Asian Public Performance and Arts Committee (Attorney Cho Young-hee, Counsel for the plaintiff-appellant)

The President of the Gwangju Regional Labor Agency

September 26, 2013

Gwangju District Court Decision 2012Guhap330 Decided May 9, 2013

1. Revocation of a judgment of the first instance;

2. On April 24, 2012, the Defendant’s revocation of the decision to return unjust enrichment of KRW 121,44,946 against the Plaintiff on April 24, 2012.

3. All costs of the lawsuit shall be borne by the defendant.

The judgment of the court of first instance is revoked. The defendant stated that the disposition of return of unjust enrichment of KRW 121,44,946 against the plaintiff on April 24, 2012 was revoked (in the column of the complaint, the date of disposition was " March 16, 2012." However, in the column of the claim, the defendant sought revocation on the premise that the defendant sent the plaintiff on April 24, 2012, and the statement of the date of disposition in the column of the claim is deemed to be a clerical error, and thus, the date of disposition was stated as " April 24, 2012."

1. Details of the disposition;

A. On June 24, 2009, the Plaintiff, as a non-profit corporation specializing in performing arts, was selected as a participating organization in a project creating social jobs under the name of “Maman Arts Community - All the performing artists,” and on July 21, 2009, the Defendant and the support period were from June 24, 2009 to June 20, 2010, and the number of persons eligible for support was 40 persons (hereinafter “instant support agreement”).

B. As a result of examining whether the instant project is properly operated, the Defendant: (a) confirmed that the Plaintiff prepared a false attendance book to receive subsidies; (b) paid subsidies to double-employed workers; (c) paid excessive subsidies to the full-time workers; (d) on January 19, 2010, the Defendant terminated the instant support agreement to the Plaintiff; and (e) ordered the Plaintiff to return KRW 4,630,460 out of the subsidies already paid to the Plaintiff as an illegal amount of subsidies (hereinafter “disposition on January 19, 2010”).

C. On January 26, 2010, the Plaintiff filed a lawsuit against the Defendant on January 19, 2010 against the Gwangju District Court 2010Guhap344 (hereinafter “principal case”) and applied for suspension of the execution of the said disposition (Seoul District Court 2012 A12). On February 16, 2010, the Gwangju District Court rendered a decision that “the disposition taken by the Defendant against the Plaintiff on January 19, 2010 shall be suspended until the pronouncement of the principal case between the Plaintiff and the Defendant” (hereinafter “decision on suspension of the execution of this case”).

D. After the decision to suspend the validity of the instant case was made on June 23, 2010, the Defendant subsidized KRW 129,377,620 in total to the Plaintiff in accordance with the instant support agreement. The Defendant discovered additional KRW 17,274,120 out of the amount provided to the Plaintiff following the decision to suspend the validity of the instant case as above, and returned KRW 7,932,674 out of the amount additionally discovered to the Defendant. On September 16, 2010, the Gwangju District Court sentenced the Plaintiff’s request against the instant case to be dismissed, and the said decision became final and conclusive as the appeal period even on October 5, 2010.

E. On March 16, 2012, the Defendant drafted a public notice of order to return unjust enrichment (hereinafter “the instant order to return unjust enrichment”) stating that “The subsidies paid during the period of the suspension of validity of the instant case was determined to the effect that the disposition was justifiable, and thus, the subsidies already returned to the Plaintiff out of the said KRW 129,377,620, 129,377,620 (= KRW 129,377,620 – KRW 7,932,674) shall be returned to the Plaintiff as unjust enrichment.” On April 3, 2012, the Defendant served a public notice of order to return unjust enrichment (hereinafter “the instant order to return unjust enrichment”). On April 16, 2012, the Defendant served the payment slip with the purport that the Plaintiff would return KRW 121,44,940 as “other ordinary revenues” and the receipt (hereinafter “the receipt”) by no later than April 16, 2012.

