The scope and limitation of the exercise of guidance and supervision authority concerning compliance with accounting methods by the superintendent of the Office of Education on private kindergartens;

Article 30 (1) of the Early Childhood Education Act

Plaintiff (Attorney Lee Jae-soo, Counsel for plaintiff-appellant)

Busan Metropolitan City Superintendent of Education (Attorney Jin-Jin, Counsel for defendant-appellant)

Busan High Court Decision 2018Nu24032 decided May 31, 2019

The part of the judgment of the court below ordering parents to refund education expenses, etc. recovered pursuant to the disposition of recovery of KRW 12,445,700 among the judgment below is reversed, and that part of the case is remanded to Busan High Court. The remaining appeal by the plaintiff is dismissed.

The grounds of appeal are examined.

1. As to the collection disposition (disposition No. 12,445,700) (Ground of appeal No. 1)

A. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following circumstances.

(1) On March 1, 2015, the Plaintiff established and operated a kindergarten (hereinafter referred to as “instant kindergarten”) in the Busan metropolitan area ( Address omitted), and leased the instant kindergarten to the Nonparty on November 21, 2016.

(2) On June 27, 2017, from June 29 to June 29, 2017, and September 15, 2017, the Defendant audited the instant kindergarten, and issued three measures to recover the amount wrongfully acquired and received (Disposition Form-1, 2, and 4) to the Plaintiff on February 20, 2018.

(3) The grounds for the disposition of recovery of KRW 12,445,70 (written disposition-1) are as follows: (a) the Plaintiff received KRW 13,404,125 from the kindergarten parents as specialized education expenses, teaching material expenses, etc. (hereinafter “specialized education expenses, etc.”) and used KRW 11,965,700 for personal purposes, such as the repayment of loans and the payment of interest, etc. without accounting; and (b) 480,000, such as specialized education expenses, etc., received from the Nonparty from his parents under the same name during the period of operation by the Nonparty, and used KRW 12,445,700 for personal purposes (i.e., 11,965,700 + 480,000) for specialized education expenses, etc.; and (c) the Defendant wrongfully acquired the Plaintiff’s contributions, such as specialized education expenses, and (d) recovered KRW 12,4470,000 (hereinafter “the pertinent disposition”).

B. A private kindergarten is a kind of school with public nature, which is established and operated for the education of young children (Article 9(1) and (2) of the Framework Act on Education, Article 2 Subparag. 2 of the Early Childhood Education), and where it intends to establish a private kindergarten or to change important matters thereof, it shall obtain authorization from the superintendent of education (Article 8(2) and (4) of the Early Childhood Education Act), and it shall receive subsidies from the State and local governments for all or part of the expenses incurred in operating private kindergartens (Article 26(3) of the Early Childhood Education Act).

Therefore, even if a kindergarten is established by an individual who is not a juristic person, the method of accounting, revenue or expenditure is statutory under the basic principle that the accounts of a private kindergarten shall not be contrary to the obligations of an educational institution (Articles 2 subparag. 1 and 3, 51, 29, and 33 of the Private School Act, and Articles 27 through 34 of the Financial and Accounting Rules of the Private School Act), and the head, etc. of a private kindergarten has a duty to comply with the statutory method of accounting in relation to the operation of the kindergarten, and the superintendent of education, who is the guidance and supervisory authority of the private kindergarten, grants the right of guidance and supervision to order the superintendent of education to correct or change matters that have not complied with the statutory method of accounting for the superintendent of the private kindergarten (Article 30(1) of the Early Childhood Education Act).

However, the authority of the superintendent of the Office of Education to guide and supervise the observance of accounting methods shall be exercised within the scope of ex post correction so that it can be complied with as statutory methods of accounting, and it shall be deemed that it is not permitted unless it is exercised in accordance with other provisions of relevant Acts and subordinate statutes, such as Early Childhood Education Act.

