2013Guhap2336 Revocation, etc. of Disposition of Imposition of Penalty Surcharges

Plaintiff

Head of Daegu Metropolitan City Month;

March 5, 2014

April 4, 2014

1. The Defendant’s imposition of a penalty surcharge of KRW 7,650,00 against the Plaintiff on August 17, 2013, the imposition of a penalty surcharge of KRW 7,650,00 against the Plaintiff, the disposition suspending the qualification of the president for three months, and the order to return KRW 2,65

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On December 30, 2004, the Plaintiff is the representative and the president of the 00 child-care center, which is a private child-care facility located in Seogu-gu, Daegu (hereinafter “instant child-care center”).

B. On June 4, 2013 from June 12, 2013 to June 12, 2013, the Defendant conducted a special inspection on the operational status of the Child Care Center of this case, on the ground that: (a) the Plaintiff’s husband, who was not registered as a vehicle for attending the Child Care Center of this case, executed a total of KRW 993,00 on 15 occasions in the name of the vehicle expenses for the Child Care Center of this case; and (b) transferred KRW 1,840,635 in the sum of KRW 1,840,635 on 16 occasions under the name of the vehicle expenses for the Child Care Center of this case without the receipt to the Plaintiff’s account without the receipt; and (c) on July 9, 2013, the Defendant collected part of the Plaintiff’s opinion while holding a hearing

C. On August 16, 2013, the Defendant issued an order to the Plaintiff to impose penalty surcharges of KRW 7,650,00 in lieu of three months of suspension of operation pursuant to Article 40 Subparag. 2, 45, 45-2, and 46 Subparag. 4 of the Infant Care Act and Articles 38 and 39 of the Enforcement Rule of the same Act, and to return KRW 2,656,670 (hereinafter referred to as “each of the instant dispositions”) for three months of suspension of qualification for the president (from October 1, 2013 to December 31, 2013), and to return KRW 2,656,670 (hereinafter referred to as “each of the instant dispositions”).

Expenditure of fuel expenses for personal vehicles inappropriate for the execution of the disposition-based budget: Expenditure of KRW 873,00 in total on 13 occasions as shown in the attached Table 1 list to the Plaintiff’s personal account without any document evidencing the expenditure (hereinafter referred to as “reasons for disposition”) and the expense of the individual vehicle (hereinafter referred to as “reasons for disposition”): Expenditure of KRW 873,00 in total on 13 occasions as shown in the attached Table 2 list without any documentary evidence (hereinafter referred to as “reasons for disposition”). The expenditure of the Plaintiff’s personal account for childcare center (hereinafter referred to as “reasons for disposition”).

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 3, 5, Eul's 1 through 3, 6 through 10, 14, 16, 18 (including each number), and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Each disposition of this case is unlawful for the following reasons.

1) There is no ground for disposition as follows:

A) 1) Grounds for Disposition: (a) The Plaintiff settled the balance of the instant child care center’s check with the Plaintiff’s personal card and preserved it as usage; (b) during that process, the sum of KRW 210,000,000, in total, was treated as the cost of the instant child care center by mistake; and (c) the remainder of KRW 783,000, in total, was disbursed as the fuel cost of the instant child care center’s vehicle. Not only the Plaintiff prepared a confirmation document (No. 3-1) by the investigator’s coercion but also used KRW 29,682,533 as the operating cost of the instant child care center over 26 occasions, and thus,

B) Grounds for disposition: (a) although the Plaintiff was unable to submit evidence in a timely manner, the Plaintiff fully met the evidentiary documents related to urgency and food expenses (No. 4-1 to 16). Moreover, the Plaintiff inevitably disbursed its credit card or cash in the event that there is no balance on the instant childcare center’s physical card or that it was not in possession of the card, and later treated it as the child care center expense. Moreover, the confirmation document (No. 3-2) is prepared by the investigator’s coercion.

2) In order to constitute a subsidy, project performance and free of charge are required pursuant to Article 2(1) of the Subsidy Management Act. The basic childcare fees or childcare expenses (e.g., differential childcare fees, etc. that are approved by the Love Card) are all money that a childcare center provides childcare services to childcare children and receives in return for the provision of childcare services. Accordingly, this is not only the welfare benefits for guardians, but also the subsidies for childcare centers.

3) Even if the basic childcare fees were to be subsidized, the Defendant did not at all specify the amount equivalent to vehicle expenses and food expenses out of the basic childcare fees paid to the Plaintiff, as well as the amount that the Plaintiff used, in light of the fact that the portion of the total operating expenses of the childcare center of this case or the subsidies paid to the Plaintiff is extremely low, the probability rate of subsidies is very low.

