2012Guhap2773 Revocation of Disposition of Revocation of Qualifications as Infant Care Teachers

Is 00

Law Firm Han-gu, Counsel for plaintiff-appellant

[Defendant-Appellant]

The head of Dong-gu in Yananan-si

At the incentive of a litigation performer, fluora

November 21, 2012

December 5, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant’s revocation of qualification as infant care teacher against the Plaintiff on November 8, 2011 is revoked.

1. Details of the disposition;

A. The Plaintiff is a holder of a certificate of infant care teachers (Grade II infant care teachers) and was reported to be appointed and dismissed as infant care teachers of 00 child care centers operated by KimO from June 7, 201 to September 14, 2011 (hereinafter “child care centers in this case”).

B. On November 8, 2011, the Defendant issued a disposition revoking the qualification of an infant care teacher pursuant to Article 48 of the former Infant Care Act (amended by Act No. 10789, Jun. 7, 2011; hereinafter referred to as the “Child Care Act”) on the ground that he/she lent the name of the infant care teacher to the instant infant care facility although he/she did not have worked as an infant care teacher at the instant infant care facility from June 10, 201 to September 14, 201 (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1 and 2-2, and all pleadings

A. The plaintiff's assertion

(1) From June 7, 2011 to July 18, 2011, the Plaintiff was actually working for the pertinent nursery facilities, and thereafter submitted a resignation letter on July 18, 201, but it is merely merely a fact that the head of the instant nursery facilities did not notify the Defendant of his resignation, and did not lend his name to the Plaintiff at the instant nursery facilities.

(2) The Defendant’s act of rendering the instant disposition against the Plaintiff is unlawful against the principle of equity, even though the Defendant did not revoke the qualification with respect to the interest that lent the name of the operator of the instant nursery facilities and the said operator to the Plaintiff.

(3) In light of the circumstances of the instant case, the instant disposition was excessively harsh to the Plaintiff compared to the public interest purpose that the Defendant intended to achieve, and is unlawful against the principle of proportionality.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

(1) Whether a disposition exists

(A) In full view of the purport of the argument in the Evidence Nos. 2-2, 4-1, 2, 7-2, 3, 13-3, 4, 7, 9, and 2-1 and 2 of the evidence Nos. 2-1 and 2, the Plaintiff prepared a labor contract to receive KRW 1,100,000 per month between the Kim G operator of the instant nursery on June 7, 201. ② The Defendant confirmed that the Plaintiff was not working for the said nursery on September 5, 201, and that the Plaintiff was not working for the said nursery on 10,000 won, and that the Plaintiff was working for the said nursery on 10,000 won after being registered for 10,000 won for 10,000 won for 10,000 won for 20,000 won for 10,0000 won for 20,000 won for 20,000 won for .

(B) Further to the above facts of recognition, even if the plaintiff's assertion is based on the plaintiff's assertion, the plaintiff worked only for the period from June 7, 201 to July 18, 2011, and from July 19, 2011, the plaintiff did not work for the pertinent nursery, and even during the period for which he claimed to work, the plaintiff did not have any reasonable ground to deem that he did not work for the pertinent nursery, and that he did not perform a substantial duty as a infant care teacher, since June 9, 201, the plaintiff did so for the period for which he did work for the pertinent nursery. Accordingly, the plaintiff's assertion that it is not reasonable to deem that he did not work for the pertinent nursery to the extent that he did not actually work for the nursery.

(2) Whether the principle of equity is violated

The plaintiff asserted that the disposition of this case was against the principle of equity on the ground that the defendant did not take a disposition of cancellation of qualification against Kim Jong-soo and Lee Jong-ju. However, according to the overall purport of the statements and arguments in the Evidence Nos. 4 and 5, Kim00 employed Kim** as the president and operated the child care facility of this case under the Infant Care Act, and there is no ground to impose a disposition against Kim 00 under the Infant Care Act. The defendant held a hearing to issue a disposition of cancellation of qualification against the child care facility of this case and the defendant issued a disposition of return of basic infant care fees and a disposition of suspension of child recruitment for three months under the Infant Care Act. The defendant held a hearing to revoke the qualification ** * this * * this period of false registration is short of one month and this * * The case of the plaintiff differs in the form and degree of the above anti-act. Thus, it is difficult to readily conclude that the disposition of this case against the plaintiff is unlawful merely by comparing this part of the plaintiff's assertion.

(3) Violation of the principle of proportionality

Articles 22-2, 48, and 54 (3) of the Infant Care Act shall strictly prohibit the name lending of infant care teachers, and shall impose not only the cancellation of qualifications but also punishment on infant care teachers who violate the provisions of Article 22-2, 48,

In light of the legislative intent of the provisions related to the Infant Care Act that strictly prohibit the name lending of infant care teachers, or the fact that the Plaintiff received a false subsidy of KRW 380,00 from the Defendant through the name lending of this case, and that the Plaintiff actively attempted to conceal the act, such as preparing a false attendance book, etc., it is difficult to criticize the disposition of this case as deviating from and abusing the discretionary authority in violation of the principle of proportionality. The Plaintiff’s assertion on this part is without merit.

3. Conclusion

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

Judges Kim Jong-ri

Judges Kang Jin-hee

Judges Lee Jae-sung

1) According to Gap evidence Nos. 7-2 and 3, on January 31, 201, the amount of KRW 600,000 from Kim0 to the deposit account in the Plaintiff’s name.

Although the deposited fact is recognized, the above period is not even the period of service asserted by the plaintiff, and the above Kim 00 at the time of infant care in this case.

It is not clear that he operated the theory Kim ○-man guidance.

Related Acts and subordinate statutes

◈ 구 영유아보육법 ( 2011 . 6 . 7 . 법률 제10789호로 개정되기 전의 것 )

Article 22-2 (Prohibition on Lending Titles, etc.)

No head of any nursery or any infant care teacher shall allow any other person to perform the duties of the head of any nursery or any infant care teacher by using his/her name or the name of the nursery or lend his/her certificate of qualification

Article 48 (Revocation of Qualifications for Heads of Nursery Facilities or Infant Care Teachers)

If the head of a nursery facility or infant care teacher falls under any of the following subparagraphs, the Minister of Health and Welfare may revoke his/her qualification:

4. Where he/she violates his/her duty, such as prohibition on the name lending under Article 22-2;

Article 54 (Penal Provisions)

(3) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than one year or by a fine not exceeding five million won:

3. The head or the head of any nursery by using his name or the name of such nursery in violation of Article 22-2.

A person who has had a nursery teacher perform the duties or has lent his certificate of qualification and the other party;