(영문) 대전고등법원 2019.4.17. 선고 2018누12259 판결

The judgment of the first instance is revoked. The Defendant’s disposition of restitution of subsidies of KRW 1,750,040,320 (hereinafter “instant disposition”) against the Plaintiff on January 19, 2016 shall be revoked.

Reasons

1. Details of the disposition;

(a) Details of granting subsidies;

1) The B Federation (hereinafter referred to as the “NB Federation”) is an organization established for the development of the rural history of Hongsung-gun, the improvement of rural women’s status and rights and interests. The Plaintiff is an agricultural partnership established for the collaborative management of agriculture and the improvement of livelihood for the improvement of productivity.

2) On April 20, 2009, B filed an application with the Defendant for subsidies for H commercialization projects (hereinafter referred to as “instant projects”) on December 17, 2009 and March 22, 2010. The Defendant granted the subsidies to B, as listed in the following table, to support the instant projects:

A person shall be appointed.

3) On May 19, 201, the B Federation requested on May 19, 201, that “the Defendant shall produce and sell the instant project activation and H. Therefore, the Plaintiff would inevitably complete the registration of establishment on May 12, 201, and then the Plaintiff would change the business entity of this case to the Plaintiff.” Accordingly, on May 23, 201, the Defendant notified the Plaintiff that the instant business entity was approved to change the Plaintiff.

4) A federation held a general meeting on June 23, 201, and donated the Plaintiff the land 2,990 square meters of land in Chungcheongnam-gun, Hongsung-gun, Hongsung-gun, which is the instant project site, 5,507 square meters of L, forest land, and 965 square meters of forest land (hereinafter “instant land”). On June 29, 201, the B federation decided to construct an office and a factory building for the instant project and to have the name registered as the Plaintiff. Accordingly, on June 29, 2011, B federation completed the registration of transfer of ownership on the instant land on the ground of donation on June 23, 2011. Thereafter, the Plaintiff constructed a factory building for the instant project operation on the instant land, and completed the registration of preservation of ownership on October 21, 2011.

5) On September 23, 201, the Plaintiff applied for a subsidy for the instant project to the Defendant, and the Defendant granted the Plaintiff the subsidy as indicated in the following table.

A person shall be appointed.

(b)Notification of the decision of returning subsidies of agricultural technology center;

1) On March 23, 2015, the director of the Agricultural Technology Center notified the Plaintiff that the project was implemented in 2009 to 2011 and that the project was not operated normally as a result of the on-site inspection. Accordingly, the main time was thoroughly based on the objective and purpose of the project, and that the project was performed and that the project was performed in order to prevent violation of Article 17 of the Ordinance on the Management of Subsidies from Hongsung Group (Sanctions against the recipient of the subsidy).

2) On May 15, 2015, the head of the Agricultural Technology Center notified the Plaintiff that the production basis of the project was completed in the year 2011 (hereinafter referred to as "business period") and the normal operation was not carried out. Thus, on May 31, 2015, the head of the Agricultural Technology Center is the principal time by taking prompt measures to normalize the management so as to be consistent with the purpose of the project by May 31, 2015, and that the decision to grant local subsidies is subject to the revocation of the decision to grant local subsidies pursuant to Article 26(2)4 and 5 of the Ordinance on the Management of Local Subsidies of Hongsung-gun (amended by Ordinance No. 2152, Dec. 30, 2014).

3) From June 2, 2015 to June 4, 2015, the agricultural technology center visited the Plaintiff’s workplace and confirmed that the entrance of the Plaintiff’s workplace was corrected, and that the Plaintiff was not operating the instant business, such as there was no employee. On June 8, 2015, the agricultural technology center urged the Plaintiff to normalize its management by June 21, 2015, and notified the Plaintiff that the decision to grant local subsidies is subject to the revocation of the decision to grant local subsidies under the above Article 2152 of the Ordinance.

4) From June 19, 2015 to June 19, 2015, the agricultural technology center visited the Plaintiff’s workplace and confirmed that the Plaintiff still did not run the instant business. By June 30, 2015, the Plaintiff requested the Plaintiff to submit a management normalization operation plan (fund raising plan, production plan, estimated income statement, sales and distribution plan, and business establishment revitalization plan) as shipment, and notified the Plaintiff that “if not submitted within a specified period, it constitutes a matter subject to the revocation of the decision to grant local subsidies under the above Article 2152 of the Ordinance.” The Plaintiff did not normalize the management by the said period and did not submit the said documents.

5) On August 25, 2015, the agricultural technology center notified the Plaintiff on September 10, 2015 that “the plan for operating the business normalization and the certificate of taxation shall be the shipment of the source of business normalization, and the decision to grant local subsidies shall be subject to the revocation of the decision in accordance with the Ordinance on the Management of the Subsidies of Hongsung Group No. 1748 at the time the agricultural technology center fails to submit within the given period.” The Plaintiff did not normalize the management by the said period and did not submit the said documents.