4) Ultimately, the Defendant issued each of the instant dispositions by misapprehending that the earnings or operating funds of private childcare centers are owned by the State or a local government or are subsidies. However, it cannot be said that the Plaintiff’s use of subsidies solely on the ground that the Plaintiff breached some of the accounting rules of childcare centers. Accordingly, each of the instant dispositions did not meet the requirements prescribed in Article 40 subparag. 2 of the Infant Care Act.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) As a result of the special inspection of the instant childcare center by the Defendant and Daegu Metropolitan City, the instant budget for the childcare center was transferred to the Plaintiff’s personal account without any documentary evidence of disbursement, and the expenses for private vehicles were disbursed as operating expenses of the childcare center, the expenses for private vehicles were omitted, the appointment and dismissal of school officers, the failure to conclude the employment contract for childcare teachers, the unpaid infant care teacher’s allowance, the storage

2) The Plaintiff prepared a written confirmation to acknowledge the violation (No. 3-1, 2). Among them, 1, and 2 are as follows.

(1) No. 3-1) Item (3): The cost of vehicle fuel in the name of an individual (the 1st head of Nowon-gu) who is not registered as an improper nivers for the execution of the cost of vehicle fuel in the child care center;

From February 2, 2012 to April 2013, 15 times KRW 93,00,00 in total from the oil expense for a child care center (the Plaintiff’s opinion was partially accepted, and the execution was changed to KRW 873,00,00 in 13 times as shown in the separate sheet No. 1): Subparagraph 3-2 (Evidence No. 3-2): An improper budget execution of KRW 16,1,840,635 in the child care center of this case, including purchase of corrosion, play, construction cost, food expenses, and liver, and so on (the replacement was changed to KRW 13,783,675, as shown in the separate sheet No. 2).

3) On July 9, 2013, the Defendant issued a corrective order against the Plaintiff on certain violations, and at the same time notified the Plaintiff of the disposition prior to the disposition, i.e., “budget expenditures in improper ways” and “budget expenditures in personal account without documentary evidence of expenditure.”

4) At the hearing held on July 22, 2013, the Plaintiff submitted a written opinion to the effect that it is unreasonable to use the subsidy due to the lack of partial disbursement certification. The Defendant reflected some of the Plaintiff’s supporting materials (such as evidence of KRW 50,000 or less) as to the payment of the budget to an individual account, but rejected the remainder.

5) Meanwhile, the main items and uses of the revenue and expenditure budget of the instant childcare center under the Financial Accounting Rules of the Child Care Act under Article 24(1) of the Infant Care Act are as follows (Evidence No. 4, 15, 17, and 20). The Plaintiff received subsidies (basic childcare fees) from the Defendant and childcare expenses (child care card approval) from the Defendant into the instant childcare center operation account, but the childcare fees received from the guardians were deposited into the said childcare center operation account, and it was also deposited into the Plaintiff’s personal account.

A person shall be appointed.

A person shall be appointed.

【Ground of recognition】 The fact that there is no dispute, Gap’s 1 through 5 evidence, Eul’s 1 through 4,6 through 10, 14 through 18, 20 evidence (including each number), and the purport of the whole pleadings

D. Determination

1) Determination on the first argument

A) Judgment on the grounds for disposition

Article 11(2) [Attachment 1] of the Act on the Financial Accounting of Child Care, Article 11(2) [Attachment 1] of the Act on the Honorable Treatment of Children and Juveniles, provides that the following circumstances may be considered: ① the operation of a vehicle at a child care center pursuant to Article 23 [Attachment 8] of the Enforcement Rule of the Infant Care Act; ② the operation of a vehicle at least nine persons shall be reported to the chief of the competent police station. The registered vehicle at the child care center was the Plaintiff’s husband, and the vehicle of Nonparty 1 was not registered; ② the number of vehicles registered at the child care center under Article 23 [Attachment 8] 2.d] of the Act on the Honorable Management of Child Care of the Republic of Korea is the vehicle expenses for the child care center, the vehicle expenses for the 60th day of the document confirming the operation of the 10th day of the 20th day of the 1st day of the 20th day of the 1st day of the 20th day of the 3th day of the 2nd day of the 2nd day of the 3th day of the day of the issuance.

