Unauthorized Child Care Center (Attorney Kim Young-ok, Counsel for defendant-appellant)

Guns of Iron;

April 25, 2012

Suwon District Court Decision 2010Guhap5061 Decided August 16, 2011

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The order of the Defendant to return subsidies granted to the Plaintiff on October 25, 2010 shall be revoked.

1. Details of disposition;

A. The Plaintiff was a social welfare foundation that aims to provide infant care services pursuant to the former Infant Care Act (amended by Act No. 10789, Jun. 7, 201; hereinafter the same). On September 26, 1995, the Plaintiff (hereinafter “instant child care center”) opened a nursery school in Gangwon-gu, Gangwon-gu, Seoul, and appointed Nonparty 2 as the head of the facility.

B. On May 1, 2008, the Plaintiff appointed Nonparty 1 (the Nonparty in the judgment of the Supreme Court), who is the husband of Nonparty 2 and the representative director, as the head of the child care center of this case. Nonparty 1 was the head of the child care center of this case from that time until December 14, 2009.

C. On October 25, 2010, the Defendant issued the instant disposition ordering the Plaintiff to return KRW 27,427,600 for personnel expenses for the head of the instant childcare center, which was received from June 1, 2008 to November 1, 2009, on the ground that Nonparty 1 violated the “Assignment Standards for Employees in Nursery Facilities” under the former Infant Care Act, while Nonparty 1 works as the head of the instant childcare center.

【Ground for Recognition: Facts without dispute, evidence A from 1 to 3, evidence B from 1 (including paper numbers, hereinafter the same shall apply) and the purport of the whole pleadings】

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) Restrictions on concurrent positions prescribed by the former Infant Care Act, etc. are limited to the extent that they do not violate the former provisions, and cannot be deemed to apply to the case where a religious facility, etc., which is not a “other nursery facility”, works as an employee for a religious facility, etc., rather than a “other nursery facility.” Since Nonparty 1 performed his/her duties as a head of the relevant nursery facility during the hours of operation of the nursery facility during which he/she works as the head of the relevant nursery facility, he/she was engaged in his/her duties as a head of the relevant facility during the hours of operation of the nursery facility, and he/she did not violate the

2) While being aware of the fact that Nonparty 1 was a pastor, the Defendant approved the appointment of Nonparty 1 as the head of the instant childcare center, and supported personnel expenses for the head of the instant childcare center in a normal manner, and decided not to issue an order to return subsidies upon replacement of only the head of the relevant facility, which subsequently infringed the Plaintiff’s trust.

3) Even if the Plaintiff’s violation is recognized, the instant disposition ordering the full return of the amount of the violation is in violation of the principle of proportionality because it is too unreasonable in light of the degree of the violation.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to whether concurrent holding of religious facilities is included in the concurrent holding of other facilities

1) Article 17(1) of the former Infant Care Act provides that a nursery shall have employees in the nursery, and Article 17(2) of the former Infant Care Act provides that matters necessary for the standards for placement of employees in the nursery shall be prescribed by Ordinance of the Ministry of Health and Welfare. Article 10 [Attachment 2] of the former Enforcement Rule of the Infant Care Act (amended by Ordinance of the Ministry of Health and Welfare No. 92, Dec. 8, 201; hereinafter the same shall apply) to which the delegation was made, that the service of employees in the nursery shall be the former head of the nursery and shall not be held concurrently in charge of other facilities.”

However, Article 17(1) of the Infant Care Act (amended by Act No. 10789, Jun. 7, 2011; hereinafter “Revised Infant Care Act”) provides that childcare centers shall have childcare staff, and Article 17(2) of the same Act provides that matters necessary for the standards for the placement of childcare staff shall be prescribed by Ordinance of the Ministry of Health and Welfare. Following the revision of the amended Infant Care Act, Article 10 [Attachment 2] of the Enforcement Rule of the Infant Care Act (amended by Ordinance No. 92, Dec. 8, 2011; 2] The provision on the assignment of childcare staff under Article 10 [Attachment 2] of the Enforcement Rule of the Infant Care Act (amended by Ordinance No. 10789; hereinafter “Enforcement Rule of the Infant Care Act”) is amended to mean that “the head of a childcare center shall be the head of another childcare center, and shall not concurrently serve as another childcare staff.” Meanwhile, the reason for the revision of the Infant Care Act is to change the name of childcare staff and staff and enhance image, etc.

