Living Improvement Hong-gun Federation and six others (Attorney Song-young, Counsel for the plaintiff-appellant)

The Director of the Hongsung Military Agricultural Technology Center and one other (Law Firm U&A, Attorneys Choi Jong-young et al., Counsel for the plaintiff-appellant)

June 22, 2017

Daejeon District Court Decision 2016Guhap101340 Decided January 18, 2017

1. In the judgment of the court of first instance, the claim portion made by the agricultural partnership corporation of the Plaintiff Hongsung-gun Federation of Living Improvement and Hongsung-gun shall be revoked;

2. On January 19, 2016, Defendant Hongsung-gun’s disposition of recovering KRW 1,750,040,320 of the subsidies granted to the agricultural partnership of the Plaintiff Hong-gun Federation of Living Improvement and Hong-gun.

3. All appeals filed by Plaintiffs 3, 4, 5, 6, and 7 against the Defendants are dismissed.

4. The defendant's total cost of litigation between the plaintiff's living improvement Hong-gun Federation and the defendant Hong-gun shall be borne by the above defendant, and the cost of appeal between the plaintiff's living improvement Hong-gun Federation, the plaintiff's living improvement Hong-gun Federation, the plaintiff 3, 4, 5, 6, and 7 and the defendant

1. Purport of claim

The disposition of return of KRW 1,750,040,320 of the subsidy for functional compressive dried Project, which was rendered by the Director of the Red Military Agricultural Technology Center on January 5, 2016 against the Plaintiffs, and the disposition of restitution of KRW 1,750,040,320 of the subsidy for the project for commercialization of functional compressive dives, which was made by Defendant Hongsung-gun on January 19, 2016 by the head of Hongsung-gun Group against Plaintiffs 3, 4, 5, 6, and 7 of the subsidy granted by Defendant Hong-gun on January 19, 2016.

2. Purport of appeal

A. The plaintiff's living improvement and red-gun Federation: It is so ordered as per Disposition 1 and 2;

B. Of the judgment of the first instance court, the part of the claim against the aforementioned plaintiffs against the Defendants shall be revoked. With respect to the above plaintiffs, the decision of return of KRW 1,750,040,320 of the subsidy for functional compressed dried-up commercialization project made on January 5, 2016 and the decision of return of KRW 1,750,040,320 of the subsidy granted by the head of Hongsung-gun on January 19, 2016 shall be revoked.

1. Scope of the judgment of this court;

At the first instance court, the Plaintiffs rejected each lawsuit against the Defendants of the Korea Red Military Agricultural Technology Center Director (hereinafter “the instant project”) on January 5, 2016, with subsidies of KRW 1,750,040,320, and with subsidies of KRW 1,750,040,320 from January 19, 2016. The first instance court rejected the Plaintiffs’ respective claims against the Defendants of the Korea Red Military Agricultural Technology Center Director (hereinafter “the Plaintiff Federation”), including the Plaintiff Federation, and rejected the Plaintiffs’ respective claims against the Defendants of the Korea Red Military Agricultural Technology Center (hereinafter “the Plaintiff”) against the Plaintiff’s Red Military Association (hereinafter “the Plaintiff”) on January 19, 2016, with the exception of the Plaintiff’s claims for reimbursement of KRW 1,750,040,320 from January 19, 2016.

2. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on this case is as stated in the corresponding part of the judgment of the court of first instance, except for the dismissal of part of the judgment of the court of first instance as set forth in the following paragraph (3). Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the

3. Parts to be dried;

In addition, between the 4th page 2 and 3, “A. Subsidy” was added, and the 9th page “1”) portion of the Plaintiff’s federation transferred from 1 to 13th page 13.

○ Head of Section 4(b) and Section 5(c) respectively, and be affected by paragraphs (c) and (d).

In the 00th 5-6th 6th 4th , the “Functional Modern Commenting Project” is the “instant Project.”

Under paragraph 5, the following 3 articles 1, 2, 2-1, 6-2, and 7 of the above 3 articles 1, 2, 1 through 7, 9, 15 through 23 of the A.

