Attorney Cho Young-hee, Counsel for the defendant-appellant

2. The costs of appeal shall be borne by the Defendant.

On December 18, 2018, the Defendant’s disposition of ordering the Plaintiff to return subsidies is revoked. 2. The purport of the appeal is revoked.

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

A. The plaintiff is a provider of coastal cargo transportation under the Marine Transportation Act, and the defendant is the head of an agency affiliated with the Ministry of Oceans and Fisheries.

B. On February 28, 2018, the chief of the Kunsan Coast Guard notified the head of the Kunsan Coast Guard of the investigation results on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the stock company B (hereinafter referred to as “B”), among which, “B purchased oil equivalent to KRW 5,616,585,910 from January 4, 2016 to October 30, 2017, without issuing a tax invoice, for which the source is unclear, and then sold the said oil to the Plaintiff from February 23, 2016 to October 14, 2017.

C. On December 27, 2018, the prosecutor of the Busan District Prosecutors' Office prosecuted the Defendant, including the Plaintiff, who was the representative director C and the actual operator D, for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes by deceiving the Plaintiff, as if they were oil purchased in normal course without material, and selling it according to the oil price at the time (1,759,50 liter for the Plaintiff) and by deceiving the price (1,403,480,000 won for the sales of the Plaintiff):

D. On December 18, 2018, the Defendant issued a disposition ordering the Plaintiff to offset the amount of KRW 175,404,590 for the following reasons by KRW 98,478,90 for the first quarter of 2018, and to return KRW 76,925,690 for the unpaid amount of KRW 199,203,810 (the calculation of interest after excluding the unpaid amount of KRW 23,90,540 for the disposition) (hereinafter referred to as “instant disposition”).

○ 처분사유▶ 처분의 원인이 되는 사실원고가 2016, 11. 30, | 2017. 11. 12. B와 거래한 경유를 사용한 후, 2016년도 4분기및 2017년도 2, 3, 4분기에 신청한 유류세보조금은 무자료 유류에 대한 것으로 확인됨▶ 처분의 법적 근거- 해운법 제41조의2 제2항보조금 관리에 관한 법률(이하 '보조금법'이라 한다) 제31조 제1항내항화물운송사업자 유류세보조금 지급지침(이하 ‘지급지침'이라 한다) 제11조 제2항

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 10 evidence, Eul evidence 1, and the purport of whole pleadings

A. Summary of the plaintiff's assertion

1) Article 41-2 of the Marine Transportation Act is a coastal cargo transport business that receives a subsidy by fraud or other improper means.

The Minister of Oceans and Fisheries shall order the person to return the subsidy. However, under the provisions on delegation and entrustment of the Marine Transportation Act and administrative authority, the Minister of Oceans and Fisheries does not delegate the authority to dispose of the subsidy to the defendant, and Articles 30 and 31 of the Subsidy Act also stipulate that the head of a central government agency shall order the person to return the subsidy and the interest accrued therefrom if the subsidized operator received the subsidy by a false application or by any other unlawful means. However, as the Minister of Oceans and Fisheries, who is the head of a central government agency, delegated the authority to issue a return order to the defendant, the defendant cannot be deemed to have been delegated the authority to dispose of the subsidy. Accordingly, the disposition

2) The Plaintiff did not know not only that the Plaintiff purchased the oil while paying a normal amount after obtaining confirmation on the quality or source of the oil at each time of purchasing the oil from B, but also that the Plaintiff was not aware of “B’s sale of oil without material, such as receiving a tax credit and a delivery from B after the transaction.”

As the Plaintiff did not receive the subsidy by fraud or other improper means, there is no ground for the instant disposition.

(b) Related statutes;

[Attachment] The entry in the relevant statutes is as follows.

C. Determination

1) As to the assertion that there is no disposition authority

A) Delegation of administrative authority is recognized as a matter of course, since an administrative authority transfers a specific authority to another administrative authority in accordance with a law to exercise the authority of the delegated authority, and thus, it alters the legal attribution of authority (see, e.g., Supreme Court Decision 94Nu6475, Nov. 28, 1995). However, delegation of authority under a law does not necessarily require the specific specification of the corresponding provision of a superior law, which serves as the basis for delegation under an individual provision of a subordinate statute (see, e.g., Supreme Court Decision 9Du5658, Dec. 24, 199).

