(영문) 광주고등법원 2017.10.19. 선고 2017누14 판결

The judgment of the first instance court shall be revoked. The defendant's disposition of return of unjust enrichment of KRW 121,44,946 against the plaintiff on April 24, 2012 is revoked (the date of disposition shall be March 16, 2012 in the purport of the complaint). However, the cause of the complaint's claim is based on the premise that the defendant sent the decision to return unjust enrichment to the plaintiff on April 24, 2012. Thus, the "date of disposition" of the complaint's filing date of the claim is deemed to be the "date of disposition of April 24, 2012," and thus, the date of disposition shall be changed to " April 24, 2012."

Reasons

1. Details of the disposition;

A. On July 21, 2009, the Plaintiff was selected as a non-profit corporation established for the purpose of planning and operation of cultural and arts performances, and entered into an agreement on the support period between the Defendant and the Defendant for the creation of social jobs (hereinafter “instant support agreement”) with 40 persons eligible for support from June 24, 2009 to June 23, 2010.

B. As a result of examining whether the business of this case was properly operated, the Defendant prepared a false attendance book, received subsidies, paid subsidies to double-employed workers, and paid a full-time employed worker.

On January 19, 2010, it was confirmed that there was a violation of the instant support agreement, such as excessive disbursement of subsidies, and on this ground, the Plaintiff terminated the instant support agreement and made a disposition to return KRW 4,630,460 out of the subsidies already paid as the amount of illegal receipt (hereinafter referred to as “disposition on January 19, 2010”).

C. On January 26, 2010, the Plaintiff filed a lawsuit against the Defendant seeking revocation of the disposition rendered by Gwangju District Court 2010Guhap344, Jan. 19, 2010 (hereinafter “principal case”), and applied for suspension of execution of the said disposition as the Gwangju District Court 201012, and the Gwangju District Court rendered a decision that the disposition made on February 16, 2010 "the effect of the disposition made by January 19, 2010 shall be suspended until the pronouncement of judgment on the merits case is rendered (hereinafter “decision on suspension of effect of this case”).

D. After the decision to suspend the validity of this case was made on June 23, 2010, the Defendant paid a total of KRW 129,377,620 to the Plaintiff in accordance with the instant support agreement. After the decision to suspend the validity of this case, the Defendant discovered additional KRW 17,274,120 out of the subsidies paid to the Plaintiff after the decision to suspend the validity of this case, and the Plaintiff returned KRW 7,932,674 out of the subsidies additionally discovered to the Defendant. The Gwangju District Court rendered a decision to dismiss the Plaintiff’s claim regarding the instant case on September 16, 2010, and the said judgment became final and conclusive on October 5, 2010.

F. On March 16, 2012, the Defendant rendered a final and conclusive judgment that the disposition of January 19, 2010 with the Plaintiff as the addressee was justifiable, and thus, pursuant to the decision to suspend the validity of the instant case.

Then, 121,44,946 won (i.e., KRW 129,37,620 - KRW 7,620 - 7,932,674) remaining after deducting the Plaintiff already returned out of the total amount of 129,377,620 won paid during the period in which the disposition taken on January 19, 2010 was invalidated (i.e., KRW 129,37,620 - KRW 7,932,674) was written to order the return of unjust enrichment for social job creation projects (i.e., regional cooperation and -799; hereinafter referred to as “the order to return unjust enrichment”).

G. On the other hand, the head of the Defendant’s regional cooperation division prepared and delivered a letter of public notice (regional cooperation division-794) requesting the Plaintiff to issue a notice for payment of unjust enrichment related to the instant project at KRW 121,44,946, by designating the head of the Defendant’s general planning division as the addressee on the same day.

H. On April 3, 2012, the Defendant served on the Plaintiff a statement of payment and receipt (hereinafter “the instant statement of payment”) stating that KRW 121,44,940 should be paid by April 16, 2012 with the “other ordinary revenues” (hereinafter “other ordinary revenues”). The instant statement of payment contains “Articles 30 and 31 of the Subsidy Management Act, Article 11 of the Guidelines for the Implementation of the Social Job Creation Project (hereinafter “the Guidelines”), and Article 11 of the Agreement for the Support of the Social Job Creation Project, based on the basis for calculation,” and “regional cooperation and 794 ( March 16, 2012).”

I. On April 24, 2012, the Defendant sent the instant order to return unjust enrichment to the Plaintiff. The instant order to return unjust enrichment was served on April 25, 2012 on the Plaintiff.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 3, 4, Eul evidence Nos. 1, 2, 4 through 8, the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Table related statutes.

