Whether basic childcare fees to be paid to the establisher and operator of a childcare center constitutes subsidies from the State or local governments (affirmative)

Article 36 of the former Infant Care Act (amended by Act No. 9792 of Oct. 9, 2009) and Article 24 of the former Enforcement Decree of the Infant Care Act (amended by Presidential Decree No. 21956 of Dec. 31, 2009) provide for matters concerning the payment of subsidies to the founders and operators of child care centers by the State or local governments. According to the delegation of the Ministry of Health, Welfare and Family Affairs, the “2009 Infant Care Guidance Guidelines” provided for the basic infant care fees to be paid to the founders and operators of child care centers by item of the “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 from the State or local governments.

Article 36 of the former Infant Care Act (Amended by Act No. 9792, Oct. 9, 2009); Article 24 of the former Enforcement Decree of the Infant Care Act (Amended by Presidential Decree No. 21956, Dec. 31, 2009)

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 2013Nu149 decided October 16, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 36 of the former Infant Care Act (amended by Act No. 9792 of Oct. 9, 2009) and Article 24 of the former Enforcement Decree of the Infant Care Act (amended by Presidential Decree No. 21956 of Dec. 31, 2009) provide for matters concerning the payment of subsidies to the founders and operators of child care centers by the State or local governments. According to delegation by the Minister of Health, Welfare and Family Affairs, the “2009 Infant Care Guidance Guidelines” provided for the basic infant care fees to be paid to the founders and operators of child care centers by item of the “facilities-level assistance” in relation to the basic infant care fees to be provided to the founders and operators of child care centers. 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

According to the reasoning of the lower judgment and the record of the first instance judgment cited by the lower court, the instant childcare fee subsidy is 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 in the “e-child care system” on the fifth day of each month, and constitutes the basic childcare fee under the “209 Infant Care Service Guidance”.

Examining these circumstances in light of the legal principles as seen earlier, the instant childcare subsidy, which is the basic childcare fee paid to the Plaintiff, shall be deemed as the subsidies from the State or the local government.

Although there is no inappropriate point at the time of this part of the judgment below's explanation, the conclusion that the childcare subsidy of this case constitutes a subsidy is justifiable, and contrary to what is alleged in the grounds of appeal, there is no error of misapprehending the legal principles on the order of return of subsidies and the disposition of penalty surcharge, or violating

2. Regarding ground of appeal No. 2

Examining the reasoning of the lower judgment and the first instance judgment cited by the lower court in light of the relevant legal principles and records, the lower court is justifiable to have determined that the instant penalty surcharge was a legitimate disposition that complies with the principle of proportionality within the scope of discretionary power, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding deviation and abuse of discretionary power, or by violating the

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Chang-soo (Presiding Justice)