(영문) 광주지방법원 2015.8.13.선고 2015구합10636 판결

The Defendant’s disposition suspending the Plaintiff’s qualification as the head of a child-care center on February 12, 2015 and rendering subsidies thereto for one year.

The disposition of return of 25,205,040 won shall be revoked, respectively.

Reasons

1. Details of the disposition;

A. Status of the plaintiff, etc.

The plaintiff is a person who establishes and operates B child-care centers located in Dong-gu, Dongcheon-ro 26 (hereinafter referred to as the "child-care center of this case") and is working as the president of the child-care center of this case, and C is a child-care teacher who has worked in the child-care center of this case from around 1996 to the present day.

B. The Plaintiff’s receipt of subsidies

From March 1, 2014, the Plaintiff registered C as a teacher in charge of two happiness of the instant childcare center from March 1, 2014, and received KRW 25,205,040 as a subsidy from the Defendant from March 2014 to December 2014.

C. On January 14, 2015, the Defendant issued a false registration of C as a teacher in charge of the Plaintiff’s duties and conducted guidance and inspection, and then registered C as a teacher in charge of the Plaintiff from March 1, 2014 to January 14, 2015, and received KRW 25,205,040 in total of the subsidies for personnel expenses and various kinds of allowances, on the ground that “the Plaintiff was paid KRW 25,205,040” and “the refund disposition in this case” and “the refund disposition in this case shall be referred to as “the refund disposition in this case”) for one year of suspension of the Plaintiff’s qualification as a child care center (hereinafter “the refund disposition in this case”).

[Ground of recognition] Unsatisfy, Gap evidence 3, 4, Eul evidence 1 and 2 (including number ; hereinafter the same shall apply), Eul's testimony, and the purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The Plaintiff’s assertion 1) Child-care centers in this case had no grounds for disposition consisting of eight and eight classes of child-care teachers, and infant-care was provided under the responsibility of each child-care teacher. C worked as a child-care center teacher of two parallel groups, and C designated C as a teacher in exclusive charge of child-care assistance in the eight-half parallel group among eight-half parallel teachers following a meeting on March 3, 2014, and C performed the child-care assistance work (in case where there are items to be visited or delivered to children, guidance at the first floor office, infant-care education at the time of the Plaintiff’s absence, and sending school parents’ thickness each month, and instead, other anti-school teachers have been in charge of child-care assistance work as well as infant-care assistance work as above after the agreement was reached with the above two-half group of infant-school teachers.

As above, C has engaged in infant care as infant care teacher, and also has been engaged in infant care as infant care teacher at the second half of the happiness, and as long as C has engaged in infant care as infant care teacher, the plaintiff can receive subsidies for C infant care teacher.

Therefore, the Plaintiff registered infant care teachers C in a false manner and received the subsidies for personnel expenses and various allowances by fraud or other improper means, and thus, each of the dispositions of this case against the Plaintiff, which was based on such fact, was unlawful. (2) The Plaintiff’s employment and abuse of discretionary authority was illegal; (3) the Plaintiff’s employment and operation of exemplary child care centers for about 17 years; (4) the allocation of duties to infant care teachers was made under an agreement with infant care teachers to improve the efficiency, safety, and working environment of education; (3) the Plaintiff paid private expenses exceeding KRW 100 million for the instant child care center; and (4) the Plaintiff revoked the instant disposition without a corrective order under Article 44 subparag. 3 of the Infant Care Act. In full view of the aforementioned circumstances, each of the dispositions of this case was excessively harsh and thus, erred by deviating from and abusing the scope of discretionary authority.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

3. Whether the instant disposition is lawful

A. 1) Relevant legal principles

Article 36 of the Infant Care Act shall apply to the State or local governments as prescribed by Presidential Decree.

Article 24 (2) of the Enforcement Decree of the same Act provides that the Minister of Health and Welfare or the head of the relevant local government shall determine matters necessary for the methods of subsidizing expenses incurred in infant care services, such as personnel expenses of infant care teachers, and Article 24 (2) of the Enforcement Decree of the same Act provides that the Minister of Health and Welfare shall prepare the guidelines of "nicker Service Guidance" and specify persons eligible for payment of personnel expenses of infant care teachers, payment conditions, payment amount, etc. In addition, the Minister of Health and Welfare shall operate infant care facilities from 30 to 19:30 in principle, but he/she may operate adjustment in consideration of the working hours, etc. of infant care teachers, and infant care teachers shall work for 8 hours a day in principle, and if he/she works for 8 hours

In full view of the contents of the relevant provisions and the purport of granting subsidies for personnel expenses for infant care teachers, subsidies for personnel expenses for infant care teachers shall be paid on the premise that the relevant infant care teacher is in charge of the duties during the ordinary operating hours of the relevant infant care facility according to the scope of the standard operating hours, and that the former working hours are eight or more hours. Therefore, if the relevant infant care teacher violates the former working hours while engaging in other duties during the ordinary working hours of the relevant infant care facility, even if the remaining working hours are eight or more hours, it shall not be deemed that the subsidy requirement is met (see Supreme Court Decision 2012Du2436, Jun. 13, 2013, etc.).