In addition, Article 40 of the former Infant Care Act provides that the State or local governments may order the establisher and operator of the nursery facilities, the head of the Child Care Information Center, the person entrusted with education and training to return all or part of the expenses and the subsidy already paid in any of the following cases, and subparagraph 1 provides that "the operation of the nursery facilities is suspended, closed, or revoked."

2) In light of the foregoing developments leading up to the amendment of the Enforcement Rule of the Infant Care Act, the provisions of attached Table 2 of the Enforcement Rule of the amended Infant Care Act [Attachment Table 2], and the provisions of subparagraph 1 of Article 40 of the former Infant Care Act, one of the cases where an order for the return of expenses and subsidies can be issued, which referred to as “where the operation of a facility is suspended, closed, or revoked” and “facilities are called as “facilities”, the term “other facilities” referred to in Article 10 [Attachment Table 2] of the former Enforcement Rule of the Infant Care Act in Article 10 [Attachment Table 2] of the former Enforcement Rule of the Infant Care Act is merely the meaning of “the standards for the placement of persons engaged in childcare facilities” in Article 2.

3) As to this, the Defendant asserts that the head of a religious facility and a person working for a religious facility may not concurrently serve as the head of a nursery facility, which is determined by the Ministry of Health and Welfare. However, this part of the Defendant’s assertion is without merit, since the above guidelines established by the Ministry of Health and Welfare do not go beyond the scope of embodying the content of the statute and do not contradict the meaning of the statutory provisions.

D. Determination as to whether they were transferred

1) First, regarding Article 10 [Attachment 2] of the former Enforcement Rule of the Infant Care Act, Article 10 [Attachment 2] 2 of the former Enforcement Rule of the Infant Care Act provides that “The head of a nursery facility shall be a full-time employee, and the head of a nursery facility shall not concurrently work for any other facility,” which is the former part of the “the head of the nursery facility,” shall be a full-time employee (hereinafter the former part of the above provision and the latter part of the latter part of the case “the latter part

The purpose of the former Infant Care Act is to contribute to the promotion of family welfare by fostering infants as healthy members of society through their mental and physical protection and sound education, and by facilitating their guardians' economic and social activities (Article 1). Article 4(2) of the same Act provides that the State and local governments shall be responsible for the sound infant care with their guardians (Article 4(2)). To achieve such legislative purpose, the State and local governments shall provide that the State and local governments shall subsidize all or part of the expenses incurred in infant care services, such as the establishment and operation of nursery facilities, personnel expenses of infant care teachers, expenses incurred in excess infant care, establishment and operation of infant care information centers, promotion of the welfare of persons working for nursery facilities, vulnerable infant care, etc. (Article 36), and the head of nursery facilities shall be qualified as prescribed by Presidential Decree and shall obtain a certificate of qualification examined and granted by the Minister of Health and Welfare (Article 21(1)), and the State and local governments may order the establishment and operator of nursery facilities, the head of infant care information center, the executor of education and training, etc., to return expenses or subsidies already granted (Article 40).

On the other hand, a nursery shall have employees for the nursery (Article 17(1)), the head of the nursery shall exercise overall control over the nursery, guide and supervise the nursery and other employees, and provide infant care (Article 18(1)), and infant care teachers shall take care of infants and if the head of the nursery is unable to perform his/her duties due to inevitable reasons (Article 18(2)).

In addition, Article 10 [Attachment 2] of the former Enforcement Rule of the Infant Care Act provides that "the head of the childcare facility shall be the former and shall not concurrently hold the office of any other facility" 2. Paragraph (b) provides that the working hours of the infant care teacher shall be eight hours a day in principle, and the hours that are extended before and after the day shall shift from the head of the childcare facility and the infant care teacher shall be paid an excess duty.

