(영문) 서울행정법원 2018.9.28.선고 2017구합90148 판결

A. The Plaintiff is a non-profit corporation established for the purpose of supporting low-credit and low-income people's small business start-up and operation funds, and is receiving loans and operating expenses from C institutions under the D support contract concluded with C institutions established pursuant to the Act on the Support of the Financial Life of ordinary people. The Plaintiff is running the business of lending small credit at low interest to low-income earners.

B. On July 18, 2017, the president of the Korea Social Enterprise Promotion Agency applied for the certification of a social enterprise under the Social Enterprise Promotion Act to the Defendant, but on September 27, 2017, the Defendant rendered a non-certification of a social enterprise (hereinafter “instant disposition”) on the ground that the Plaintiff failed to provide social services and lack of the grounds for decision-making structure in which various interested parties participate.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 9-1, 2, Gap evidence 10, Eul evidence 10, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

(i) meeting the requirements of social enterprises, and deviation and abuse of discretionary power;

The Defendant determined that the Plaintiff failed to meet the requirements for the certification of a social enterprise prescribed by the Social Enterprise Promotion Act on the ground that the Plaintiff’s failure to provide social services and lack of the grounds for the decision-making structure in which various stakeholders participate. However, the Plaintiff’s main purpose of business is to provide social services to vulnerable social groups prescribed by the Social Enterprise Promotion Act, and the Plaintiff’s 95% among beneficiaries who received social services from the Plaintiff is at least 30% as prescribed by Article 9(1)1 of the Enforcement Decree of the Social Enterprise Promotion Act, which satisfies the requirements for the provision of social services under Article 8(1)3 of the Social Enterprise Promotion Act. Moreover, the Plaintiff has a decision-making structure in which interested parties, such as beneficiaries and workers, etc. of services under Article 8(1)4 of the Social Enterprise Promotion Act, are also satisfied. Since the Plaintiff satisfies the requirements for the certification of a social enterprise under each subparagraph of Article 8(1) of the Social Enterprise Promotion Act, the instant disposition is unlawful as it deviates from and abused discretion.

2) Violation of the principle of equality

The defendant has given the certification of a social enterprise to E Co., Ltd. which provides financial services to the disadvantaged class like the plaintiff, and the disposition of this case is unlawful as it discriminates against the plaintiff without reasonable grounds.

3) procedural illegality

The defendant, as the specialized committee for the promotion of social enterprises established to deliberate on the application for the certification of social enterprises, was poorly operated to conduct a formal deliberation on the plaintiff's application, there is procedural error in the disposition of this case.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination on the fulfillment of the requirements of social enterprises and the assertion of deviation and abuse of discretionary power

A) Determination as to whether the performance of social services is inappropriate

(1) Article 8(1)3 of the Social Enterprise Promotion Act provides that "the primary purpose of an organization is to realize social objectives, such as enhancing the quality of life of local residents by providing social services or jobs or contributing to local communities as a requirement for certification as a social enterprise." In such cases, detailed criteria for determination shall be prescribed by Presidential Decree." Article 2 subparag. 3 of the same Act provides that "social services refer to education, public health, social welfare, environmental and cultural services, and other services corresponding thereto, which are prescribed by Presidential Decree." Article 3 of the Enforcement Decree of the Social Enterprise Promotion Act provides that "the services in the fields prescribed by Presidential Decree" under Article 2 subparag. 3 of the same Act shall be "n. 1), conservation and management services for arts, tourism and sports (subparagraph 2), forest conservation and management services (subparagraph 3), nursing and housework support services (subparagraph 5), management services such as business facilities such as cleaning (subparagraph 6), and the service of the organization, which is recognized by the Minister of Employment and Labor as the main purpose of Article 2 subparag. 18 of the Employment Security Act. 10.