3. Determination on this safety defense

A. The defendant's main defense

Even if the instant order to return unjust enrichment was served on the Plaintiff only on April 25, 2012, the instant statement of payment, which was served on the Plaintiff on April 3, 2012, stated relevant statutes and the grounds for the calculation thereof, and satisfies the requirements for the disposition by the Defendant with prior notice given to the Plaintiff on February 17, 2012. As such, the instant statement of payment became effective on April 3, 2012, on which the instant statement of payment was served on the Plaintiff, and the Plaintiff was also aware of the same disposition on the same day. Since the Plaintiff filed the instant lawsuit on July 20, 2012, the instant lawsuit was unlawful as it was filed by the Plaintiff.

B. Determination

1) Article 20(1) and (2) of the Administrative Litigation Act provides that a revocation lawsuit shall be filed within 90 days from the date on which the other party becomes aware of the disposition, etc., and 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 (Article 15(1) of the Administrative Procedures Act). As such, the date on which the disposition, etc. becomes effective refers to the date on which the disposition, etc. becomes effective, and the date on which the other party becomes aware of the above disposition, etc. refers to the date on which the above disposition, etc. becomes effective (see, e.g.

2) First of all, as seen earlier, the Defendant prepared the instant order to return unjust enrichment on March 16, 2012. However, there is no evidence to acknowledge that the Defendant issued the instant order to return unjust enrichment to the Plaintiff from July 20, 2012, which was the date of the instant lawsuit, and the Defendant received the instant order to return unjust enrichment before 90 days prior to the date of filing, and thus, the Defendant did not have any effect on the instant order to return unjust enrichment until April 25, 2012, on which the instant order to return unjust enrichment was served to the Plaintiff.

3) Furthermore, as to whether the instant disposition takes effect by the service of the instant statement of payment

In light of the contents of relevant statutes, such as Articles 30 and 31 of the former Act on the Budgeting and Management of Subsidies (amended by Act No. 10898, Jul. 25, 201; hereinafter “former Subsidy Act”), the Defendant’s disposition that the Defendant intended to grant was terminated as the instant subsidy agreement was revoked as of January 19, 2010, and the decision to grant subsidies was revoked, but it appears that the Defendant ordered the Plaintiff to return the subsidy corresponding to KRW 121,44,946, out of the subsidy granted according to the decision to suspend its validity.

However, in full view of the facts as seen earlier and the purport of the entire arguments related to the pertinent laws and regulations, the instant statement of payment cannot be deemed as a disposition regarding the disposition of a subsidy refund order, since the document issuing the deadline and place of payment, etc. of the subsidy to be returned as a subsequent procedure for the disposition of a subsidy refund order cannot be deemed as the document issuing the subsidy return order. Thus, the delivery of the statement of payment in this case by the Defendant

① The Defendant prepared the instant order to return unjust enrichment prior to the delivery of the statement of payment, and in light of the form, content, etc. of the instant order to return unjust enrichment, it is apparent that the instant order to return unjust enrichment was a disposition, and the Defendant appears to have tried to take the disposition through the order to return unjust enrichment of this case.

② Article 33 of the former Subsidy Act provides that "a subsidy to be returned pursuant to Article 31 may be collected in the same manner as the collection of national taxes may be made," and Article 9 of the former National Tax Collection Act provides that "National Tax Collection Act (amended by Act No. 11605, Jan. 1, 2013) intends to collect national taxes from taxpayers, the taxpayer shall be issued a tax notice stating the taxable year, items of taxation, amount of taxes, basis for calculation thereof, deadline for payment and place for payment of such national taxes, etc." In addition to the procedures for collection, such as an order for

③ The instant payment document contains only Articles 30 and 31 of the Subsidy Management Act, the implementation guidelines for projects creating social jobs (hereinafter referred to as "the '08.11.) and Article 11 of the Support Agreement for Projects creating Social Job, the basis for calculation, and the "regional cooperation and-794 ( March 16, 2012)" as the grounds for calculation, and it is difficult to view that the basis and reasons for disposition are presented since the contents of the order to return subsidies are not stated (Article 23 of the Administrative Procedures Act), and there is no document stating whether to file an administrative appeal or administrative litigation, the procedure for filing the procedure and the period for filing the request (Article 26 of the Administrative Procedures Act). Therefore, the instant payment slip fails to meet the requirements for the disposition concerning the order to return subsidies.

④ On April 24, 2012, after the instant statement of payment was served on the Plaintiff, the Defendant served a written order to return unjust enrichment of this case on April 24, 2012, which seems to meet the requirements for delivery by disposition with the knowledge that it was not served at the time of the instant order to return unjust enrichment.