Examining the aforementioned facts and the evidence as seen earlier, and the following circumstances that can be acknowledged by comprehensively considering the overall purport of the pleadings in light of the legal principles as seen earlier, insofar as C cannot be deemed to have been engaged in the duties as a child care teacher of the child care center of this case from March 2014 to December 2014 during the ordinary hours of operation, the Plaintiff shall be deemed to have received subsidies for personnel expenses and various allowances for C by false or other unlawful means during the said period. Accordingly, the Plaintiff’s assertion on this part is without merit.

1. ① Subsidies, various allowances, etc. to C were paid on the premise that C is in exclusive charge of the duties as a two-half of the happiness. However, children of two-half of the happiness that C should take charge of, but, children of one-half of the two-half of the happiness, childcare teachers in charge of other acts, such as one-half of the happiness, one-half of the care teachers in Korea, and one-half of the care teachers in charge of one-half of Alho-ho,

② C testified to the effect that “A was present as a witness in this Court and was not full-time of work as a second half of happiness,” but that “Adrawing teachers and staff members of other Ban were engaged in childcare assistance work to facilitate classes,” “from 30 minutes of daily work hours to 8 hours of work, one hour of work, and one hour of work, etc.” was required to carry out work such as accounting.

③ On January 14, 2015, the Plaintiff prepared and submitted a written confirmation (Evidence B-2) stating that C-care teachers were falsely registered as two-half-half-class teachers and received subsidies for ten months in applying for personnel expenses subsidies for childcare teachers from March 1, 2014 to January 14, 2015.

④ Child care teachers who worked for the instant child care center cannot be found to have worked for the instant child care teachers to share their duties, and, on March 13, 2014, signed and sealed a written statement (Evidence No. 5) stating that “A was the agent of the head of the instant child care teacher, and signed and sealed the written agreement on the division of duties made by the person who was on March 13, 2014, was due to the Plaintiff’s coercion. According to the above written statement, it is difficult to believe that C, as alleged by the Plaintiff, was in full charge of the instant child care teacher’s care duties, and that C was in full charge of the child care duties for eight hours or more during the ordinary hours of operation of the instant child care center.

B. In full view of the facts and circumstances seen earlier prior to the deviation from and abuse of discretionary authority, and the overall purport of the arguments related to related Acts and subordinate statutes, each of the dispositions in this case is deemed unlawful as it deviates from and abused discretionary authority. Therefore, this part of the Plaintiff’s assertion is without merit. Therefore, the Infant Care Act aims at fostering infants and their families as healthy members of society by protecting the mental and physical nature of infants and providing sound education, and by facilitating their guardians’ economic and social activities, thereby contributing to promoting the welfare of infants and their families. Child care center operators, etc. are equipped with necessary facilities, equipment, operation standards, etc. to achieve the above objective, and the payment criteria of subsidies in this case are one of the above operational criteria, and thus, the corresponding liability corresponding thereto should be imposed on the act of violation, and thus, the public interest needs to ensure the effectiveness of sanctions for such violation

2) Article 39(2) [Attachment 10] Subparag. 2(d) of the Enforcement Rule of the Infant Care Act, which is the detailed criteria for cancelling the qualification of the instant case, provides that the amount of subsidies granted by fraud or other improper means shall be differentiated depending on the amount of subsidies granted, and among which, as in the instant case, the disposition suspending the qualification of the president shall be taken for one year without classifying the frequency of subsidies if the amount of subsidies is at least five million won. However, there are no particular circumstances that the sum of subsidies granted by the Plaintiff from the Defendant by fraud or other improper means is at least 25,205,00 won, and the said provision does not in itself coincide with the upper law, and the instant disposition suspending the qualification of the instant case is within the scope of the aforementioned detailed criteria.

3) Article 44 subparag. 3 of the Infant Care Act provides that if a child care center violates the standards for the placement of infant care teachers and staff under Article 17(2) of the Infant Care Act, it may order the establisher and operator of the child care center to take corrective measures within a fixed period. However, each of the dispositions in this case is conducted on the ground that the Plaintiff was granted subsidies by fraud or other improper means, and it is not done on the ground that the Plaintiff violated the standards for the placement of infant care staff under Article 17(2) of the Infant Care Act, but there is no separate provision requiring the Plaintiff to take corrective measures

4. Conclusion

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