(영문) 부산지방법원 2015.4.23.선고 2014구합21692 판결

The Defendant’s revocation of permission for the establishment of a social welfare foundation against the Plaintiff on June 10, 2014 and revocation of the disposition for the dissolution of the foundation.

Reasons

1. Details of the disposition;

A. On January 6, 1965, a social welfare foundation B obtained permission to establish and operate a medical care center for persons with disabilities and to implement social welfare programs from the Defendant, and changed its name to the Plaintiff (A) after its establishment on February 25, 1965.

B. On June 10, 2014, the Defendant revoked the establishment permission of a social welfare foundation pursuant to Article 26(1)11 of the Social Welfare Services Act for the following reasons, and appointed a liquidator pursuant to Articles 77 through 94 of the Civil Act and ordered the dissolution of the foundation and the execution of the liquidation procedures (hereinafter “instant disposition”).

Grounds for Disqualification: Violation of Articles 23 and 28 of the Social Welfare Services Act.

○ Violation of Article 23(3) of the Social Welfare Services Act (hereinafter “instant 1”) by failing to comply with the terms and conditions of permission for the sale of corporate basic property and by using private use

On April 21, 2005, the Plaintiff: (a) obtained a disposal permit from the Defendant to use the proceeds of sale for the reinforcement of factory facilities and building construction of D Hot Springs (hereinafter referred to as "Dized Hot Springs") located in the Seocho-gu Busan Metropolitan City (hereinafter referred to as "Ddo") under the conditions of permission; (b) however, the former representative F was in violation of the conditions of permission after selling the E site at KRW 2,146,00,000, and was in violation of the conditions of permission for the sale from June 30, 2009 to July 31, 2009; (c) embezzled the proceeds of sale at will using KRW 1,036,261,118 out of the proceeds of sale for three occasions from July 23, 2009 to October 25, 2015; and (d) was detained by G and former representative directors at the Busan District Court to be punished by imprisonment with prison labor for up to 31, 2009,817.

○ Violation of Article 28(2) of the Social Welfare Services Act (hereinafter referred to as “instant 2 grounds”) G through the use of profit-making profits for private purposes by transferring KRW 200 million from D Hot Spring earnings to F’H’s support title, which is a bather registered and operated by F, and operated by F, under the direction of the Plaintiff’s profit-making business entity under the direction of Sep. 11, 2008 and F, G Embezzlement embling the proceeds of KRW 12,757,280, which was kept in the business of managing D Hot Spring earnings from F on July 6, 2009 at F’s order, and 59 times more than 380,40,401,920, which was charged for embezzlement of D Hot Spring earnings from 380,401,920, and was detained by imprisonment with labor for the said judgment (in the absence of F).

○ The possibility of bankruptcy due to the failure to operate the profit-making business and the failure to respond to the liabilities cumulative (hereinafter referred to as the “instant three grounds”).

- In the event that the Plaintiff borrowed 1.5 billion won from the Defendant on June 1, 2005, 3.0 billion won on September 27, 2005, 1.5 billion won on May 6, 2008 with long-term loans of 1.5 billion won, the Defendant did not receive an audit report from the Defendant on April 6, 2009 for the purpose of 11.8 billion won of loans (1.5 billion won of principal, 9.3 billion won of interest) until the end of December 201, 201, or 2.4 billion won of the debt of 2.4 billion won of the Plaintiff’s debt disposal at 1.4 billion won of the Plaintiff’s debt disposal at 1.4 billion won of the Plaintiff’s debt disposal at 2.5 billion won of the Plaintiff’s debt disposal at 1.4 billion won of the above debt disposal at 200 billion won of the Plaintiff’s debt disposal and 1.3 billion won of the financial audit report at 201.5 billion won of the Plaintiff’s revenue disposal.

(2) On December 24, 2013, when the board of directors recommended the Social Welfare Services Act, the board of directors recommended by the Local Community Branch Consultative Body (hereinafter referred to as the "Recommendation of the Local Community Branch Consultative Body (hereinafter referred to as the "Ground 4 of this case") recommended that "not less than 1/2 of the fixed number of the directors shall be composed of recommended directors under the Social Welfare Services Act" to the effect that the former or the former representative director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's executive director's representative director's

In response, the current board of directors is judged not to be an institution that can not be seen as a plaintiff's institution that can secure claims strictly.

