(영문) 대구지방법원 2014.4.25. 선고 2013구합2725 판결

On July 19, 2013, the Defendant confirmed that the illegal receipt of subsidy and the return of subsidy in KRW 122,66,910 against the Plaintiff are invalid.

Reasons

1. Details of the disposition;

A. On June 19, 2009, the Plaintiff, a company established by North Korean defectors B for the purpose of job creation business for vulnerable social groups (North Korean defectors) through waste recycling business, entered into an agreement with the Defendant on support for social job creation business with the term of support on June 22, 2009 to December 21, 2009, and subsequently renewed the said agreement on November 27, 2009 and June 16, 2010 on two occasions.

B. On July 19, 2013, the Defendant rendered the following dispositions against the Plaintiff pursuant to Article 18 of the former Social Enterprise Promotion Act (amended by Act No. 11275, Feb. 1, 2012; hereinafter the same shall apply) and Articles 30 and 31 of the Subsidy Management Act (hereinafter “Subsidy Management Act”), on the ground that the Plaintiff unlawfully received the subsidies for the creation of social jobs, the Defendant applied for the following dispositions against the Plaintiff (hereinafter “instant disposition”), totaling KRW 122,66,910 during the first agreement period (hereinafter “the instant disposition”), and totaling KRW 122,66,910 during the first agreement period (from June 222, 2009 to December 21, 2009), and KRW 42,831,240, and KRW 79,785,705,765,700.

A person shall be appointed.

【Fact-finding, Gap’s evidence Nos. 1 through 4, Eul’s evidence Nos. 1 through 3, 6, and 7 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition of this case is to seek confirmation of its invalidity because there is a serious and clear defect as follows:

1) Article 18 of the Social Enterprise Promotion Act is merely a provision on the cancellation of the certification of a social enterprise, and the amount that the Plaintiff received from the Defendant is merely a management subsidy or a financial subsidy, not a subsidy, and the Defendant is not the head of a central government agency. Therefore, Article 18 of the Social Enterprise Promotion Act, Article 30, and Article 31 of the Subsidy Management Act, which are included in the relevant statute at the time of the instant disposition, cannot be the grounds for the above disposition.

2) The subsidies for the creation of a social set-off project, which is recognized to have been illegally received by B in a related criminal case, are only KRW 30,089,869,869, KRW 30,92,218, KRW 61,082,087, and the Defendant ordered the return of KRW 42,831,240, KRW 79,835,670, the total amount of KRW 122,66,910, and the order for return of each excess portion is unlawful since there is no evidence to stabilize that the Plaintiff received it.

(b) Related statutes;

It is as shown in the attached Table related statutes.

1) On March 2012, the former U.S. police station investigated the Plaintiff’s suspicion of fraudulent receipt of subsidies for projects creating social jobs. After that, around July 31, 2009 to October 31, 2012, the Plaintiff’s representative director B received subsidies for projects creating social jobs by submitting a false benefit ledger and a copy of the attendance book in spite of the fact that 16 persons, such as North Korean defectors E, etc. were working on or around July 2009 to March 2012, and received employment subsidies and employment subsidies, and was indicted for violation of the Act on the Protection and Settlement Support of Residents and North Korean Refugees (Seoul District Court Decision 2012Da9111).

2) B led to a confession of all the facts constituting the crime on the seventh trial date of the said criminal case. On April 18, 2013, the said court rendered a sentence of imprisonment with prison labor for one year and six months, two years of suspended execution, and two hours of community service order to B. This appeal was lodged by B, but the appeal was dismissed on February 5, 2014 (Tgu District Court 2013No1316), and the appeal by B was pending in the Supreme Court.

On October 18, 2009 through September 10, 2010, the Defendant, who acquired subsidies to create a fraudulent social job (Evidence 2) 1 of the Daegu District Court Decision 2012 Gocheon-Ma911, by deceiving the victim 14 times in total, was paid a total of 61,082,087 won (the first project period: 30,089,869, and the second 30,992,218 won) from the victim.In violation of the North Korean defectors Protection and Settlement Support Act (the employment subsidies were denied), the Defendant received the total of 50,89,000 won from the Minister of Unification through false or other unlawful means on April 18, 201 and received the employment subsidies from the Minister of Unification over 10,000,000 won through false or other unlawful means (the total of 10,000 won from North Korean defectors 20,015,010).

3) The Defendant prepared an investigation report on January 29, 2013 in the course of investigating the Plaintiff’s suspicion of unjust receipt of subsidies for the creation of social jobs.

