2012Guhap330 Revocation of revocation of a decision to return unjust enrichment

A An incorporated association

The President of the Gwangju Regional Labor Agency

March 21, 2013

May 9, 2013

1. The instant lawsuit shall be dismissed.

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

The Defendant’s decision to return unjust enrichment of KRW 121,44,946 against the Plaintiff on March 16, 2012 is revoked.

1. Details of the disposition;

A. On June 24, 2009, the Plaintiff, as a non-profit corporation specializing in performing arts, was selected as a organization participating in the business of creating social jobs under the name of “B social jobs”. On July 21, 2009, the period of support between the Defendant and the Defendant was from June 24, 2009 to June 20, 2010, and the number of persons eligible for support was 40 persons, and the “instant support agreement” was concluded.

B. As a result of examining whether the business of this case was properly operated, the Defendant prepared a false attendance book, received subsidies, paid subsidies to double-employed workers, and paid a full-time employed worker.

On January 19, 2010, it confirmed the violation of the instant support agreement, such as excessive disbursement of subsidies, etc., and on this ground, on January 19, 2010, the Plaintiff terminated the instant support agreement and made a disposition to return KRW 4,630,460 out of the subsidies already paid as the amount of illegal receipt (hereinafter referred to as “disposition of January 19, 2010”).

C. On January 26, 2010, the Plaintiff filed a lawsuit against the Defendant on January 19, 2010 against the Gwangju District Court 2010Guhap344 (hereinafter referred to as the “principal case”) and applied for suspension of execution of the said disposition (Seoul District Court 2012 Ga12). The Gwangju District Court rendered a decision on February 16, 2010 that the disposition rendered against the Plaintiff on January 19, 2010 by the Defendant against the Plaintiff was void until the pronouncement of the principal case between the Plaintiff and the Defendant (hereinafter referred to as the “decision on suspension of execution”).

D. After the decision to suspend the validity of the instant case was made on June 23, 2010, the Defendant subsidized KRW 129,377,620 in total to the Plaintiff in accordance with the instant support agreement. The Defendant discovered additional KRW 17,274,120 out of the amount provided to the Plaintiff following the decision to suspend the validity of the instant case as above, and returned KRW 7,932,674 out of the amount additionally discovered to the Defendant. On September 16, 2010, the Gwangju District Court sentenced the Plaintiff’s request against the instant case to be dismissed, and the said decision became final and conclusive as the appeal period even on October 5, 2010.

E. Upon the final and conclusive judgment, on March 16, 2012, the Defendant issued an order to return unjust enrichment (hereinafter “instant disposition”) to the Plaintiff to return the amount of KRW 121,44,946 calculated by subtracting the Plaintiff’s already returned subsidy of KRW 7,932,67,620, out of KRW 129,37,620, which was paid by the Defendant to the Plaintiff during the said period, on the ground that the subsidies paid after the decision to suspend the validity of the instant case was unjust enrichment.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1, 2, 4, and 5, the purport of the whole pleadings

2. The plaintiff's assertion

The disposition of January 19, 2010 was suspended until the pronouncement of the case was made by the decision of the suspension of the validity of the instant case, and even if the judgment against the Plaintiff was made final and conclusive with respect to the instant case, the validity of the said disposition was not suspended retroactively to the time of the disposition as of January 1, 2010, and thus, in order to recover the subsidy granted after the decision of the suspension of the validity of the instant case as the amount of illegal receipt, there is a separate ground for illegal receipt. However, there is no ground for illegal receipt with respect to the remainder of the subsidy, excluding the additional amount of KRW 17,274,120, out of the subsidy granted during the instant period, the instant disposition based on the different premise

3. Judgment on the defendant's main defense of safety

A. The parties' assertion

1) The defendant's main defense

On April 3, 2012, the Plaintiff was served with the documents related to the instant disposition by the Defendant, and the Plaintiff filed the instant lawsuit on July 20, 2012, which was 90 days after the lapse of 90 days from the Plaintiff, and such lawsuit is unlawful as it was filed after the lapse of the filing period.

2) The plaintiff's assertion

The Plaintiff’s statement of payment served on April 3, 2012 alone cannot be said to have known of the instant disposition solely because it was difficult to identify the grounds or grounds for the instant disposition. Moreover, the Plaintiff was aware of the instant disposition only after being served on April 25, 2012.

