Where the guardian of an infant who uses a child care center uses the child care service voucher by fraud or other improper means in the course of paying the child care fees, whether the child care center operator who has received the payment of the child care fees may order the refund of subsidies or the suspension or closure of the operation of the child care center under Article 40 subparagraph 3 of the former Infant Care Act (negative in principle)

Articles 34, 34-2, 34-3, and 35 of the former Infant Care Act (Amended by Act No. 11003, Aug. 4, 201); Articles 36, 40 subparag. 3, 40-2, 45(1)1, 46 subparag. 4, and 54(2), 4, and 54(3)4, and 54(3)5 of the Infant Care Act; Article 35-3(1) of the Enforcement Rule of the Infant Care Act

Plaintiff (Attorney Go Jong-soo, Counsel for the plaintiff-appellant)

The Minister of Health and Welfare

Seoul High Court Decision 2013Nu13657 decided October 23, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. In light of the contents of Articles 34, 34-2, 34-3, 35, and 36 of the former Infant Care Act (amended by Act No. 11003, Aug. 4, 201; hereinafter “Act”), legislative details, and purport of the aforementioned Articles, the State or local governments should be deemed to have borne or subsidized expenses incurred in infant care, infant care, or free education to their protectors pursuant to Article 35 of the Act, and to have subsidized expenses incurred in infant care services to operators of child care centers pursuant to Article 36 of the Act.

In addition, since the State or a local government issued the infant care service voucher to the infant’s guardian pursuant to Article 34-3(1) and (3) of the Act, Article 35-3(2) and (3) of the Enforcement Rule of the Act, it constitutes the payment of the amount equivalent to the child care fee paid to the guardian of the infant who presented the above voucher to the child care center and paid to the relevant child care center. Thus, it is deemed that the child’s guardian is not the child care center operator who actually received the expenses required for infant care through the voucher, but the infant’s guardian who is not the child care center operator who actually received the expenses required for infant care through

Therefore, even if the guardian of a child who uses a child care center has used the child care service voucher by fraud or other improper means in the course of paying the child care fees, barring any special circumstance, the child care center operator who is paid the child care fees shall not be deemed to have received the subsidy by fraud or other improper means as provided in Article 40 subparagraph 3 of the Act and shall not be ordered to return the amount.

2. According to the reasoning of the judgment below and the record, the plaintiff was operating a child care center under the name of "○○ Child care Center" in Jeju-si Inter-si, and the non-party 1 (the non-party 1, July 1, 2004) registered in the child care center of this case, as a multicultural family child, left Korea from December 27, 2009 to March 31, 2010 for the purpose of visiting and was absent for about three months. The plaintiff was notified that the plaintiff received a refund of the subsidy of this case from the public child care center of this case on the ground that the non-party 2, who is his guardian, applied to the Jeju Mayor for the child care service voucher, and received a refund of the subsidy of this case from the public child care center of this case on January 3, 2010 (hereinafter "the subsidy of this case"). On July 19, 2012, the Jeju Mayor ordered the plaintiff to return the subsidy of this case pursuant to Article 40 subparagraph 31 of the Act.

Examining these facts in light of the legal principles as seen earlier, the subsidy in this case was provided to Nonparty 2, who is an infant, in accordance with Article 34 of the Act, to Nonparty 1’s guardian Nonparty 2, who is an infant. As such, the Plaintiff’s order of return of the subsidy in this case to the Plaintiff pursuant to Article 40 subparag. 3 of the Act, deeming that the Plaintiff was granted subsidies equivalent to the subsidy in this case by fraud or other improper means, is unlawful, and the Defendant’s disposition based on the existence of such order of return of the subsidy in this Jeju market is also unlawful.

Nevertheless, solely on the grounds stated in its reasoning, the lower court determined that the Plaintiff received the instant subsidy from Jeju City as a subsidy, and that both the order to return subsidies and the Defendant’s instant disposition against the Plaintiff were lawful. In so doing, the lower court erred by misapprehending the meaning of subsidies and the legal doctrine on the recipient of subsidies stipulated in Article 40 subparag. 3 of the Act, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)