6) On December 11, 2015, the agricultural technology center notified the Plaintiff of the completion of the production basis for the main project, but the Plaintiff did not normally operate the project, that the Plaintiff’s opinion on the return of subsidies pursuant to Article 17 of the Ordinance on the Management of Subsidies from Hongsung-gun, Hongsung-gun, No. 1748, 17, 17, 17, 12, and 28, 2015, is called shipment. The Plaintiff did not present any opinion.

C. The defendant's disposition of this case

1) On December 31, 2015, the Defendant made an internal decision on the official document prepared by the head of the agricultural technology center, stating that “The head of the agricultural technology center shall implement a disposition of return of KRW 1,750,040,320 of the subsidies already granted, even though it did not submit a prior opinion following the return of the subsidy for the instant project.” On January 5, 2016, the head of the agricultural technology center notified the Plaintiff that the decision of return of the instant subsidy was made with the following content.

Item H is known that the decision to return the subsidy for H Productsization Project has been made as follows.A. Project name is subject to H Productization Project (2009 to 2011): the Plaintiff. The Plaintiff is entitled to: Article 17-2 of the Ordinance on the Management of the Subsidies for Hongsung Group No. 1748: When there is no possibility of success of the subsidized Project - Article 17-2 of the Ordinance on the Management of the Subsidies for Hongsung Group No. 1748: d. the amount recovered: 1,750,040,320 (unit: source).

2) On January 19, 2016, the Defendant issued the instant disposition with the following content to the Plaintiff.

Item H: (a) The amount determined to be returned pursuant to Article 17 of the Ordinance on the Management of the Subsidies of Hong-gun, Hong-gun, 1748, as of January 15, 2016, shall be determined to be returned as of January 15, 2016; and (a) The amount to be recovered shall be paid as of January 15, 2016 and shall be paid as follows: The payment method: the payment method of KRW 1,750,040,320 (b): the payment method of the notice or virtual account; the payment deadline shall be paid. The payment deadline: the payment deadline:

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 6, 10, Eul evidence Nos. 1 through 9, 15, 16, 19 through 23 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiff's assertion

A. The decision on the return of subsidies to the Plaintiff is null and void as an agricultural technology center without authority. The instant disposition was based on the invalid decision on the return of subsidies. In addition, the instant disposition was made without the Defendant’s order on the return of subsidies or the decision on the grant of subsidies.

B. Article 10 of the above Ordinance on the Management of Subsidies provides that, if deemed particularly necessary due to changes in circumstances, all or part of the decision to grant subsidies may be revoked, but Article 17 of the above Ordinance provides that the decision to grant subsidies may not be revoked with respect to a subsidy program already implemented, and that, in cases where a subsidy program has no possibility of success or the whole or part of a subsidy program is suspended (Article 17 (2) and (3) of the above Ordinance, a refund of all or part of the subsidy already granted may be ordered. In full view of these provisions, when a subsidy program is already completed, a refund of all or part of the subsidy already granted cannot be ordered. The Plaintiff may not order the full return of the subsidy that is not different from the full revocation of the decision to grant a subsidy program upon the completion of a detailed project plan on the decision to grant each time it receives each subsidy. Accordingly, the Defendant’s disposition in this case is unlawful.

C. Before remanding, the Defendant asserted that “the subsidized business operator fails to comply with all the regulations and instructions, the Plaintiff was obligated to return the subsidy in full or in full.” However, the Defendant’s ground for disposition that “the Plaintiff violated the terms of granting the subsidy” is not identical to the original grounds for disposition and basic factual relations, and thus, the grounds for disposition cannot be added. Even if the grounds for disposition are allowed to be added, the Plaintiff continued to conduct the instant business, such as the production of test, trademark registration, patent use contract, unmanned security service contract, employment of employees, factory visit, and experience program after the Plaintiff was finally granted the instant subsidy in 2011, and thus did not violate the terms of granting. Accordingly, the Defendant’s disposition of this case was unlawful.

D. The above Ordinance on the Management of Subsidies No. 1748 provides that when a subsidized project operator intends to transfer a subsidized project due to a change in circumstances, he/she shall obtain the approval of the head of the Gun, and only stipulates that the heir of the subsidized project may receive the subsidy, and no provision exists as to whether he/she succeeds to the duty to return the subsidy already paid. Since a disposition on the return of a subsidy already granted is an infringing disposition, there is an explicit provision in law, and unless otherwise provided, the Plaintiff may not be deemed to succeed to the duty to return the Federation’s subsidy. Therefore, the instant disposition ordering the

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. The statutes on the grounds of the instant disposition

1) According to the written evidence Nos. 1 and 2, the notice of the decision of return of subsidies issued by the agricultural technology center on Jan. 5, 2016 is written by Article 17 subparag. 2 and 3 of the Hongsung-gun Subsidy Management Ordinance No. 1748 under the relevant Act and subordinate statutes, and also written by Article 17 of the red-gun Subsidies Management Ordinance No. 1748 under the relevant Act and subordinate statutes. The Plaintiff asserts that the instant disposition is based on Article 17 of the Ordinance on the Management of Subsidies of the Red-gun Subsidies Act (No. 1748).

