(영문) 서울고등법원 2019.7.10. 선고 2018누68386 판결

The judgment of the first instance is revoked. The defendant revoked the non-certification of a social enterprise against the plaintiff on September 27, 2017.

Reasons

1. The reasoning of the judgment of the court of first instance is as follows: (a) the relevant part of the judgment of the court of first instance is modified as stated in the following 2; and (b) the reasoning of the judgment of the court of first instance is the same as stated in the reasoning of the judgment (excluding the part of the judgment of the court of first instance excluding the '3. conclusion') except for adding a judgment that is difficult to view even if the Plaintiff submitted additional evidence (Evidence 24 to 41) by this court, and thus, it is acceptable in accordance with Article

2. Revised parts

○ 2.9 Pursuant to Article 2.6 of the above Act, "the institution performing the project" is amended to "the institution performing the project".

“The participation of interested parties, such as beneficiaries of services, workers, etc.,” in 3 to 6 - 7 Pursuant to the following modifications: “The interested parties are social enterprises providing social services and service recipients. The Plaintiff’s board of directors consists of eight representatives of service beneficiaries and eight experts in various fields, such as common people finance, social welfare, law, accounting, etc.; therefore, democratic 03 pages 10,000,000,000,000,000,000,00

2) Violation of the principle of trust protection.

The Plaintiff’s business was officially recognized as a social service by designating the Plaintiff as a prospective social enterprise from the FF City in 2012. The Defendant’s written notice of non-certification does not state the reasons why the Plaintiff’s business was not included in the scope of social service on the grounds of the disposition. Since the Plaintiff’s business was recognized in the examination of certification by E company providing the same services as the Plaintiff, the Defendant granted the Plaintiff the trust that the Plaintiff’s business constituted a social service. The instant disposition contrary to this trust is illegal and illegal.

○ 3 11 m c. c. c. c. c. c. c.

○ To revise “(3) below the 7th day to “(4)”.

○ 5 9 to 6 4 e.g., the following modifications:

(2) Considering the aforementioned evidence, Gap evidence Nos. 11, Eul evidence Nos. 2, 3, and 4, the facts acknowledged earlier, and the following facts and circumstances, it is difficult to view that the defendant, in the case of the plaintiff, deemed that the social service performance was inappropriate, has a deviation from and abuse of discretion.

The purpose of the Social Enterprise Promotion Act is to support the establishment and operation of social enterprises through various support and benefits systems, such as management support and financial support, in order to contribute to the enhancement of social integration and the quality of life of the people by expanding social services that are not sufficiently supplied in our society, and creating new jobs, and to improve specific requirements for obtaining accreditation as social enterprises. As such, the primary purpose of the Social Enterprise Promotion Act is to certify enterprises that realize social objectives in the private sector as social enterprises, and to promote and develop social enterprises by providing various support, including personnel expenses, with the aim of ensuring the promotion and development of social enterprises. In other words, if a free competition situation is placed in the state of free competition for enterprises that employ vulnerable classes or provide vulnerable classes with social services at a price lower than the general market price, it would have a considerable difficulty in achieving the original objective of the realization of social objectives. Therefore, the government will temporarily support them in order to supplement this and enhance their productivity.

◎ 그런데 사회적기업으로 인증받기 위하여 신청하는 기관의 사업영역 및 사회적 목적 활동은 매우 다양하므로 모든 사례를 법률이나 지침에 일일이 기재하기 어렵다. 이에 따라 사회적기업 육성법 시행령 제3조는 사회서비스의 종류를 나열하면서 제8호에서 '그 밖에 고용노동부장관이 정책심의회의 심의를 거쳐 인정하는 서비스'를 규정하고 있고, 제9조 제2항은 사회적 목적의 실현 여부를 제9조 제1항의 각 호의 요건에 따라 판단하기 곤란한 경우에는 사회적기업육성 전문위원회의 심의를 거쳐 고용노동부장관이 판단하도록 하고 있다. 사회적기업으로 인증받은 경우 앞서 본 바와 같은 다양한 지원과 혜택을 부여받을 수 있는데, 다양한 지원과 혜택에는 필연적으로 재정적 지출이 수반되므로 법령에서 정한 사회적기업 인증을 위한 구체적 요건에는 한정된 재정적 여건 등을 고려한 입법자의 정책적 결단이 반영되어 있다고 보아야 한다. 따라서 사회적기업 육성법령은 피고에게 사회적기업에 해당하는지 여부 판단에 관하여 재량을 부여하고 있는 것으로 봄이 타당하다.

