Plaintiff (Attorney Quota et al., Counsel for plaintiff-appellant)

In the East Sea Market (Attorney Kim Jong-soo, Counsel for defendant-appellant)

August 16, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s order to return subsidies of KRW 48,693,840 to the Plaintiff on November 30, 2010 and the disposition of suspending the operation of the nursery facilities for six months and three months suspending the qualification of the head of the nursery facilities.

1. Details of the disposition;

The Plaintiff had operated “△△△△△ Child Care Center” (hereinafter “instant childcare center”) in the building located in the Dong-si from around 1997 to the Dong-si (hereinafter address omitted). Around 2000, the Plaintiff was designated as a childcare facility exclusively in charge of infants and was provided with personnel expenses for childcare teachers.

On November 30, 2010, the Defendant issued an order to recover KRW 48,693,840 (hereinafter “instant disposition”) to the Plaintiff, on the ground that Nonparty 1, a child care teacher of the instant childcare center, was paid a full-time subsidy as if he had not been previously provided with infant care services (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) From December 1, 200 to December 1, 200, Nonparty 1 served as infant care teachers at the pertinent child care center. From August 1, 2006, Nonparty 1 only worked for a private teaching institute from 10:00 to 14:00 in order to provide the instant child care center with simple meals and meals to the original students of ○○ Art Research Institute (hereinafter “Art. Research Institute”) located in the same building as the instant child care center, and the instant disposition did not have any grounds for its disposition.

2) The fact that infant care teachers should be transferred is not stipulated in the Act and subordinate statutes, such as the Infant Care Act (hereinafter “Act”), but rather stipulated in the Ministry for Health, Welfare and Family Affairs’s guidelines for the “2010 Infant Care Business Guidance,” so it is difficult to see that they violated the Act and subordinate statutes even if they were not transferred, if they were registered Nonparty 1 as part-time infant care teachers and received subsidies, the payment of subsidies could be lawful, and the Plaintiff used the full amount of subsidies to pay Nonparty 1 and did not use them in other places. In light of the above, the instant disposition was remarkably deviates from and abused discretion.

(b) Related statutes;

It is as shown in the attached Form.

(c) the existence of the reasons for the measure;

1) According to Article 36 of the Act and Article 24 of the Enforcement Decree of the Act, the Minister of Health and Welfare has the authority to determine necessary matters concerning the methods of providing various subsidies to childcare centers. According to Article 40 subparag. 3, Article 45(1)1, and Article 46 subparag. 4 of the Act, a local government may order the establisher and operator of childcare centers to return all or part of subsidies or to close or suspend the operation of childcare centers if he/she has received subsidies by fraud or other improper means. The Minister of Health and Welfare may suspend the qualification of the head of childcare center. However, the Minister of Health and Welfare determined that “the Minister of Health and Welfare provides for the transfer of childcare teachers as the requirements for subsidies to childcare centers in the 2010 Guidelines, which means that the operator of childcare centers must perform his/her duties on a regular basis (Article 40 subparag. 3, Article 45(1)1, and Article 46 subparag. 4 of the Act.

2) The instant child care center was designated as infant care center and was 80% of the personnel expenses of the State. However, the Plaintiff, the operator of the instant child care center, appointed Nonparty 1 as infant care teacher and reported this to the Defendant as prescribed by the Infant Care Act, and the Defendant paid part of the personnel expenses of Nonparty 1, the infant care teacher, as a subsidy.

In the first floor of the building like the child-care center in this case, Nonparty 2 operated the “○○ Art Research Institute” designated as an early childhood education consignment agency. Nonparty 1, the wife of Nonparty 2, from August 2006 to around 10:00, worked as a breast-in teacher at the above art education institute during the period from August 14, 200 to 14:00.

[Ground of recognition] Unsatisfy, Gap evidence 2-1-4, Gap evidence 3, the purport of the whole pleadings

In accordance with Article 36 of the Act and Article 24 of the Enforcement Decree of the Act, the Minister of Health and Welfare, pursuant to the guidance for childcare business guidance in 2010, deemed the requirements for the provision of subsidies to childcare teachers. As long as Nonparty 1 had worked at the above art education institute, which is not the pertinent childcare center, from 10:00 to 14:000, Nonparty 1 cannot be deemed to have worked at the instant childcare center for more than eight hours thereafter, even if Nonparty 1 had worked at the instant childcare center from 14:00 to 22:00, it cannot be deemed that Nonparty 1 had been replaced with the

Furthermore, the Plaintiff, who operates the child care center of this case, received subsidies from the Defendant as if he/she transferred Nonparty 1 who was not a child care teacher as above, which constitutes “the case where he/she received subsidies by fraud or other improper means” under Articles 40 subparag. 3, 45(1)1, and 46 subparag. 4 of the Act.

(d) Whether the discretionary authority is deviates from or abused;

The following circumstances revealed in the records of this case, i.e., (i) the duty to transfer childcare teachers is stipulated in the guidelines set by the Minister of Health and Welfare, unlike the duty to transfer childcare teachers, but this falls under the requirements for the provision of subsidies. If the Plaintiff received false subsidies in violation of the guidelines, it shall be deemed to have violated Article 40 subparag. 3, etc. of the Act as seen earlier. (ii) Since the Plaintiff had been operating childcare centers since 1997, Nonparty 1 would have been well aware of the requirements for the provision of subsidies. However, Nonparty 1 permitted Nonparty 1 to work at “○○ Art Research Institute,” but it did not reach KRW 48,693,840, and the period was relatively long-term from August 2, 2006 to February 2, 2009; (iii) if the Plaintiff used subsidies received from Nonparty 1 in a different place, it cannot be deemed that the Plaintiff’s use of subsidies constitutes an abuse of the discretionary authority’s discretion or an abuse of subsidies.

3. Conclusion

The claim of this case is dismissed on the ground that it is without merit.

[Attachment Form 5]

Judges Lee Jae-hee (Presiding Judge)