On the other hand, the plaintiff sold 4,818,181,00 won of a building of the Seo-gu Busan Metropolitan City J Center (hereinafter referred to as "building") as of December 30, 201 to 12. 2.30 billion won for loans of 1.1 billion won, 7.5 billion won for lease deposit, and 80 million won for D hot spring remodeling, and did not receive any balance of 2,268,181,000 won. The defendant ordered to recover the balance on December 24, 2013. However, according to the statement of 2.1.4 billion won as of January 17, 201, the plaintiff reported to the 201.2 billion won as of December 17, 2014, the board of directors of the 201.3 billion won as of 2.4 billion won as of 4 billion won as of the date of execution, the plaintiff's specific appraisal and supervision of 2.4 billion won as of 25 billion won as of the date of sale.

According to the provisions of Articles 10 and 19 of the Financial Accounting Rules of a social welfare foundation (hereinafter referred to as "five grounds of this case"), the representative director of the social welfare foundation shall submit the budget for the following year to the head of the Si/Gun/Gu by no later than five days before the beginning of each fiscal year and by no later than March 31 of the following year, although the budget for the year 2013 and the settlement of accounts for the year 2012 were submitted on April 10, 2013 without the audit report, and the corporate accounting of the board of directors was submitted without the audit report for the year 2013 but the records were not recognized by the captain, as a result of the special examination by the defendant in 2012, some of the matters pointed out are still implemented for the purpose of private use of fundamental property (as a result, 1,453,038,000 won).

As a result of the I Joint Inspection conducted by the Plaintiff, the Ministry of Health and Welfare provides that workers in charge of the management guidance of social welfare facilities shall be open to the public. However, on March 16, 201, the Ministry of Health and Welfare employs 12 applicants who are in a special relationship with the representative director of a corporation without undergoing fair deliberation procedures for 12 applicants, and (2) collects total of KRW 75,268,000, including those who use cost of living benefits for persons with disabilities due to improper activities of the Ministry of Hobongsan, and KRW 52,384,00,000, which used cost of living benefits for persons with disabilities as workers' food expenses, and ③ employs those who are not qualified as physical professionals as physical clinics and file a complaint against the violation of Article 9 of the Medical Technicians, etc. Act on May 16, 2014.

On December 24, 2013 and February 10, 2014, the defendant replaced all corporate directors (seven corporate directors) from the defendant on December 24, 2013 and, on February 10, 2014, required to ensure transparency in the operation of the corporation and normalization, but failed to implement the request for recommendation directors to appoint at least 1/2 of the fixed number of directors; the hearing for cancellation of the permission of incorporation ( June 27, 2014) is advanced; and on May 27, 2014, all directors, including the representative director, including the director, are replaced; and the hearing claimed prompt implementation of non-performance items at the hearing, but it is determined as a means to evade the revocation of

- Socially, the bill related to ascertaining the truth of the K Damage Case is proposed, and strict measures are required for transparent operation of the plaintiff and corruption. However, the plaintiff's response does not reach the level of social tolerance, and therefore, it is judged that it is difficult to conduct the business of protecting persons with severe disabilities such as social support through volunteer service, support, etc. due to the decline in social awareness of I as to the target business.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3 evidence, Eul evidence 22 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the following circumstances, the instant disposition is illegal and unfair.

1) In light of the purpose of legislation, details of regulations, etc. under Article 26(1) and (2) of the Social Welfare Services Act, the instant disposition does not fall under “when it violates this Act, an order under this Act, or the articles of incorporation under this Act,” and does not constitute “where it is impossible to achieve the purpose of supervision by any other method, or where a corporation fails to comply with the order within six months after the order of correction,” which is the requirement for cancellation under Article 26(1) and (2).

① The main reason for the Defendant’s disposition is that F and G father who were the representative director of the Plaintiff embezzled corporate funds in collusion. This is merely a personal misconduct between F and G. Rather, the Plaintiff is the victim. This is sufficient to dismiss the Plaintiff from office and does not constitute a ground for revoking the establishment permission.

(2) Measures to issue a phased corrective order, such as an improvement order, pursuant to Article 40 (1) and (3) of the Social Welfare Services Act and Article 26-2 of the Enforcement Rule of the same Act, etc.

It is necessary to proceed to the disposition of this case in order to take corrective measures after proceeding in order, but it is not possible to revoke the permission of incorporation only for reasons such as not simply undergoing an audit.