○ Part 6, as seen in Section 3(c)( below below, as seen in Section 3(c)(6) above, intrudes “as seen in the foregoing.”

In 00, the first- second-half of the 7th page “Action is unlawful,” which read “her lawsuit is unlawful, without the need to further examine the Defendant’s principal defense.”

○ 7-8 b. b. b. to delete.

○ Up to 16, 16, 9, 18 are as follows.

3. Whether the restitution disposition of this case is legitimate

A. The plaintiff corporation's assertion

1) The instant restitution disposition is based on Article 17 of the former Ordinance on the Subsidy Management of Hongsung-gun (amended by Presidential Decree No. 1748, Oct. 4, 2006; hereinafter “former Ordinance”). Article 17 of the above Ordinance is null and void as it goes beyond the scope of delegation stipulated in the Local Finance Act and the Enforcement Decree of the same Act. Thus, the instant restitution disposition issued based on the invalid Ordinance is unlawful.

2) According to Article 10(1) of the former Ordinance, a decision to grant subsidies may be modified or revoked where certain grounds arise before the completion of the project subject to the grant of subsidies, and an order to return all or part of the subsidies already paid may be issued. However, in the event the project subject to the grant of subsidies is completed, an order to return all or part of the subsidies is the same as the cancellation of the decision to grant subsidies. Thus, the order to return all the subsidies is not allowed. Nevertheless, Defendant Hong Sung-gun ordered the return of all the subsidies even after the completion of the project. The instant order

3) With respect to the instant business, the Plaintiff Federation received subsidies from the Plaintiff Federation from 2009 to 2010, and the Plaintiff Company received subsidies from the Defendant Hong Sung-gun in 2011. Thus, Defendant Hong-gun could take a disposition to recover only the subsidies received by the Plaintiff Company, but it was unlawful that the instant disposition to recover subsidies was made against the Plaintiff Company, including the subsidies received by the Plaintiff Federation.

4) The instant restitution disposition is unlawful as it was based on the Defendant’s decision on the return of subsidies by the Defendant’s warden.

B. Relevant statutes

Attached Statement . ... .

○ 9. To delete the following 3.

○ Heading 13 from 1 to 5 must be deleted.

○ From 13 to 16 pages 10 to 9 are as follows.

“. c. Determination

1) As to the statutes on the grounds of the instant restitution disposition

According to Gap evidence No. 1 and evidence No. 2-1 of this case, Article 17 subparag. 2 and No. 3 of the old Ordinance are stated in the Act and subordinate statutes based on the disposition, and the redemption order of this case also includes the fact that Article 17 of the old Ordinance is stated in the Acts and subordinate statutes based on the basis of the disposition, and the plaintiff corporation also claims that the redemption disposition of this case is based on Article 17 of the old Ordinance.

The former Ordinance was amended on December 12, 2013 by Ordinance No. 2090, Dec. 30, 2014; Ordinance No. 2152, Jul. 20, 2015; Ordinance No. 2195, Jul. 20, 2015; Ordinance No. 2195, which was enforced at the time of the redemption of the instant subsidy, was amended on three occasions (hereinafter referred to as "Ordinance No. 2195, Feb. 1, 201), and Article 32-8 of the former Local Finance Act (amended by Ordinance No. 12687, May 28, 2014), and Article 201 of the former Ordinance No. 201, supra, Ordinance No. 251, supra, Ordinance No. 201, supra, should be applied to the return of the subsidy before the enforcement date of the previous Ordinance. 3, Article 2015.

Therefore, the fact that Article 17 of the former Ordinance is merely an error in the law applicable to the disposition of recovery of this case. In such a case, even if there is no change in the law applicable to the disposition, the court may determine the legitimacy of the disposition of recovery of this case by applying Article 20 subparagraph 1 and 2 of the Municipal Ordinance under the applicable law (see Supreme Court Decision 99Du11929, Dec. 22, 2000, etc.). Thus, the plaintiff's assertion on the law applicable to the disposition of recovery of this case as to the law applicable to the disposition of recovery of this case shall be decided by selecting the plaintiff's assertion

2) Whether the principle of statutory reservation is violated (determination on the first argument of the Plaintiff corporation)

A) Effect of Article 20 of the Ordinance of this case

According to Article 22 of the Local Autonomy Act and Article 4(3) of the Framework Act on Administrative Regulations, where a local government establishes a municipal ordinance with respect to the restriction on the rights of residents, the imposition of obligations on residents, or penal provisions, there must be delegation by law. Therefore, the municipal ordinance with respect to the restriction on the rights of residents or the imposition of obligations on residents without delegation by law has no effect (see Supreme Court en banc Decision 2010Du19270, Nov. 22, 2012, etc.).

