(영문) 서울고등법원 2019.4.17.선고 2018누66373 판결

A. The part in excess of KRW 889,00,00 among the disposition of revocation of the full decision to grant subsidies made by the Defendant to the Plaintiff on September 21, 2017 and the part in excess of KRW 889,083,512 among the disposition of the order to grant subsidies issued by the Defendant on October 27, 2017 shall be revoked.

B. All remaining claims of the Plaintiff are dismissed.

2. 9/10 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall revoke the full revocation of the decision on the grant of the subsidy on September 21, 2017 and the order of the refund of the subsidy on September 10, 2017, respectively.

Reasons

1. Details of the disposition;

A. On June 20, 2014, the Defendant publicly announced the “B Project Promotion Plan” (hereinafter referred to as the “instant Project”) to build a foundation for eco-friendly culture by utilizing reclaimed land. The main contents of the instant project are as follows.

The name of business division: C: 36 months from the date of commencement to the first year: the construction of facilities and the commencement of test style - the second or third year: the budget required for test style and management: 2 billion won (50 billion won at the expense of 50% + 50% at the expense of 50%): the major contents: the creation of a festival cultivation farm (1 billion won at the expense of 1 billion won) and marine test style and management (1 billion won at the expense of 1 billion won): the method of performing the project subject to prior consultation among the candidate land as a result of a lot of investigation in 2013: the creation and test style: the model of the aquaculture, the model of the model of the cultivation, the research institute contributed by the Government, the university, or the non-profit specialized research institute established under Article 32 of the Civil Act; the model of the test for fishery partnership or research institute with the ability to bear the responsibility to participate by at least one fishery partnership corporation or five fishery personnel.

B. On July 10, 2014, the Plaintiff filed a business application with the Defendant, and submitted a business plan with D fisheries partnerships (hereinafter referred to as “foreign corporations”) and E fisheries partnerships as participants (hereinafter referred to as “instant business plan”). The main contents of the instant business plan are as follows.

III. Business Plan III. Business Plan III-3 Detailed Business Plan 1. Annual Project Budget (unit: 2,000 won) 2. Items IV. Business Promotion and Management Plan IV-1 Project Promotion Organization and Management Plan 1. The English Corporation is responsible for field management (unit of organization)

5. The economic comparison and analysis of the cost of producing festival-type type(b) and the cost of managing the aquaculture; 3. The cost of managing the plantation-type type(b) in English corporation, while residing in English corporation, shall be charged with three managers, such as liquor and drainage.

C. On September 24, 2014, the Defendant selected the Plaintiff as a business entity through a public announcement of the business plan and on-site inspection by the business applicants, including the Plaintiff, and notified the Plaintiff of this on September 24, 2014. After which, upon the Plaintiff’s request, the Defendant changed the business period from “F located in Ansan-gun located in the initial city located in Ansan-gun,” to “G” and from “from October 7, 2014 to September 2017, 2015 to “from July 7, 2015 to June 2018.”

D. On July 27, 2015, the Plaintiff filed a claim with the Defendant for the payment of a subsidy of KRW 800 million. On July 28, 2015, the Defendant rendered a decision to grant a national subsidy of KRW 800 million (hereinafter referred to as the “decision to grant a national subsidy of this case”) to the Plaintiff, who is a subsidized business operator, and paid a subsidy of KRW 800 million to the Plaintiff. The Defendant added the conditions of granting a subsidy (hereinafter referred to as the “instant conditions of granting”) while granting the first decision to grant the subsidy of this case, and the main contents are as follows.

The terms and conditions of subsidy grants [general matters] 1.1. Subsidy Project Operators (including indirect subsidy Project Operators; hereinafter referred to as "Subsidy Project Operators") shall carry out the subsidized Project in good faith in accordance with the Subsidy Management Act, other accounting-related Acts and subordinate statutes, and the terms and conditions of this grant.2. Subsidies shall not be used for any purpose other than the cost of the model development for mass production in the festival type which is the objective of the subsidized Project.3. A subsidy shall not be used for any purpose other than the cost of the model development for the mass production of the subsidized Project in accordance with the good faith principle and the good faith principle, and may be used for any purpose other than the cost of the subsidized Project when the subsidy is settled.5.