The Plaintiff is a “business execution institution” under Article 2 subparag. 6 of the aforesaid Act, which carries out a business of providing low-credit and low-income credit loans at low interest by receiving financial resources and operating expenses from C institutions under a D support contract concluded with C institutions established in accordance with the Microfinance Support Act. C institutions are government agencies established in September 23, 2016, which provide that the Chairperson shall be appointed and dismissed by the President at the recommendation of the Chairperson of the Financial Services Commission (Article 11 of the Microfinance Act). Meanwhile, D refers to non-guaranteed and non-guaranteed small loans for the social and economic self-reliance of low-income and credit class, and it is currently managed in G which has been expanded from the Microfinance Foundation under the overall control of the Financial Services Commission from 00 to 200, and it is a representative institution of Korea, which is established by the Financial Services Commission for each local government-invested financial institution established in accordance with the Local Microfinance Support System established in 200, which is established by the Financial Services Commission.

6. According to the above D-Support Agreement, the Plaintiff is obliged to provide C-institution with the loan funds, and C-institution provides guidance and management of D-institution’s performance, and D-user with the “C-institution’s performance term” (Article 3 of the Contract). In addition, when changes occur or are anticipated to occur in the office fixtures provided by the representative, performance staff, office space, and C-institution, it shall be notified to C-institution, and in relation to the relocation of office or the establishment of branch offices, it shall be required to consult with C-institution in advance. Furthermore, “D branch operations rules prescribed by C-institution(Evidence 3)” (Article 4 of the Contract), the Plaintiff is obliged to establish and process the business operation plan for D-loan operations (Article 36,00,000 won per year as of 200,000). Also, according to the above D-Party regulations, the Plaintiff’s total loan operation rate of 10,000,000 won is provided to C-Party 2, and it appears that C-Party 10, etc.

Support for social enterprises is for a limited period to increase the self-sufficiency of the relevant enterprises, and providing additional support through the certification of a social enterprise to the Plaintiff, which is an institution performing the business under the Act on the Support for Financial Life of ordinary people, may bring about a problem of equity as overlapping benefits. Furthermore, the limited financial resources to be used for enterprises in the private sector that need support due to the end of time may result in a result of arbitrarily being used.

The Plaintiff’s assertion that it is necessary to expand social enterprises may be considered legislatively, but it is reasonable to determine the social enterprise in consideration of various factors, such as interpretation of the relevant statutes, the scale or scope of support for social enterprises, the social ripple force due to the expansion of social enterprises, and the difference with foreign legislation, since the social enterprise certification basically results in restricting competition among certain parts of enterprises according to policy consideration for the realization of social objectives. In other words, it is reasonable to determine the social enterprise in consideration of various factors, such as the interpretation of the relevant statutes, the scale or scope of support for social enterprises, the social ripple force due to the expansion of social enterprises, and the difference with foreign legislation.

The plaintiff asserts that the plaintiff also carries out various non-financial services, such as business start-up education, consulting, employment and welfare consultation, and thus satisfying the requirements for the certification of social enterprises. However, it is insufficient to recognize that the plaintiff actually carries out the "low credit. Business for the provision of employment information and vocational training information for low-income groups."

The defendant seems to have judged that the plaintiff's performance in providing social services is inappropriate by weighing and balancing the above various circumstances.

In addition, in 2017, the defendant publicly announced the 7th 9th 9th 7th 9th east of the "," the following to the right side of the Social Enterprise Certification Plan and Review Criteria, and clearly stated that the interested parties should have a decision-making structure and enter this in the articles of incorporation, etc., and that when submitting the Social Enterprise Certification Application, documents confirming the structure of decision-making, such as the participation of interested parties, must be submitted to the board of directors, operating committee, etc. and submit notarized articles of incorporation or rules. Furthermore, the examination criteria by the requirements for the Social Enterprise Certification Standard should clearly state the contents that various interested parties should participate in the main decision-making body at least two times within six months prior to the date of application for certification (Evidence No. 15 of the above Act). According to the above notice and announcement of this case, the defendant appears to have the grounds for deliberation on whether the decision-making body participating in the Public Notice for Social Enterprise Certification is actually being operated by the interested parties, and whether such decision-making body can be maintained before and after certification.