2) With respect to subsidies granted by local governments, the Local Finance Act, the Enforcement Decree of the Local Finance Act, the Hong Gun Ordinance on the Management of Subsidies, and the Hong Gun Ordinance on the Management of Subsidies shall be as follows: ① Violation of 1748, and Article 17 of the Ordinance on the Management of Subsidies may be ordered to return all or part of subsidies already granted if a subsidy program is in contravention of statutes or the conditions of subsidies; ② Violation of those statutes, such as the Ordinance on the Management of Subsidies, may be ordered to suspend the use of subsidies, in whole or in part, if a subsidy program is completely or partially suspended; ② Violation of the provisions of Article 20 of the Ordinance on the Management of Subsidies of 20, the Ordinance on the Management of Local Subsidies of 20, the Ordinance on the Management of Subsidies of 20, the Ordinance on the Management of Subsidies of 25, 206, and the Ordinance on the Management of Subsidies of 2, 206, and the Ordinance on the Management of Subsidies of 2, 25, and other Ordinance on the Management of Local Subsidies.

Article 32-8 of the former Local Finance Act (amended by Act No. 12687, May 28, 2014); Article 32-8 of the former Local Finance Act (amended by Act No. 12687, May 28, 2014); Article 32-8 of the former Local Finance Act (amended by Act No. 15 of the former Local Finance Act), which was enforced at the time of the disposition of this case, is governed by the previous provision, so the above Ordinance No. 2195 and No. 2186 cannot be applied to the return of the subsidy of this case granted from 2009 to 2011. Since Article 2152 of the former Local Finance Act (amended by Act No. 12687, Dec. 12, 2013; Ordinance No. 2152 of the same Act (amended by Act No. 2097, Apr. 27, 2012); Article 201 of the former Ordinance on the Management of the Subsidies (amended by Ordinance No. 201.

3) Therefore, even if Article 17 of the Act and subordinate statutes based on the notification of the decision on the return of subsidies issued by the agricultural technology center on January 5, 2016 and the written disposition of this case provide for the above Article 17 of the Ordinance, such provision constitutes an error in the law of simple application, and thus, the court shall determine the legality of the instant disposition by applying Article 20 subparagraphs 1 and 2 of the Ordinance to the relevant Act and subordinate statutes (see, e.g., Supreme Court Decision 99Du1929, Dec. 22, 2000).

B. Whether the instant disposition was based on the invalid decision to return subsidies

The following facts may be acknowledged in light of the overall purport of the arguments in evidence Nos. 4, 6, 13, and 24: (1) In order to recover the subsidy of this case, the Defendant issued a notice of revocation of the decision to grant the subsidy proposed by the Director of the Agricultural Technology Center, and a notice of the amount to be returned, etc. to the Plaintiff on January 15, 2016. (2) Upon the Defendant’s approval, the Agricultural Technology Center notified the Plaintiff of the decision to return the subsidy of this case in its name. (3) The title of the notice notified by the Director of the Agricultural Technology Center to the Plaintiff is stating that “the Plaintiff is known of the decision to return the subsidy of H commercialization projects.” (4) Article 20 of the Ordinance of this case provides that “the head of the Agricultural Technology Center is informed of the decision to return the subsidy of H commercialization projects.” (2) The Director of the Agricultural Technology Center has already received the order to fully or partially suspend the operation of the subsidy of this case and the Director of the Agricultural Technology Center.” (3).

In full view of the aforementioned details of the decision to return the subsidy of this case, the text and content of the notification notified by the agricultural technology center, and the relevant ordinances, it is reasonable to deem that the decision to return the subsidy of this case was made by the competent defendant, and that the director of the agricultural technology center is merely a notification of the fact that the Defendant notified the Plaintiff of the decision to return the subsidy of

Meanwhile, Article 20 of the instant Ordinance (Article 17 of the instant Ordinance) that applies to the instant case does not stipulate the revocation of the decision to grant a subsidy as a prior procedure for the instant disposition. Therefore, even if the Defendant did not revoke the decision to grant a subsidy in the instant disposition, the instant disposition cannot be deemed unlawful.

The Plaintiff’s assertion that the instant disposition is unlawful on a different premise is without merit.