B. Determination

1) The "date when the party becomes aware of a disposition, which is the starting point of the filing period of a lawsuit under Article 20 (1) of the Administrative Litigation Act" does not mean the date when the party became aware of the fact of the pertinent disposition by means of notice, public notice, or other methods (see, e.g., Supreme Court Decision 95Nu11535, Nov. 24, 1995).

Even if a notice of tax payment alone is insufficient to deem that a statement of tax base and calculation of tax amount are written or a statement of calculation is attached, if the notice of tax investigation sent by an administrative agency prior to the imposition of tax is supplemental to the deficient part, the notice of tax payment cannot be deemed unlawful (see, e.g., Supreme Court Decision 9Du11882, Jun. 15, 2001).

Article 31 of the Subsidy Management Act (Article 31 of the Subsidy Management Act), if the decision to grant a subsidy has already been revoked, the subsidy corresponding to the revoked part and the interest accrued therefrom shall be ordered to be returned within a specified period if the subsidy has already been granted to the subsidized project, and Article 33 of the same Act shall apply to the subsidy to be returned pursuant to Article 31 of the same Act in the same manner

Article 9 of the National Tax Collection Act (amended by Act No. 11605, Jan. 1, 2013) provides that in order to collect national taxes, taxpayers must issue a tax notice stating the taxable year, items, amount of taxes, grounds for calculation, deadline for payment and place for payment of national taxes.

2) The following facts may be found to be apparent in the records or found in Gap evidence Nos. 1, 3, and Eul evidence Nos. 8 and 9 by taking into account the overall purport of the pleadings:

A) On February 17, 2012, the Defendant notified the Plaintiff of a return disposition of unjust enrichment for a social job creation project, and the details, reasons, and grounds were stated therein. On March 2, 2012, the Plaintiff submitted an opinion on the advance notice to the Defendant.

B) On April 3, 2012, C, the representative of the Plaintiff, was served with a statement of payment and a receipt to the effect that “other ordinary income from the Defendant” and “121,44,940 won should be paid by April 16, 2012.” The details of the above statement of payment are written as follows: Article 30 and 31 of the Subsidy Management Act; Article 11 of the Guidelines for the Implementation of Projects for the Creation of Social Job (hereinafter “08”), and Article 11 of the Agreement for the Support of Projects for the Creation of Social Job, and the calculation basis column, respectively.

C) On April 13, 2012, the Plaintiff received the above statement of payment, and submitted to the Defendant the following documents:

No. 1. Local cooperation and -794 ( March 16, 2012) related to the payment of the return disposition: (a) as a result of the review conducted by the Corporation upon receipt of the notification of the refund of the subsidy for the project creating social jobs on March 16, 201; (b) the total amount of the return payment: 129,377,620 won deposited: 17,274,120 won deposited: 17,274,120 won deposited: the estimated amount of the return payment: 12,103,5503 paid labor and paid labor costs to the artists who received labor costs: (c) it is not practicable to re-collect the amount of the return disposition; (d) it was possible to pay the amount of the return disposition on April 2, 201; (d) however, in consideration of the poor financial environment of the culture and arts organization based on the region, it is requested to pay in installments pursuant to the guidelines for the implementation of the project of creating jobs (P)

One copy of the payment plan of the attached installment.

D) On July 20, 2012, the Plaintiff filed the instant lawsuit.

3) Further to the facts acknowledged by the relevant Acts and subordinate statutes and the purport of the entire pleadings, i.e., the following circumstances: ① the Plaintiff received prior notice from the Defendant, stating the contents, reasons and grounds for the instant disposition, and then submitted an opinion thereon to the Defendant; and the Defendant thereafter, served the Plaintiff a statement of payment pursuant to the instant disposition. Even if the grounds for the calculation or disposition are not specified in the above statement of payment, if the part in the prior notice sent by the Defendant is supplemented, the service of the instant disposition is deemed to have been made with the service of the statement of payment, and ② further, on April 13, 2012, the Plaintiff submitted a document stating specific return amount on the premise that the Plaintiff received public notice from the Defendant on April 13, 2012, and the regional cooperation provided as the basis for the delivery of the statement of payment,-794 ( March 16, 2012) and requesting the installment payment. In full view of the above, it is evident that the Plaintiff had the existence and grounds for the instant disposition and the grounds for the statement of payment.

Therefore, the plaintiff's lawsuit of this case is unlawful as it has been filed with the lapse of the filing period.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

The presiding judge, Kim Jae-young

Judges Hong Young-jin

Judges Park Young-young

A person shall be appointed.