In a case where the competent Mayor issued an order to suspend the qualification of the president for 15 days to the head of a child-care center Gap on the ground that a teacher who did not actually take care of was falsely reported and illegally received subsidies as if he had taken care, and the request was rejected by Gap, the case holding that the new suspension of qualification is unlawful on the ground that the new suspension of qualification is against the principle of prohibition against double Jeopardy, in a case where Gap filed a revocation lawsuit and received a stay

In a case where the head of the competent Si issued an order to suspend the qualification for 15 days to the head of a child-care center on the ground that a teacher who did not actually take care of was falsely reported as having taken care of and received subsidies unfairly, and the request was rejected, and the Mayor subsequently rendered a new suspension of qualification for the same reason after the period of suspension specified in the previous suspension of qualification expired, the case holding that the new suspension of qualification was unlawful on the ground that the Mayor failed to secure the effectiveness of the previous suspension of qualification by neglecting the previous suspension of qualification, and thus, the validity of the previous suspension of qualification should be extinguished and the previous suspension period of suspension of qualification will resume again run at 15 days after the date of the previous suspension of qualification was revoked, and the previous suspension of qualification was revoked after the lapse of 15 days without the suspension of execution from the date of the previous suspension of qualification. However, the previous suspension of qualification was revoked ex officio after the previous suspension of qualification was revoked after the previous suspension of qualification was revoked.

Articles 19(2), 40 subparag. 3, 44 subparag. 3-2, 44-3, 45, and 46 of the Infant Care Act

Plaintiff 1 and one other (Law Firm Dokdo, Attorneys Y-young et al., Counsel for the plaintiff-appellant)

(1) A person who intends to obtain permission from the head of Si/Gun/Gu shall obtain permission from the head of Si/Gun/Gu.

Suwon District Court Decision 2013Guhap15645 decided September 3, 2014

March 3, 2015

1. Revocation of the first instance judgment.

2. (1) The Defendant’s disposition of return of KRW 805,00 of the subsidy granted to Plaintiff 1 on August 8, 2013, and the disposition of imposition of KRW 1,050,000 in lieu of the disposition of suspension of operation of a child care center for 15 days, and (2) the disposition of ordering suspension of qualification for the president for 15 days against Plaintiff 2 on December 26, 2014, respectively.

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

As indicated in the order (Plaintiff 2 sought revocation of the disposition ordering the suspension of the president’s qualification for 15 days against Plaintiff 2 on August 8, 2013 at the first instance trial, but at the trial, the Defendant sought revocation of the disposition ordering the suspension of president’s qualification for 15 days against Plaintiff 2 on December 26, 2014).

1. Details of the disposition;

A. Plaintiff 1 is the representative who operates ○○ Child Care Center (hereinafter “instant Child Care Center”) in Gwangjin-si ( Address omitted), and Plaintiff 2 is the head of the instant Child Care Center.

B. Around March 2013, the number of infants in the child care center of this case is composed of a total of 21 persons and a total of 21 persons, a total of 2 years of age, a half-year-year-old (7), a half-year-old (8), and a half-year-old (6).

C. On April 3, 2013, a child care center of this case filed an application for KRW 805,000 (i.e., the number of supported children x 15,000 (i.e., the number of supported children x 115,000; hereinafter “child care subsidy of this case”) with the basic childcare fee for April 1, 2013, and obtained approval from the Defendant.

D. On May 8, 2013, the Defendant conducted a guidance and inspection on the instant childcare center. As a result, the Plaintiffs filed a false report on the fact that they took care of teachers who did not actually take care of, and received a false subsidy, thereby constituting “cases of receiving a subsidy by false or other unjust means” as prescribed in Article 40 subparag. 3 of the Infant Care Act, and on August 8, 2013, the Defendant issued an order to return subsidies of KRW 805,000 (hereinafter “instant order to return subsidies”) pursuant to Articles 40, 45, and 45-2 of the Infant Care Act (hereinafter “instant disposition of imposition of penalty surcharge”), and issued a disposition of imposition of KRW 1,050,00 in lieu of 15 days of suspension of operation (hereinafter “instant disposition of imposition”), and the Plaintiff 2 revoked the qualification for the first time from September 15, 2013 to September 13, 2013 (hereinafter “the first day”).

