(영문) 서울고등법원 2010.7.21. 선고 2010누3253 판결

A. On January 31, 2008, under Article 7 of the Support for Non-Profit Non-Governmental Organizations Act, the Defendant publicly announced the implementation of projects to promote public interest activities of non-profit non-profit organizations (hereinafter “public works”), including the type of public works, the criteria for selecting support projects, the payment of subsidies, etc., and specified at the end of the criteria for selection “the restriction on support to organizations participating in illegal violence assemblies or demonstrations” (hereinafter “special selection criteria”) as “the continuous project (referring to the project promoted by stages over three years; the project shall not be implemented repeatedly each year; and the project shall not be implemented repeatedly) by the end of the relevant year; however, if the results of each comprehensive evaluation below the average score, the Defendant additionally stated the phrase “the suspension of subsidy” (hereinafter “other matters”).

B. The Plaintiff is an incorporated association established for the purpose of developing policies on female workers and securing the rights and interests of female workers. To receive subsidies from the Defendant, the Plaintiff submitted a business plan regarding the business to the purport that the Defendant may form a social consensus on the reality of female workers (hereinafter “instant business”). On May 1, 2008, the Defendant continued to select the instant business as a support project for non-profit, non-profit, non-governmental organizations in 2008.

C. On January 30, 2009, the Defendant specified the special selection criteria while publicly announcing the implementation of public works again. On February 17, 2009, the Defendant was notified by the Commissioner General of the National Police Agency that the Plaintiff was taking the lead in the demonstration against the import of U.S. beef and beef products in relation to the "Conditions for Import Sanitary Requirements for U.S. Beef Products" publicly notified on June 26, 2008 by the Minister for Food, Agriculture, Forestry and Fisheries to the National Countermeasures Council against the Import of U.S. Beef Products, or the organization participating in the so-called U.S. U.S. U.S. U.S. Committee for Countermeasures against Mad Cow Disease, and excluded the instant project from the subsidization (hereinafter referred to as the "the instant disposition").

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 6 (including each number), Eul evidence 1, Eul evidence 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserts that the instant disposition is unlawful on the following grounds.

1) As long as the Defendant has selected the instant project as a continuing support project, the subsidies shall be continuously granted until the completion year of the project, and no such subsidies may be suspended without any grounds. The instant disposition constitutes the withdrawal of so-called beneficial administrative acts, and thus ought to be subject to prior notice of disposition and hearing of opinions as prescribed in Articles 21 and 22 of the Administrative Procedures Act, but did not comply with such legal procedures.

2) After the project was selected as a continuous support project, there was no person punished as a violation of the Assembly and Demonstration Act among the Plaintiff’s members, and even if the Plaintiff did not participate in an unlawful violence assembly or demonstration, or did not have a civil or criminal liability, the Defendant erred by mistake of facts in determining the Plaintiff as an organization participating in an unlawful, violent assembly or demonstration based on the special selection criteria, and the instant disposition based only on the special selection criteria runs counter to the principles of democratic state under the Constitution or the principles of a rule of law.

3) As the Defendant continuously selected the instant business as a support project, the Plaintiff believed it without gross negligence and set the business plan and budget in 2009. Thus, the instant disposition goes against the principle of trust protection.

4) The criteria for special selection presented by the Defendant are irrelevant to the administrative actions, such as support for public works under the Assistance for Non-Profit, Non-Governmental Organizations Act, which is a basis law, and accordingly, it goes against the principle of prohibition of unfair decision-making.

B. Relevant statutes

It is as shown in the attached Form.

1) The provisions pertaining to the instant project in the public notice on January 1, 2008 for support for the Defendant’s public works in 2008 are as follows.

2. Types of support projects (seven types of nationwide projects);

(1) Social integration and peace (e.g., cultivation of community consciousness, settlement of conflicts, peace movement, etc.)

* An application for the division of the project in the single year and the Continuing (C) project among the seven types of projects shall not be filed with the same project for a single year and the Continuing (C) project.

* Project means a project that is promoted by phase over three years, and that continues (C) to not fall under a project that is implemented repeatedly each year, shall be selected inside and outside seven projects (based on one project by type).

3. Project implementation period: May to December 2008 (within the period from May 2008 to December 2012 for multi-year projects);

7. Review and notification;

○ Selection Criteria: Responsibility and expertise, recent results of public interest activities, development feasibility, originality of projects, efficiency and feasibility of projects, feasibility of projects, ripple effects, feasibility of application budget details, appropriateness of application budget details, appropriateness of self-responsibility ratio, evaluation results of the previous year.

