Whether the head of a Si/Gun/Gu, etc. may order a social welfare facility to submit documents related to the receipt and use of support payments, if necessary for guiding and supervising the management of support payments of social welfare facilities (affirmative)

Article 45(1) of the former Social Welfare Services Act (Amended by Act No. 10997, Aug. 4, 2011); Articles 40(1)7 and 51(1) of the Social Welfare Services Act; Article 41-6(1) of the former Rules on Finance and Accounting of Social Welfare Foundations and Social Welfare Facilities (Amended by Ordinance of the Ministry of Health and Welfare No. 152, Aug. 7, 2012)

Plaintiff

Namyang Market (Law Firm LLC, Attorneys Kim Ho-hee et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Nu8118 decided January 25, 2018

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

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

1. The part of the judgment of the court below which failed to submit the documents No. 17 No. 5

A. Provisions and interpretation of the relevant statutes

1) Article 51(1) of the Social Welfare Services Act provides that the head of a Si/Gun/Gu, etc. shall guide and supervise the affairs under the jurisdiction of a person who operates a social welfare business, and if necessary, he/she may order the person who operates the social welfare business to report or submit related documents. In addition, Article 40(1)7 of the Social Welfare Services Act provides that the head of a Si/Gun/Gu, etc. may issue an order to improve the social welfare facility or to replace the head of the social welfare facility if the social welfare facility fails to report or submit related documents pursuant to Article 51(

2) Meanwhile, Article 45(1) of the former Social Welfare Services Act (amended by Act No. 10997, Aug. 4, 201) provides that the representative director of a social welfare foundation and the head of a social welfare facility shall ensure clarity in the revenue and expenditure of money, valuables, and other assets (hereinafter “support money”) that have been received without any consideration. Moreover, upon delegation of the Social Welfare Services Act, Article 41-6(1) of the former Rules on Finance and Accounting of Social Welfare Facilities (amended by Ordinance of the Ministry of Health and Welfare No. 152, Aug. 7, 2012; hereinafter “former Financial Accounting Rules”) provides that the representative director of a social welfare foundation and the head of a social welfare facility shall submit a report on the result of the receipt and use of support money (attached Form 19) to the head of the competent Si/Gun/Gu within 15 days after the end of each fiscal year.

3) In full view of the contents of the authority to guide and supervise social welfare program operators of the competent administrative agency, the language, structure, legislative intent, etc. of the former Social Welfare Services Act and the former Financial Accounting Rules, the head of the relevant social welfare facility is obligated to submit a report on the results of the receipt and use of donations to the head of the competent Si/Gun/Gu within 15 days after the end of the fiscal year, and thus, the head of the relevant Si/Gun/Gu may order the social welfare facility to submit documents related to the receipt and use of donations, if necessary to guide and supervise whether the social welfare facility properly performs the business of managing donations.

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

1) Around 1990, the Plaintiff reported the establishment of ○○○○○○ House (hereinafter “instant facility”) which is a social welfare facility for the physically disabled and welfare facilities for the physically disabled. Around that time, the Plaintiff worked as the head of the instant facility.

2) On November 7, 2014, the Defendant received a civil petition for internal corruption, including 13 public funds embezzlement and 23 human rights violations, with respect to the instant facilities.

3) Accordingly, the Defendant demanded the Plaintiff to submit materials related to the operation of the instant facility several times from December 1, 2014 to January 15, 2015 in order to verify the authenticity of the instant civil petition. However, the Plaintiff did not submit some of the documents requested to submit.

4) The documents that the Plaintiff did not submit include “the detailed usage of the △△△△△△ Center subsidies (5,000,000)”, which was the documents No. 17 No. 17 of the table of the lower judgment. The Plaintiff responded to the Defendant on January 15, 2015 that “the aforementioned subsidies were used for the payment of electricity,” and did not submit the detailed usage of the said subsidies.