F. On April 24, 2012, the Defendant sent the Plaintiff a written order to return the aforementioned unjust enrichment, and the document was served on April 25, 2012.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 3, Eul evidence Nos. 1, 2, 4, 5, and 8, and the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Judgment on the defendant's main defense of safety

A. The plaintiff and the defendant's assertion

1) The defendant's assertion

On March 16, 2012, the Defendant drafted a written order to return unjust enrichment of this case with the purport that “a subsidy granted after the decision to suspend the validity of this case was made to the Plaintiff on the ground that the Defendant’s payment of the subsidy constitutes unjust enrichment.” The Defendant, “121,44,94,946 won (i.e., KRW 129,377,620 - KRW 7,932,674) calculated the Plaintiff’s already returned the subsidy of KRW 129,37,620 for the said period, - KRW 7,932,674),” and even if the document was not served on the Plaintiff, the said disposition became effective upon the delivery of the instant statement of payment to the Plaintiff on April 3, 2012, and the Plaintiff became aware of such disposition. Accordingly, the instant lawsuit brought on July 20, 2012, which had been filed by the lapse of 90 days thereafter, is unlawful.

2) The plaintiff's assertion

The Plaintiff, served on April 3, 2012, cannot be deemed to have known of the instant disposition solely on the ground that the instant statement of payment alone is insufficient to identify the grounds or grounds for the instant disposition. Moreover, the Plaintiff was aware of the instant disposition only on April 25, 2012 upon receipt of the instant order of return of unjust enrichment.

B. Determination

1) According to Article 20(1) and (2) of the Administrative Litigation Act, a revocation lawsuit shall be filed within 90 days from the date on which the disposition, etc. is known, and within one year from the date on which the disposition, etc. is taken. In the case of an administrative disposition in which the other party is located, the document reaches the person on whom the document is served, except as otherwise provided for in other Acts and subordinate statutes, and thus the date on which the disposition, etc. becomes effective (Article 15(1) of the Administrative Procedures Act), and the date on which the above disposition, etc. becomes known refers to the date on which the disposition, etc. becomes effective, and the date on which the above disposition, etc. becomes known refers to the date on which the above disposition, etc. becomes known (see Supreme Court Decision 7Nu195, Nov. 2

2) First, as seen earlier, the Defendant prepared the instant order for return of unjust enrichment on March 16, 2012, but there is no evidence to prove that it was sent, and even if it was sent, there is no evidence to prove that it was sent to the Plaintiff, so the disposition becomes effective.

3) Next, in light of the provisions of Articles 30(1) and 31 of the Subsidy Management Act with regard to whether the disposition takes effect by the delivery of the statement of payment of this case, the Defendant’s disposition intended to be issued to the Plaintiff shall cancel the decision of delivery of KRW 121,44,946 of the subsidies delivered to the Plaintiff and order the return of money corresponding to the cancelled part. ① The Defendant already prepared an order for return of unjust enrichment of this case whose contents are the above disposition prior to the delivery of the statement of payment of this case, and the Plaintiff appears to have attempted to take the disposition by sending this document. ② Article 3 of the Subsidy Management Act provides that “The subsidies to be returned pursuant to Article 31 may be collected in the same manner as national tax collection can not be cancelled and collected,” and Article 9 of the National Tax Collection Act (amended by Act No. 11605 of Jan. 1, 2013) provides that the Defendant’s order for return of the subsidy of this case shall be written with the notice of payment of this case and its grounds for return, etc.

As to this, the Defendant asserted that the instant statement of payment satisfies the requirements of the Defendant’s disposition by making the instant statement of payment jointly with the prior notice given by the Plaintiff on February 17, 2012. However, insofar as the Defendant did not issue an order to revoke or return the decision to deliver the instant statement of payment by delivering the instant statement of payment, there is no room for supplementation by the written prior notice on the contents and reasons of the disposition of the instant statement of payment. Thus, the Defendant’s above assertion is without merit (it is unreasonable to view that the date of delivery of the instant statement of payment ought to run from the date when the Plaintiff became aware of the disposition, as the filing procedure for objection, such as administrative appeal and administrative litigation, and the filing period of the lawsuit, are not supplemented even

4) On April 24, 2012, the Defendant sent the instant order for return of unjust enrichment to the Plaintiff on April 25, 2012, and delivered it to the Plaintiff on or before April 25, 2012, there is no evidence to support that the Defendant served the Plaintiff a written order for revocation of the decision to grant and the order for return. Thus, the disposition did not take effect until it was served, and the disposition for revocation of the decision to grant and the order for return became effective only by the service (hereinafter “instant disposition”).