C. Whether the instant disposition grounds exist

1) Facts of recognition

A) On April 23, 2009, the decision to grant subsidies and the submission of reports, etc.

(1) On April 20, 2009, the Federation submitted an application for subsidies and a project plan to the Defendant, and filed an application for subsidies. The main contents of the said application and project plan are as follows:

1. Purposes and contents of the subsidy program: The purpose and purpose of the subsidy program are to increase the difficulties of farmers and rural communities caused by the outbreak of beef from the FTA; the improvement of national health is required due to the inflow of the population and the production and supply of safe food due to the Do government's new city prior to the Do government's new city; and the amount of contribution to the increase of the farm's income due to H commercialization: Total expenses required for the subsidy program; 2. The amount to be paid and received for the subsidy program; 60 million won: 50 million won: The amount to be paid for the subsidy program: 100 million won: the project period: the scheduled date of commencement on April 5, 2009: New construction of H processing facilities on December 5, 209: 6. The effect of the subsidy program - the creation of new sources of income of farmers due to the ice food preference of consumers - the creation of new products to the Do government's new products and the promotion of local economic revitalization by fostering local products;

(2) On April 23, 2009, the Defendant added the conditions while granting subsidies to the Federation B on April 23, 2009. The main contents of the attached conditions are as follows.

1.This subsidy shall be used for expenses associated with the promotion of H commercialization projects in accordance with the provisions of Article 11 of the Subsidy Management Ordinance.2. If this subsidy is used for any purpose other than the purpose of subsidization or does not comply with all the regulations and instructions, the full or partial amount of the subsidy may be recovered.3. Upon completion of the subsidized project, the settlement statement shall be made within 10 days in accordance with the provisions of Article 13 of the red-gun Subsidy Management Ordinance.

(3) From September 26, 2009 to December 22, 2009, B federation submitted to the Defendant a completion report and an expenditure statement of the completed portion of the civil and construction design cost, factory site civil and civil and factory construction, factory construction, etc. The Defendant completed the completion inspection of the completed portion from September 26, 2009 to December 24, 2009.

B) On December 21, 2009, the decision to grant subsidies and the submission of reports, etc.

(1) On December 17, 2009, the B Federation applied for subsidies to the Defendant on the same content as the application for subsidies and the project plan of April 20, 2009, the project period is the scheduled date of arrival, the scheduled date of completion: December 2009; the total project cost and the amount to be received; and the detailed project plan is 200,000,000,000 won; and the detailed project plan is 'the installation of sewage and wastewater purification facilities and the construction of welfare management units' for H commercialization.

(2) On December 21, 2009, the Defendant added the same conditions as the decision to grant subsidies to the Federation on April 23, 2009.

(3) On December 31, 2009, the Federation submitted to the Defendant a completion report and a statement of accounts for project costs related to the new construction of welfare Dongs, etc., and the Defendant completed the completion inspection on the completed portion of January 5, 2010.

C) On March 23, 2010, the decision to grant subsidies and the submission of reports, etc.

(1) On March 22, 2010, the Federation submitted to the Defendant an application for subsidies and a project plan, and filed an application for subsidies. The main contents of the said application and the project plan are as follows:

1. 사업목적: H 대량 생산체계 확립으로 상품화 실현 및 농가 소득원 창출2. 사업내용· H 가공장 설비· 기능성 양념압축 가공기계 설치 및 운영· 기능성 H HACCP 시스템 구축 및 품질 안정화를 위한 컨설팅 추진· 기능성 | 생산을 위한 후생동 보완에 관한 사항 등3. 사업기간: 2010. 3. 2010. 12.4. 총사업비: 2억 4,000만 원5. 교부신청금액: 2억 4,000만 원6. 세부사업내용· 가공시설 HACCP 관련 컨설팅업체 선정 및 의뢰· 건두부 가공 시설 설비 및 가공기계 설치· 관리 후생동 보완 추진· H 시제품 생산 및 홍보 등7, 보조사업 효과· 콩가공 식품 개발에 의한 국산 콩의 부가가치 향상과 소비자의 수요 증가로 실질적인 농가소득 제고· 소비자의 웰빙식품 기호 충족으로 농가의 새로운 소득원 창출· 가공 상품화 판매로 고용창출 및 지역특산품으로 육성하여 신성장 동력의 지역경제 활성화에 기여

(2) On March 23, 2010, the Defendant added the conditions while granting subsidies to the Federation B. The main contents of the attached conditions are as follows.

1.This subsidy shall be used as a subsidy for the costs of the implementation of H Productsization Project pursuant to Article 11 of the Ordinance on the Management of the Subsidies of Hong-gun.2. A subsidy operator shall comply with an order issued by the head of the Gun with respect to the implementation or rectification of a subsidy program; 3. If a subsidy operator uses the subsidy for any other purpose or violates the purpose, details or conditions of the subsidy program, or any relevant statute, the decision to grant the subsidy may be revoked in whole or in part and may order the refund of the subsidy.

