2016Da203421 Return of unjust enrichment

A person shall be appointed.

Jeonnam-do

Seoul Central District Court Decision 2015Na41977 Decided January 7, 2016

April 3, 2019

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. citing the reasoning of the first instance judgment, the lower court determined that the Defendant’s payment of the subsidy to the Plaintiff by ordering the Plaintiff to return the portion of the subsidy used for the purpose other than the purpose of the after school program to the Plaintiff pursuant to the instant disposition based on Article 28(1)1 of the Early Childhood Education Act, which was based on the order of the Plaintiff to return the portion of the subsidy used for the after school program to the Plaintiff.

2. Review of the reasoning of the first instance judgment cited by the lower court and the evidence duly admitted by the lower court reveals the following facts.

① The subsidy for after-school programs was paid in 2012 in accordance with the "Plan for Supporting Infant Education Expenses" (No. 5-1 of the evidence No. 5) and the "Operation Plan for the All-day Kindergarten Operation of Jeonnam-do Office of Education" (No. 5-2 of the evidence No. 5-2). According to each of the above plans, the subsidy for after-school programs was introduced for the purpose of reducing the school expense burden of parents and subsidizing kindergarten school expenses, i.e., the full-time subsidy is the subsidy for after-school programs, which was introduced for the purpose of reducing the school expense burden of parents and subsidizing kindergarten expenses.

② Each of the above plans provides support for after-school programs as "for kindergartens, those eligible for support for after-school programs from 3 to 5 years of age or those eligible for support for infant school expenses from among those eligible for support for infant school expenses, and provides support amount as KRW 70,000 per head of the kindergarten in the case of private kindergartens. The above support plan stipulates that the support amount shall be provided by the method of support for after-school programs to the guardians of the young children, in principle, by providing that the support amount shall be provided by the method of support for after-school programs to the guardians of the young children, and stipulates that Article 24 of the Early Childhood Education Act shall be provided.

3. A. According to the Early Childhood Education Act, an early childhood education for the three years immediately preceding attending an elementary school shall be conducted without compensation; however, the State and a local government shall bear the expenses incurred in providing early childhood education without compensation (Article 24(1)); and in principle, the State and a local government shall provide support to the guardians of young children (Article 24(2)). Meanwhile, the State and a local government may fully or partially subsidize expenses incurred in establishing a private kindergarten and operating kindergarten teachers, such as personnel expenses, etc. (Article 26(3)), may provide subsidies for kindergartens operating after school programs (Article 27); and the State and a local government may order the head of a private kindergarten to return all or part of the subsidies already paid where the head of a private kindergarten uses a subsidy for purposes other than its original purpose (Article 28(1)1); the Early Childhood Education Act provides that the State or a local government bears expenses incurred in providing free education to young children and subsidize expenses incurred in establishing or operating kindergartens to operators of a kindergarten.

B. Examining the above facts in light of the contents of the above statutes, there is room to view that the “child support support program” out of the after-school program subsidies provided by the relevant office of education was provided to the guardians of young children who use the after-school program operated by the Plaintiff pursuant to Article 24(2) of the Early Childhood Education Act. Therefore, the lower court should have determined the propriety of the claim of this case after reviewing more closely whether the money ordered to be returned in the instant disposition is provided to the guardians of young children pursuant to Article 24(2) of the Early Childhood Education Act, or whether the money was provided to the guardians of young children pursuant to Article 24(2) of the Early Childhood Education Act, or whether it was provided to the kindergarten pursuant to Article 27 of the Early Childhood Education Act

C. Nevertheless, the lower court, without doing so, concluded that “child support” subsidies for after-school programs were subsidies as prescribed by Article 27 of the Early Childhood Education Act. In so doing, the lower court erred by misapprehending the legal doctrine on the legal nature of “child support” subsidies for after-school programs, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il

Justices Lee Dong-won

Justices Park Jung-hwa-hwa

Justices Kim Gin-soo