E. On December 9, 2015, the Plaintiff filed a claim with the Defendant for the payment of KRW 200 million national subsidies, and the Defendant, on the same day, issued a decision to grant the national subsidies (hereinafter “instant second decision”) to pay KRW 200 million to the Plaintiff, who is a subsidized business operator, and paid the Plaintiff KRW 200 million national subsidies. The Defendant added the instant conditions of the issuance while granting the second decision.

F. On January 23, 2017, upon the Defendant’s request, the Plaintiff submitted the present status of the instant project promotion and inspection data, and the main contents are as follows.

In order to facilitate the implementation of the project, the project is important in monitoring, etc. as a three-dimensional pilot project. Therefore, during the first year of operation and management expenses, A University's Industry-Academic Cooperation Team and the Institute of Marine IT Convergence Technology requested A University to deposit 125 million won into several public documents (including content certification) in the name of A University's Industry-Academic Cooperation Team and the Institute of Marine IT Convergence, but it has not been deposited until now; 4.1 year's self-payment, 5,000 won * 5,000 won - 12,50,000 won for operation, management and investigation expenses to be paid to AAI; 00 won for the project; 00 won for the first year's self-payment, 00 won for the first year's self-payment, 2005 won for the first year's self-payment, 2005 won for the first year's self-payment, 2005 won for the first year's self-payment (2005 won).

Pursuant to the ratio of ○ self-responsibility 163,100,000 (nives) totaling the execution details of facility costs (national expenses)

G. After that, on February 13, 2017, the Defendant notified the Plaintiff of the temporary suspension of the instant project pursuant to Article 26 of the Subsidy Management Act on the ground that “The Plaintiff failed to implement the project several times, such as the execution of self-paid charges, even though the Defendant urged the Plaintiff to implement the project.”

H. On March 23, 2017, the Plaintiff requested the Defendant to adjust the contents of the business by excluding E-fisheries corporations among Non-Party corporations and E-U.S. corporations that are participants in the instant business, and the Defendant approved it on June 16, 2017.

I. After doing so, the Defendant, on September 21, 2017, issued a hearing and prior notice to the Plaintiff on the ground that the Plaintiff violated the terms and conditions of the instant grant due to non-execution of the charges, etc., and issued a disposition to revoke the entire decision on the instant 1 and 2 grant (hereinafter “instant disposition”). On October 27, 2017, the Defendant ordered the Plaintiff to return the subsidies (including interest) already paid to the Plaintiff pursuant to Article 31(1) of the Subsidy Management Act (hereinafter “the Ordinance on the Return of this case”). Meanwhile, the grounds for the instant disposition are as follows.

The fact that is the cause of the disposition is that the non-party corporation, the ○ subsidized project operator, did not perform the execution of 125 million won for monitoring expenses (project operation and investigation expenses) for self-payment (hereinafter referred to as "the ground for the first disposition of this case"). The non-party corporation, the subsidized project operator, submitted the documents for the purchase price of the false sea ginseng seeds (50 million won) and the plaintiff was recognized as the self-payment (hereinafter referred to as "the ground for second disposition of this case"). The non-party corporation, the plaintiff, the subsidized project operator, and the plaintiff failed to perform the Defendant's order for the implementation of the subsidized project (7 times) (hereinafter referred to as "the ground for third disposition of this case").