* Restrictions on assistance to organizations participating in illegal violence assemblies or demonstrations

8. Granting subsidies in the case of a project selected for the payment of subsidies, the evaluation of the project, and the settlement of accounts (in the case of a project continuing to exist, subsidies shall be granted in installments 1 and 2 lanes

○ Submission of business performance and settlement reports at the time of completion of the project

9.Crat;

For a project selected as a continuing (c) project, continuous support shall be provided by the end of the project until the end of the project, and where the results of the comprehensive evaluation are assessed below the average score, suspension of subsidies shall

2) On May 1, 2008, the Defendant announced the results of the selection of the public works in 2008, and among them, selected 17 projects of single year, 20 projects of continuing (c) year, 3 projects of continuing (c) year, and allocated 20,000,000 won as the project cost of the year 208 for the instant projects selected as the project.

3) The provisions corresponding to the special selection criteria and other matters in the notice of January 30, 2009 for supporting the Defendant’s public works in 2009 are as follows:

5. Standards for examination and examination results of project selection;

* Projects submitted by an organization participating in illegal violent assemblies or demonstrations subject to the exclusion from subsidies

8. Other matters.

0 Continued 07 to 08 (for a project selected as a multi-year project, continuous support shall be provided until the year of the completion of the project, and where the results of the comprehensive evaluation are evaluated below the average score, suspension of

4) In light of Paragraph (4) of the National Assembly Budget and Accounts Committee’s “5. Incidental Opinion”, the Government states that “The Government shall restrict the subsidization of subsidies to an organization that is actively participating in, or actively participating in, an illegal demonstration in the name of the organization to which it belongs and punished due to a violation of the Assembly and Demonstration Act,” and on the other hand, the Ministry of Strategy and Finance’s budget review guidelines and fund management plan execution guidelines in 2009 are as follows.

15. Private organization subsidy projects;

1. Scope of application: Subsidies granted to non-governmental organizations to help the State create or provide financial assistance with respect to affairs or projects conducted by persons other than the State under the Act on the Budgeting and Management of Subsidies;

2. Detailed guidelines;

(a)The head of a central government agency shall restrict subsidization in the following cases:

An organization that hosts, leads, or actively participates in an illegal demonstration under the name of the organization to which he/she belongs and is punished by a violation of the Assembly and Demonstration Act, etc.

(b) The head of a central government agency shall specify the conditions for granting subsidies that all or part of the decision to grant subsidies may be revoked in cases of violations of the following:

* The same applies to cases where the head of a local government provides a non-governmental organization with a national budget and supports a non-governmental organization with the restriction on subsidies and the revocation of the decision to grant subsidies for the illegal demonstration

[Reasons for Recognition] Facts without dispute, the evidence mentioned above and Eul evidence Nos. 5 and 6, and the purport of the whole pleadings

D. Determination

1) Character of the instant disposition

In full view of the above facts and arguments, it is reasonable to view that the Defendant’s selection as the support project continuing the instant business constitutes a beneficial administrative act that grants the Plaintiff the right to receive subsidies by the end of the project year, and that the instant disposition constitutes the suspension of the payment of subsidies to be continuously supported, i.e., the revocation of the decision to grant subsidies, which is part of the revocation of the beneficial administrative act

A) The Plaintiff specified the instant project as continuing project and specified detailed business details and budget execution plan to be promoted for a period of three years at the same time in the original business plan submitted to the Defendant. This is deemed to be the purpose of applying en bloc for subsidies necessary for the promotion of continuing project, and it cannot be deemed that the Plaintiff applied for support only for the amount of 2008 years.

B) The Defendant also stated that he would continuously support the continuing project through the implementation announcement until the completion year, and that the instant project was selected as the continuing support project according to the Plaintiff’s above request, and thus, it shall be deemed that the decision to grant subsidies was made on the entire project of the instant case promoted for three years. The Defendant’s selection of the instant project as the “non-profit private organization continuing support project in 2008” cannot be deemed to have made a decision to grant subsidies only for the portion corresponding to the pertinent fiscal year in 2008.