B) Judgment on the grounds for disposition

Article 32(1) of the Financial Accounting Rules provides that an expenditure shall be made by means of a deposit passbook or a credit card exclusively for child care centers (including physical cards) except for ordinary expenses or small amount of expenses, and Articles 34 and 35 provide that the expenses shall be preserved for a certain period of time. Nevertheless, the Plaintiff, without documentary evidence on January 28, 2012 to November 13, 2013, without considering the following facts: ① KRW 1,783,675 from the account of the Child Care Center to the account of the Plaintiff’s 19,222; ② The expenditure of the Financial Accounting Rules of the Child Care Center shall be made by means of a deposit passbook or a credit card exclusively for the child care center (including physical cards). Article 34 and 35 provides that the expenditure of the Plaintiff shall be kept for a certain period of time; ② The Plaintiff may not be admitted as a document of confirmation No. 160,675 won from the account of the Plaintiff’s personal account of this case to the account of this case’s 13rd.

2) Judgment on the second argument

(a) the relevant provisions concerning subsidies, childcare expenses, childcare fees, and penal provisions for the Infant Care Act;

Article 36 of the Infant Care Act and Article 24 (1) of the Enforcement Decree of the same Act provide that the State or local governments shall subsidize all or part of the expenses that the Minister of Health and Welfare or the head of the relevant local government deems necessary for the operation of the nursery, such as expenses for the establishment, extension, remodeling, improvement, and repair of the nursery facilities, personnel expenses of infant care teachers, teaching materials and aids, expenses for education and training of persons engaged in continuing education, such as disabled children, expenses for the provision of vulnerable infant care, such as expenses for the operation of the nursery facilities, and other expenses that the State or local governments deem necessary for the operation of the nursery facilities. Article 24 (1) 6 of the Enforcement Decree of the same Act provides that Article 36 of the Act provides that the State or local governments shall subsidize all or part of the expenses for the provision of vulnerable infant care, such as infant care, etc., (Article 26 (1) of the Enforcement Rule of the same Act shall include infant care (Article 1), disabled infants (Article 26 (2) 3)

Article 34(1) of the former Infant Care Act (amended by Act No. 11627, Jan. 23, 2013; Act No. 11627, Mar. 1, 2013); Article 34(1) of the same Act provides that the State or local governments shall bear, in whole or in part, expenses incurred in infant care for recipients under the Basic Living Security Act and their children below a certain income prescribed by Ordinance of the Ministry of Health and Welfare; Article 34-3(2) of the Infant Care Act provides that expenses incurred in infant care under paragraph (1) may be differentiated in consideration of the household's income level, residential area, etc.; Article 34-3(1) of the Infant Care Act provides that the State and local governments may pay infant care service vouchers to their guardians; Article 34-4(1) of the Infant Care Act provides that the State or local governments shall provide that infant and child care centers shall be provided with childcare service vouchers under Article 34(1) of the same Act; Article 35-3(1) of the Enforcement Rule provides that infant and child care service vouchers shall be provided to the Governor.

○ Infant Care Fees: Article 38 of the Infant Care Act provides that a person who establishes and operates a child-care center pursuant to Articles 12 through 14 of the Infant Care Act may receive infant care fees and other necessary expenses from persons who use the child-care center within the extent determined by the Mayor/Do Governor having jurisdiction over the location of the child-care center, but the Mayor/Do Governor may set different standards in consideration of the type of child-care center

0. Penal provisions: Article 54 (2) of the Infant Care Act provides that a person who has received a subsidy by fraud or other improper means or who has useful a subsidy shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 10 million won; Article 54 (2) 4 and 6 of the Infant Care Act provides that a person who has received a subsidy under Articles 34 and 34-2 or has allowed another person to receive a subsidy under Article 34 or 34-2 (subparagraph 4) by fraud or other improper means; or an establisher or operator (subparagraph 6) of a child care center who has received a child care fee, etc. under Article 38 by fraud or other improper means shall be punished by imprisonment with labor for not more

B) Whether the basic childcare fees constitute a subsidy

According to the above facts and relevant regulations, the State or local governments shall give priority to providing vulnerable infant care to infants under the age of 3, and if such vulnerable infant care is provided at nursery facilities, the State or local governments shall subsidize all or part of the expenses pursuant to Article 36 of the Infant Care Act and Article 24 (1) 6 of the Enforcement Decree of the same Act, and Article 24 (1) 6 of the Enforcement Decree of the same Act. The basic infant care fees are paid directly by the State or local governments to infant care facilities for infants under the age of 0 to 2, separately from infant care fees for infant care services, to encourage and create vulnerable infant care for infants under the age of 3,00,000 and by the age of 36 of the Infant Care Act. Accordingly, the basic infant care fees are subsidies under Article 40 subparagraph 2, Article 45 (1) 1, and Article 46 (4) of the Infant Care Act, so the Plaintiff’s assertion that the basic infant care fees are subsidies for guardians’ welfare.