The Plaintiff, a subsidy program operator of ○○, has excessively appropriated labor costs of KRW 51 million including labor costs without approval for the modification of the project plan (hereinafter “instant ground for Disposition 4”). The Plaintiff, a subsidy program operator of ○, included KRW 10 million in general management expenses without approval for the modification of the project plan (hereinafter “instant ground for Disposition 5”). The Plaintiff, a subsidy program operator of ○, included in general management expenses without approval for the modification of the project plan in excess of his/her own cost (hereinafter “the instant ground for Disposition 5”). (1) The legal ground for revocation of the entire revocation and the ground for Disposition 1 of this case: (3) Article 30(1)2 of the Subsidy Management Act (Violation of the General Conditions for Grant 3): Article 30(1)2 of the Subsidy Management Act (the instant ground for Disposition 2 of this case); Article 30(5)2 of the Subsidy Management Act (the instant ground for Disposition 30(5) of the Subsidy Management Act; Article 30(1)4 of the Act on the Management of Subsidies (the instant ground for Disposition 4)

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 2 through 7, 15, 19 through 23 (including each number, except where the numbers are specified) and the purport of the whole pleadings

2. Whether the revocation of this case and the return order are lawful

A. Summary of the plaintiff's assertion

1) The instant disposition and the return order should be revoked on the ground that there is no ground for disposition for the following reasons.

A) According to the instant business plan, the non-party corporation is obligated to execute its own contributions, and the Plaintiff bears the duty to manage and supervise the execution of national subsidies and treasury contributions. Therefore, there is no ground for the first and third dispositions in the instant case premised on the Plaintiff’s breach of its duty to enforce treasury contributions.

B) The Plaintiff cannot be deemed to have violated the terms and conditions of the instant grant, since all necessary measures were taken to verify whether Nonparty corporation executed the Plaintiff’s self-payment as the amount of piracy. Even if evidentiary documents submitted to the Plaintiff are false, it is a non-party corporation that prepared false evidentiary documents, and the Plaintiff approved the Defendant’s execution of subsidies accordingly.

Since it was executed only, the Plaintiff cannot be held responsible for it. Therefore, there is no ground for the second disposition of this case.

C) Among the business budget of the instant project plan, labor costs, not regular labor costs, are included in the labor cost item of “dual production costs,” and thus, even if the Plaintiff recognizes the labor cost as the enforcement of the self-paid cost (labor costs), it cannot be said that the terms and conditions of the instant grant were violated or that the content of the instant project is modified. Therefore, there is no ground for Disposition No. 4 of the instant case.

D) The non-party corporation purchased and entered a new fryto test the possibility of the complex style of sea and fry, and whether to secure economic feasibility, and the Plaintiff confirmed the details of the purchase and the process of entering the new frying. Since the complex style of sea and fys is one for the development of a festival-type sea model, the "general management cost" included the "general management cost for sea fying." Therefore, even if the Plaintiff recognized the purchase cost of new fysing and executed the subsidy according to its ratio as the execution of the cost of purchasing the new fysing (general management cost) and executed the subsidy according to its ratio, it cannot be said that the terms and conditions of the instant provision were violated or that the instant project is modified. Accordingly, there is no ground for Disposition 5 of this case.

2) The instant disposition of revocation and the return order should be revoked in full or in part as it is unlawful by deviating from and abusing discretionary power for the following reasons.

A) The Plaintiff did not use the subsidy granted in the instant project for the Plaintiff, and took all possible measures to implement the subsidy in an efficient and transparent manner. The Defendant’s violation of the terms and conditions of the instant subsidy, which the Defendant used as the grounds for disposition, was caused by the act of the non-party legal entity, and thus, the Plaintiff is not liable for the violation of the terms and conditions of the instant subsidy, and thus, it is too harsh to order

B) According to the instant project plan, the national subsidy was planned to be used as the cost of creating the farm, and the self-charge was planned to be used as the type and management expenses. However, among the subsidies, 80 million won was used in the creation of the farm and the purpose of the subsidy was achieved, the return of the subsidy cannot be ordered. Furthermore, since the Plaintiff and the Defendant agreed to grant the subsidy in proportion to the self-charge ratio, the decision to grant the subsidy cannot be revoked and the return of the subsidy