0 8 8 8 2 pages, one through four, asserting that "by up to four, as follows:

The so-called administrative rules, which are issued by a superior administrative agency to a subordinate administrative agency on the guidelines for the performance of duties or the standards for the interpretation and application of statutes, are generally effective only within the administrative organization and do not have external binding force. However, if the provisions of statutes provide the specific administrative agency with the authority to determine the specific matters of the statutes and do not specify the procedures or methods for the exercise of such authority in the form of administrative rules, the administrative rules and regulations are not the general effect of the above administrative rules, but have the function to supplement the contents of the statutes in accordance with the validity of the provisions of the statutes that grant the authority to supplement the specific matters of the statutes to the administrative agency. Accordingly, such administrative rules should be deemed to have become effective as an external binding legal order in combination with those of them unless they go beyond the bounds of delegation of the statutes concerned (see, e.g., Supreme Court Decisions 86Nu484, Sept. 29, 198; 2007Du4841, Apr. 10, 2008).

Article 9(1)5 of the Social Enterprise Promotion Act provides that “the type of institution and governance structure, the method of operation, and the method of decision-making on important matters” shall be equipped as the requirements for certification of a social enterprise. Article 8(1)4 of the Social Enterprise Promotion Act requires interested parties, such as service beneficiaries and workers, to have a decision-making structure in which they participate as the requirements for certification of a social enterprise. Article 8(3) of the Social Enterprise Promotion Act provides that matters necessary for the methods and procedures for certification of a social enterprise shall be prescribed by Ordinance of the Ministry of Employment and Labor and the Minister of Employment and Labor and the Minister of Employment and Labor shall publicly notify the standards for certification of a social enterprise. In light of the foregoing, it is difficult to view that the establishment of a social enterprise delegated the standards for certification of a social enterprise to the public announcement of the standards for certification of a social enterprise, which goes beyond the scope or limit of delegation by the Enforcement Decree or the Enforcement Rule of the Social Enterprise Promotion Act. Furthermore, it is difficult to deem that the scope or limit of delegation was not determined more than the public announcement.

2) Determination on the assertion of violation of the principle of protection of trust

In general, in administrative legal relations, in order to apply the principle of the protection of trust to the acts of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, the administrative agency should have no reason attributable to the individual when the statement of opinion is well-grounded, third, the individual should have trusted the name of opinion and have engaged in any act corresponding thereto. Fourth, the administrative agency should have made a disposition contrary to the opinion statement, thereby infringing on the interests of the individual who trusted the opinion statement. Lastly, when taking an administrative disposition in accordance with the above opinion statement, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 200Du8684, Sept. 28, 201).

Preliminary social enterprise is designated based on the ordinances of local governments, which reflects the social and economic environment, budget, etc. of local governments, and is operated separately from the certification of a social enterprise in question. As the Plaintiff recognizes, the requirements for certification of a social enterprise and the requirements for designation of a prospective social enterprise are not identical (No. 34). If a social enterprise is certified as a social enterprise, it is a target enterprise that should be purchased first when it purchases goods and services from a public institution. A negotiated contract is possible under the Local Contracts Act, but it is more possible to receive benefits than a case where it is designated as a prospective social enterprise, such as partial benefits from social insurance premiums, etc., and it is difficult to consider that it falls under the social enterprise of the promotion of a social enterprise as a preliminary social enterprise under the premise that all enterprises designated as a social enterprise are not certified as a social enterprise. Furthermore, even if it is difficult to view that the Plaintiff is designated as a preliminary social enterprise under the premise that it falls under the category of a preliminary social enterprise, it is difficult to view that it is a public enterprise under the Plaintiff’s trust.

○ 8 Up to the 8th day of the amendment “(2)” to “(3)”.

○ 9 4 4 m c. c. c. c. c. c. c. c.)

○ 9 7 to 8 10 - 6 - 6 -

3. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is just with this conclusion, the plaintiff's appeal is dismissed as it is without merit.