(C)Revocation of designation of education and training facilities;

A

Law Firm Passing, Attorney Lee Jae-han

Do Governor of Gyeongnam-do

Changwon District Court Decision 2014Guhap20061 Decided October 24, 2014

September 23, 2015

October 14, 2015

1. Revocation of a judgment of the first instance;

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

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

(a) The relationship between the parties;

The plaintiff is a person who operates the C Education Center in charge of education and training for the training of infant care teachers (hereinafter referred to as the "Education Center of this case") in Kimhae-si.

(b) proviso to disposition;

1) On May 7, 2013, D reported that D was under investigation by the Seoul Songpa Police Station, on suspicion of having obtained a certificate of completion and having obtained a false certificate of completion, the head of the education center for infant care teachers in the area of Gyeongnam-do, from several hundred thousand won to three million won.

2) Accordingly, the Defendant conducted a self-inspection of education and training facilities for infant care teachers in Gyeongnam-do, and on May 30, 2013, the instant education center conducted a business trip to check the education operation, educational administration, issuance of other certificates, etc.

3) However, as a result of the inspection, the Defendant discovered the fact that E was issued a certificate of completion on January 12, 2008 at the instant education center, and that the Plaintiff was not indicated in the list of trainees reported to the Defendant in 2008.

(c)pre-notification and hearing procedures;

1) Meanwhile, on October 1, 2013, the Seoul Songpa Police Station requested the Plaintiff and the Defendant to take administrative dispositions based on the violation of the Infant Care Act against the Plaintiff, E, etc.

2) On October 7, 2013, the Defendant issued a false certificate of completion to the Plaintiff, on the ground that the Defendant issued a false certificate of completion to the Plaintiff, which constitutes revocation of the designation of education and training facilities.

3) On October 24, 2013, the Defendant held the hearing procedure. The Plaintiff appeared in the hearing procedure and issued a false certificate of completion to E who did not complete the permitted curriculum, and the Plaintiff stated to the effect that E opened and educated the weekend special class due to the relationship in Seoul.

(d) Cancellation of designation of education and training facilities;

1) On December 12, 2013, after deliberation and resolution by the Infant Care Policy Committee, the Defendant issued a completion certificate to the Plaintiff on December 12, 2013 pursuant to Article 16 (hereinafter “instant Enforcement Rule”) 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 the same) on the ground that the Defendant issued a completion certificate to a person who falls short of the standards for recognition of completion of education (hereinafter “instant disposition”).

2) Meanwhile, the Defendant issued the instant disposition against the Plaintiff, and notified the Plaintiff of the date of deferment on February 28, 2014, in order to guarantee the rights of those subject to education who completed the instant educational course at the instant education center, until the relevant educational course is completed.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, Eul evidence Nos. 1, 2, Eul evidence Nos. 6 through 10, Eul evidence Nos. 11 and 16, Eul evidence Nos. 11 and 16, and the purport of the whole pleadings

A. Summary of the plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) The former Infant Care Act (amended by Act No. 9932, Jan. 18, 2010; hereinafter the same) does not provide for the grounds for the revocation of the designation of education and training facilities such as the instant disposition, and there is no provision on the revocation of the designation of education and training facilities even though the former Enforcement Decree of the Infant Care Act (amended by Presidential Decree No. 21214, Dec. 31, 2008; hereinafter the same) does not provide for the provision on the revocation of the designation of education and training facilities. However, when there is a violation of the provision of the Enforcement Rule of the instant case, the designation of education and training facilities can be revoked. Accordingly, the instant disposition was made without the basis or delegation of the former Infant Care Act and the Enforcement Decree of the former Infant Care Act (the first assertion at

2) The Plaintiff issued a certificate of completion to E duly who completed the instant education center’s completion, and did not issue a false certificate even though it did not meet the standard for recognition of completion of education. Even if there is no such ground for disposition, the Defendant issued a false certificate to the Plaintiff that there was a ground for disposition only by being investigated by an investigative agency.

3) Even if the Plaintiff issued a false certificate of completion to E, this is merely a simple number of rooms. The Plaintiff received the instant education center around 2005 and discharged approximately 200 infant care teachers each year. The instant disposition may adversely affect the supply and demand of infant care teachers, and thereby, financial and honorary damages that the Plaintiff may sustain. Accordingly, the instant disposition is considerably more unfavorable than the public interest that the instant disposition intends to achieve, and thus, the instant disposition deviates from and abused discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) First, we examine the assertion of violation of the principle of statutory reservation.

According to Articles 40 and 75 of the Constitution, legislative power belongs to the National Assembly, and the President may issue Presidential Decree with regard to the matters delegated by the Act and necessary matters for the enforcement of the Act. Thus, the Enforcement Decree of the Act merely provides for the matters delegated by the Acts of the parent corporation or detailed matters necessary for the real enforcement of the Act within the scope prescribed by the Act. Unless otherwise delegated by the Act, modification of the rights and obligations of individuals provided by the Act or new provisions that are not provided by the Act cannot be made (see, e.g., Supreme Court en banc Decision 89Nu2493, Sept. 28, 1990; Supreme Court Decision 93Da37342, Jan. 24, 1995). Further, delegation of the Act on matters prescribed by Presidential Decree must be made within a specific scope. Specifically, the scope of delegation must be determined in advance. In determining whether there are such delegations, the form and purpose of delegation and the purpose of delegation should be considered in addition to the form and purpose of delegation, 2080.