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether there exist grounds for each of the dispositions in this case

A) The facts that there were grounds for disposition Nos. 1 and 3 of the instant project plan were not executed with respect to the operation and management and investigation expenses on the instant project plan are as shown in the foregoing 1. Moreover, in full view of the following circumstances, the subsidized business operator of the instant project is the Plaintiff, taking into account the aforementioned facts and the written evidence Nos. 3, 4, 17, and Nos. 2, 4, 5, and 7, and the overall purport of the pleadings, and the following circumstances are revealed. Therefore, in relation to the Defendant, the Plaintiff is fully responsible for the obligations of the subsidized business operator related to the instant project, including the execution of self-paid charges, and the Plaintiff’s assertion on a different premise is without merit.

(1) The non-party corporation is not eligible to receive the instant project, and is in a position to jointly conduct internal tests in relation to the Plaintiff.

(2) The Plaintiff filed an application for the instant project under his own name, and the Defendant also served as the Plaintiff and notified the Plaintiff of the selection of the project recipient.

(3) Of the instant project plan, the part concerning the project promotion organization is responsible for the project management by the Plaintiff and the non-party corporation.

(4) Each disposition of the instant first and second decision made by the Defendant against the Plaintiff is indicated as a subsidized project operator. In addition, the Plaintiff demanded the Defendant to pay a subsidy of KRW 1 billion for the instant project under its own name, and the Defendant also paid a subsidy of KRW 1 billion to the Plaintiff.

B) Whether there was a ground for the second disposition of this case

In full view of the following circumstances as seen earlier and Gap evidence Nos. 13, 15, and 27-13, Eul evidence Nos. 9, 15, 24, 25, 28 through 31, and 35, it is determined that the plaintiff executed a subsidy according to the ratio despite the fact that the execution of the self-paid charges is not recognized in accordance with the business plan of this case, the plaintiff violated the terms and conditions of the delivery of this case that the subsidy should be executed in an efficient and transparent manner in accordance with the business plan of this case, and it is difficult to view that there is a justifiable reason for the violation, and therefore, this part of the plaintiff's assertion is without merit.

(1) According to Article 4(5) of the former Framework Regulation on the Management of Execution of Fisheries Business Funds (amended by Ordinance of the Ministry of Oceans and Fisheries No. 399, Nov. 3, 2017; hereinafter “the Fund Management Regulations”), to execute business funds and self-payment, a business registration certificate holder’s signature on his/her own, a receipt or tax invoice, bank passbook copy, etc., and other transaction data of financial institutions, such as a business registration certificate holder’s bank passbook copy, and other evidentiary documents directly prepared by the holder of the business registration certificate

(2) Around December 2015, the Plaintiff recognized that Non-Party Corporation executed the first subsidy according to the ratio of KRW 495 million for self-payment (the cost of marine seeds and seedlings) and executed the first subsidy. The enforcement of the self-payment was confirmed through the Non-Party Corporation’s completion report (Evidence 13-1), tax invoice (Evidence 13-2), transaction statement (Evidence 13-3), I’s business registration certificate (Evidence 13-4), I’s H Admission Report (Evidence 13-5), Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-si (Evidence 13-5), J bid price (Evidence 13-6), the copy of the passbook of the deposit confirmation of Non-Party Corporation’s account deposit (Evidence 13-7), the tax invoice and on-site photograph. In addition, on August 2016, the Plaintiff recognized Non-Party Corporation’s execution of the Non-Party Corporation’s charges (Evidence 500,000,000).