(3) On June 14, 201, after the decision to grant the above subsidies, the Federation submitted to the Defendant a completion report on the purchase of the two secondary processing machinery, the extension of the welfare operation, etc., and a report on the settlement of subsidies.

D) On September 29, 201, the decision to grant subsidies and the submission of reports, etc.

(1) On September 23, 201, the Plaintiff filed an application for subsidies with the Defendant upon submitting an application for subsidies and a project plan. The main contents of the said application and the project plan are as follows.

1. The project period: The total project cost on December 31, 2011: KRW 870 million: KRW 4,000,000,000; KRW 87770,000,000; and the purchase of machinery and appliances, and installation of auxiliary equipment for double-production (boil, cooling equipment, etc.); purchase of construction and sanitation facilities, such as boiler, cooling equipment, and civil engineering; purchase of equipment for purchasing and sanitation; installation of experimental equipment; supply of household population and safety food prior to the new city prior to the Do government office’s relocation; realization of commercialization through the establishment of the national health promotion and H mass production system; and creation of farm income sources;

(2) On September 29, 201, the Defendant added the conditions while granting subsidies to the Plaintiff. The main contents of the added conditions are as follows.

1. A matter concerning revocation of the decision to grant a subsidy or, even after the decision to grant a subsidy is made, if the decision to grant a subsidy is deemed to have a significant change in the circumstances in the legislation and budget, the decision to grant a subsidy or to fully or partially revoke the decision to grant a subsidy.2. A person to whom a subsidy or subsidy has been granted shall submit a report on the performance of a subsidy program and a report on the settlement of the project cost to the head of the Agricultural Technology Center without delay when the project is completed or the report on the discontinuation of the project.

(3) From October 22, 2011 to January 18, 2012, the Plaintiff submitted to the Defendant a completion report on the construction of HCCP facilities, a completion report on the purchase of machinery for two parts manufacturing lines, and a report on the settlement of subsidies.

[Ground of recognition] Facts without dispute, evidence prior to the dispute, entry of evidence Nos. 25, 26, 27 and the purport of the whole pleadings

2) Whether there exist grounds for disposition under the Ordinance of this case

In full view of the above facts and the whole purport of the arguments, it is reasonable to view that the business of this case includes not only the completion of H production plant and facilities, but also the operation of H production and sales business. Thus, it is reasonable to deem that the business of this case was completed only by the Plaintiff’s completion of H production plant and facilities, and that the business of this case was suspended due to the progress of the business of this case, or there is no possibility of success or the suspension of H commercialization business according to the business of this case. Thus, the Defendant’s disposition ordering the return of the subsidy of this case based on Article 20 (Article 17 of the above Ordinance No. 7148) of the Ordinance of this case is legitimate.

A) Whether the instant project was completed

(1) The subsidized project refers to the project that is subject to the grant of the subsidy. The project of this case is not only the completion of the H production plant and facility, but also the operation of the H production and sale by using the production plant and facility. Although H production plant and facility are completed, it is not consistent with the concept of the H commercialization project even if H is not produced and sold.

(2) The B Federation and the Plaintiff’s application form for subsidies and its business plan shall contain the following contents. ① On April 20, 2009 and December 17, 2009, the application form for subsidies and the business plan for subsidies are increasing the difficulties of farmers and rural communities due to the supply of population and safe food due to the movement of urban citizens and the supply of safe food due to the transfer of the Do government city, and there is a need to improve national health due to H commercialization, and the effect of the subsidized project is less than the "contribution to increase farm income" than the "production of new source of income of rural communities with satisfaction of the well-being food preference, employment creation through the sale of processed products, and promotion of local economic revitalization by fostering the "business for food production" as well as the "business for food production and supply" and the "business for food production and supply" as the "business for food production and supply" of new products, and the "business for food production and supply" as the "business for food production and supply of new products" and the "business for new production and supply of new products."

(3) The Defendant issued the instant decision to grant subsidies on the basis of the B Federation and the Plaintiff’s application form and the project plan that contain the aforementioned contents, namely, the purpose and details of the H commercialization project, the effects associated with the project, etc. Moreover, the agricultural technology center did not operate normally as a result of the local inspection. As such, the Plaintiff informed the Plaintiff of the thorough implementation of the instant project that “the main time would be the main time based on the date of the operation of the project,” and notified the Plaintiff of the purport that the instant subsidy would be recovered in the event that the Plaintiff’s workplace visits the Plaintiff’s business to confirm whether the H commercialization project was operated and the normal operation was not normalized. This shows that the Defendant also provided the instant subsidy by recognizing that the instant project includes not only the completion of the H production plant and facilities, but also the operation of H production and sales projects, etc.