According to the report of the investigation into the illegal receipt of the plaintiff A(2) and the report of the investigation into the illegal receipt of the plaintiff (3) 1 (2) of the old U.S. police station's "Notice of the Suspectation of Government Subsidies" by the 00 U.S. police station's "Notice of Fraud of Government Subsidies" and the case disposition result and the reason for non-prosecution of the Daegu Kimcheon branch office's office, the plaintiff representative B submitted a falsely prepared benefit ledger and a copy of the attendance book as if he/she had worked in collusion with 16 North Korean defectors E on July 2009 to August 2010, and submitted a false statement of the fact that he/she had worked in collusion with 16 on July 2009, and submitted a false statement of the fact that he/she had worked in collusion with 2008.10.2) In accordance with the guidelines for the implementation of the social job creation project, it constitutes the illegal receipt of 00 job creation guidelines according to the illegal receipt of the subsidy.

According to the documents of "Notice of the Suspect of Government Subsidies" and the case disposition results and the reason for non-prosecutions by the Daegu Kimcheon District Prosecutors' Office of the police station of the Gu and the Daegu District Prosecutors' Office, it is clear that it falls under the period of contract termination and restriction on participation since it is possible to receive subsidies from the Ministry of Unification for North Korean defectors who have no certain occupation across the country, and it is possible to receive subsidies from the Ministry of Unification when submitting an application for participation in social enterprise job creation (use of review).--1, 5 on 13 persons eligible for subsidies, a false statement is made as if they had worked for 11 persons from among 13 persons eligible for subsidies, and it is confirmed that 29,121,183 won from among 32,420,70 won of the total subsidies were illegally received at the time of 0.0, and it is reasonable that this falls under the period of contract termination and restriction on participation after re-examination, and it is reasonable to recover the total amount of subsidies after 12,2009; 2009.2.3.27.297.20

【Fact-finding without dispute over the basis of recognition, entry in the evidence Nos. 2, 6 through 9 (including each number), and the purport of the whole pleadings

D. Determination

1) Determination on the first argument

Article 2 subparagraph 1 of the Subsidy Management Act provides that the term "subsidies" means subsidies, charges and other benefits provided by the State to create or provide financial assistance to affairs or projects conducted by persons other than the State, which are prescribed by Presidential Decree. Article 2 subparagraph 7 of the same Act provides that "the head of a central government agency" means the head of a central government agency under Article 6 (2) of the National Finance Act; Article 6 (2) of the National Finance Act provides that "central government agency" means a central government agency established pursuant to the Constitution, the Government Organization Act, and other Acts; Article 2 (2) of the Government Organization Act provides that "the central government agency" means a central government agency established pursuant

Except as otherwise provided, the Act on the Management of Subsidies stipulates that the affairs of the head of a central government agency concerning the grant and management of subsidies may be partially delegated to the head of the government agency or the head of the local government to which he/she belongs, as prescribed by Presidential Decree.

According to the above facts and relevant regulations, it is clear that the subsidy for job creation projects received by the Plaintiff from the Defendant constitutes a subsidy under the Subsidy Management Act in order to support the job creation projects of vulnerable groups (North Korean defectors) through the Plaintiff’s waste recycling projects, and it is delegated by the Minister of Employment and Labor, who is the head of a central government agency, with the affairs concerning the grant and management of subsidies, etc., and the Defendant issued the instant disposition against the Plaintiff pursuant to Articles 30 and 31 of the Subsidy Management Act. Therefore, the Plaintiff’s above assertion to the effect that the Subsidy Management Act,

2) Judgment on the second argument

In order for an administrative disposition to be null and void as a matter of course, it is insufficient to say that there is an illegal cause, and the defect is serious in violation of the relevant laws and regulations, and objectively obvious. In a case where there are objective circumstances that make it possible to mislead a person to be subject to an administrative disposition with regard to certain legal relations or factual relations which are not subject to an administrative disposition, and where it can only be clarified whether it is subject to an accurate investigation of such factual relations, it cannot be said that it is apparent that it is obvious that the mistake is serious (see, e.g., Supreme Court Decision 2006Da83802, Mar. 16, 2007).

The following circumstances revealed in the above facts and relevant Acts and subordinate statutes, namely, ① whether the Plaintiff has actually employed North Korean defectors who have no particular occupation after the Plaintiff was selected as a participant enterprise of the social date creation project, and whether the principal has been paid for the establishment of a false work site creation project without such fact can be found only after accurately investigating the facts. ② In determining the facts as to whether the Plaintiff has been paid the subsidies for the creation of a new job creation project by falsehood, there can be differences between the Defendant and the prosecutor in charge of criminal cases; ③ in the event the subsidy operator has received the subsidies by fraud or other improper means, the decision to grant the subsidies may be revoked in whole or in part, and the Defendant’s internal regulations such as guidelines for the implementation of the project for the creation of a new job creation project (Evidence No. 6), and in the year 2014 (Reserve No. 8), the part of the subsidy received by the participant enterprise, including the relevant documents or performance, can not be objectively interpreted as the Defendant’s violation of the Act and subordinate statutes after the removal of the subsidies.

3. Conclusion

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