(3) After the Plaintiff’s execution of the first subsidy, the Defendant directed the Plaintiff to the effect that, as evidence of the execution of the subsidy, the documents, such as receipts, tax invoices, written materials, etc., or written materials prepared by the accounting firm, the Plaintiff selected and submitted them (Evidence A 27-13) as evidence for the execution of the subsidy. It seems that only review the accounting verification report when the Plaintiff executed the second subsidy would be based on such Defendant’s guidance. However, since the Plaintiff was aware of the content of Article 4(5) of the instant Fund Management Regulations, it is reasonable to view that the “accounting report announced by the Defendant” between the Plaintiff and the Defendant was understood as “the accounting verification report prepared after reviewing the materials clearly indicated in the above provision.”

(4) Since July 18, 2017, the Defendant: (a) examined the details of the execution of the self-paid charges submitted by the Plaintiff; and (b) requested the submission of “financial data, such as a copy of the passbook deposited by the Maritime Seeds and seedlings Sales Business Group and K,” which is a evidentiary document for the execution of the self-paid charges omitted by the Plaintiff; (c) but

(5) The 1st representative M issued a tax invoice to the Defendant stating to the effect that “The Defendant issued a tax invoice of KRW 495 million with the value of supply for the items to the non-party corporation on July 12, 2015,” but the Defendant did not receive KRW 495 million with the value of supply for the marine seeds and seedlings from the non-party corporation, and whether the Defendant actually supplied the marine seeds and seedlings to the non-party corporation shall be gathered as the day he was related to N, the partner of the non-party corporation.” The 1st site leader, the representative of the non-party corporation, issued a tax invoice to the Defendant that the representative of the non-party corporation would take over the marine seeds and seedlings in this festival type at KRW 20 million with the fact that the representative of the non-party corporation would take over the marine seeds and seedlings in this festival type, and the non-party corporation did not actually have received the amount of KRW 495 million with the non-party corporation’s statement to the effect that it did not actually receive the receipts from the Defendant (the non-party corporation.

(6) The representative P of Tax Accounting L, which prepared a report on the execution of self-payment of the instant project (Evidence A No. 15), has changed to the purport that “The Defendant did not make the instant business plan on the basis of evidentiary documents submitted by the Plaintiff, and only prepared a corporate tax report on the basis of evidentiary documents, and did not examine evidentiary documents in accordance with the basic rules for the management of the enforcement of fishery business funds.”

(7) Although the instant business plan was planned to plant a seed and seedling of tidal ginseng, the non-party corporation buried an intermediate grave of the sea ginseng taken over from the above N, and the Plaintiff reported the above fact to the Defendant on March 17, 2016, which was subsequent to the execution of the first subsidy. However, there is no evidence to prove that the content of the instant business plan was changed to plant a seed of the sea ginseng, and the Defendant notified the Plaintiff of the temporary suspension of the instant business on the ground that the Plaintiff did not have been executed despite the Plaintiff’s report on February 13, 2017. Accordingly, it cannot be deemed that there was an agreement between the Plaintiff and the Defendant on the temporary suspension of the business.

(8) In full view of the above circumstances, the evidence alone presented by the Plaintiff is insufficient to recognize that the non-party corporation executed KRW 500 million as the price for the seeds and seedlings, and there is no other evidence to acknowledge this otherwise.

(9) In addition, in relation to the defendant, the person who is responsible for the violation of the terms and conditions of the delivery of this case and the execution of the self-payment is the plaintiff, who is the subsidized business operator of the project of this case, and as long as the plaintiff fully trusted false evidence concerning the execution of the self-payment (the cost of marine seeds and seedlings) prepared by the non-party corporation in violation of Article 4 (5) of the Fund Management Regulations and executed the national subsidy, it is difficult

C) Whether there was a ground for Disposition No. 4 of this case

According to the above facts and the following circumstances, Gap evidence Nos. 15, 17, Eul evidence Nos. 5, 15, and 23 added the whole purport of the pleadings, the plaintiff recognized the plaintiff as the execution of his/her own labor cost of KRW 51 million around August 2016 and executed the subsidy according to its ratio. It is insufficient to deem that the subsidy was in violation of the terms and conditions of the delivery of this case, which should be executed in an efficient and transparent manner in accordance with the instant business plan, or the change of the business contents of this case, and otherwise, the defendant who bears the burden of proof as to the existence of the grounds for disposition did not submit any supporting evidence. The plaintiff's above assertion is with merit.