B) Although the Marine Transportation Act provides that “the Minister of Maritime Affairs and Fisheries shall order an ocean-going cargo transport business operator who has received the oil tax subsidy by fraud or other improper means to return the oil tax subsidy, the Minister shall recover the subsidy, loan, and oil tax subsidy in the same manner as delinquent national taxes are collected” (Article 41-2(2)), the Minister does not have a separate provision that delegates the authority to issue an order to return the oil tax subsidy to the Defendant.

C) Meanwhile, except as otherwise expressly provided for in other Acts, matters such as the compilation and implementation of subsidies shall be governed by the Subsidy Act (Article 3 of the Subsidy Act). The term “subsidies” refers to subsidies, etc. granted by the State to provide financial assistance to affairs or projects performed by persons other than the State (Article 2 subparag. 1 of the Subsidy Act). However, the term “oil tax subsidy” is a subsidy that the State provides the State with the whole or part of an amount equivalent to the increased amount of tax imposed on oil used by ships of coastal cargo transport business operators in order to promote energy and resources-related projects (Article 2 of the Subsidy Act), and the oil tax subsidy constitutes subsidies under the Subsidy Act, and the Act also applies to the management thereof as a general law. Article 17 subparag. 1 of the Subsidy Act provides that the head of the central government agency or the head of the local government agency to which he/she belongs may delegate part of his/her affairs concerning the grant and management of subsidies (Article 38). The head of the central government agency so delegated shall be delegated to the head of the central government agency or local government (Article 17 subparag.17).

E) However, the Guidelines for Payment, published by the Ministry of Oceans and Fisheries, takes charge of the payment affairs of the oil tax subsidy by the chief of a regional maritime affairs and fisheries office (hereinafter referred to as the “chief of a regional office”) and includes it in the revenue and expenditure budget of the relevant regional office of maritime affairs and fisheries (hereinafter referred to as the “local office”) (Article 3), a person who intends to receive the oil tax subsidy shall request the chief of the regional office to pay the oil tax subsidy (Article 8(2) and (3). If the head of the regional office finds that there is no error as a result of the examination of the details of the claim for the payment of the oil tax subsidy, he/she shall complete the payment of the oil tax subsidy by unlawful means (Article 9(3) and the head of the regional office shall take measures to recover the oil tax subsidy paid in relation to the relevant main contents (Article 11(2)), and specifically prescribes the authority of the chief of the regional office with respect to the receipt of the application for the subsidy, decision to grant the subsidy, and disposition on the refund of the subsidy.

F) If so, the payment guidelines do not directly state the criteria, procedures, and methods for the provision of oil tax subsidies to coastal cargo transportation business operators in accordance with Article 41 of the 'Maritime Transportation Act' and subordinate statutes (manufacturing). However, considering the nature of the subsidy law applied as a general law with respect to oil tax subsidies and the system of the subsidy law and the payment guidelines, the defendant, who is the head of the local office, was delegated the authority to perform the affairs concerning oil tax subsidies under the Maritime Transportation Act, which is based on the above statutes and the payment guidelines of the 'Maritime Transportation Act'.

G) Accordingly, we cannot accept the Plaintiff’s assertion that the Defendant did not have the right to dispose of the instant case.

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

A) In the administrative litigation to which the provisions of the Civil Procedure Act apply, in principle, the burden of proof is allocated among the parties in accordance with the general principles of civil procedure and in the case of appeal litigation

The Defendant, who asserts the lawfulness of the pertinent disposition, has the burden of proving the legitimate cause (see, e.g., Supreme Court Decision 84Nu124, Jul. 24, 1984).

B) In light of the following circumstances, i.e., ① the Plaintiff’s purchase of the instant oil from B, paid the “amount equivalent to the market price” at the time of purchase, and received a tax invoice therefor; ② the Plaintiff was not prosecuted or punished for committing the crime of aiding and abetting and abetting the said Defendants in connection with the oil transaction criminal cases against B and D, and rather, the Plaintiff was identified as the victim of the crime in the indictment and the written judgment (the Busan District Court Decision 2018Da582). ③ The Defendant did not specifically assert and prove the Plaintiff’s receipt of the instant oil subsidy by using the “any false or unlawful means,” and there is insufficient evidence to acknowledge that the Plaintiff received the instant oil subsidy by false or unlawful means.

C) Therefore, the instant disposition is unlawful because there is no ground for the disposition.

3. Conclusion

Thus, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed.

Judges Yang Young-hee

Judge Park Jong-hoon

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.