3) The Plaintiff’s fundamental property also consists of 22,120,684,560 won based on the appraisal value, and even if the Plaintiff bears a considerable amount of debt and loses its land, buildings, etc. through auction, the fundamental property remaining up to 11,370,00,000 won, and taking all measures, such as securing a claim against L or L or LASSSSSSSSSSSSSSS in order to secure a claim, provisional seizure, filing a lawsuit, etc., it cannot be readily concluded that the Plaintiff is unable to perform its intended business because it

④ Since the Plaintiff had appointed a new photograph entirely cut off with the previous photograph before the instant disposition, the former representative director, etc. may not have any influence on the new photograph, such as the Defendant’s concern, and the new photograph consists of a professional person for the normal operation of the business protecting persons with severe disabilities, and is making every effort to normalize the legal entity at present.

2) For the following reasons, the instant disposition was in violation of law by deviating from and abusing discretionary power.

① There are 45 severe disabilities in I, who is a sanatorium for persons with severe disabilities operated by the Plaintiff, and the disposition of this case is inevitable to be closed if the disposition of this case is made. Considering that the living facilities of persons with disabilities in Busan Metropolitan City are above the fixed number of persons with severe disabilities, their survival itself is threatened.

② Considering that the Plaintiff takes active measures to preserve property against L, etc., as well as making every effort to improve its financial status by forming a new photograph and making every effort to improve its financial status, and that the Plaintiff actively received external audits by entering into an accounting firm name and an accounting audit service contract in accordance with the Defendant’s administrative guidance that causes external audits, as well as taking various measures such as amending the articles of incorporation and corporate register in accordance with the Defendant’s instruction, it is against the principle of proportionality to lead to the instant disposition on the ground that the Defendant’s partial correction is not made, or

B. Relevant statutes

It is as shown in the attached Form.

1) The facts related to the grounds of the instant 1 and 2 (F and G embezzlement, etc.)

A) On October 2, 2013, F (the representative director of the Plaintiff’s former representative director from January 1, 2001 to April 7, 201) sold the Plaintiff’s basic property E, which is the Plaintiff’s basic property, to KRW 2,146,00,00,00, and used for the reinforcement of D hot spring plant equipment and building construction, contrary to the terms of permission granted from June 30, 2009 to July 31, 2009, embezzled KRW 1,036,261,118 out of the proceeds of sale. M (I (the Plaintiff’s employment as life instructor from January 1, 201 to April 7, 201) in collusion with the Plaintiff’s residential facilities located in the disabled, which were operated by the Plaintiff, to March 25, 2011 (the Plaintiff’s total subsidy of KRW 127,746,300,370,000).

B) G (F) who is the former representative director of the Plaintiff, was the president of D Hot Spring, a profit company operated by the Plaintiff, from March 8, 2007, while the Plaintiff was also the representative director of the Plaintiff from April 8, 2011 to February 2, 2014) in collusion with F on October 23, 2013 to October 8, 2009, which was not guilty of KRW 230,970,921 out of the purchase price of the E site from July 23, 2009 to October 8, 2009, and KRW 200,000 from September 11, 2008, and KRW 380,401,929, which was operated by the Plaintiff from July 6, 2009 to March 9, 2011, and were not guilty of the aforementioned subsidies by conspiracy with Busan District Court Decision 200,381,714.7.205.

2) Facts pertaining to reasons 3, 4, and 5 of the instant case

A) The process of the instant disposition

① From August 27, 2012 to September 7, 2012, the Defendant conducted a special inspection against the Plaintiff (hereinafter referred to as “the special inspection of this case”) on a total of 15 measures (6 cases of accusation and request for investigation, five cases of corrective order, and four administrative guidance, etc.). Of the above measures, on September 25, 2012, the Defendant conducted an external audit and submitted an audit report to the Plaintiff by October 31, 2012, and notified the Plaintiff of “to complete the registration of fundamental property in compliance with the relevant Acts and subordinate statutes.” However, on December 26, 2012, the Plaintiff failed to implement it on the ground that “the external accounting expenses and the expenses for the registration of corporate assets need to be KRW 50 million,000,000,000,000 for the expenses for the registration of corporate assets.”

Accordingly, upon urging the Defendant to re-performance on January 9, 2013, the Plaintiff submitted an external audit opinion as of March 2, 2013 by a certified public accountant. The Plaintiff’s opinion was “Refusal of opinion” (in the event that it is impossible to present an opinion on the entire financial statements due to the lack of reasonable evidence necessary to form an audit opinion, or the objective matters to the extent relevant to corporate existence are particularly serious, etc.), and the Defendant was unable to present an opinion on the financial statements. After the prosecution’s indictment against F and G, the Defendant did not notify the Defendant of the exact financial status or its current status of the Plaintiff. After the Defendant was indicted by the prosecution on December 24, 2013, the remainder of 1/2 or more of the incumbent corporate director’s replacement and directors’ fixed number, and the Plaintiff did not report the remainder of 2,268,100,100,000 won to the Defendant on December 24, 2013.