(4) Article 20 Subparag. 1 and 2 of the instant Ordinance provides that “When it is deemed that the success of a subsidized project is unlikely, all or part of the subsidized project is suspended, a refund of the subsidy already granted may be ordered.” The concept of the completion of the subsidized project is that there is no possibility of success of the subsidized project, or whether the subsidized project is suspended or not. Therefore, if only the completion of the H production and facility is considered as the completion of the instant project, the Defendant cannot recover the subsidy already granted even if the Plaintiff completed the construction of the manufacturing and facility and does not operate the H production and sale, etc., after the Plaintiff completed the construction of the H production and facility, and the Plaintiff could hold the factory and facility already acquired with the subsidy. This is inconsistent with the purpose and effect of the H commercialization project indicated by the Plaintiff at the time of the instant application for the subsidy. This is also different from the content of the instant project recognized by the Plaintiff and the Defendant upon receipt of the instant subsidy.

(5) Meanwhile, Article 17-2(5) of the former Local Finance Act (amended by Act No. 12678, May 28, 2014) provides that "other matters necessary for the sound and efficient operation of subsidies, such as ex post facto evaluation of a subsidy program shall be prescribed by Presidential Decree." Article 30-2 of the former Enforcement Decree of the Local Finance Act (amended by Presidential Decree No. 25781, Nov. 28, 2014) provides that "The head of a local government shall conduct an ex post facto evaluation of a subsidy program pursuant to Article 17-2(5) of the Act. The ex post facto evaluation shall include the evaluation of the performance of the subsidy program and the need to maintain the subsidy program." Article 30-4 of the Enforcement Decree of the said Act provides that "When a subsidy program is completed, a subsidy program operator shall prepare and submit a performance report stating the results of the subsidy program when the subsidy program is suspended or the fiscal year ends, and the head of the local government shall, if so determined, provide that the subsidy will be returned.

Accordingly, the B Federation received subsidies from the Defendant for the use and use of the subsidies for which the project period has been fixed three times from September 26, 2009 to June 14, 201, and submitted a business performance report, a statement of accounts of project costs, and a report of completion of the project progress to the Defendant from September 26, 2009, and the Plaintiff also transferred the instant business from the Federation to the Defendant from October 22, 201 to January 18, 2012. The Defendant submitted the said documents to the Defendant from October 22, 201 to January 18, 201. The Defendant completed the completion inspection on the completed portion when the B Federation

However, deeming that the instant project has been completed by submitting a report on the results of the instant project and the completion report, etc. after the construction of H production factories and facilities during each of the respective subsidies received by the B and the Plaintiff is inappropriate for the following reasons. ① The pre-construction or completion of the instant project is a complete name, “H commercialization project” and the “H commercialization project” as seen earlier includes not only the completion of H production factories and facilities, but also the operation of H commercialization project using the relevant factories and facilities, even if the instant project was completed by the Plaintiff’s association and the Plaintiff’s construction of new factories and facilities with the instant subsidies, but also the submission of the report on the completion of each of the instant project and the completion of each of the instant construction and operation of the instant project to ensure that the instant project would have been completed for each of the instant 0-year period, including the completion of the instant construction of new factories and facilities, and that the instant project would have been completed by the Plaintiff’s completion of the construction and operation of each of the instant subsidy program by the National Finance Corporation.

B) Possibility of success and discontinuance of the instant project

(1) The final payment of the instant subsidy is around September 201, and the completion of the factory and facilities is around 2011. From March 23, 2015, the agricultural technology center inspected the instant factory and facilities on several occasions, and confirmed that the Plaintiff did not operate the factory without correcting all the entrances, and urged the Plaintiff to normalize its management as soon as possible. Nevertheless, the Plaintiff did not take measures to normalize its management, and the Defendant, at the end, came to make the instant disposition on January 19, 2016, four years after the completion of the said factory and facilities.

(2) The fact that the Plaintiff had failed to operate a factory until now before the remanding of the case is recognized to be due to the fact that the Plaintiff was prior to the commencement of the business of this case and failed to prepare operating funds for the first mass production.

(3) According to the statements in Gap evidence Nos. 13 through 32, it is recognized that the plaintiff was engaged in test production, trademark registration, patent-use contract, station contract for unmanned guard, employee recruitment, factory field and experience program since the plaintiff was finally granted the subsidy of this case in 2011. However, the above acts can only be evaluated as the basis for the operation of H production factory, and they cannot be viewed as having operated the business, such as producing and selling He through normal operation of factory.