Article 20 of the former Local Finance Act (amended by Act No. 12687, May 28, 2014; hereinafter “former Local Finance Act”) provides that Article 17(1) of the former Local Finance Act and Article 29(5) of the former Enforcement Decree of the Local Finance Act (amended by Presidential Decree No. 25781, Nov. 28, 2014; hereinafter “former Enforcement Decree of the Local Finance Act”) shall be the mother Act. In other words, Article 17(1) proviso and subparagraphs of the former Local Finance Act provide for exceptions to granting subsidies or other public funds in relation to the affairs under the jurisdiction of a local government. Article 29(5) of the former Enforcement Decree of the Local Finance Act provides that “Any application for subsidies from a local government or other public funds under the provisions of Article 17(1) of the Act and any other subsidy may be fully or partially suspended or any of the following may not be deemed to have been granted by a person to whom subsidies are granted.”

In full view of the above relevant provisions, the former Local Finance Act and the Enforcement Decree of the same Act only delegate matters concerning the application for the grant of subsidies, the decision to grant subsidies, the use of subsidies, etc. to municipal ordinances, and do not delegate matters concerning the return of subsidies to municipal ordinances. Nevertheless, Article 20 of the instant Ordinance provides that the return of subsidies may be ordered in cases falling under a certain cause beyond the scope of delegation. This is null and void as it enacted matters not delegated by superior laws and regulations. Accordingly, the instant restitution disposition by Defendant Hong Sung-gun based on Article 20 of the instant Ordinance null and void is illegal.

B) Determination on Defendant Hongsung-gun’s assertion

The defendant Hongsung-gun stated in the decision on the grant of the subsidy of this case that "if he uses the subsidy for any purpose other than the purpose of subsidization or does not implement all the regulations and instructions, he may recover the full or partial amount of the subsidy." The defendant Hong Sung-gun asserts that even according to the above conditions, it is justifiable to order the plaintiff corporation to return the entire subsidy of this case.

In an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or modify other grounds only to the extent that the grounds for the original disposition are deemed identical to that of the basic facts. The existence of the factual identity of the basic facts here is determined based on whether the social factual relations, which are the basis of the disposition, are identical in basic points, based on the specific facts prior to the legal evaluation of the grounds for disposition (see Supreme Court Decision 2009Du15586, Nov. 26, 2009, etc.).

In light of the above legal principles, the reason for the recovery disposition of this case and the reason for the additional disposition that the plaintiff corporation used the subsidy of this case for purposes other than the purpose of subsidization or failed to implement all regulations and instructions cannot be deemed identical in the basic point of view. Thus, it is not permissible for the defendant Hong Sung-gun to add it as the reason for the recovery disposition of this case. Accordingly, the argument of the defendant Hong-gun on the premise that the addition of the above reason for the disposition is allowed is without merit.

3) Sub-decisions

Ultimately, Defendant Hongsung-gun’s instant restitution disposition is unlawful. Thus, the instant restitution disposition should be revoked without examining the remainder of the Plaintiff’s assertion.

4. Conclusion

Therefore, the remaining plaintiffs' respective lawsuits against the defendants are dismissed, and the claims against the defendant Hong-gun of the plaintiff corporation against the defendants are accepted with merit. Since the judgment of the court of first instance is unfair with some different conclusions, the part of the claims against the defendant Hong-gun of the plaintiff corporation in the judgment of first instance which accepted the appeal by the plaintiff corporation and revoked the recovery disposition of this case, and the remaining plaintiffs' appeals against the defendants are dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

The judge’s seat (Presiding Judge) Ma-hee Park Jong-hee