4) In addition, insofar as the delivery of the instant statement of payment could not be deemed as having taken the disposition of a subsidy return order as seen earlier, there is no room for supplementation of the grounds and reasons for the disposition in the instant statement of payment by the Defendant’s prior notice given to the Plaintiff. Thus, the instant statement of payment cannot be deemed as satisfying the requirements for the disposition in entirety with the prior notice given by the Defendant to the Plaintiff (it does not include whether the Defendant can file an administrative appeal and administrative litigation against the Plaintiff even if the notice of prior notice given by the Plaintiff was given by the Plaintiff, and the procedures for filing the appeal and the period for filing the claim are not stated. Thus, the date on which the Plaintiff received the notice of payment of the instant case

5) Ultimately, the Defendant’s order of return of subsidies was effective only on April 25, 2012, when the instant order of return of unjust enrichment was served on the Plaintiff (hereinafter “instant disposition”). The instant lawsuit was filed on April 25, 2012, before the lapse of 90 days from April 25, 2012, when the Plaintiff became aware of the instant disposition, and complied with the period of filing the lawsuit. Thus, the Defendant’s principal safety defense is without merit (On the other hand, according to the evidence No. 9, it can be acknowledged that the Plaintiff submitted a document to the Defendant requesting payment of subsidies to be returned in installments to the Defendant on April 13, 2012, but as long as the instant disposition did not take effect at the time, it cannot be deemed that the Plaintiff was aware that there was a valid disposition since the Plaintiff submitted the said document to the Defendant).

4. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition of January 19, 2010 was suspended until the pronouncement of the case was made by the decision of the suspension of the validity of this case, and the decision of dismissing the plaintiff's claim regarding the case on the merits became final and conclusive. However, since the validity of the above disposition was not suspended retroactively at the time of the disposition of January 19, 2010, the subsidy paid after the decision of the suspension of the validity of this case is not granted in other unlawful ways. Accordingly, the disposition of this case on a different premise is unlawful.

B. Determination

1) According to the former Social Enterprise Promotion Act (amended by Act No. 1039, Jun. 4, 2010), the Minister of Labor may provide a social enterprise that provides social services with financial support, such as personnel expenses, operating expenses, advisory expenses, etc. necessary for the operation of the social enterprise through open recruitment and examination within budgetary limits (Article 14(1)), and according to the former Subsidy Act, the budget compilation and management of subsidies shall be governed by the former Subsidy Act, except as otherwise expressly provided for in other Acts (Article 3(1)), except as otherwise provided for in other Acts (Article 3(1)); where a subsidized enterprise uses subsidies for any other purpose or violates the details of the decision to grant subsidies, the decision to grant subsidies may be revoked in whole or in part (Article 30(1)); where the decision to grant subsidies has been revoked, the Minister of Labor shall order the return of the subsidy corresponding to the revoked portion (Article 31(1)).

On the other hand, the effect of the decision to suspend the effect under Article 23 of the Administrative Litigation Act shall continue to exist until the time specified in the written decision and its effect shall naturally expire at the arrival of that time. Thus, in cases where the court, while making a decision to suspend the validity of the disposition of the administrative agency which has revoked a part of the decision to grant subsidies, has declared in the disposition that the effect of the disposition shall be suspended until the pronouncement of the original case pending in the court, the effect of the decision to suspend is extinguished by the sentencing of the decision to grant subsidies at the same time, and at the same time, the effect of the disposition to revoke the original decision to grant subsidies shall become naturally a matter of course (see

Therefore, in cases where the validity of the decision to suspend the validity of this case is terminated and the decision to grant the subsidy is invalidated on January 19, 2010, barring any special circumstance, the administrative agency should order the return of the subsidy granted during the period of suspension of the validity of the part revoked by the disposition of January 19, 2010 pursuant to Article 31(1) of the former Subsidy Act, unless there are special circumstances.

2) According to the above facts, the disposition of January 19, 2010 is the purport of revoking the decision to grant a subsidy to a subsidy program with respect to the amount of the illegal receipt of the subsidy accrued until that time, and the decision to grant a subsidy with respect to a subsidy program from January 2010 to June 2010, which has not yet been granted a subsidy. The decision to suspend the validity of the instant subsidy program has become effective on September 16, 2010, which is the date when the main case was sentenced in the relevant decision, and as a result, the disposition of January 19, 2010 has become naturally effective, so the Defendant can order the return of the subsidy with respect to the subsidy granted from January 19, 2010 to June 20, 2010, since the decision to grant a subsidy was revoked by the disposition of January 19, 201.

Therefore, the plaintiff's assertion is without merit, and the disposition of this case is legitimate.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. The judgment of the court of first instance which dismissed the lawsuit of this case is unfair with different conclusions, but it is not possible to revoke the judgment of the court of first instance and dismiss the plaintiff's claim because it is not possible to dismiss the plaintiff's claim under the principle of prohibition of disadvantageous alteration in this case which only the plaintiff appealed. It is so decided as per Disposition.