Plaintiff (Attorney Choi Young-young et al., Counsel for the plaintiff-appellant)

Sacheon Market (Attorney Lee In-hee, Counsel for the plaintiff-appellant)

Changwon District Court Decision 2010Guhap915 Decided October 21, 2010

September 7, 2011

1. Revocation of a judgment of the first instance;

2. On February 3, 2010, the Defendant’s disposition of suspending the qualification of the head of a nursery facility for 45 days against the Plaintiff on February 3, 2010, the disposition of suspending the qualification of the head of a nursery facility for 38,640,000 won, the disposition of reducing the number of staff in lieu of three months of the suspension of the operation of nursery facilities (one year from

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is operating “○○ Child Care Center” (hereinafter “instant Child Care Center”) on the first floor of Sacheon-si (hereinafter omitted), which is a private-designated infant childcare facility with a maximum of 36 persons.

B. As a result of the audit of 18 government support childcare facilities within the jurisdiction of the defendant, on October 8, 2009, the defendant confirmed the fact that the plaintiff, on March 8, 2009, took up 32 infant care of six teams and exceeded 12 infant cares from March 2008 to the time of audit and inspection (hereinafter "excess childcare"), the current 32 infant cares are taking up 12 infant cares, and on February 3, 2010, the defendant issued the following dispositions in accordance with subparagraph 3 of Article 40, Article 45 (1) 1, and Article 46 subparagraph 4 of the former Infant Care Act, Article 209 Infant Care Business Guidance (hereinafter "the guidelines of this case") of the Ministry of Health and Welfare.

- Suspension of qualifications for the head of a nursery 45 days

- Infant care teachers’ writing correction (non-party 2, 3, 4, 1)

- Refund of subsidies ( personnel expenses) 96,621,000 won

- Reduction of 20 per cent of the current number of staff in lieu of the three-month suspension of operation of nursery facilities (reduction of 20 per year from March 2, 2010);

- Revocation of the extension of time

C. Following the Plaintiff’s administrative appeal on each of the above dispositions, the Gyeongnam-do Administrative Appeals Commission revoked the disposition of revoking the designation on March 24, 2010, and changed the amount of the subsidy recovered to KRW 96,621,00,000, and made a ruling of dismissing the remaining claims.

D. Accordingly, as the instant lawsuit, the Plaintiff sought a disposition to suspend the qualification of the head of nursery facilities, a disposition to receive subsidies of KRW 38,640,000, and a disposition to reduce the number of employees in lieu of the suspension of the operation of nursery facilities for three months (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1, 2, 42 evidence, Eul 2 evidence, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

(1) The defendant mentioned only the legal provisions concerning the violation and the grounds for the disposition in the notice of administrative disposition, and did not specify specific violations, and therefore, it is unclear whether each violation and the grounds for the disposition are unclear.

(2) Subsidies received by the Plaintiff from the Defendant does not constitute “a subsidy granted by any false or other unlawful means” as provided by Articles 40 subparag. 3, 45(1)1, and 46 subparag. 4 of the Act, which are the grounds for the instant disposition.

(3) Some infant care teachers, who participated in childcare for 12 young children outside the garden, are ordered to take corrective measures pursuant to Article 44 subparag. 3 of the Act, and the instant disposition, which immediately applies Article 40 subparag. 3, Article 45(1)1, and Article 46 subparag. 4, is also inconsistent with the principle of proportionality.

(4) The instant case is a matter different from the legislative intent with respect to the recovery of subsidies by the Plaintiff’s full payment of subsidies as the relevant infant care teacher’s benefits, and such circumstance is sufficient to order correction as a breach of the standards for the assignment of employees in nursery facilities pursuant to Article 44 subparag. 3 of the

(5) In light of the conclusion of a corrective order or a subsidy in the case of some other nursery facilities, the instant disposition was in violation of equity, as well as the Plaintiff’s order of return in consideration of the number of children in excess of the subsidies that the Plaintiff received, and the Plaintiff paid the full amount of personnel expenses as the wages of the relevant teacher, efforts have been made to improve the treatment of childcare and teachers, to improve the quality of the nursery facilities, and to improve the quality of the nursery facilities without being given warning or corrective order once, while operating the instant nursery facilities, and to which the instant nursery facilities were certified as an assessment of nursery facilities by the Ministry of Gender Equality and Family, the instant disposition was excessively harsh and abused its discretionary power.