Meanwhile, the purpose of the Social Enterprise Promotion Act is to contribute to social integration and the improvement of the quality of life of the people by supporting the establishment and operation of social enterprises, promoting social enterprises, expanding social services that are not sufficiently supplied in our society, and creating new jobs (Article 1). The Act provides for benefits such as management support (Article 10), education and training support (Article 10-2), facility cost support (Article 11), preferential purchase by public institutions (Article 12), support for tax reduction and exemption and social insurance (Article 13), financial support (Article 14), etc.

(2) In order to contribute to the enhancement of social integration and the quality of life of the people by expanding social services and creating new jobs, the Social Enterprise Promotion Act supports the establishment and operation of a social enterprise through various benefits from support, such as management support, etc., and provides concrete requirements for obtaining certification as a social enterprise. In order to obtain certification as a social enterprise under the Social Enterprise Promotion Act, it shall satisfy specific requirements for certification prescribed by the above Act and subordinate statutes, and it shall not be deemed that the applicant company satisfies the requirements for certification of the social enterprise as prescribed by the Social Enterprise Promotion Act solely on the ground that the nature of the business performed by the applicant company is consistent with the public interest purpose or most of the beneficiaries of the services are socially disadvantaged (a variety of support and benefits as mentioned above may be granted in the case of certification as a social enterprise, and a variety of support and benefits must be necessarily accompanied by financial expenditure, and it shall be deemed that specific requirements for certification of the social enterprise as prescribed by the Act and subordinate statutes are reflected in the legislative decision based on its literal meaning. Therefore, whether the social enterprise is a social enterprise should be interpreted relatively strictly based on its literal meaning).

As seen earlier, the Plaintiff entered into a D support contract with C and received loan funds from C institutions, and carries out the business of lending small amounts of credit at low interest rates for low credit and low-income groups. Such business affairs cannot be deemed as falling under the category of social services (education, health, social welfare, environment, culture, child care, arts tourism and sports, forest conservation and exercise services, nursing and household support services, business facility management services such as cleaning, cleaning, employment service under Article 2-2 subparagraph 9 of the Employment Security Act, and other services recognized by the Minister of Employment and Labor after deliberation by the Policy Council) that are listed in the Social Enterprise Promotion Act and the Enforcement Decree of the same Act. Thus, the Plaintiff does not meet the requirements for certification of social enterprises as determined by the Social Enterprise Promotion Act.

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. In full view of the overall purport of the arguments in evidence Nos. 1, 2, and 4, the plaintiff's whole purport of the arguments is as follows: although it is recognized that the "business to provide low-credit, employment information, and vocational training information for low-income groups" is included in the plaintiff's business activities, it is insufficient to recognize that the above facts alone are carrying out "business to provide employment information and vocational training information for low-income groups", and since there is no evidence to acknowledge the above facts of the plaintiff's assertion, the above assertion is without merit without any further review.

B) Determination as to whether there are lack of the grounds for the decision-making structure in which various stakeholders participate

(1) Article 8(1)4 of the Social Enterprise Promotion Act provides that "the service beneficiary and workers shall have a decision-making structure in which interested parties, such as employees, participate as the requirements for the certification of a social enterprise," and Article 8(3) of the same Act provides that "the Minister of Employment and Labor shall determine matters necessary for the methods and procedures for the certification of a social enterprise, and the Minister of Employment and Labor shall publicly notify the criteria for the certification of a social enterprise." Meanwhile, in full view of the purport of the argument in the document No. 15, the defendant announced "the Ministry of Employment and Labor's announcement No. 2017-6 of the Ministry of Employment and Labor's announcement No. 2017-6 of the Social Enterprise Promotion Act" (hereinafter referred to as "the notice in this case"). The notice in this case provides that "the articles of incorporation or rules (Operation Rules) of a social enterprise shall stipulate that various interested parties should participate in the main decision-making body" and "the institution shall constitute at least three persons, and shall be recognized as a representative and an external interested party regardless of the purpose."