E. The Plaintiffs were dissatisfied with the instant order to return subsidies, the instant disposition imposing the penalty surcharge, and the initial disposition to suspend the qualification, and filed an administrative appeal with the Gyeonggi-do Administrative Appeals Commission (hereinafter “the first disposition to suspend the execution”). However, the said administrative appeal claim was dismissed on November 6, 2013, and the Defendant again issued an order to suspend the qualification of the president for 15 days from December 16, 2013 to December 30, 2013 (hereinafter “the first disposition”).

F. The Plaintiffs filed the instant lawsuit seeking revocation of the order to return the instant subsidy, the instant disposition of imposing the penalty surcharge, and the initial disposition of cancelling the original disposition. On December 6, 2013, Plaintiff 2 was subject to a stay of execution (hereinafter “the second stay of execution”) based on the period until the first instance judgment is pronounced, and the first instance court rendered a judgment dismissing the Plaintiffs’ claim on September 3, 2014, the Defendant again issued an order to suspend the qualification of the president for 15 days from January 16, 2015 to January 30, 2015 (hereinafter “second stay of execution”). Plaintiff 2 received a stay of execution based on the period of the first instance court’s order to return the subsidy of this case and the instant disposition of imposing the penalty surcharge of this case, and Plaintiff 2 filed an application for a stay of execution within the period of 15 days from January 26, 2014 (hereinafter “each of the instant dispositions”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 3, 20, Eul evidence 1 and 2 (including each number), the whole purport of pleading, and the facts significantly alleged to this court

2. The parties' assertion

A. The plaintiffs' assertion

The plaintiffs asserted that each of the dispositions of this case is unlawful on the following grounds.

1) Since the instant childcare subsidy, which is the basic childcare fee that the Plaintiffs received, does not constitute subsidies under the Infant Care Act, there is no room to apply Articles 40, 45, 45-2, and 46 of the Infant Care Act with respect to illegal receipt of subsidies.

2) In addition, as of March 2013, childcare centers of this case met the objective requirements for receiving childcare fees subsidies of this case as of March 2013, but the Plaintiffs did not properly report the appointment and dismissal of childcare teachers due to simple mistake, and thus, it cannot be said that they received subsidies by fraud or other improper means.

3) Even if the grounds for each of the dispositions of this case are recognized, each of the dispositions of this case is excessive compared to the degree of the violation, and there is an error of deviation or abuse of discretionary power in violation of the principle of proportionality, considering the fact that the plaintiffs did not gain an individual benefit by receiving subsidies.

B. Defendant’s assertion

The Defendant, on March 2013, falsely reported that Nonparty 1 continued to work in the child care center of this case and received the child care subsidy of this case. Even if the child care center of this case satisfies the requirements for the provision of the child care subsidy of this case, even though it did not meet the requirements for the provision of the child care subsidy of this case, the Plaintiff received the subsidy of this case by fraud or other improper means, so the Plaintiffs asserted that each disposition of this case is legitimate, since the grounds for each disposition of this case exist, and that each disposition of this case cannot be deemed to have violated the principle of proportionality in light of the degree of the violation or the contents of the disposition.

3. Whether each of the dispositions of this case is legitimate

(a) Relevant statutes;

It is as shown in the attached Form.

B. Determination by issue

1) The legal nature of the subsidies for childcare fees of this case

A) Article 36 of the Infant Care Act and Article 24 of the Enforcement Decree of the Infant Care Act provide for matters concerning the provision of subsidies to the founders and operators of child care centers by the State or local governments, and according to delegation by the Minister of Health, Welfare and Family Affairs, “2013 Infant Care Business Guidance” provides for the basic infant care fees to be paid to the founders and operators of child care centers according to the items of “facilities-level assistance.” In light of the language and structure of the relevant provisions, the basic infant care fees to be paid to the founders and operators of child care centers constitute subsidies by the State or local governments (see Supreme Court Decision 2012Du28032, Jun. 12, 2014, etc.).

B) In the instant case, health care subsidies in this case are paid in proportion to the number of children registered in the instant childcare center, and the number of children is calculated based on the list registered electronically in the “e-child care system” on the third day of each month, and thus falling under the basic childcare fees pursuant to the “2013 Child Care Services Guidance”. In light of the aforementioned legal principles, the instant childcare fees subsidies, which are the basic childcare fees paid in the instant childcare center, are deemed subsidies from the State or local governments.