The purport of the former Infant Care Act, etc. provides that the former Infant Care Act, etc. shall impose sanctions against non-compliance with the qualifications, standards for placement, etc. of persons engaged in childcare facilities, while subsidizing expenses, etc. when complying with the prescribed standards, the head of the nursery facilities shall exercise overall control over the nursery facilities, guide and supervise infant care teachers and other workers, and the former term of the work in charge of providing infant care ("208 Infant Care Business Guidance" as provided by the Ordinance of the Ministry of Health and Welfare means that the former term of work shall be a full-time employee during the former term of work, and the former term of the work shall be recorded and managed in the work status register if going out due to special reasons. The former term of the former term of the Act is introduced on January 29, 2005 by the Ordinance of the Ministry of Gender Equality, and the latter part of the former term of the Act shall not be deemed to be a part of the former term of work in order to enhance the quality of the standards for the establishment and placement of persons engaged in childcare facilities.

Therefore, it is deemed that the Plaintiff was transferred to the head of the childcare facility stipulated in Article 18(1) of the former Infant Care Act during the working hours of the childcare center in this case.

2) In the absence of dispute, the following facts are acknowledged and the testimony of Nonparty 4, 5, 7, and Nonparty 4 of the first instance trial, in full view of the following facts, the statement of evidence Nos. 3 to 5, 8, 9, 12 to 17, 19 to 22, and 27, and the testimony of Nonparty 4 of the first instance trial witness is not trustable:

A) While Nonparty 1 was working as the head of the instant childcare center, he did not participate in the instant childcare center-related events, was present only at religious events while carrying out activities as a pastor of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the

1. On May 24, 2008, in the instant child care center, Nonparty 1 did not attend the child care center. On June 3, 2008, in the Gangwon-do Residential Day, Nonparty 2 introduced the above contents and indicated Nonparty 2 as the president.

② On May 19, 2009, an employee of a child-care center of this case and a child-care center of this case were engaged in surrounding environmental purification activities and campaigns. Nonparty 1 did not attend the said event. On May 22, 2009, in the steel newspaper of this case, 50 original students, including Nonparty 2’s president, were reported.

③ On July 15, 2009, the instant child-care center staff and the first generation visited the Korean War Veterans Association, and Nonparty 2 was present as the name of the president, and Nonparty 1 was not present. On July 16, 2009, Nonparty 2 and 80 first generation students were reported to the Internet.

④ On Nov. 30, 2009, the Korean War Veterans Association was launched on the 14:00 on Nov. 30, 2009, and Nonparty 2, one of the representatives of the educational circles, who is qualified as the president of the Korean War Veterans Association, was present as a member of the Korean War Veterans Association. At the time, Nonparty 1 attended as a representative of the religious community and read a declaration of common interest in religious community, and signed the list of participants as “Sporis Nonparty 1” in the list of participants.

B) From 2008 to 2011, Nonparty 2 worked as the head of the Association of the Hawon Military Nursery Facilities from 2008 to 201, Article 6 of the Rules of the Association of the Hawon Military Nursery Facilities (the evidence Nos. 13 and the evidence No. 8 appears to have been amended on December 30, 2009) provides that “the members of the plenary session shall be the head of the Hawon Military Nursery Facilities.” Nonparty 2 attended a meeting of the board of representatives held by the Council of the Hawon Military Welfare, an incorporated association, as an auditor of the regular board of representatives in 2009.

C) During Nonparty 1’s work as the head of the instant childcare center, Nonparty 1 was in charge of Nonparty 1’s activities. At the time, at the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the instant childcare center, Nonparty 1 was in charge of Nonparty 1’s activities. At the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the instant case. At the time, 1st of the branch of the branch of the branch of the branch of the branch of the branch of the branch, 28,64,000 won for the annual budget in 208, and 500,000 for the monthly case cost, 10,000 for the monthly island cost, 30,000 for the leave fee, 30,000 for the school expenses, 300,000 for the branch of the branch of the branch of the branch of the instant case. The branch of the branch of the instant case was located 6m.