(1) Among the business budget of the instant project plan, the budget calculation statement of KRW 240 million is written on the personnel expenses item of “dual production cost” part of the business budget of the instant project. Since the Plaintiff is obligated to carry on the project in accordance with the instant project plan, personnel expenses of KRW 240 million shall be executed as the payment of the manager for dual production and shall not be diverted for other purposes.

(2) According to Articles 3 subparag. 3, 4, and 6(2) [Attachment 1] of the Guidelines for Preparation of Report on Settlement of Subsidies (amended by the Ministry of Strategy and Finance No. 2016-132, Jul. 25, 2016) where a subsidized business operator intends to newly establish subsidized items and subsidized items items, or to divert subsidies between subsidized items or between subsidized items or between subsidized items or between subsidized items, exceeding 30% of the budget for subsidization items under the project plan, the approval of the head of the central government agency, etc. must be obtained. Labor expenses constitute subsidization items, and include remuneration for temporary workers who are employed for remuneration and daily work for subsidized items, which are the relevant detailed items. As such, the guidelines for preparation of the aforementioned guidelines include items of subsidized items that must be stated in the settlement report under the Act on the Management of Subsidies, consideration should be given to the interpretation of 1’a clause when executing a subsidized project.

(3) There is no determination as to whether the employment type of a manager in the instant business plan would be a regular worker, a temporary worker, or a temporary worker. Even if the items of personnel expenses only refer to the wages of a regular worker, it is merely an exclusive use of the subsidy tax amounting to KRW 51 million, which does not exceed KRW 30 million in the labor expenses budget of KRW 240,000,000,000 in the relevant business plan, according to the guidelines for preparation and preparation. Therefore, the instant provision of subsidies does not constitute “a modification to the distribution of expenses incurred in the subsidy program” under the “paragraph (a) of the subsidy program when the subsidy program is implemented.”

(4) The defendant asserts that labor costs of KRW 51 million shall not be included in personnel expenses of KRW 240 million, since it is labor costs for daily workers who invested in the aquaculture facility works. However, there is no evidence to support the defendant's assertion.

D) Whether there exist grounds for Disposition No. 5 of this case

According to the following circumstances, the Plaintiff recognized the purchase cost as the execution of self-chargess (general management expenses) and executed subsidies at the rate of the subsidy in accordance with the aforementioned facts and Gap evidence Nos. 3, 17 through 19, Eul evidence Nos. 5, 15, and 23, and the purport of the entire pleadings, the Plaintiff violated the terms and conditions of the instant grant that should be executed in an efficient and transparent manner in accordance with the instant business plan, and the content of the instant business is modified. Therefore, this part of the Plaintiff’s assertion is without merit.

(1) It can be acknowledged that the budget of KRW 500 million is allocated to direct material cost (purchase cost) items in the budget of the instant project. The purpose of the instant project is to develop a festival culture model. As such, there is no doubt that the purchase cost of seeds and seedlings means the purchase cost of seeds and seedlings of the instant project budget. Accordingly, the budget allocated to indirect cost (management and operation, public cost, general management, and expendable material cost) items in the budget of the instant project should be used only for the purpose of producing seeds and seedlings.

(2) The instant business plan does not contain any content on securing economic feasibility through the combination of sea ginseng and new letter. The non-party corporation executed KRW 10,40,000 for the purchase cost of new letter for the purpose of securing profit by selling new letter. The Plaintiff, despite being aware of this, recognized that the non-party corporation executed the national subsidy according to its ratio by deeming that it executed KRW 10,000,000 as the general expenses for the production of festival style as the general expenses for the production of festival style. Ultimately, the Plaintiff recognized the execution of its own subsidy for new letter style that is irrelevant to the purpose of the instant business.

