(영문) 서울행정법원 2018.11.27. 선고 2017구단78462 판결

On September 4, 2017, the Defendant’s disposition to return the amount of illegal receipt and to additionally collect the amount of money that the Plaintiff received shall be revoked.1)

Reasons

1. Details of the disposition;

A. The Plaintiff, a company running the taxi passenger vehicle transport business, concluded an entrustment contract with B or C Co., Ltd. (hereinafter collectively referred to as “D”), which is a company recognized as an employee’s workplace skill development training course, as follows: (a) vocational ability development training is conducted by means of remote training for employees belonging to the Plaintiff (hereinafter referred to as “instant training”; and (b) when a part of the training is referred to, it is indicated as “the first training, etc.” according to the sequence.

A person shall be appointed.

B. The plaintiff applied for subsidies for training expenses to the Human Resources Development Service of Korea on the premise that the stated number of trainees who completed the above training in the table below (hereinafter referred to as the "training trainees in this case") had completed the training in normal and met the standards for the payment of subsidies for postal remote training, and received subsidies for training expenses in total of KRW 15,268,240 from the above Corporation as follows:

A person shall be appointed.

C. On September 4, 2017, the Defendant restricted subsidies and loans for 360 days (from September 5, 2017 to August 30, 2018) pursuant to Article 55(2) of the former Act on the Development of Workplace Skills of Workers (amended by Act No. 13902, Jan. 27, 2016; hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”) and Article 22 [Attachment Table 6-2] of the Enforcement Rule of the Act on the Development of Workplace Skills of Workers (hereinafter “Enforcement Rule of the Act on the Development of Workplace Skills of Workers”) on the grounds that “the instant trainees did not undergo the instant training and failed to meet the standards for the completion of the training,” and that the Plaintiff applied for subsidies for training expenses to the Human Resources Development Service of Korea.

[Ground of recognition] Facts without dispute, Gap evidence 1 and 2, Gap evidence 3-1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Since the instant trainees were most old, difficulties in learning using computers and preparing answers, D’s employees help some trainees, etc., and all of them completed the instant training course and met the standard of completion, the Plaintiff cannot be deemed to have received training costs by fraud or other improper means.

2) Although some of the trainees of this case received normal training and met the completion standards, the Defendant issued the instant disposition by concluding that all of the trainees of this case did not undergo the instant training normally, the Plaintiff was aware that all of the trainees of this case completed the training normally, paid the full amount of subsidies received from the Human Resources Development Service of Korea to D, thereby making no profit in relation to the instant training, and only the victims of fraud used to D, the instant disposition was unlawful as it deviates from and abused discretion.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) “False or any other unlawful means” under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act means all active and passive acts that may affect the decision-making on subsidization of expenses, in general, with the intention to make sure that a person who is not eligible to receive subsidization of expenses is qualified, or to conceal the fact that he/she is not qualified, through social norms (see, e.g., Supreme Court Decision 2013Du1980, Oct. 30, 2014).

Meanwhile, Article 20(3) of the Vocational Skills Development Act, Article 19(3) of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers (amended by Presidential Decree No. 27393, Jul. 26, 2016); Article 41(4) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 28160, Jun. 27, 2017); Article 60(1) of the Enforcement Rule of the Employment Insurance Act provides for the workplace skill development training support rules (wholly amended by Ordinance of the Ministry of Employment and Labor No. 2015-114, Dec. 31, 2015; hereinafter referred to as the “former provision on the wholly amended provision”; Article 2 subparag. 10 of the former Enforcement Decree of the Act on the Development of Workplace Skills of Workers; Article 10(1) of the former Enforcement Decree on the Promotion of Vocational Skills of Workers; Article 10(2) of the former Regulations on the Promotion of Workers’ Training.

Therefore, even if a trainee did not normally undergo vocational skills development training conducted by means of remote training and failed to meet the above standards for completion, a business owner applied for subsidies for training expenses as if the trainee had received normal training and satisfied the standards for completion of training and received subsidies. Therefore, even if a business owner did not know the above circumstances, it constitutes “the case where a business owner received subsidies by fraudulent or other illegal means” under Articles 55(2)1 and 56(2) and (3) of the Vocational Skills Development Act (see the purport of the above Decision 2013Du1980, supra).

B) In light of the following facts and circumstances that can be acknowledged in the instant case by adding the purpose of the entire pleadings to each of the statements in evidence Nos. 6 through 9, 11, 12, 27 through 32, the instant trainees are not subject to the instant training, and even though they failed to meet the completion standards, they can be sufficiently recognized that the Plaintiff applied for the subsidization of training costs and received the payment of training costs as if they meet the completion standards, and there is no counter-proof to this point. The Plaintiff’s assertion disputing this is without merit.

On January 5, 2018, the prosecutor of the Seoul Central District Prosecutors' Office prosecuted E, F, and G as a crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in the Seoul Central District Court on the charge that "the trainee acquired the total amount of KRW 1,788,460,905, etc. from the Republic of Korea by creating the appearance that the trainee satisfied the completion standards of the postal source training course by driving the proxy lottery," while visiting the place of a gold transportation business entity as an employee of D without providing training teaching materials to trainees, and allowing trainees to conduct the training course with personal information by visiting the place of a gold transportation business entity by using the personal information of trainees, and then making the trainee conduct the training course by proxy," which is the representative of D, includes the total amount of KRW 15,268,240,00 paid to the plaintiff.