(2) In full view of the overall purport of the arguments in evidence No. 4, evidence No. 4, and evidence No. 5, the Plaintiff’s articles of association provides for the organization, appointment, dismissal method, duties, etc. of executives under Articles 9 through 15; Articles 16 through 21 provide for the organization, division, resolution, etc. of the board of directors under Articles 22 through 27; however, there is no provision regarding the organization, resolution, etc. of the board of directors under Articles 22 through 27; however, it is recognized that the Plaintiff’s decision-making body did not participate in the decision-making body (the board of directors of the Plaintiff consisting of seven persons, and one of them does not meet the specific criteria for examination under Article 8(1)4 of the Social Enterprise Promotion Act; and the Plaintiff fails to meet the requirements under Article 8(1)4 of the Social Enterprise Promotion Act.

As to this, the plaintiff argues that the above criteria for review set forth in the notice of this case are invalid because it goes beyond the scope of delegation of the Social Enterprise Promotion Act and unfairly expands the requirements for the certification of a social enterprise. However, Article 8 (1) 4 of the Social Enterprise Promotion Act provides that "the social enterprise shall have a decision-making structure in which interested parties, such as service beneficiaries and workers, participate" as the requirements for the certification of a social enterprise. The notice of this case is merely a detailed implementation plan to fulfill the requirements prescribed in the above Act, and that "the representative and outside interested parties, regardless of the type of realization of social objectives, shall participate in the decision-making" is merely a specific part of the representative of workers among various interested parties, such as service beneficiaries and workers, which are recommended by the Social Enterprise Promotion Act, and therefore, it cannot be deemed that the above criteria for review set forth in the notice of this case goes beyond the scope of delegation of the social enterprise promotion. Therefore, the plaintiff's above assertion is without merit.

C) Sub-determination

Therefore, this part of the plaintiff's assertion is without merit.

2) Determination on the assertion of violation of the principle of equality

In full view of the purport of each statement in the evidence No. 17-1 and No. 17-2, the fact that the defendant's main business is to provide loan services, etc. to the vulnerable class who are difficult to obtain loans from financial institutions is recognized pursuant to the Social Enterprise Promotion Act, but the above fact alone is not enough to deem that the defendant's administrative practice comprehensively takes place against the enterprises that provide loan services, etc. to the disadvantaged class, or that the administrative practice that provides social enterprise certification under the Social Enterprise Promotion Act has been established, or that the trust to protect the plaintiff has been formed. Since there are no materials to see that the main parts of the E company's financing, business activities, decision-making structure, etc. are the same, the disposition in this case is not deemed to have violated the principle of equality. Accordingly, this part of the plaintiff'

3) Determination on the assertion of procedural illegality

Article 7 (2) of the Social Enterprise Promotion Act provides that "where a defendant intends to certify a social enterprise, he/she shall undergo deliberation by the Employment Policy Deliberative Council," and Article 10 (2) 5 of the Framework Act on Employment Policy provides that "the matters concerning the core criteria for the certification of a social enterprise under the Social Enterprise Promotion Act" may be established for each area in order to efficiently and formally operate the Employment Policy Deliberative Council, and the deliberation by the Special Committee shall be deemed to be the deliberation by the Employment Policy Deliberative Council."

In full view of the overall purport of the arguments in the evidence Nos. 5 and 6, the defendant held a subcommittee for the examination of social enterprises on August 25, 2017, and confirmed 53 enterprises as social enterprises by the method of written deliberation from September 1, 2017 to August 8, 2017, and decided to suspend judgment for two enterprises, including the plaintiff, as well as the second decision on September 15, 2017. The defendant did not have any evidence to acknowledge that the defendant was in compliance with the relevant statutes and regulations in the disposition of this case, and that the defendant operated the specialized committee for the promotion of social enterprises formally and poorly. The plaintiff's assertion in this part is without merit.

3. Conclusion

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

Judges

The presiding judge, the rank of the judge;

Judge Kim Gin-hun

Judges Kim Gin-jin

Note tin

(i) Article 2-2 (Definitions);

The terms used in this Act shall be defined as follows:

9. The term "employment services" means support for employment, such as provision of employment information, job placement, vocational guidance, vocational ability development, etc. to job offerers or job seekers;

service means a service;