3) Whether there exists a ground for a disposition in violation of the terms of granting subsidies

Even if the grounds for the instant disposition under Article 20 of the Ordinance are not recognized, it is reasonable to view that the Plaintiff violated the terms and conditions of the instant subsidy grant, and that the Defendant may order the return of the instant subsidy on such grounds. Thus, the Defendant’s disposition of this case is lawful.

A) Whether additional grounds for disposition are permitted

The Defendant initially served as the basis for the instant disposition only Article 17 subparag. 2 and 3 of the Ordinance No. 7148, but before remanding, the court added the Plaintiff’s violation of the terms and conditions of granting subsidies to the Plaintiff to the grounds for disposition. In an appeal litigation seeking the revocation of an administrative disposition, an administrative agency may add or modify a new ground for disposition to the extent that it is recognized as identical to the underlying factual basis of the original disposition (see, e.g., Supreme Court Decision 92Nu213, Oct. 9, 192)

When the head of agricultural technology center urged the plaintiff to normalize the management, "the production basis of the business has been completed in the year 201, but the normal operation has not been performed", and the government proposed Article 17 or Article 26 (2) 4 and 5 of the Ordinance of 1748 or Article 26 (2) 4 of the Ordinance of 2152 of the Act on the Grounds of Disposition as seen earlier. Article 26 (2) 4 of the above Ordinance provides that "when the business has been voluntarily suspended without the approval of the head of the Gun, the whole or part of the business has been suspended", and Article 26 (2) 5 of the Ordinance provides that "when the local subsidy is not procured any expenses other than the local subsidy covered by the local subsidy"

According to the above facts, the basic facts leading to the Defendant’s disposition are revealed to the effect that “the Plaintiff has completed the production basis of the business in the year 2011, but failed to secure expenses other than those appropriated as local subsidies, etc. among the expenses incurred in the business, and is unable to operate normally.” As seen later, the conditions for granting the subsidy of the instant business include the Plaintiff’s completion of the instant H plant and facilities and the operation of H production, sale, etc. In addition, it can be seen that the conditions for granting the subsidy of the instant business include the content that the Plaintiff would complete the instant H plant and facilities. The violation of the conditions for granting the subsidy, which is the grounds for disposition originally presented by the Defendant, is merely a different legal assessment based on the same social factual basis. Accordingly, the Defendant may add the violation of the conditions for granting the subsidy to the grounds for disposition.

B) Whether there is an additional reason for disposition

(1) Whether the violation, cancellation, or withdrawal of the terms and conditions of the subsidy is possible

Since the granting of the instant subsidy belongs to the discretionary act of an administrative agency by the so-called beneficial administrative disposition having the effect of granting rights or interests to the other party, even if there are no special grounds in the law, the conditions may be added thereto, and if the other party to the administrative act fails to comply with it, the administrative act may be revoked or withdrawn. Meanwhile, Article 7 of the Ordinance of 1748, which was in force at the time of the decision to grant the instant subsidy, provides that "the head of the Gun may attach the conditions deemed necessary for accomplishing the purpose of granting the subsidies, which are set forth in the Act and subordinate statutes and the budget."

The defendant added the conditions of the decision to grant the subsidy in this case, and the condition of the subsidy in this case was not fulfilled by the plaintiff, the right to cancel or cancel the decision to grant the subsidy in this case, or reserved the right to cancel or cancel the order to return the subsidy, and the defendant may order the return of the subsidy in this case on the ground that the plaintiff violated the conditions of the subsidy (see, e.g., Supreme Court Decision 2003Du12400, Oct. 28, 2005).

(2) Whether the Plaintiff violated the terms of delivery

In full view of the following circumstances that can be recognized by comprehensively taking account of the facts admitted as above and the purport of the entire pleadings, the conditions for granting subsidies for the instant project include that the Plaintiff would complete the instant H plant and facility and operate H production and sale, etc., and it is reasonable to deem that the Plaintiff violated the conditions for granting subsidies.

(A) As seen earlier, the Defendant issued a decision to grant the instant subsidy and added the condition that the Defendant may order the full or partial return of the subsidy when it violated the purpose of granting the subsidy and the terms and conditions of the subsidy in 2009, “when the Defendant violated the purpose of granting the subsidy and the terms and conditions of the subsidy program” in 201, and “when the purpose cannot be achieved due to the partial suspension of the project, the full or partial suspension of the project may be ordered. In particular, the terms and conditions of granting the subsidy in 201 include the content that “property acquired with the subsidy” shall be transferred, exchanged, lent, changed, or discarded for five years from the date of completion of the project, and the main facilities and equipment acquired with the subsidy shall not be disposed of within five years from the date of completion of the ex post facto management period.”