C. Examining these facts in light of the relevant provisions and legal principles as seen earlier, the Plaintiff’s act of failing to submit the documents No. 17 No. 5 of the lower judgment to the Defendant constitutes “when failing to submit data under Article 51(1)7 without justifiable grounds” under Article 40(1)7 of the Social Welfare Services Act.

D. Nevertheless, the lower court determined that the Plaintiff’s failure to submit the documents No. 17 under Article 40(1)7 of the Social Welfare Services Act, on the premise that the documents No. 17 No. 37 of the Social Welfare Services Act and each subparagraph of Article 25 of the former Enforcement Rule of the Social Welfare Services Act (amended by Ordinance of the Ministry of Health and Welfare No. 322, Jun. 26, 2015), did not constitute “when failing to submit the documents under Article 51(1)” under Article 40(1)7 of the Social Welfare Services Act. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation and scope of application of Article 40(1)7 of the Social Welfare Services Act, thereby adversely affecting the conclusion of the judgment.

2. The part of the judgment of the court below which failed to submit the documents No. 4 No.

A. Relevant statutes

1) Articles 19(1) and 20(1)18 of the former Financial Accounting Rules stipulate that the representative director of a social welfare foundation shall prepare a report on the settlement of revenue and expenditure and submit it to the head of the Si/Gun/Gu by March 31 of the following year. The said report on the settlement of revenue and expenditure must be accompanied by a statement on personnel expenses.

2) However, Articles 19(1) and 20(1)19 of the Financial Accounting Rules (amended by Ordinance of the Ministry of Health and Welfare No. 152, Aug. 7, 2012) stipulate that the head of a social welfare facility, other than a social welfare foundation, shall prepare a report on the settlement of revenue and expenditure with which personnel expenses are attached and submit it to the head of a Si/Gun/Gu by March 31 of the following year.

3) Meanwhile, Article 42 [Attachment 5] Ⅲ. 6 of the Enforcement Rule of the Act on Welfare of Persons with Disabilities provides for the issuance and payment of money in books related to finance and accounting among books and documents to be kept in welfare facilities for persons with disabilities, evidentiary documents, various evidentiary documents, and other necessary documents.

B. According to the reasoning of the lower judgment, despite the Defendant’s request for submission of data, the Plaintiff did not submit the document No. 4 of the lower judgment, “2010, the wage payment ledger and details of employees in 2011.”

C. Examining these factual relations in light of the aforementioned relevant provisions, the lower judgment’s judgment, which was not submitted by the Plaintiff, was the document No. 4, 2010 and the employee’s wage payment ledger and specifications in 2011, and is not recognized as the duty to prepare and submit them to the Plaintiff, the head of a social welfare facility, not a social welfare foundation, under the Social Welfare Business Act and subordinate statutes, which was in force at the time. Furthermore, insofar as the said documents cannot be deemed as falling under “money delivery and payment, evidentiary documents, or various evidentiary documents and other necessary documents” under Article 42 and [Attachment Table 5] 3 of the Enforcement Rule of the Welfare Act, there is no ground to deem otherwise that the obligation to submit

D. Therefore, although the reasoning of the lower judgment is somewhat inappropriate, it is justifiable to conclude that the lower court did not constitute “when the Plaintiff did not submit data pursuant to Article 51(1)7 without good cause” under Article 40(1)7 of the Social Welfare Services Act, although the Plaintiff did not submit the documents No. 4 No. 5 of the lower judgment. In so doing, it did not err by misapprehending the legal doctrine on the interpretation and scope of application of Article 40(1)7 of the Social Welfare Services Act, contrary to what is alleged in the grounds of appeal.

3. The part concerning the failure to submit the documents No. 10 No. 10 of the lower judgment

With respect to the submission of the document No. 10 No. 10 of the judgment of the court below, the document No. 10 of the ‘the current status of the disabled persons of all other facilities and the current status of personal goods transferred,' there is no reason in the petition of appeal, and there is no detailed statement in the

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Jung-hwa (Presiding Justice)