2014Guhap102790 Action for nullification of a disposition to return subsidies

1. A social welfare foundation A;

2. Social welfare foundation B;

3. Social welfare foundation C

4. A social welfare foundation D;

5. Social welfare foundation E.

6. Social welfare foundation F;

[Defendant-Appellant] Plaintiff 1

Attorney Lee Dong-tae, Attorneys Lee Dong-tae, Lee Jong-tae, Park Jong-young, and Hah-do

1. The head of Seo-gu Daejeon Metropolitan City;

Han field Law Firm, Attorneys Han Han-chul et al.

Attorney Kang Byung-he, Justice Kim Dong-dong, Counsel for the plaintiff-appellant

2. The head of Dong/Dong in Daejeon Metropolitan City.

Law Firm Postal Services (Law Firm Postal Services)

Attorney Choi Jong-il, Kim Byung-gu, and Song-soo

June 17, 2015

July 15, 2015

1. The plaintiffs' claims against the defendants are all dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Each disposition for the return of each subsidy set forth in attached Tables 1 and 2 to the Defendants’ Plaintiffs in attached Tables 1 and 2 is invalid.

1. Details of the disposition;

A. The plaintiffs are social welfare foundations that the State or local governments should directly implement social welfare programs, and they are subsidized by each subsidized entity that received special allowances for employees of social welfare facilities (hereinafter referred to as "the subsidy of this case") from the defendants (hereinafter referred to as "social welfare foundation"; when they individually agree with the plaintiffs, they omitted "social welfare foundation" and "Plaintiff A"). The defendants are those who provide the plaintiffs with the subsidy of this case.

B. On July 1, 2008, Daejeon Metropolitan City implemented the long-term care insurance system for older persons, which is a public insurance system, changed the financial resources for operating expenses of welfare facilities for older persons, from the government subsidy budget to the funds of the Health Insurance Corporation, and issued orders on July 16, 2008 to five autonomous Gus located in the Daejeon Metropolitan City by modifying the policy to pay special allowances only to the employees of the former on July 1, 2008, to the employees employed in welfare facilities for older persons.

C. From July 23, 2012 to August 3, 2012, Daejeon Metropolitan City conducted an intensive inspection of the special allowances for the employees of social welfare facilities from July 23, 2012, and as a result, the Defendants issued an order to recover subsidies by no later than December 12, 2012 in accordance with the relevant regulations by providing special allowances to the employees employed in the welfare facilities after July 1, 2008 and executing the terms and conditions of granting subsidies through the decision to grant subsidies and the settlement inspection in accordance with the relevant statutes and Article 17 of the Ordinance.

D. On October 26, 2012, the head of Seo-gu Daejeon Metropolitan City (hereinafter referred to as the "head of Seo-gu") ordered that each of the facilities operated by Plaintiff A, B, C, D, and E be an addressee and a payer pursuant to Article 17 of the Seo-gu Seoul Metropolitan City Ordinance on the Management of Local Subsidies, and that the special allowances paid to the employees of the facilities employed after July 1, 2008 were used for purposes other than subsidization."

E. On November 8, 2012, the head of Dong-gu Daejeon Metropolitan City (hereinafter referred to as the "head of Dong-dong") ordered the Defendants to return the special allowances paid to the employees of the facilities employed after July 1, 2008 for the purposes other than a supplementary item, on the grounds that "the special allowances paid to them have been used for the purposes other than a supplementary item," under Article 17 of the Dong-gu Ordinance on the Management of Local Subsidies. (hereinafter referred to as the "the Defendants' respective dispositions of return" in total).

A person shall be appointed.

A person shall be appointed.

F. Plaintiff B, E, and F were dissatisfied with the instant disposition and filed a petition for trial with the Daejeon Metropolitan City Administrative Appeals Commissions, but the Daejeon Metropolitan City Administrative Appeals Commissions dismissed all of the claims by the Plaintiffs on the grounds that the respective request period for trial has expired.

【Uncontentious facts, Gap 1 through 3, 6 through 10, Eul 1, 2, and Eul

1. Each statement of evidence (including each number), the whole purport of the pleading, and the purport of the whole pleading. Whether the disposition of this case is legitimate or not

A. The plaintiff's assertion

Since the instant disposition has a serious defect for the following reasons, the instant disposition is null and void as a matter of course.

1) Disposition against facilities not entitled to become the subject of rights and obligations;

The Defendants issued the instant disposition against the Plaintiffs, who are the subject of rights and obligations, but did not become the subject of rights and obligations.

2) Disposition based on invalid municipal ordinances

Article 17(1) of the former Local Finance Act (amended by Act No. 11900, Jul. 16, 2013; hereinafter the same) and Article 29(5) of the former Enforcement Decree of the Local Finance Act (amended by Presidential Decree No. 25781, Nov. 28, 2014; hereinafter the same shall apply) provide that "the matters necessary for the application for grant of subsidies or other public funds of a local government, the decision to grant, and the use of subsidies shall be prescribed as an example of the relevant local government." Accordingly, the former Ordinance on the Management of Local Subsidies of the Seo-gu, Daejeon Metropolitan City (amended by Act No. 1263, Dec. 22, 2014; hereinafter the same shall apply) and the former Enforcement Decree of the Local Finance Act (amended by Presidential Decree No. 25781, Sep. 27, 2013; hereinafter the same shall apply) provide that "the head of the Gu already issued subsidies or some of the subsidies."