C)whether infant care costs, such as differential infant care fees, constitute subsidies

In light of the following circumstances known by the aforementioned relevant provisions, it is reasonable to view that differential childcare fees, etc. paid under Article 34 of the Infant Care Act do not fall under “subsidies” under Articles 45(1)1, 45-2(1), 46 subparag. 4, and 54(2) of the Infant Protection Act. Therefore, the Plaintiff’s assertion that the aforementioned childcare expenses are welfare benefits for guardians and do not constitute subsidies for childcare centers is with merit.

Infant care expenses, such as differential infant care fees, paid by the plaintiff, are infant care expenses for children of low-income households, which are subsidized to the guardian of infants pursuant to Article 34 of the Infant Care Act.

In preparation for Article 34 of the former Infant Care Act, Articles 34-2 through 34-4 of the Infant Care Act, Articles 35 through 35-5 of the Enforcement Rule of the Infant Care Act, and Articles 36 and 24 of the Enforcement Decree of the same Act, which provide the grounds and procedures for the provision of childcare expenses, such as differential infant care fees, are identical to the result that the expenses are ultimately attributed to the installer and operator of the nursery facilities. However, the object and purpose of the subsidy, the subject of the application (the primary infant care fees are the guardian of the infant, while the primary infant care fees are the installer and operator of the nursery facilities), the method and procedure of the application (the primary infant care fees are the guardian of the infant), and the latter uses a different term as the "expenses of the expenses".

Article 38 of the former Infant Care Act provides that a person who establishes and operates a child care center may receive infant care fees and other necessary expenses from the users of the child care center within the scope determined by the Mayor/Do Governor having jurisdiction over the location of the child care center: Provided, That the Mayor/Do Governor may separately determine the standards in consideration of the type of the child care facility and regional conditions, and the defendant's infant care service guidance provides that the amount of unpaid child care fees may be additionally collected from his/her parents if the amount of differential child care fees is not paid by 10% due to the number of days present at the child. As such, differential infant care fees are infant care fees that the government or local governments can receive from the users of the child care facility, and even if the government or local governments are to pay differential infant care fees to the founders and operators of the child care facilities, they cannot be deemed to subsidize the expenses corresponding thereto. Article 54 (2) (a) of the Infant Care Act or a fine not exceeding 1,000 won) of the Infant Care Act applies to those who have received subsidies or subsidies under Article 38 (14) of the same Act.

▣ 피고의 보육사업안내에도 차등보육료 등은 '보육료 지원'이라는 항목 아래 그 지원 대상을 '영유아보육법 제10조에 의한 국·공립, 법인, 직장보육시설, 가정보육시설, 부모협동보육시설, 민간보육시설을 이용하는 영유아'로, 지원방식은 '부모가 아이사랑카드를 결제하면 해당 어린이집으로 입금하는 방식으로 정하고 있는 반면, 기본보육료는 '시설별 지원'이라는 항목 아래 그 지원 대상을 '정부지원시설을 제외한 민간·가정 · 직장·부모협동보 육시설 중 만 0~2세 아동 또는 장애아를 보육하는 시설'로, 지원방식은 '보육시설이 어린이 집지원시스템에서 기본보육료 산출내역을 확인하여 신청하면 시·군·구에서 승인하여 지급' 하는 방식으로 정하고 있는 등 그 성격이 상이함을 전제로 하고 있다. ☞ 따라서 보육시설의 설치·운영자는 ② 보육시설의 이용자로부터 그 이용대금을 지급받고, ⑥ 국가·지방자치단체로부터 보조금(이는 원래 보육시설의 설치·운영자가 부담하여야 할 보육시설의 설치·운영비용이지만 보육시설 활성화를 위한 정책적 목적에서 국가·지방자치단체가 그 전부 또는 일부를 지원하는 것임)을 지급받는 것인데, 위 이용대금 중 보육시설의 이용자를 대신하여 국가·지방자치단체가 지급하여 주는 것이 '보육비용'(이는 원래 보육시설의 이용자가 지급하여야 하는 것이나, 무상보육 실시에 따라 영유아의 보호자가 보육시설에 아이사랑카드로 결제하면 국가 · 지방자치단체가 그 금액에 해당하는 비용을 보육시설의 설치·운영자에게 지급하는 것임)이고, 보육시설의 이용자가 직접 지급하는 것이 '보육료'라고 해석된다.