Meanwhile, Article 17 (2) of the former Infant Care Act provides that "the Minister of Health, Welfare and Family Affairs shall determine matters necessary for the standards, etc. for the placement of employees in nursery facilities", and Article 21 (2) 2 of the same Act provides that any of the following persons shall obtain a certificate of qualification for the Minister of Health, Welfare and Family Affairs. 2. Article 47 provides that "the Minister of Health, Welfare and Family Affairs may order the suspension of the operation of nursery facilities within one year or the closure of the facilities if a person who establishes and operates nursery facilities falls under any of the following subparagraphs, falls under any of the following subparagraphs, and the Minister of Health, Welfare and Family Affairs or the head of a Si/Gun/Gu may suspend his/her qualification for nursery facilities within the scope of one year as prescribed by Ordinance of the Ministry of Health, Welfare and Family Affairs, and the Minister of Health, Welfare and Family Affairs or the head of a Gun/Gu may delegate his/her authority to the head of a Si/Gun as prescribed by Ordinance of the Ministry of Health, Welfare and Family Affairs within the scope of one year:

In addition, Article 26 (1) of the former Enforcement Decree of the Infant Care Act provides that "the Minister for Health, Welfare and Family Affairs shall delegate the authority concerning the provision of continuing education under Article 23 (1) of the Act to the Mayor/Do governor pursuant to Article 51 (1) of the Act, and "the Minister for Health, Welfare and Family Affairs shall delegate the following authority to the head of a Si/Gun/Gu pursuant to Article 51 (1) of the Act:

In light of the above legal principles, the former Infant Care Act, and the former Enforcement Decree of the Infant Care Act, the provision of this case is null and void since it limits the rights of a person designated as an education and training institution without delegation under the former Infant Care Act, which is the mother, and thus, the disposition of this case based on the provision of the Enforcement Rule of this case is unlawful.

(1) In order to take charge of education and training for infant care teachers, an application is filed in accordance with the former Infant Care Act and subordinate statutes, and is designated as education and training facilities by a Mayor/Do Governor after deliberation by the local infant care policy committee (Article 13 of the Enforcement Rule of the former Infant Care Act), and the revocation of designation of education and training facilities is an indivative administrative act that restricts the rights of persons who have been designated

(2) The former Infant Care Act provides that the Minister of Health and Welfare may order the suspension or closure of the operation of nursery facilities, the head of the nursery facilities, and the head of the infant care teacher, and whether the designation of the educational and training facilities can be revoked, and if the designation can be revoked, there is no provision regarding the revocation of the designation of the educational and training facilities, such as the requirements and procedures for the revocation of designation of the educational and training facilities, and there is no provision on delegation of the former Enforcement Decree of the Infant Care Act or the Enforcement Rule of the former Infant Care Act to provide for

③ Meanwhile, Article 17(2) of the former Infant Care Act stating that the Defendant’s provision on the ground of the instant disposition is only a delegation provision on the standards for the placement of employees of childcare facilities, not a delegation provision on the revocation of the designation of education and training facilities (the language of the above provision provides that “matters concerning the standards for the placement of employees of childcare facilities, etc.” in terms of the language of the above provision may be included in those matters, other than the standards for the placement of employees of childcare facilities, but the above provision does not include any other matters delegated by the Ordinance of the Ministry of Health, Welfare and Family Affairs in addition to the standards for the placement of employees of childcare facilities. However, the above comprehensive provision does not include the matters concerning the cancellation of the designation of education and training facilities as a delegation of the Act on the Cancellation of the designation of education and training facilities. In fact, Article 17(2) of the former Enforcement Decree of the Infant Care Act provides that the Minister of Health, Welfare and Family Affairs may not delegate the designation of education and training facilities as prescribed by the Ordinance of the Ministry of Health, Welfare and Family Affairs.

④ Article 21(2)2 of the former Infant Care Act amended by Act No. 11003 on August 4, 201 provides that “a person who has graduated from a high school or any other school equivalent to or higher than the above-level and has completed the prescribed educational courses at the education and training facilities designated by the Mayor/Do Governor”, and Article 21(4)2 provides that “the matters necessary for the designation, revocation of designation, curriculum, etc. of education and training facilities under Article 21(2)2 shall be prescribed by the Ordinance of the Ministry of Health and Welfare”, and the former Infant Care Act clearly provides that matters concerning the designation of education and training facilities under Article 21(2)2 shall be prescribed by the Ordinance of the Ministry of Health and Welfare, which are prescribed by the Ordinance of the Ministry of Health and Welfare in relation to the requirements for qualifications of infant care teachers, and

2) Therefore, the Plaintiff’s above assertion is with merit ( so long as the disposition of this case is deemed unlawful as above, it shall not be separately determined as to the Plaintiff’s assertion of other unlawful causes).

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance which differs from this conclusion is unfair, so it is revoked, and it is so decided as per Disposition.

The presiding judge, judge and Dong judge

Judges Sedroe

Judges Lee So-young

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.