B. Defendant’s assertion

Since the Plaintiff’s excessive infant care violates the standards for establishment of nursery facilities and the standards for placement of employees of nursery facilities under the instant guidelines, etc. and received subsidies from the Defendant by fraud or other improper means, the Defendant’s disposition of this case is justifiable, and in light of the period and contents of the Plaintiff’s wrongful act, the instant disposition cannot be deemed to have exceeded and abused discretion.

C. Relevant statutes

It is as shown in the attached Form.

D. Determination

(1) The assertion that the violation and the grounds for the disposition have not been presented

Article 23(1) of the Administrative Procedures Act provides that when an administrative agency takes a disposition, the administrative agency shall exclude the arbitrary decision of the administrative agency and allow the parties to properly cope with the administrative remedy procedure. Thus, in full view of the contents stated in the written disposition, related Acts and subordinate statutes, and the overall process up to the disposition, etc., if it is sufficiently possible to ascertain whether the disposition was taken by the parties at the time of the disposition, and it is deemed that there was no particular hindrance to moving into the administrative remedy procedure, the disposition cannot be deemed to be unlawful due to such failure, unless the grounds and reasons for the disposition are specified in the written disposition (see Supreme Court Decision 2007Du20348, Dec. 10, 2009).

In full view of the following facts and circumstances acknowledged as Gap 1, 13 evidence (including paper numbers) and Eul 2-5 evidence 2-5, i.e., the plaintiff prepared a confirmation document and confirmed specific facts with respect to the violation pointed out during the audit process, ② issued a corrective order on December 9, 2009 with respect to some of them, and issued a corrective order on December 9, 2009, and issued a notice of disposition clearly stating that the infant care teachers were scheduled to take part in the infant care outside the garden, and entered the instant disposition after holding a hearing; ③ it was 4 months from the time of audit to the time of filing an administrative appeal with the Standingnam-do Administrative Appeals Commission; and ③ it was sufficiently possible for the plaintiff to find out which grounds and disposition was made at the time of the disposition in light of its progress, and there was no special obstacle to the procedure. Thus, it is difficult to deem that the plaintiff's ground for appeal is unlawful in the procedure.

(2) Whether the instant disposition is lawful

㈎ 피고는, 원고가 초과보육행위를 숨기고 피고로부터 수령한 보조금은 법에서 정한 “거짓이나 그 밖의 부정한 방법으로 보조금을 교부받은 경우”에 해당된다며 이 사건 처분을 하였다.

As to this, the plaintiff asserts that there is no application or receipt of childcare fees from the defendant for 12 children in excess of the number of children, and that the act of receiving childcare fees only for young children who have actually taken care within the total number of children does not fall under the above provision.

㈏ 원고가 초과보육을 한 사실, 원고는 피고로부터 교부받은 보육교사 인건비에 대한 보조금을 정원의 범위 내에서 교부받아 이를 해당 교사의 급여로 지급한 사실은 당사자 사이에 다툼이 없거나 앞서 본 바이므로, 이하 원고가 위와 같은 경위로 피고로부터 받은 보조금이 법에서 정한 “거짓이나 그 밖의 부정한 방법으로 보조금을 교부받은 경우”에 해당하는지 여부에 관하여 본다.