In the instant case, the Defendants led to the confession of all the facts charged, and the said court found the Defendants guilty on April 6, 2018, sentenced E to four years of imprisonment, F, and G with prison labor for each of the four years, F, and G, and three years of suspended execution. The part related to the instant disposition is No. 141, 182, out of the list of crimes No. 12 (written judgment). The OD employees visited the company that entrusted workplace skill development training to D under the direction of E, etc. at the Seoul Western District Office of Labor and Labor, Seoul District Office, and the investigative agency, and provided that “the date on which trainees’ teaching materials were received” was stated to the effect that they visited the company that entrusted workplace skill development training to D with the personal information of trainees.

As a result of the analysis of the learning management system for the training of this case, there are many records of less than 10 minutes for one trainee after one trainee study, and the duration required for Jindo learning was ordinarily short as average 18 seconds, average 20 seconds, average 42 seconds of education No. 1, and it was found that there are many kinds of results of continuous study and evaluation in a specific time period during the training period of 2 months.

2) Whether the discretion is deviates or abused

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant disposition, by objectively examining the content of the offense as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances. In this case, even if the criteria for a punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed in the administrative agency’s internal rules for handling affairs, and it is externally binding upon citizens or courts. Therefore, the legality of the relevant disposition should be determined not only by the above criteria for disposition but also by the provisions and purport of the relevant Acts and subordinate statutes. Therefore, the relevant disposition cannot be immediately deemed legitimate, unless the said criteria are consistent with the Constitution or laws, or unless there are reasonable grounds to believe that the result of the application of the said criteria is considerably unreasonable in light of the content of the offense as the grounds for disposition and the relevant Acts and subordinate statutes and the purport thereof, it should not be readily determined that the disposition in accordance with such criteria has exceeded the discretion or abused discretion (see, etc.

B) In light of the following circumstances, it cannot be deemed that the instant disposition was a deviation or abuse of discretionary power, in light of the health team, the facts and circumstances acknowledged earlier, and the purport of the entire pleadings. The Plaintiff’s assertion on this part is without merit.

The Act on the Development of Vocational Skills stipulates that employers shall conduct workplace skill development training for workers, participate in workplace skill development training for workers, and make efforts to create conditions for workplace skill development training by appointing workers in charge of workplace skill development training (Article 4(2)). Accordingly, the Minister of Employment and Labor may provide workers who conduct workplace skill development training (including the case of conducting workplace skill development training on commission) with subsidies or loans for expenses incurred in the business (Article 20(1)1). The workplace skill development training for workers is basically a business owner, and is also a business owner eligible for subsidies. However, the training entrusted is recognized as one of the methods of workplace skill development training. As such, the Plaintiff was responsible for self-verification of whether the instant trainees completed the standards for receiving subsidies and subsidies before applying for subsidies. Furthermore, since the instant training was conducted for workers belonging to the Plaintiff’s workplace, the Plaintiff’s training was conducted at least for workers, and thus, the Plaintiff could not easily be aware that the instant training was conducted through regular observation of the instant training course or directly verification of its employees.

① Although the Plaintiff asserted that part of the instant trainees did not undergo the instant training in a normal condition even though they completed the training course in a normal condition, the Plaintiff did not specify the trainees who completed the instant training course in a normal way or submit objective data on them. However, as seen earlier, the instant training course appears to have been conducted in an overall and unfair manner. In other words, the Plaintiff did not specify the trainees who completed the instant training course in a normal way or submit objective data on them.

The purpose of workplace skill development training is to contribute to the development of society and economy by facilitating and supporting workplace skill development through the life of workers. The act of receiving workplace skill development training subsidies by fraud or other improper means is to contribute to the stabilization of employment of workers and the improvement of their social and economic status, the improvement of their productivity, and the realization of a competent-centered society. Since the act of receiving workplace skill development training subsidies by fraud or other improper means causes the insolvency of the employment insurance fund and may inflict damage on the insurance policyholders who paid the employment insurance premium in good

○○ Operation of the workplace skill development training support system in a fair and transparent manner, thereby promoting the employment stability of workers, improvement of social and economic status, and establishment of the Employment Insurance Fund, shall not be deemed to be less than the Plaintiff’s private interest restricted by the instant disposition.

○ The instant disposition conforms to the disposition standards prescribed by Articles 55(2) and 56(2) and (3) of the Vocational Skills Development Act, and Article 22(1)2 of the Enforcement Rule of the Vocational Skills Development Act. The said disposition standards do not conform with the Constitution or laws, or as a result of the application of the said standards does not seem to be remarkably unreasonable in light of the content of the Plaintiff’s act and the purport of the relevant statutes.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Kim Gin-young

Note tin

1) The Plaintiff sought the revocation of the first 360-day subsidy and the loan restriction disposition. However, at the fifth date for pleading, the Plaintiff withdrawn the claim for the corresponding portion.