C) The Defendant’s additional contents in the above implementation announcement, i.e., the continuous support project shall be supported by the completion of the project until the year in which the project is completed, and, even if the results of the comprehensive evaluation annually are evaluated below the average score, the subsidy may be discontinued, barring any special circumstances, once the continuous support project is selected, the continuous support of the project is expected to be discontinued each year. Thus, it is not necessary to repeat the application for subsidy and the selection of the subsidy will be discontinued every year only in special circumstances. In fact, even if the continuous support project is not selected every year, if the Defendant did not make an annual application for subsidy again, and if the result does not exceed the average score as a result of the first comprehensive evaluation on the support project, the subsidy expected to be paid every year at the time of the first selection of the project (the Plaintiff did not re-examine the application for subsidy pursuant to the above implementation announcement for the public project in 209, and the Defendant’s comprehensive evaluation on the project portion in the project in 2008 among the project in this case exceeds the average score).

D) Article 7(1) and (2) of the Assistance for Nonprofit Non-Governmental Organizations Act provides that the Minister of Public Administration and Security shall determine the types of public service projects by ascertaining the social demand for supporting the public service project every year, and shall determine individual support projects and subsidies as determined by the Committee for Selection of Public Works within the business type. Article 8 of the same Act provides that when a registered non-profit private organization intends to receive subsidies, it shall submit a business plan to the Minister of Public Administration and Security by the end of March of the fiscal year concerned. Article 4(1) of the same Act provides that any person who intends to operate a subsidized project shall apply for the appropriation of subsidies to the head of the central government agency each year. However, the above provision is merely a procedural provision for granting subsidies in accordance with the basic principles of the National Finance Act that prepares a budget bill for each fiscal year and makes it possible to accurately estimate the amount to be subsidized each fiscal year from the first application and selection stage up to the completion of the project in the future, and thus, it does not hinder the formulation and disbursement of the budget under the above provision.

E) In order to facilitate a continuing project, a plan on the raising and disbursement of all expenses required for the completion of the project from the stage of preparation to the end of the project. In addition, considering the circumstances that the person eligible for the selection of the continuing support project, such as the Plaintiff, trusting the Defendant to continue the subsidy from the completion of the project to the completion of the project in the future, and expenditure of its own expenses, it is unreasonable to interpret that the procedure for the selection of the person eligible for the selection of the continuing support project should be repeated as in the case of the continuing project, just as in the case of the

2) Whether the instant disposition satisfies the procedural requirements required to withdraw the beneficial administrative act

A) According to Articles 21(1) and (4) and 22(1) through (4) of the Administrative Procedures Act, where an administrative agency imposes a duty on a party or imposes a restriction on his/her rights and interests, it shall notify the party concerned of the fact that the grounds for such disposition and the contents of such disposition, the legal basis thereof, the fact that he/she is entitled to submit his/her opinion, and the method of handling the case where he/she fails to submit his/her opinion. In cases where other Acts and subordinate statutes provide that a hearing shall be held or a public hearing shall be held, the party concerned shall be given an opportunity to present his/her opinion. However, in cases where a reasonable ground exists to deem that hearing of opinion is considerably difficult or clearly unnecessary due to the nature of the disposition in question, prior notice or hearing of opinion may not be omitted. Thus, in cases of an infringing administrative disposition, unless the administrative agency did not give such prior notice or give the party an opportunity to present his/her opinion, such disposition may be revoked due to its illegality (see Supreme Court Decision 9Du5870, Nov. 14, 2000).

B) In the instant case, even if an administrative disposition was taken without a hearing procedure, if the relevant statute does not provide for the enforcement of the hearing procedure, such administrative disposition cannot be deemed unlawful (see Supreme Court Decision 93Nu18969, Mar. 22, 1994). Thus, the pertinent disposition cannot be deemed unlawful on the ground that the hearing procedure was omitted.

However, although the disposition of this case constitutes a partial withdrawal of the beneficial administrative act that limits the rights and interests of the parties, the defendant did not give prior notice to the plaintiff or give an opportunity to present opinions in rendering the disposition of this case, and the plaintiff cannot be deemed to hold or actively participate in an illegal, violent assembly or demonstration, as examined below, the disposition of this case does not constitute a case where there is a reason for not giving prior notice as provided by each subparagraph of Article 21(4) of the Administrative Procedures Act or where the parties provided by Article 22(4) of the same Act clearly indicate the intent to waive the opportunity to state opinions. Thus, the disposition of this case is erroneous in failing to give prior notice of or give an opportunity to present opinions to the parties.