(B) The objective of the instant project was to contribute to the increase of farm income through H commercialization in 2009, and in 2010, "the realization of commercialization and the creation of farm income sources by establishing the H mass production system." As a result of the project, "the realization of commercialization," "the creation of employment through the sale of processed products," "the contribution to the revitalization of the regional economy," and "the promotion of national health by the production and supply of safe food." In light of the purpose and expected effects of the instant project, the purpose of the instant subsidy can be deemed to be for the purpose of enabling the Plaintiff to install facilities that enable the Plaintiff to produce in bulk with the subsidy and sell them. If the purpose of the subsidy was to create a foundation for the project, such as the construction of a new factory building, the construction of production facilities, etc., the purpose of the subsidy grant order can be deemed to have been in violation of the purpose of the subsidy grant order for 2010 years.

(C) The terms and conditions of granting subsidies in 201 include the restriction on disposal of the property acquired with subsidies and the duty to follow-up management for five years from the date of completion of the project. In particular, the property acquired with subsidies cannot be transferred, exchanged, leased within its useful life, nor can it be used for any other purpose without the Defendant’s approval during the five-year post management period. In light of the aforementioned provisions, the duty to follow-up management of the property acquired with subsidies may be deemed to impose the duty to follow-up management of factories and facilities for H commercialization projects beyond simply preserving new factories and production facilities. The terms and conditions of granting subsidies in 201 provide that the property acquired with subsidies will follow-up management of the property acquired with subsidies for five years after the completion of the project as above, as well as the duty to follow-up management for H commercialization projects.

(D) The terms and conditions of subsidies in 2009 include all the following: (a) the first year during which the instant project was implemented; (b) the Plaintiff and the Defendant planned the commercialization and sale of H from the new factory after the completion of the instant project; and (c) the Defendant imposed a duty of follow-up management for five years with respect to the property acquired from the Plaintiff during the last year of the instant project in 201, which was the last year of the instant project; and (d) the aforementioned provisions and instructions may be deemed to include all the conditions and directions of subsidies granted in the future of the instant project. Accordingly, if the Plaintiff failed to operate the factory and facilities for the purpose of H commercialization for five years after the completion of the project, it may be deemed to violate the conditions of subsidies in 2009.

(E) As seen earlier, the Plaintiff did not complete the instant H-production factory and facility and did not operate the production and sales business using the instant H-production plant. Moreover, even though the Agricultural Technology Center normalizes the instant business several times and issued a shipment of the operational plan, the Plaintiff did not take any measures. The Plaintiff should be deemed to have violated the terms and conditions of granting the instant subsidy.

4) Whether the Plaintiff is obligated to return the subsidy received from the Federation B

In full view of the above facts and the overall purport of the arguments, it is reasonable to view that the Plaintiff comprehensively succeeded to the rights and obligations following the grant of the instant subsidy by taking over the status of the subsidized entity upon the Defendant’s approval from the Federation B, and comprehensively succeeding to the rights and obligations of the subsidized entity. The Defendant’s disposition, including the subsidies granted to the Plaintiff by the Federation, including the subsidies granted to the Plaintiff, does not require an explicit legal basis. The instant disposition ordering the Plaintiff to return the subsidies granted by the Federation is lawful.

A) Article 14(1)3 of the instant Ordinance provides that “If a subsidized project operator intends to hand over the subsidized project, he/she shall obtain approval from the head of the Gun in advance,” and Article 14(2) of the instant Ordinance provides that “A subsidy may be granted to a person who followed the subsidized project pursuant to paragraph (1).” The Plaintiff was established to carry out the instant project carried out by the Association B, and succeeded to the instant project with the Defendant’s approval.

B) From April 2009 to March 2010, the Federation received the instant subsidy from the Defendant three times from around April 2009 to constructed the H production factory building, etc. and installed the machinery, etc., and the Plaintiff was transferred without any consideration the ownership of the factory and the machinery, etc. newly constructed with the instant subsidy granted by the Defendant for the instant business. Moreover, the Federation donated the instant land, which is the instant business site, to the Plaintiff without compensation, and completed the registration of ownership transfer in the name of the Plaintiff.

C) The Plaintiff received subsidies from the Defendant while transferring the instant business from the Federation, and installed production facilities in H production factories newly constructed by the Federation B, and completed registration of preservation of ownership in the name of the Plaintiff as to the newly constructed factory buildings.

D) If it is deemed that the Defendant could not order the Plaintiff to return the subsidy received by the Federation, the Plaintiff would lead to an unreasonable conclusion that the Plaintiff would enjoy benefits from the instant subsidy received by the Federation, while the Plaintiff would not be subject to sanctions following the instant subsidy grant.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges before the presiding judge

Judges Maximum Order

Judge Lee Jae-ju

Note tin

1) Article 7(1) of the instant Ordinance provides that “In determining the grant of a subsidy, the head of the Gun may attach conditions to the subsidy determined by the statute and the budget deemed necessary to achieve the purpose of granting the subsidy.”