(3) There is no content about the instant project promotion plan as notified by the Defendant and the instant project plan submitted by the Plaintiff to the Defendant, and there is no content about the purchase of new ginseng and new ginseng in the business budget. If so, including expenses concerning the marine ginseng and new ginseng in the budget for the complex form, it would be an amendment to the contents of the instant project plan.

E) Sub-decisions

Inasmuch as the grounds for the instant disposition do not exist, the instant disposition and the return order are unlawful. However, as long as the Plaintiff violated the terms and conditions of the instant disposition, it constitutes grounds for revocation of the decision to grant subsidies under Article 30(1)2 of the Subsidy Management Act and grounds for the return order under Article 31(1). Thus, the instant disposition and the return order are lawful.

2) The legal principles pertaining to the revocation of the instant disposition and the return order are illegal as a deviation or abuse of discretionary power

In a case where a subsidy program operator cancels the decision to grant a subsidy under Article 30(1)3 of the Subsidy Management Act on the grounds that he/she was granted a subsidy by false application or by other unlawful means, whether he/she will cancel the whole or part of the decision to grant a subsidy, and the scope of the revocation shall be individually determined by comprehensively taking into account the purpose and contents of the subsidy program, the motive behind taking improper means in granting the subsidy, the ratio of the subsidy granted by unlawful means among the total amount of the subsidy, the ratio of the subsidy granted, and the ratio of the subsidy used in accordance with the relevant conditions and conditions (see, e.g., Supreme Court Decision 2002Du1165,

Such a legal principle is likewise applicable to determining the scope of revocation of the decision to grant a subsidy when it violates the Act on the Management of Subsidies, the contents of the decision to grant a subsidy, or the disposition of the head of a central government agency in accordance with the Act and subordinate statutes (hereinafter referred to as the "Acts, etc."). (However, as seen below (A).)

B) Specific determination

According to the following circumstances, the revocation of the instant disposition is revoked in its entirety and ordering the return of the total amount of the subsidies already paid and its interest, based on the following circumstances, as seen earlier and the written evidence Nos. 5, 11, 12, 14-1, 16, 27-13, and 9 of the evidence Nos. 9, and the purport of the entire pleadings:

(1) As seen earlier, the following facts are somewhat taken into account: ① the Plaintiff’s recognition of KRW 50 million as the enforcement of the Defendant’s self-paid charges; ② the operation and management expenses and investigation expenses of KRW 125 million was not paid at all by the non-party corporation despite the Plaintiff demanded several times; ③ there is no means to enforce the payment; ③ the Defendant’s indirect expenses (management and operation, public charges, general management, and expendable materials expenses) are not particularly problematic except for KRW 10 million; ③ the general administrative expenses include KRW 31 million within budget even within the instant project plan; ④ the recognition of the execution of the self-paid charges of KRW 51 million as the execution of the Defendant’s self-paid charges cannot be a ground for disposition; ⑤ the Plaintiff’s failure to implement the subsidies after the enforcement of the subsidies or the enforcement of the self-paid charges, and the Plaintiff’s failure to comply with the order to return the subsidies to the Plaintiff without any reason for disposition for revocation of the subsidies.

(2) According to Article 4(2)1 of the Fund Management Regulations, a project whose annual cost ratio is not less than 20/100 and whose annual amount is not less than 200 million won shall be executed first from the commencement of the project, and the remaining amount of the self-paid charges shall be paid in installments. According to the instant project plan, the ratio of the self-paid charges to the annual cost of KRW 1,755,500,000 in the budget of the first year is at least 20/100 in the annual cost of the project, and 50,000 out of the self-paid charges is to be executed from the commencement of the project. The Plaintiff was planned to execute the project from the commencement of the first year since the self-paid charges amounting to KRW 50/100 in the amount of the self-paid charges was not paid in lump sum, and it is difficult to deem that the non-party corporation actually executed the subsidy corresponding to the ratio of the self-paid charges.