Accordingly, on March 24, 2014, the Defendant urged the Plaintiff to implement the said notification by April 25, 2014, and notified the Plaintiff of the revocation of the permission for the establishment of a social welfare foundation on May 20, 2014.

On May 27, 2014, the Plaintiff replaced all foreign photographs with each other, and the Defendant reached the instant disposition following the hearing procedure on June 2, 2014.

B) The Defendant’s failure to comply with the corrective order

① On April 6, 2009, the Plaintiff obtained a loan from the Defendant from April 2009 to December 31, 201, with the approval of KRW 11.8 billion ( principal KRW 10.8 billion, interest rate of KRW 9.32 million) of the loan amount, and “the condition that the Plaintiff shall submit an audit report after undergoing an audit by a certified public accountant within a prompt time period of time for remodeling and required project costs of D Hot Spring buildings.” However, even though the Plaintiff borrowed the above money, the Plaintiff did not undergo an audit by the certified public accountant specified in the said conditions of the license.

② Around November 201, the appraised value of fundamental property owned by the Plaintiff was equivalent to KRW 22.1 billion, but the Plaintiff was registered only one million, presumed to be the total assets at the time of its establishment in the corporate register. Accordingly, the Plaintiff did not implement the assessment, even though the Defendant ordered the Plaintiff to correct the assessment on several occasions from September 25, 201 to March 24, 2014 pursuant to Article 23(2) of the Social Welfare Services Act and Articles 49 and 52 of the Civil Act.

③ According to Article 23(4) of the Social Welfare Services Act and Articles 10(1) and 19(1) of the Financial Accounting Rules of a social welfare foundation, the representative director of the social welfare foundation shall submit the budget for the following year to the head of the Si/Gun/Gu by no later than five days before the beginning of each fiscal year, and the settlement of accounts by no later than March 31 of the following year. The Plaintiff did not submit the budget for the year 2013 and the settlement of accounts for the year 2012 within the period prescribed by the above provision. In particular, since the audit report was omitted in the settlement of accounts in 2013,

④ As a result of the Defendant’s special inspection with respect to I, from September 12, 2012 to September 9, 28, 201, it confirmed that I employed 12 persons in a special relationship with the Plaintiff’s representative director without undergoing a fair deliberation procedure for 12 applicants, employing 12 applicants, and taking measures to recover excessive labor cost of 22,384,000 won due to improper calculation of salary grade and 52,268,000 won using cost of living benefits for the disabled as employees for food care (the Plaintiff was sentenced to a fine of 2 million won in Busan District Court).

⑤ Meanwhile, on October 1, 2013, IBK Savings Bank, the principal creditor of the IBK Savings Bank applied for a voluntary auction on the Plaintiff’s property, including D Hot Spring building and land, and currently under auction (O of Busan District Court). The Plaintiff’s fundamental property, other than I, is also provisionally seized by creditors, and on April 24, 2014, the total amount of obligations, including the principal and interest of IBK Savings Bank KRW 19.2 billion, etc., reaches KRW 20.3 billion.

[Reasons for Recognition] Facts without dispute, Gap evidence 9, 15 through 19, 31, Eul evidence 1 through 22, 28 through 30, 42 (except evidence 13) and the purport of the whole pleadings

D. Determination

Comprehensively taking account of the following circumstances acknowledged by the respective statements and arguments stated in the above facts and evidence Nos. 36 through 41 as well as the entire purport of the pleading, all of the grounds for disposition of this case constitute "where the defendant violated this Act, orders issued under this Act, or the articles of incorporation under this Act" under Article 26 (1) 11 of the Social Welfare Services Act and constitutes "where the purpose of supervision cannot be achieved or the corporation fails to comply with such orders within six months after ordering correction" under Article 26 (2) of the same Act, and there is no evidence to deem otherwise that the disposition of this case is unlawful that deviates from or abused discretionary power.

① The Plaintiff is a social welfare foundation established for the purpose of establishing and operating a medical care center for the disabled pursuant to the Social Welfare Services Act and that received considerable subsidies from the administrative authority in order to achieve its purpose. Therefore, the accounting operation and funding should be executed more transparent than any other organization. If the representative of a social welfare foundation or the employee embezzleds the corporation’s funds, it is necessary for the administrative authority to exercise its right to monitor and supervise the corporation more strictly, since it is used for the purpose of private use.

