legislative purpose of this case is justifiable in light of the fact that the provision of the Enforcement Decree of this case is aimed at preventing fraudulent acts related to the payment of subsidies, etc. through restrictions on payment of subsidies, etc. for one year to illegal recipients and orders to return subsidies, etc. paid during the period of restriction on payment, etc., and ultimately preventing unemployment, promoting employment, and promoting the development and improvement of workers’ vocational abilities, and that subsidies, etc. are carried out by the limited public resources of the Employment Insurance Fund under the Employment Insurance Act. Furthermore, it appears that fraudulent acts related to the payment of subsidies, etc. are to be reduced through punitive sanctions under the Enforcement Decree of this case, and accordingly, the Employment Insurance Fund will be further cut down. Accordingly, the provision of this case can be deemed as a means suitable for accomplishing the legislative purpose. However, in light of the various circumstances seen below, the content of the provision of this case is excessively infringing on the property rights of the other illegal recipients who lack the requirements of "minimum damage" or "a balance of legal interests" under the Enforcement Decree of this case.

(1) 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 from a punitive point of view. Accordingly, Article 25(4)1 of the former Act on the Development of Workplace Skills of Workers, Article 22-2 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 21398, Mar. 31, 2009); Article 9(1) of the former Enforcement Rule of the Act on the Development of Workplace Skills of Workers (amended by Ordinance of the Ministry of Labor No. 320, Apr. 1, 2009) provides that the amount to be additionally collected shall be calculated based on the number of times requested for expenses by false or other unlawful means for the past five years, separately from the aforesaid additional collection disposition. The provision of the Enforcement Decree of the instant case provides that if subsidies were paid during the period of restriction on payment, etc., the Plaintiff and the Defendant shall be obliged to return the amount of subsidies for one year more than the aforementioned provision of restriction on payment.

(2) In addition, the provision of the Enforcement Decree of this case provides that the initial date of the restriction on payment shall be the date on which the application for the payment was made, rather than the date on which the application was made for the restriction on payment, and thus the illegal recipient shall return the subsidy already received prior to the restriction on payment. However, if the illegal recipient becomes aware of the fact that the payment of the subsidy would be restricted for one year, he may flexibly conduct workplace skill development projects during the restriction period and reduce losses, and it cannot be deemed unfair to operate workplace skill development projects. Thus, even if the provision of the Enforcement Decree of this case stipulates the restriction on payment as binding act, the initial date shall be determined as the date of payment or payment application for training expenses, etc., and it cannot be deemed that the "minimum damage" principle is observed in light of the fact that the damage suffered by the illegal recipient could be minimized by prescribing different dates

(3) In addition, the instant enforcement decree also provides for a mandatory payment restriction and an order to return subsidies, etc. paid during the period of restriction on payment for one year from the date on which the person received or applied for the payment of subsidies, etc., but it does not impose any special restrictions on the period during which the said sanctions may be imposed, resulting in a problem that the status of an

(4) As seen earlier, Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) or Article 56(2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) which was currently in force can be deemed as a result of reflecting the content and degree of the violation and the return of subsidies, etc. accordingly.

D) Ultimately, the instant disposition based on the provision of the Enforcement Decree of the instant case, which is contrary to the purport of delegation of the parent law or null and void because it violates the principle of excessive prohibition under the Constitution, ought to be revoked as it is unlawful without any need to further determine the remainder of the Plaintiff’

3. Conclusion

Therefore, the claim of this case is justified, and it is so decided as per Disposition.

Chief Judge of the Supreme Court

Judges Lee Jae-min

Judge Lee Young-soo

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.