3) The scope of revocation of the instant disposition and each of the orders to return

A) Where the decision on the grant of a subsidy is partially revoked pursuant to Article 30(1)2 of the Subsidy Management Act on the ground that an entity that partially revoked the scope of the decision on the grant of a subsidy violates the Act and subordinate statutes, the scope of the decision shall be individually determined by comprehensively taking into account the purpose and content of the subsidy program, the motive behind the violation of the Act and subordinate statutes, the total amount of subsidy granted

B) Judgment on the Plaintiff’s assertion

(1) The Plaintiff asserts that the subsidy of KRW 800 million used for the cost of creating the aquaculture shall not be ordered to be returned because it has achieved the purpose of granting the subsidy. However, the purpose of the instant project is not to develop a model for mass production of tidal ginseng, but to achieve that purpose, it was essential for the Plaintiff to monitor the growth process of tidal ginseng in accordance with the environment at the stage of seeds and seedlings. Nevertheless, the Plaintiff failed to conduct monitoring at all due to the non-party corporation’s failure to pay the operation and research cost, which is its own share, and the purpose of the instant project cannot be achieved, and thus, the Plaintiff’s above assertion is rejected.

(2) In other words, the Plaintiff and the Defendant agreed to enforce the subsidy according to the ratio of self-payment, and thus, they cannot order the revocation of the decision to grant the subsidy and the return of the subsidy already executed. In this case, although the instant project failed to achieve the purpose of the filing, the existence of the self-payment, which is recognized to have been actually executed by the non-party corporation, is the same as mentioned above. The Plaintiff’s execution of the corresponding subsidy does not have any violation of the statutes, etc. Therefore, it is reasonable to deem that the Defendant can revoke the decision to grant the subsidy and order the return of the subsidy only for the remainder other than this part.

C) Scope of partial revocation and partial return orders

According to the above, the amount deemed to have been executed by the non-party corporation is KRW 110 million (i.e., labor cost of KRW 80 million + labor cost of KRW 80 million + management and operation, public charges, general management, and expendable materials cost of KRW 31 million). Thus, the enforcement rate of self-paid charges is 11.1% (=10 million: KRW 100 million x 100 million).

As seen earlier, it shall be deemed reasonable to execute a subsidy according to the execution rate of the self-paid subsidy. Therefore, it is reasonable to view that the Defendant may cancel the decision to grant a subsidy only for KRW 889,00,000, which is the remainder after deducting the subsidy of KRW 11,100,000 (i.e., the execution rate of the self-paid subsidy of KRW 1 billion) equivalent to the execution amount of the self-paid subsidy granted.

Accordingly, the scope of subsidies that the Defendant may order the return is limited to KRW 889,00,00,000 and interest 83,512 [the interest 93,940,000 in the instant return order x (1- the enforcement rate of self-paid charges x (0.11), and less than KRW 889,083,512], which correspond to the scope of revocation of the said decision.

D) Sub-committee

Therefore, the part exceeding KRW 889,00,000 among the disposition of revocation of this case and the part exceeding KRW 889,083,512 among the order of return of this case shall be revoked as it deviates from and abused discretion, and it shall be revoked unlawfully, but the remainder of each disposition shall be lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition and the remainder shall be dismissed, and the judgment of the court of first instance shall be partially unfair, and the plaintiff's appeal shall be partially accepted and the judgment of the court of first instance shall be modified as per Disposition.

Judges

The presiding judge, Park Jong-nam

Judges Jeong Jae-ok

Judges are accommodated in judges;

Note tin

1) Of the data on the present status of the project implementation and the inspection of the instant case submitted by the Plaintiff to the Defendant on January 23, 2017, the personnel expenses and general management expenses (the lower part of the Table No. 1. 1. F.) shall apply.