② In light of the fact that the father of the FG, who is the former representative director, is in the position of the representative director, was indicted for embezzlement and misappropriation of the proceeds from the sale of basic property and profit-making business of the corporation, and G was sentenced to three years in prison, and the judgment became final and conclusive, the above misconduct is in violation of Articles 23(3) and 28(2) of the Social Welfare Services Act.

In light of the fact that, as the founder of the Plaintiff corporation, the board of directors, exclusively neglected the corporate funds, and used the corporate funds for private purposes, and that only embezzlement amount, which was suspected of suspicion through the instant special inspection, exceeds KRW 1.6 billion, and that it is difficult to properly grasp the current status of the corporate operation, it is reasonable to deem his act of misconduct by itself as a corporate misconduct. Accordingly, his act of misconduct is limited to personal corruption and rather, it is difficult to accept the Plaintiff’s assertion that the Plaintiff was the victim.

③ In full view of the provisions of Articles 26(1), 51(1), 53 subparag. 1, and 54 subparag. 7 of the Social Welfare Services Act, the Minister of Health and Welfare, the Mayor/Do Governor, or the head of a Si/Gun/Gu shall guide and supervise persons operating social welfare business with respect to their duties; if necessary, he/she may order them to submit a report or relevant documents; or may order public officials under his/her jurisdiction to enter the office or facilities of a corporation; if such order is violated, the head of a Si/Gun/Gu may directly order the improvement of social welfare facilities, suspension of business, replacement of the head of a facility, or closure of the facility; and the Mayor/Do Governor may order the social welfare foundation to take corrective measures or revoke the establishment permission. As seen earlier from the special inspection of this case to the disposition of this case, requiring the Plaintiff to continuously perform accounting audits, secure claims for misconduct; and to correct the registration of the corporation’s property. The Plaintiff failed to comply with the Defendant’s corrective order.

④ Also, considering the fact that the Plaintiff’s debt amount is equivalent to KRW 20.3 billion, the Plaintiff’s property owned by the Plaintiff was provisionally seized or still under auction proceedings, and the liabilities continue to be accumulated, and that the financial soundness is very unstable, it is questionable whether the Plaintiff may continue to implement the existing social welfare business in the future.

⑤ The Plaintiff asserted that the Plaintiff could faithfully implement social welfare programs through transparent operation in the future because all of the pictures were replaced by the Defendant’s corrective instructions. However, the Defendant’s prior notice of revocation of the establishment permission of a social welfare foundation on the ground of the instant disposition on September 20, 2014 was not given for two years immediately before the instant disposition was taken. On May 20, 2014, the previous photograph was replaced after the replacement, and the new photograph was not implemented by the Defendant’s previous corrective instructions. On the other hand, if the previous photograph was given exemption to the social welfare foundation on the ground that it was replaced, the opportunity to purify illegal operation of the social welfare foundation was prevented, and rather, it can be considered that the public transaction of the social welfare foundation was neglected.

6) The Plaintiff alleged that the severely disabled persons will be threatened with survival due to the instant disposition. However, even if the permission for establishment of the Plaintiff is revoked, L, a social welfare facility, is closed by a separate disposition according to the captain’s discretion pursuant to Article 40(1)2 of the Social Welfare Services Act. Thus, revocation of the permission for establishment of the Plaintiff does not immediately lead to I closure, and the Defendant also has also prepared follow-up measures according to the instant disposition (including construction of residential facilities for disabled persons in the plane captain-gun, and subsidies for the installation of residential facilities for severely disabled persons in the plane captain-gun of the Masan Welfare Foundation, etc.).

7. On the other hand, the standard point of time to determine whether administrative disposition is illegal is not the market price of judgment, but the determination of illegality based on the law and factual condition at the time of administrative disposition, and therefore, even if the new photograph of this case after the disposition of this case is making efforts to improve the plaintiff's financial status, such circumstance alone alone cannot be deemed unlawful.

④ Ultimately, considering the grounds for the instant disposition, the background and developments leading up to the Plaintiff’s violation of the Social Welfare Services Act, the frequency and progress of the Defendant’s implementation order against the Plaintiff, etc., the Plaintiff appears to have failed to comply with the Defendant’s corrective order within six months, and accordingly, the Defendant could not achieve the supervisory purpose against the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.