3) Whether the instant disposition satisfies the substantive requirements

A) First of all, the criteria for the special selection of the Defendant’s assertion based on the instant disposition were presented by the Defendant during the public announcement of the implementation of the subsidy support for public works in 2008. The Plaintiff was selected as a support project since it did not conflict with the special selection criteria at the time. ② The Defendant did not attach the special selection criteria separately, ③ the Defendant did not explicitly stipulate the reasons for withdrawal of the special selection criteria. ④ The Defendant presented the following cases: (i) the public announcement of the implementation of the instant disposition: (ii) the suspension of the subsidization for the continuing selection of the subsidy; and (iii) the revocation of the beneficial administrative act is an administrative act that ex post loses its effect despite the absence of any particular defect at the time of the disposition; (iii) so, it is difficult to view that the Plaintiff’s participation in the assembly or demonstration as an unlawful act is difficult to be deemed to have been permitted only in exceptional cases such as where there was no express provision in the statutes or the right to withdrawal was reserved due to its father of the administrative act; or (iii) the need to continue the assembly or demonstration.

B) Furthermore, according to the provisions related to public works among the guidelines for the implementation of the budget and fund management plan of 2009 Ministry of Strategy and Finance, where the head of a central government agency can restrict subsidies, the head of an organization that hosts, leads, or actively participates in an illegal demonstration under the name of the organization to which he/she belongs and is punished for violation of the Assembly and Demonstration Act, etc. If subsidies are used for other purposes, such as illegal demonstration activities, the decision to grant subsidies may be revoked in whole or in part. In addition, considering the Defendant’s intent of supporting non-profit, non-profit, non-profit, social integration, and peace in order to contribute to the promotion of public interest activities and the development of a democratic society, the Defendant should be deemed to continue to provide subsidies in cases where the organization subject to selection of a support project or its members are deemed to violate the public interest such as the purpose of the relevant Act and subordinate statutes or the intent of subsidization.

C) From this point of view, the following circumstances are insufficient to recognize the Plaintiff or its members of the instant project solely on the basis of whether they held or led an unlawful, violent, or demonstration assembly or demonstration after being selected as a continuous support project, and each of the above evidence and the evidence as well as the evidence Nos. 8 and 9 (including the serial number) as mentioned above. Since there is no steam to acknowledge otherwise, the instant disposition did not meet the substantive requirements, i.e., the existence of the grounds for disposition.

(1) According to the Commissioner General of the Korean National Police Agency’s notification of the current state of the organization related to illegal violence or demonstration in 08, which was drafted on February 2009, the reason that the Mad Cow Disease National Countermeasures Council (hereinafter “Nonindicted Organization”) led to a candlelight demonstration against the import of U.S. beef during the period from May 24, 2008 to August 15, 2008 is classified as an organization related to illegal violence or demonstration, and the Plaintiff posted the report on the website of the Nonparty Organization as one of the participating organizations of Nonparty 1,842.

(2) According to the Seoul Central District Prosecutors' Office' case of "the case of an investigation white paper, the case of an illegal violence against and against the import of the U.S. decline" published by the Seoul Central District Prosecutors' Office, regarding candlelight demonstration, the investigation situation of the participants in the case of ① the main Dong and behind the illegal and violent demonstration, ② the development of illegal and violent demonstration, ③ the dissemination of false facts, ④ the dissemination of false facts, ④ the interference with the business of a specific press organization is specified in detail, but there is no material to deem

(3) According to the progress of candlelight demonstration listed in the publications listed in the above Paragraph (2), illegal and violent demonstrations were turned out from May 24, 2008. On May 9, 2008, the Plaintiff posted a notice on the non-party organization’s four requirements, a citizen action plan and plan under the title “the citizen action against the full import of U.S. beef at risk of Mad Cow Disease” in the column of the Plaintiff’s website on May 9, 2008 (However, there is no content suggesting or inciting illegal, violent, or demonstration in the notice).

(4) On June 26, 2008, the notice pertaining to the demonstration was posted before and after the above date, which was held on the website of the non-party organization and the organization of the national women’s solidarity. The notice was written at the end of each of the above 73 female organizations participating in the demonstration.

4) Therefore, since the instant disposition did not meet the procedural requirements as well as the substantive requirements, it should be revoked in an unlawful manner without examining the Plaintiff’s other arguments.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair, so the judgment of the court of first instance is revoked and the plaintiff's claim is accepted. It is so decided as per Disposition.