C. The lower court determined that the Defendant’s disposition 1 of this case was lawful, stating that the Plaintiff’s use of 12,445,700 won specialized education expenses, etc. deposited in the instant account for personal use was in violation of the method of accounting settlement, and that the Plaintiff’s use of specialized education was in violation of the method of accounting settlement, and that it was not clear whether the Plaintiff actually conducted specialized education to its original students, and that the above act violated Article 21(2) of the Rules on the Financial Accounting and Accounting of Private School Institutions, and that the Plaintiff’s collection of KRW 12,445,70 to the instant account separately managed for the settlement of the school expenses accounts of the instant kindergarten, and that the Plaintiff’s repayment

D. Examining the records in light of the aforementioned legal principles, the lower court’s determination that the part of the first disposition of this case ordering the recovery of KRW 12,445,700 from the account of this case (the recovery measure part) is lawful, regardless of whether the Plaintiff voluntarily withdrawn KRW 12,445,70 from the account of this case without any legal method of accounting and regardless of whether it was used for personal purposes. However, the lower court’s determination that the portion of the refund measure of this case’s first disposition was lawful is difficult to accept for the following reasons.

(1) The first disposition of this case, pointing out that the Plaintiff voluntarily withdrawn KRW 12,445,700 from the account of this case without any legal method of accounting, is a refund of the right of guidance and supervision exercised by the Defendant against the Plaintiff for the purpose of correcting the method of accounting management. The Defendant’s right of guidance and supervision has an inherent limitation to exercise within the scope of the purpose permitted by law. Of the first disposition of this case, the part ordering the recovery of KRW 12,445,70, which was unfairly distributed out of the first disposition of this case can sufficiently achieve its purpose. It is highly probable to view the part regarding the refund measures of this case among the first disposition of this case as exceeding its inherent limit.

(2) Of course, if it is recognized that the students of the instant kindergarten failed to receive specialized education and teaching materials from the instant kindergarten, the Defendant may order the refund of money received as specialized education expenses, etc. for the purpose of correcting “violation of education-related Acts and subordinate statutes, etc. concerning the operation of curriculum or other matters” under Article 30(1) of the Early Childhood Education Act, not for the purpose of correcting accounting methods.

However, according to the evidence duly admitted by the court below, the representative of the related company that supplied the instructors and teaching materials related to specialized education prepared a confirmation statement that "self-employed has provided the instructors and teaching materials related to specialized education to the kindergarten of this case, but only left on credit due to the plaintiff's circumstances" and testified in the court for the same purpose, and there are objective evidentiary documents, such as the kindergarten management ledger of this case, in accordance with such purport, and in the related criminal cases, it is difficult to view that the plaintiff obtained a disposition of non-prosecution disposition (no charge) as to the charge of fraud, because the plaintiff conducted a considerable amount of education, such as specialized education expenses received from his parents."

Therefore, as long as the defendant could not submit objective data to reverse the prosecutor's decision as evidence, there is room to view that there is no reason to support the part of the disposition of this case concerning refund measures.

E. Ultimately, the lower court erred by misapprehending the legal doctrine on the authority to guide and supervise under the Early Childhood Education Act, or by misapprehending the legal doctrine on facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

2. As to the collection disposition of KRW 14,350,00 (disposition-2) and the collection disposition of KRW 4,776,030 (disposition-4) (ground of appeal No. 2)

A. Comprehensively taking account of the evidence adopted by the lower court, the lower court recognized the fact that the Plaintiff was paid KRW 14,350,000 under the pretext that the Plaintiff would not work for the instant kindergarten from December 2, 2016 to April 2017, and paid KRW 4,776,030 for the Plaintiff’s personal purpose from the accounts of kindergarten tuition in the instant fiscal year 2015 to 2016, and that the Plaintiff paid KRW 123,043,00 for the Plaintiff’s personal purpose, on the ground that the Plaintiff’s payment of KRW 123,043,00 as the founder and operator of the instant kindergarten cannot be offset against the amount of KRW 14,350,00 (Disposition-2) and 4,776,030 (Disposition-4) was lawful.

B. As to the money transferred from the revenue of school expenses accounts under Article 13(1)4 of the Enforcement Decree of the Private School Act, or the subsidy paid by the Plaintiff for the operation of the instant kindergarten, the lower court’s judgment is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on offset or omitting judgment.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the refund measure among the disposition No. 1 of this case is reversed, and remanded to the court below for a new trial and determination. The plaintiff's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)