(영문) 부산고등법원 창원재판부 2019.1.16.선고 2018누11763 판결

The judgment of the first instance is revoked. The revocation of the designation of education and training facilities that the Defendant rendered to the Plaintiff on December 12, 2013 shall be revoked.

Reasons

1. Quotation of the first instance judgment

The reasoning of the court's reasoning on this case is as stated in the part of the judgment of the court of first instance except for the plaintiff's additional determination as follows. Thus, the plaintiff's ground for appeal is not significantly different from the argument in the court of first instance, and the fact-finding and decision in this part of the court of first instance are justified even when comprehensively considering the evidence submitted. Meanwhile, in collusion with I, F, and J, the plaintiff received money from those who want to acquire the certificate of infant care teacher including E and received money from them, but did not complete the actual education of infant care teacher at least four times as they completed education, and thereby interfere with the affairs of issuing the certificate of completion of education teacher by fraudulent means (other than the following additional determinations, the plaintiff's ground for appeal is not identical to the facts of the crime in this case, and the above judgment of the Seoul District Court was affirmed on 2015,50,000 won, and the above judgment was affirmed as it is, 200,500 won, 205.

2. Additional determination

A. The plaintiff's assertion

The former Infant Care Act (amended by Act No. 932, Jan. 18, 2010; hereinafter referred to as the "Decree") does not have any provision on the revocation of the designation of education and training facilities such as the instant disposition, nor does there be any provision on the revocation of the designation of education and training facilities under the former Enforcement Decree of the Infant Care Act (amended by Presidential Decree No. 21214, Dec. 31, 2008; hereinafter referred to as the "Enforcement Decree"), and provided that the designation of education and training facilities may be revoked when there is a violation of Article 16 of the former Enforcement Rule of the Infant Care Act (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 124, Jul. 3, 2009; hereinafter referred to as the "Enforcement Rule of the Infant Care Act"). Accordingly, the instant disposition violates the principle of statutory reservation as it was conducted without the grounds or delegation of the Enforcement Decree.

B. Determination

1) The Enforcement Decree or the Enforcement Rule of the Act may not change or supplement the contents of an individual’s rights and obligations or determine new contents that are not prescribed by the Act, unless otherwise prescribed by the Act. However, the legislative intent of the mother Act and the entire relevant provisions are merely to specify the possibility of interpretation of the mother Act through an organic and systematic examination, or if it is for the purposes of embodying them based on the purport of the provisions of the mother Act, it shall not be deemed to exceed the scope of regulation of the mother Act. In such a case, even if the parent Act did not directly delegate the provisions pertaining thereto, it shall not be deemed null and void (see, e.g., Supreme Court Decision 2012Du19526, Aug. 20,

2) Article 21(2) of the Infant Care Act provides that “A person who has graduated from a high school or any other school equivalent to or higher than the above-level, who has completed the prescribed educational courses in the education and training facilities prescribed by Ordinance of the Ministry for Health, Welfare and Family Affairs.” Accordingly, Article 13(1) of the Enforcement Rule provides that “an education and training facility under Article 21(2)2 of the Act refers to a facility designated by a Mayor/Do Governor as an education and training facility after deliberation by the local infant care policy committee under Article 6 of the Act from among the facilities equipped with certain facilities and teaching personnel in a university or college, etc. to train infant care teachers.” Furthermore, the Enforcement Rule provides that the procedures for designation of education and training facilities, the standards for establishment of education and training facilities and changes thereof, etc. until Article 13(2) through 15, and the Mayor/Do Governor may revoke the designation of education and training facilities where any cause

3) Examining the legal principles as seen earlier with respect to whether Article 16(1) of the Enforcement Rule (hereinafter “Enforcement Rule of this case”) which served as the basis for the revocation of the designation in this case prescribed matters not delegated by the Infant Care Act, the instant Enforcement Rule provisions regarding the revocation of designation of education and training facilities for fostering infant care teachers can be deemed as having been concrete based on the purport of the Infant Care Act, and therefore, the instant Enforcement Rule provisions are not exceeded the scope of delegation of the Infant Care Act. The reasons are as follows.

A) In full view of the legislative purpose of the Infant Care Act (Article 1), the concept of infant care (Article 2 subparag. 2), the concept of infant care (Article 3 subparag. 1 and 2), the concept of infant care (Article 3 subparag. 2), the responsibilities of the State and local governments (Article 4(2)), etc., the purpose of the Infant Care Act is to protect and educate the mind and body of infants and to give sound education, and infant care should be provided

B) In order to achieve this legislative purpose, the Infant Care Act provides a system of qualification with strict qualifications for employees working for nursery facilities, such as infant care teachers (Articles 20 and 21), while providing for the authority to manage and supervise the establishment and operation of nursery facilities, and the Minister for Health, Welfare and Family Affairs (Article 41). Furthermore, the Minister for Health, Welfare and Family Affairs provides for continuing education to improve the quality of infant care teachers and staff (Article 23).

C) As such, strict qualifications for infant care teachers are required, management, supervision, and education and training. As such, Article 21(2) of the Infant Care Act provides the basis for education and training facilities, which serve as the premise for eligibility as infant care teachers, and can be deemed delegated to the Ordinance of the Ministry for Health, Welfare and Family Affairs to determine certain facilities as education and training facilities. In addition, as long as “education and training facilities that train infant care teachers” can be designated, management and supervision of such facilities are naturally necessary. Furthermore, if circumstances arise where it is difficult to function properly due to reasons that occurred after the designation of a certain facility as education and training facilities, it is also necessary

On the other hand, while the Infant Care Act and the Enforcement Decree of the Infant Care Act do not have any specific provisions on education and training facilities, it should be deemed that the Infant Care Act plans to determine the detailed matters such as the procedure and standards related to the designation of education and training facilities by the Enforcement Rule. Therefore, it is reasonable to view that the Infant Care Act provides room for broad formation with regard to the designation of the "education and training facilities" and the overall designation and maintenance

D) Furthermore, all of the reasons that the instant Enforcement Rule provisions stipulate as grounds for revocation of designation of education and training facilities fall under cases where the designated education and training facilities have difficulty in properly performing their roles, and thus, can easily be predicted as grounds for revocation of designation.

4) Therefore, the Plaintiff’s above assertion is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance is just and the plaintiff's appeal is dismissed. It is so decided as per Disposition.