2) Whether the instant order to return subsidies and the imposition of penalty surcharges are unlawful

A) Issues

The order to return the instant subsidy and the imposition of the penalty surcharge are based on the disposition that the Plaintiffs received the basic childcare fee for April 2013, which is the subsidy by fraud or other improper means under Articles 40 subparag. 3 and 45(1)1 of the Infant Care Act. (1) First, it is problematic whether the Plaintiffs received the instant childcare subsidy without reporting the current status of their work even though Nonparty 1 did not work properly in March 2013, and (2) whether the Plaintiffs failed to meet the requirements for receiving the basic childcare fee for May 2013, even though they did not meet the requirements for receiving the basic childcare fee for the Plaintiffs, there is a ground for issuing the order to return the instant subsidy and imposing the penalty surcharge by fraud or other improper means, and whether the Defendant can claim additional grounds for such disposition in the instant lawsuit.

B) Determination on the basic childcare fees for April 2013

(1) Relevant legal principles

Article 40 subparagraph 3 of the Infant Care Act provides that "the State or a local government may order the establisher or operator of a child-care center to return all or some of the expenses and subsidies already granted if he/she has received a subsidy by fraud or other improper means." Article 45 (1) 1 of the Infant Care Act provides that "the Minister of Health and Welfare, a Mayor/Do Governor, or the head of a Si/Gun/Gu may order the establisher or operator of a child-care center to suspend the operation of a child-care center within one year or to close the child-care center if he/she has received a subsidy by fraud or other improper means, or if he/she uses a subsidy, by fraud or other improper means." Article 46 of the Infant Care Act provides that "the Minister of Health and Welfare may suspend the qualification of the head of a child-care center if the child-care center has received a subsidy or uses a subsidy by fraud or other improper means, even if the child-care center could not receive a subsidy by a normal procedure (see Supreme Court Decision 201Du21827, Dec. 27, 2012012).

On the other hand, Article 44 (3)-2 of the Infant Care Act provides a separate ground for sanctions on the ground that Article 44 (2) of the Infant Care Act does not report matters concerning the appointment and dismissal of infant care teachers and staff under Article 19 (2) of the same Act, or makes a false report, and Article 44-3 and Article 45 of the same Act does not comply with an order for correction or change.

In full view of the aforementioned nature of the act of illegally receiving subsidies, the system of the provision of the Infant Care Act concerning the appointment and dismissal of childcare staff and reporting thereof, etc., the act of receiving subsidies without properly reporting the appointment and dismissal of childcare staff even though all of the requirements for the “ratio of the child to the school”, which are the requirements for the appointment and dismissal of childcare staff, are actually satisfied, cannot be deemed to constitute “cases of receiving subsidies by fraudulent or other illegal means” which are the grounds for imposing sanctions on the illegal receipt of subsidies, regardless of whether the childcare center in this case properly complies with the “ratio of the school to the school” on March 2013.

(2) Facts recognized

(A) Around March 2, 2013, Nonparty 1 was employed as a teacher in charge of Nibibibibibibin in the instant childcare center, and worked from March 4, 2013. When the husband was hospitalized into a rare disease, Nonparty 1 applied for a one-day leave from March 4, 2013, and even after his husband’s status was not improved, Nonparty 1 was unable to work continuously since her husband’s status was not improved, and thereafter, Nonparty 1 worked for work from April 10, 2013.

(B) As Nonparty 1 was unable to work as above, the Plaintiffs employed Nonparty 2 on March 10, 2013, who was Sundays, and had him work as a substitute teacher of Nonbon’s base from March 11, 2013. On April 1, 2013, Nonparty 2 was employed as a regular teacher.

(C) However, the Plaintiffs did not report to the Defendant that Nonparty 1 did not work from March 5, 2013 to April 9, 2013, and reported to the Defendant that “Nonindicted 2 was employed on April 1, 2013 by Nonparty 1 on or around April 2, 2013.”

(D) On March 29, 2013, Plaintiff 1 remitted KRW 990,00 from the instant childcare center account to Nonparty 1’s account. Nonparty 1 wired KRW 1,230,000 to the Plaintiff 2’s account on April 2, 2013.

(E) From April 10, 2013, Nonparty 1 served as a teacher in charge of Nibibibibibibiiation of the instant childcare center from April 10, 2013, and Nonparty 2, who was in charge of Nonparty 3, was employed as a teacher in charge of Nibibibibi

(F) Nonparty 2 received KRW 894,00 on April 12, 2013 from the instant childcare center account, and KRW 980,000 on April 29, 2013, respectively.