(1) In Article 40 of the Act, the State or a local government shall provide that the establishment and operator of a nursery facility shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 10 million won, if he/she has used the subsidy for any purpose other than the purpose of the project (subparagraph 2), if he/she has received the subsidy by fraud or other improper means (subparagraph 3), or if he/she has violated this Act or any order issued under this Act (subparagraph 4), or if he/she has violated this Act or any order issued under this Act (subparagraph 4), and Article 54 (2) of the Act provides that a person who has received the subsidy or has appropriated the subsidy by fraud or other improper means or by a person who has received the subsidy

In addition, under Article 44 subparagraphs 2 and 3 of the Act and Article 15 of the Act, the Minister for Health, Welfare and Family Affairs, a Mayor/Do Governor or the head of a Si/Gun/Gu may order the head of a nursery facility or its installer/operator to take corrective measures or modification for a fixed period when he/she violates the standards for the establishment of nursery facilities and the standards for the placement of employees of the nursery facilities. According to Article 45 (1) 3 of the Act, the Minister for Health, Welfare and Family Affairs, the Mayor/Do Governor and the head of a Si/Gun/Gu may order the suspension of the operation of the nursery facilities or to close the nursery facilities when the person who establishes/operators the nursery facilities violates an order for corrective measures or modification under Article 44 of the Act, and Article 54 (3) 7 of the Act provides that the person who establishes/operators the nursery facilities continues to operate the business in violation of an order for suspension of the operation of the facilities or an order for closure of the facilities

② Comprehensively taking account of the following circumstances revealed in light of the aforementioned legal provisions and legal principles, the Plaintiff, at the time of applying for subsidies to the Defendant, placed the establishment of nursery facilities and the standards for the placement of employees in nursery facilities due to excessive infant care; and the Plaintiff did not notify the Defendant of the above fact; thus, the Plaintiff cannot be deemed to have received subsidies through deceptive schemes or other acts deemed unfair by social norms, even though the Plaintiff was unable to receive subsidies under the law

With respect to “cases of receiving subsidies by fraud or other improper means,” the Act orders the return of subsidies and allows the immediate imposition of penalties at the same time, while, in cases of violations of the standards for the establishment of nursery facilities, etc., the Act orders the correction or modification of the period first, orders to suspend the operation of the relevant facilities or to close down the relevant facilities, and if orders to suspend the operation of the relevant facilities or to close down the relevant facilities are violated, the Act orders to suspend the operation of the relevant facilities or to suspend the operation of the relevant facilities, and the degree of the punishment is lower than “cases of receiving subsidies by fraud or other improper means.”

Article 40 subparag. 3 and Article 54(2) of the Act on the Maritime Affairs and Fisheries of the Republic of Korea, there is no reasonable ground to see the difference in the interpretation of the “false or other unlawful means” as provided by Articles 40 subparag. 3 and 54(2) of the Act, and Article 40 subparag. 3 of the Act constitutes a disciplinary measure to revoke beneficial administrative disposition by returning subsidies, and Article 54(2) of the Act constitutes a penal provision, and the relevant provision must be strictly interpreted. Thus, there is no reason to see Article 45(1)1 and Article 46 subparag. 4

A person who receives benefits, etc., which is generally provided for in other Acts, refers to a case where a person who received benefits, etc. receives benefits, which is unable to receive in an active manner, by recognizing that he/she is a subjective unlawful means, and a person who has been negligent in his/her duty to report, etc. is not deemed to fall under such case (see Supreme Court Decisions 2001Do3797, Feb. 14, 2003; 2001Du458, Jun. 12, 2001, etc.).

Inasmuch as Article 40 Subparag. 4 of the Act provides that even in cases where a person violates this Act or an order issued under this Act, the order to return subsidies may be issued, even if the Plaintiff violated this Act at the time of the application or issuance of subsidies, it is difficult to deem that the subsidy was granted in a false or unlawful manner (see Supreme Court Decision 2006Do8870, Dec. 27, 2007).

㈐ 따라서 법 제40조 제3호 , 법 제45조 제1항 제1호 , 제46조 제4호 에 근거한 이 사건 처분은 위법하다.

3. Conclusion

If so, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted and it is so decided as per Disposition.

[Attachment Form 5]

Judges Jeong Jong-chul (Presiding Judge)

Note 1) Prior to the amendment by Act No. 9932, Jan. 18, 2010; hereinafter “Act”).