5) Therefore, the instant lawsuit was filed on July 20, 2012, before the 90-day period from April 25, 2012, which became known of the instant disposition, and complied with the period of filing the lawsuit. As such, the Defendant’s principal safety defense that the period of filing the lawsuit was excessive and unlawful (the first instance court, based on the following circumstances: (a) the Plaintiff submitted a document requesting payment in installments to the Defendant on April 13, 2012; (b) although it was determined that the Plaintiff was aware of the disposition around that time; (c) since the disposition was not yet effective until April 24, 2012, it cannot be deemed that the Plaintiff was aware that the said payment in installments was valid at that time).

4. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition dated January 19, 2010 was suspended by the decision to suspend the validity of the instant case until the rendering of a judgment on the validity of the instant case. The judgment against the Plaintiff was finalized, and the validity of the instant disposition was not suspended retroactively at the time of the disposition as of January 19, 2010. Thus, the subsidies paid during the period of the suspension of validity of the instant case does not have been granted by any other unlawful means. Accordingly, the instant disposition made on a different premise by the Defendant is unlawful.

B. Whether the instant disposition is lawful

1) Article 30(1) of the Act on the Budgeting and Management of Subsidies (hereinafter “Act”) provides that “The head of a central government agency may revoke all or part of the decision to grant a subsidy in a case where a subsidy program operator has received a subsidy by false application or by other unlawful means.” Here, “when a subsidy is granted by improper means” refers to a case where a subsidy is granted in excess of the amount to be granted for a business or project not subject to the subsidy, which is not subject to the subsidy, or for the relevant business, etc., and even if the subsidy was used as a means that may be deemed to lack somewhat justifiable in light of the fact that the subsidy was granted, it does not constitute a case where a legitimate amount is granted for a business, etc. entitled to the subsidy (see, e.g., Supreme Court Decisions 2005Do573, Mar. 25, 2005; 2006Do906, Nov. 23, 2006; 2006Du6846, Mar. 26, 2007).

2) In the instant case, after the Plaintiff entered into the instant support agreement with the Defendant on July 21, 2009, the Defendant terminated the instant support agreement on the ground of the violation of the agreement. The defect in the disposition, such as ordering the Plaintiff to return 4,630,460 won out of the subsidies already paid, the Plaintiff filed a lawsuit seeking cancellation and filed an application for suspension of the execution of the said disposition on February 16, 2010, the Gwangju District Court decided to suspend the execution of the instant disposition. The Defendant provided the Plaintiff a total of KRW 129,37,620 in accordance with the instant support agreement until June 23, 2010, and the Gwangju District Court rendered a ruling dismissing the Plaintiff’s claim against the termination case on September 16, 2010, on the ground that the Plaintiff did not claim the termination of the instant subsidy agreement for the period for which the Plaintiff did not claim termination or termination of the agreement, and thus, the said decision still did not have an effect on the grounds that it did not have become final and conclusive during the period of cancellation.

3) Therefore, the instant disposition, based on the premise that the termination of the instant support agreement, the validity of which has been suspended by the decision to suspend its validity, is valid even during the period prescribed in the said decision due to the declaration and final decision against the losing party, is unlawful (the Plaintiff’s illegal receipt and payment of KRW 17,274,120 out of the total amount of KRW 129,37,620, which was delivered to the period of the suspension of its validity, is not a ground for the instant disposition.

5. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with the conclusion different, so it is revoked, and it is so decided as per Disposition to cancel the disposition of this case.

[Attachment]

Judge Sick-Woo (Presiding Judge)