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)

State Mayor (Attorney Go Young-young, Counsel for defendant-appellant)

Gwangju High Court ( Jeju) Decision 2012Nu593 decided April 24, 2013

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

In full view of the respective provisions of Articles 34, 34-2, 34-3, 35, 36, and 40 subparag. 3, 40-2, 45(1)1, 46 subparag. 4, and 54(2), 44(3)4, and 54(3)5 of the former Infant Care Act (amended by Act No. 11003, Aug. 4, 201; hereinafter “Act”), and their legislative details, the State or local governments shall be construed as bearing or subsidizing expenses incurred in infant care, rearing, or free education to their protectors pursuant to Articles 34, 34-2, and 35 of the Act and subsidizing expenses incurred in infant care services to the nursery operators pursuant to Article 36.

In addition, since the State or local government issued the infant care service voucher to the infant’s guardian pursuant to Article 34-3(1) and (3) of the Act and Article 35-3 of the Enforcement Rule of the Act, it constitutes an act of subsidizing expenses incurred in infant care to the guardian of the infant and child under Article 34(1) of the Act, it is deemed that the infant and child’s guardian is not the child care center operator but the infant and child’s guardian.

Therefore, even if the guardian of an infant who uses a child care center has used the child care service voucher by fraud or other improper means in the course of settling the child care fees, barring any special circumstance, the child care center operator who is paid the child care fees shall not be ordered to return the subsidy or to suspend the operation of the child care center (including imposition of penalty surcharges under Article 45-2 of the Act instead of the penalty surcharges) or to close the child care center, considering that he/she is a person who has received the subsidy by fraud or other improper means under Article 40 subparagraph 3 or Article 45 (1) 1 of the Act

According to the reasoning of the first instance judgment cited by the lower court, the Plaintiff operated the instant childcare center under the name of “○○ Child Care Center” in Jeju 2, and the State or a local government grants childcare fees for the use of childcare centers pursuant to Article 34(1) of the Act, 25% of the total amount of monthly childcare subsidies in cases where the number of days of attendance is 5 days or less per month, 5% of the total monthly childcare subsidies in cases where the number of days of attendance is 6-10 days per month, 10% of the total monthly childcare subsidies in cases where the number of days of attendance is 11 days or more per month, 10% of the total amount of monthly childcare subsidies in cases where Nonparty 1 (the date of July 1, 2004) registered with the instant childcare center 2, 30% of the total amount of monthly childcare subsidies in cases where the number of days of attendance is 0-10% or less per month, 30% of the childcare subsidies in cases where Nonparty 2, 2010-20% of the instant childcare subsidies.

Examining these facts in light of the legal principles as seen earlier, the Defendant granted subsidies to Nonparty 1’s guardian who is an infant pursuant to Article 34 of the Act, and barring any special circumstance, barring any special circumstance, the recipient is not the Plaintiff but Nonparty 2 of Nonparty 1’s guardian. Thus, the Plaintiff’s return disposition of subsidies and the disposition of imposition of the penalty surcharge of this case, which were issued pursuant to Articles 40 subparag. 3, 45(1)1, and 45-2 of the Act, based on the premise that the Plaintiff received subsidies, shall be deemed unlawful.

Nevertheless, solely on the grounds stated in its reasoning, the lower court deemed the Plaintiff to have received the instant subsidy and determined that both the instant subsidy return disposition and the instant penalty surcharge were lawful. In so doing, the lower court erred by misapprehending the legal doctrine on the meaning of subsidies and the recipient of the subsidy as provided in Articles 40 subparag. 3 and 45(1)1 of the Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)