In a case where the validity of a decision to suspend the effect of a disposition of the administrative agency that revoked the decision to grant a subsidy ceases to exist and the effect of the decision to revoke the decision to grant a subsidy is reconcepted, whether the return of the subsidy granted during the period of suspension of the validity of the portion revoked pursuant to Article 31(1) of the former Budget and Management of the

According to the former Social Enterprise Promotion Act (amended by Act No. 10360, Jun. 8, 2010), the Minister of Labor may provide financial support, such as personnel expenses, operating expenses, consulting expenses, etc. necessary for the operation of a social enterprise through open recruitment and examination within budgetary limits (Article 14(1)). Furthermore, according to the former Act on the Budgeting and Management of Subsidies (amended by Act No. 10898, Jul. 25, 201; hereinafter “Subsidy Act”), budget compilation and management of subsidies shall be governed by the Subsidy Act (Article 3(1)), except as otherwise expressly provided for in other Acts (Article 3(1)), if a subsidized business operator uses subsidies for other purposes or violates the details, etc. of the decision to grant subsidies (Article 30(1)); where a subsidy business operator cancels the decision to grant subsidies, the Minister of Labor may order the return of subsidies to the subsidized business (Article 31(3)1).

On the other hand, the effect of the decision to suspend the effect of Article 23 of the Administrative Litigation Act shall continue to exist until the time stipulated in the decision, and its effect shall naturally expire at the arrival of that time. Thus, in cases where the court declares in the order that the effect of the disposition of the administrative agency which has revoked a part of the decision to grant subsidies shall be suspended until the decision to suspend the disposition is declared in the original case pending in the court, the effect of the decision to suspend the disposition shall be extinguished by the decision to suspend the original case and at the same

Therefore, in the event that the effect of the decision to cancel the validity of the decision to cancel the subsidy is terminated, the administrative agency should order the return of the subsidy granted during the suspension period for the portion of the subsidy program revoked in accordance with the Article 31 (1) of the Subsidy Act, unless there are special circumstances.

Article 14(1) of the former Social Enterprise Promotion Act (Amended by Act No. 10360, Jun. 8, 2010); Articles 3(1), 30(1), and 31(1) of the former Act on the Budgeting and Management of Subsidies (Amended by Act No. 10898, Jul. 25, 201);

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Jae-soo et al., Counsel for plaintiff-appellant)

Asian Public Performance and Arts Committee (Attorney Cho Young-hee, Counsel for the plaintiff-appellant)

The President of the Gwangju Regional Labor Agency

Gwangju High Court Decision 2013Nu1033 decided October 31, 2013

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

The grounds of appeal are examined.

1. As to the second ground for appeal

The allegation in the grounds of appeal in this part is with the purport that the lower court’s failure to dismiss the suit ex officio is unlawful, since the Defendant had already terminated the instant support agreement or may order the return thereof again, and there is no legal interest in seeking the revocation of the instant disposition.

However, examining the records in accordance with the relevant legal principles, since the circumstance alleged by the defendant alone does not have any legal interest to seek cancellation of the disposition of this case against the plaintiff, even if the court below did not detect ex officio the circumstances as alleged by the defendant, it cannot be said that the court below erred by failing to exhaust all necessary deliberations and omitting its judgment.

2. As to the third ground for appeal

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s rejection of the Defendant’s main defense that the period of filing the instant lawsuit expired, deeming that the instant lawsuit was filed before the lapse of 90 days from the date the Plaintiff became aware of the instant disposition was justifiable. In so doing, the lower court did not err by failing to exhaust all necessary deliberations

The Supreme Court decision cited in the ground of appeal is not directly related to the issue of this case or different from this case and thus can not be applied to this case.

3. Regarding ground of appeal No. 1

(1) According to the former Social Enterprise Promotion Act (amended by Act No. 10360, Jun. 8, 2010), the Minister of Labor may provide a social enterprise that provides social services with financial support, such as personnel expenses, operating expenses, consulting expenses, etc. necessary for the operation of the social enterprise through open recruitment and examination within budgetary limits (Article 14(1)). Furthermore, according to the former Act on the Budgeting and Management of Subsidies (amended by Act No. 10898, Jul. 25, 201; hereinafter “Subsidy Act”), except as otherwise provided in other Acts, budget compilation and management of subsidies shall be governed by the Subsidy Act (Article 3(1)), and if a subsidized business operator uses subsidies for any other purpose or violates the details of the decision to grant subsidies (Article 30(1)), the Minister of Labor may revoke the decision to grant subsidies in whole or in part (Article 31).

Meanwhile, the validity of the decision of suspension of a subsidy under Article 23 of the Administrative Litigation Act shall continue to exist until the time stipulated in the decision and its validity shall naturally expire at the arrival of that time. Thus, in cases where the court, while making a decision of suspension of a part of the decision to grant a subsidy, declared in the order that the effect of the disposition shall be suspended until the decision to suspend the original case is declared in the court in which the decision of suspension is pending in that court, the validity of the decision of suspension shall be extinguished by the decision to suspend the original case, and at the same time, the effect of the decision of revocation of the original decision to grant a subsidy shall be decided naturally (see Supreme Court Decision 98Du1

Therefore, in the event that the effect of the decision to cancel the validity of the decision to cancel the subsidy is terminated, the administrative agency should order the return of the subsidy granted during the period of suspension of the validity of the subsidy program in accordance with Article 31 (1) of the Subsidy Act, unless there are special circumstances.

(2) According to the records, the Plaintiff filed a lawsuit with the court of first instance to the effect that the Defendant’s decision to grant a subsidy of KRW 4,630,460, which occurred until January 19, 2010, and the decision to cancel the decision to grant a subsidy of KRW 4,630,460, which was not yet granted a subsidy, is revoked, and filed a lawsuit to seek the cancellation of the instant subsidy agreement from January 2010 to June 2010, and filed an application for the suspension of execution of the said disposition and received a decision to suspend the validity of the instant order from the first instance court of February 16, 2010 until the first instance judgment of the instant case is sentenced, and then becomes final and conclusive at that time after being sentenced to the dismissal decision from the first instance court of September 16, 2010.

Examining the above facts in light of the legal principles as seen earlier, the decision to suspend the validity of the above case has expired on September 16, 2010, which is the date of the first decision of the court of first instance as stipulated in the decision order, and as a result, the effect of the decision to terminate the support agreement of this case has expired naturally. Thus, the defendant can order the return of the subsidy granted during the period of suspension of validity for the subsidized project from January to June 2010, which was revoked by the decision to terminate the support agreement of this case, pursuant to Article 31(1) of the Subsidy Act.

(3) Nevertheless, the lower court determined that the return of the subsidy granted during the period of validity suspension cannot be ordered unless the subsidy was granted by false or other unlawful means, notwithstanding the termination of the principal lawsuit. In so determining, the lower court erred by misapprehending the legal doctrine on the decision to suspend the validity of an administrative disposition and the revocation of the decision to grant subsidies, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)