D) During the work of Nonparty 1 as the head of the instant childcare center, Nonparty 1 attended almost every month at the meetings of the Hawon-dong Local Trade Operators, and was present as Nonparty 2 in 2008, as Nonparty 2. On February 18, 2009, Nonparty 1 participated in the meetings of the Hawon-dong Branch of the Hawon-dong, which was opened at the Hawon-dong Branch of the Hawon-dong Council

E) A public official belonging to the Defendant did not have any record of Nonparty 1 in the course of the event held in the instant childcare center or the inspection of the instant childcare center. Around August 2009, the Defendant investigated Nonparty 1’s transfer to Nonparty 1 after receiving a civil petition asking Nonparty 1 whether he/she is qualified to be the head of the childcare center, whether the subsidies for personnel expenses for the childcare center of this case are appropriate.

F) During the work of Nonparty 1 as the head of the instant childcare center, Nonparty 2 did not participate in education and meetings intended for the head of the instant childcare center, such as the Gangwon-do Association of Child Care Facilities, the Gangwon-do Association of Child Care Facilities (Holding September 26, 2008), the Korean Association of Child Care Facilities, the meetings for the head of the corporate childcare facilities in charge of the Gangwon-do Association of Child Care Facilities, the Korean Federation of Child Care Facilities under the Ordinance of the Ministry of Health and Welfare, and Nonparty 2 attended the head of the instant childcare center.

3) According to the facts found above, although Nonparty 1 was appointed as the head of the instant childcare center, he did not work as the head of the instant childcare center, and the said act was in violation of the former part of the former part of this case. The instant disposition is lawful, based on the premise that Nonparty 1 violated the former part of the provision on the assignment standards for childcare facility employees.

4) On the other hand, the Plaintiff asserted that the latter part of this case was the ground for the disposition of this case, and that the Defendant could not be able to provide for the reason for the disposition of this case. Therefore, the Defendant was unable to provide for the reason for the violation of the guidelines for the placement of employees in childcare facilities at the time of the disposition (Article 1-1, 1-2), and the Plaintiff asserted that Nonparty 1 had faithfully performed duties during working hours even if Nonparty 1 was engaged in activities, (see, e.g., the complaint), and the Defendant also argued that Nonparty 1 did not perform duties at all times in the reply. Accordingly, the former part and the latter part of this case are the ground for the disposition of this case. The Plaintiff’s assertion on other premise is without merit (if it is not so, the former part and the latter part of this case constitute the content of Article 10 [Attachment 2] [Attachment 2] of the former Enforcement Rule of the Infant Care Act, and thus, the Defendant may add the former part of this case as the ground for the disposition).

E. Judgment on the assertion that the principle of trust protection was violated

The written evidence Nos. 1, 2, 6, and 9 to 11 is insufficient to deem that the Defendant trusted that Nonparty 1 would not grant a subsidy even if he/she does not transfer to the head of the instant childcare center, or that Nonparty 1 would not take the instant disposition when he/she is replaced with the head of the instant childcare center, and there is no other evidence to acknowledge this otherwise. The Plaintiff’s assertion in this part is without merit.

F. Determination on the assertion of violation of the principle of proportionality

As seen earlier, Nonparty 1 did not perform the duties of the head of the child-care center in this case and deemed to have been in excess of the head of the facility in the name of the Defendant. In light of the fact that it is reasonable to recover the full amount of the subsidy granted under the premise that Nonparty 1 is the head of the facility in this case, so long as Nonparty 1 did not perform the duties of the head of the child-care center in this case, it cannot be deemed that the disposition in this case is excessively heavy in light of the degree of the violation. The Plaintiff’s assertion in this part is difficult to accept.

3. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.

[Attachment Form 5]

Justices Kim Jong-ho (Presiding Justice)