(G) On April 29, 2014, the Plaintiffs were subject to a disposition by a public prosecutor of the competent District Public Prosecutor’s Office within the jurisdiction of the Suwon District Public Prosecutor’s Office on charges of violating the Infant Care Act (Evidence of Evidence).

[Reasons for Recognition] Facts without dispute, Gap evidence 11, Eul evidence 14-1 to 4, Eul evidence 3-1, 2, Eul evidence 6-1, Eul evidence 8-2, Eul evidence 9-10, and the purport of the whole pleadings

(3) Determination

(4) In light of the aforementioned facts and circumstances, Nonparty 1 was unable to report the fact that Nonparty 2 had been employed for Nonparty 1 on March 4, 2013 and the fact that Nonparty 2 had not been employed for Nonparty 1’s childcare assistant, and the fact that Nonparty 2 had not been employed for Nonparty 1 on April 9, 2013 that the Plaintiff could not have been employed for Nonparty 2’s childcare assistant. The Plaintiffs were employed as substitute teachers for Nonparty 1 on March 11, 2013 and were employed for not less than 3 months on March 1, 2013, and that the Plaintiff could not be viewed as being employed for Nonparty 2’s childcare assistant due to the fact that Nonparty 1 had not been employed for Nonparty 3’s childcare assistant’s replacement for Nonparty 1 on March 4, 2013 to March 10, and that the basic childcare assistant’s replacement rate for childcare assistant was not included in the Plaintiff’s replacement subsidy for childcare assistant’s 1 on March 2013.

C) Determination on the basic childcare fees for May 2013

In an appeal litigation seeking the cancellation of an administrative disposition, from the perspective of the substantial rule of law and the protection of trust in the people who are the other party to the administrative disposition, the agency can add or change a new ground for disposition only to the extent that it is recognized as identical to the original ground for disposition, and it is not allowed to assert a separate ground for disposition on the ground that it is not recognized as identical to the basic facts (see Supreme Court Decision 2001Du4030, Feb. 13, 2004, etc.).

However, the grounds for the order to return the instant subsidy and the disposition of imposing a penalty surcharge are that the Plaintiffs received the basic childcare fee for April 2013 by fraud or other improper means, while the Defendant’s assertion is that the Plaintiffs received the basic childcare fee for May 2013 by fraud or other improper means, and thus, it cannot be added to the grounds for the disposition, as the grounds for the initial disposition and the basic factual relations are not identical. Therefore, the Defendant’s assertion is without merit without further review.

In addition, considering the overall purport of the statements and arguments set forth in Gap evidence Nos. 5, 6, and Eul evidence No. 9-4, it is recognized that non-party 3 retired on March 31, 2013 and did not work from April 2013. However, according to each of the above evidence, it is recognized that non-party 2 worked as a teacher of Nibibibibibibiiiiiiiiiiiiiiiiiiiiiiiiiation from April 11, 2013. Accordingly, even on April 2013, the period during which the vacancy occurred due to the retirement of Nibiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiation does not exceed one month, and therefore, the child care center in this case satisfies the objective requirements for receiving basic infant care fees for May 2013 of Nibibibiiiii

D) Sub-determination

Therefore, under the premise that the Plaintiffs received subsidies by fraud or other improper means, the instant order to return subsidies and the imposition of penalty surcharges against Plaintiff 1 are unlawful.

3) Whether the second disposition was unlawful

A) The issue is raised

Since the second disposition has been rendered with respect to the same cause as the original disposition of suspension of qualification, it is necessary to examine whether the second disposition is against the principle of res judicata prior to examining the illegality of the second disposition asserted by Plaintiff 2.