○ As such, childcare expenses paid in the form of the Love Card are clearly distinguishable from the legal grounds for punishment, such as the purpose, legal basis, subject of application, items of payment, persons eligible for payment, and cases of receipt by unlawful means, etc., different from the basic childcare fees. As such, the fact that the expenses are reverted to the founders and operators of childcare facilities cannot be deemed as subsidies that assist the expenses of the founders and operators of childcare facilities.

3) Judgment on the third argument

A) Unless there are special circumstances in administrative litigation, the pertinent disposition authority shall assert and prove the legality of the pertinent administrative disposition (see, e.g., Supreme Court Decision 98Du2768, Mar. 23, 2000). If a national subsidy subject to the Act on the Budgeting and Management of Subsidies is already mixed with the general funds of the executing company and thus becomes unusable for personal purposes, it is difficult to view that the State subsidy was transferred from the relevant account and used for other purposes even if it was used for personal purposes (see, e.g., Supreme Court Decision 2010Do8648, Feb. 24, 2011).

B) In light of the following circumstances, comprehensively considering the above facts and the purport of the entire arguments, the account of the operation fund of the Child Care Center of this case is mixed with the amount of subsidies and subsidies, and since the Defendant does not have paid subsidies after designating the purpose of use. Thus, even if the Plaintiff violated the financial accounting rules of the Child Care Center in the course of using the money withdrawn from the account of the operation fund of the Child Care Center for personal purposes or executing the operation fund of the Child Care Center, it cannot be concluded that the subsidies were useful for the reason of the violation of the standards for the operation of the Child Care Center. Therefore, this part of the Plaintiff’s assertion is with merit.

① The revenue budget of the child-care center of this case is classified into: (a) State subsidies (income from child-care fees, labor cost aid, basic child-care fees, and other subsidies); (6); (b) care fees (income from the previous year; miscellaneous income; hereinafter referred to as necessary expenses); and (c) the full revenue of the child-care center of this case is KRW 281,264,265 (income from the previous year); and (d) the full revenue of the child-care center of this case as of 2012 is KRW 165,298,834; (e) child-care fees income is KRW 49,856,00; (e) necessary expenses income; (g) KRW 31,730,00; and (g) labor expenses subsidies are KRW 1,705,60 (Evidence No. 4).

If the revenue of the child-care center in this case is divided into non-subsidies and non-subsidies, the proportion of the subsidy revenue in the total revenue is about 12% [=34,494,520 won + KRW 1,730,920 + KRW 1,730,00 + KRW 1,705,60) + KRW 281,264,265] as of the year 2012. The defendant does not provide the plaintiff with basic infant-care fees by determining the purpose of use, but rather, with the expenditure budget appropriated by the plaintiff, the head of the facility.

② The expenditure subjects related to the instant disposition are vehicle expenses and food expenses (see attached Tables 1 and 2); vehicle expenses constitute operating expenses of child-care centers; and expenses for urgency and food expenses. However, even according to the Defendant’s assertion, there is no restriction on the use of subsidies other than those that cannot be used as necessary expenses and special activity expenses.

① The Plaintiff received both basic childcare fees, childcare fees, etc. paid from the Defendant to the instant childcare center operation account, and received childcare fees from guardians to the instant childcare center operation account or the Plaintiff’s personal account. As such, the said childcare center operation account was mixed with non-subsidies.

4) Sub-determination

Therefore, each of the dispositions of this case rendered by the defendant on the premise that the plaintiff was able to grant subsidies is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified, and it is so decided as per Disposition.

The presiding judge and the judge in order;

Judges' heavy defects

Judges Kim Gun-chul

1) Seoul High Court Decision 2013Nu47711 decided March 27, 2014; Seoul Administrative Court Decision 2013Guhap24433 decided March 27, 2014; Seoul High Court Decision 2013Guhap24433 decided March 27, 2014

Administrative Court Decision 2012Guhap43956 decided October 10, 2013; Suwon District Court Decision 2013Guhap10190 decided October 24, 2013; Suwon District Court Decision 2013Guhap10190 decided October 24, 2013

See Supreme Court Decision 2013Guhap1547 Decided October 24, 2013, etc. (see Supreme Court Decision 2011Da1547, Jan. 13, 2011, which the Defendant cited in his/her replys)

The Supreme Court Decision 2010Du22320 Decided the dismissal of a final appeal without hearing, which raises a question as to whether differential childcare fees constitute subsidies in the original court.

not contested by the court)