B) Effect of suspension of execution and previous suspension of qualification

A decision to suspend execution under Article 23 of the Administrative Litigation Act shall continue to exist until the date specified in the decision, and shall become null and void as a matter of course at the arrival of the time specified in the decision. Thus, in cases where the court declares in the order that the suspension of business of the administrative agency which ordered the suspension of business for a certain period has suspended the validity of the disposition until the rendering of a judgment on the merits of the lawsuit pending in the court in question, the suspension of qualification in the disposition shall be suspended until the time specified in the disposition is rendered, and at the same time, the suspension period (if the effect of the original suspension has been completely executed at the time of the decision to suspend the business, and at the same time the effect of the original suspension has been restored as a matter of course, the remaining period of suspension (if the previous suspension was already executed at the time of the decision to suspend the business, the remaining period) shall resume from the time specified in the disposition. This legal principle applies to cases where the time and the completion date of the suspension is specified when the disposition to suspend the qualification is rendered (see, e.g., Supreme Court Decisions 92Nu1

Therefore, as long as the other party to the disposition has not suspended the validity of the suspension of qualification with a new suspension of execution after the suspension of execution became extinct, the administrative agency should immediately proceed with the execution procedure to ensure the effectiveness of the suspension of qualification. Even if the administrative agency failed to secure the effectiveness of the suspension of qualification by neglecting such execution, if there is no special reason to prevent the progress of the period, such as that the period specified in the suspension of qualification begins on the condition that the suspension of qualification actually executed during the period, the period specified in the suspension of execution will continue from the date of extinction of the suspension of execution, and the validity of the suspension of qualification

C) The meaning of each of the dispositions in this case and whether it is unlawful

(1) On September 18, 2014, the first disposition of suspension of the first suspension of the qualification is suspended by the date of the first and second suspension of the qualification, and the effect of the second suspension of the execution is suspended by the time limit set in each of the above decisions. However, in the case of the second suspension of execution, the evidence submitted alone does not clearly indicate the period of suspension of the validity. However, in the case of the second suspension of execution, the "the time of the first suspension of execution" is set as the period of suspension of the first suspension of qualification until the time of the first suspension of the execution. The facts of the first instance judgment sentenced on September 3, 2014 are significant or obvious.

Next, as the plaintiffs' request for administrative appeal is dismissed, the first re-disposition seems to have rendered a new decision to suspend the qualification for the same reason as the defendant initially cancelled ex officio and newly specified the time and termination period of qualification for the same reason. However, apart from the legality of the decision to re-disposition, there is no evidence to deem that the defendant received an application to suspend the execution separately. Thus, the period of suspension of qualification has expired as of December 30, 2013, which is the expiration date specified in the first re-disposition.

Nevertheless, the defendant newly specified only the time and completion period of suspension of qualification for the same reason as the original disposition or the first disposition. The second disposition is deemed to have cancelled the previous disposition of suspension of qualification ex officio and the second disposition of suspension of qualification for the same reason. However, the previous disposition of suspension of qualification for the reason that the previous disposition of suspension of qualification was cancelled ex officio after the previous period of suspension of qualification has already lapsed shall not be deemed to have been null and void. Thus, the second disposition of suspension of qualification newly made by the second disposition of suspension of qualification for the reason that the defendant failed to secure the effectiveness of the previous disposition of suspension of qualification due to the defendant's neglect of execution, which affected the same disposition as the previous disposition of suspension of qualification for the reason that

(2) In the case of the previous disposition of suspension of qualification for each of the previous dispositions of suspension of qualification, the second disposition of suspension of qualification was unlawful in that it did not go against the principle of prohibition against double Jeopardy, even though the second disposition of suspension of qualification was not contrary to the principle of prohibition against double Jeopardy, as seen in the preceding two (D), since the plaintiffs did not receive the child care fee subsidy by false or other unlawful means, the second disposition of suspension of qualification does not exist, and in this respect, the second disposition of suspension of qualification is unlawful.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the disposition of this case is revoked and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Jan Jin-hun (Presiding Judge)

(1) The Plaintiffs and the Defendant asserted to the effect that the “basic childcare fees for March 2013” for the Nonbbins are problematic. However, according to the guidance guidelines for childcare facilities by the Ministry of Health and Welfare in March 2013, the basic childcare fees should be paid based on the current status of use for the preceding month. Therefore, in this case, the issue is whether or not the “basic childcare fees for April 2013” is a legitimate receipt of the “basic childcare fees for the preceding month.” The Plaintiffs and the Defendant’s assertion is merely due to a simple mistake in the use of the term, and do not seem to be a matter of whether or not the “basic childcare fees for March 2013” should be paid.

2) Although the Defendant asserts to the effect that the basic childcare fees for April 2013 are at issue, it is reasonable to view that the Defendant’s assertion was made by simple mistake even though the basic childcare fees for May 2013 were at issue as seen in the preceding Note 1.

3) The second suspension of execution is about the first suspension of the execution.