Although the former Local Finance Act and the former Enforcement Decree of the Local Finance Act delegate a private harbor with respect to the application for issuance, decision to grant, use, etc., each of the instant ordinances stipulate the cancellation and recovery of subsidy decision beyond the scope of delegation. Therefore, each of the instant ordinances is null and void since they exceeded the delegation of the mother law.

3) Violation of Article 17-2(2) of the Local Finance Act

Article 17-2 of the former Local Finance Act (amended by Act No. 12687, May 28, 2014) provides that the head of a branch local government may cancel all or part of the decision of a subsidy if the person who received the subsidy uses the subsidy for any other purpose (Paragraph 1). In the event that the decision of a subsidy is cancelled, the head of the branch local government shall order the return of the subsidy already attended (Paragraph 2). The above provision provides that an administrative agency shall order the return of the subsidy if the decision of a subsidy is cancelled. Even though the administrative agency issued an administrative disposition called the non-decision of the subsidy and the other party had the ability to hold the subsidy, the administrative agency shall not immediately cancel the administrative disposition that occurred and shall prevent any administrative disposition that goes against the fairness of the administrative disposition by taking a redemption disposition that goes against the administrative disposition and is contradictory to the fairness of the administrative disposition.

Therefore, in order to take the instant disposition, the procedure to revoke the decision to grant subsidies should be conducted first, but the Defendants were subject to the instant disposition without the revocation procedure. Thus, the instant disposition was unlawful against the above provisions of Article 17-2.

4) Non-existence of the grounds for disposition

The Plaintiffs stated that they were employed by the facility employees, thereby seeking the instant subsidy to the Defendants, and the Defendants did not confirm the Plaintiffs’ application properly and paid the instant subsidy to the Plaintiff as an administrative error. Moreover, since the Plaintiffs paid the subsidies received as such to the facility employees as special allowances in accordance with the purpose of the subsidization, there is no fact that they used the subsidy for the purpose other than the purpose of subsidization.

5) Deviation and abuse of discretionary power

The Defendants’ cancellation of the beneficial administrative act is unlawful against the legal principles of cancellation of the beneficial administrative act and the principle of protection of trust when 4 years have elapsed since they paid the instant subsidy to their own administrative error.

(b) Relevant statutes;

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) As to the assertion that it is a disposition against a facility that cannot be the subject of rights and obligations

As seen earlier, the instant disposition is notified to each facility and each facility is a payer.

However, according to the statements in Gap evidence 4, 8, Eul evidence 1, 3 (including each number number), the plaintiffs filed an application for the subsidy of this case in the name of the head of each facility or facility installed and operated by them, and the disposition of this case contains the collection of "special allowances for the employees of the facility" paid for the operation of the facility on the ground that they violated the terms and conditions of the subsidy.

In addition to the above facts, Article 47 of the Welfare of the Aged Act provides that "the State or a local government may subsidize expenses incurred in establishing and operating welfare facilities under the conditions as prescribed by Presidential Decree." On the other hand, it is reasonable to view the instant disposition to be issued against the plaintiffs as the purport of returning the subsidies provided by each facility.

Therefore, the plaintiff's assertion based on the premise that it is a disposition against a person with no capacity to sue is without merit.

2) As to the assertion of disposition based on invalid municipal ordinances

The ordinances of local governments can only be enacted within the extent that they do not violate the Acts and subordinate statutes even if they fall under the self-government ordinances (Article 22 of the Local Self-Governing Act). However, if the ordinances of the state governing specific matters of the municipal ordinances are intended to be governed by the Acts and subordinate statutes in the absence of any restriction on the purpose and effect of the provisions of the Acts and subordinate statutes, and the ordinances do not completely undermine the purpose and effect of the provisions of the Acts and subordinate statutes by their application, or even if they start for the same purpose, if they start for the same purpose, they do not necessarily intend to regulate the same contents uniformly throughout the country, and if they are interpreted to allow each local government to separately regulate them in accordance with their local circumstances, their ordinances do not violate the Acts and subordinate statutes (see, e.g., Supreme Court Decision 2006Do52, Dec. 13, 2007).

Article 42(1) of the Social Welfare Services Act provides that the State or a local government may grant subsidies to persons who carry out social welfare services. Paragraph (3) of the same Article provides that if a person who has received subsidies uses them for any purpose other than their original purpose or violates an order to comply with the Social Welfare Services Act or the Social Welfare Services Act, the State or a local government may order the return of subsidies already granted. In addition, Article 17(1) of the former Local Finance Act provides that "the local government shall not grant subsidies or make other public funds to individuals or organizations: Provided, That the same shall not apply to cases where it falls under any of the following subparagraphs with respect to the affairs under the jurisdiction of the local government." Paragraph (3) of the same Article provides that "the local government shall grant subsidies to those who have already been granted subsidies in violation of the provisions of Acts and subordinate statutes or the provisions of the former Local Finance Act, which provide that "the local government shall grant subsidies to those who have already been granted subsidies in violation of the provisions of paragraph (1) and shall also be notified of the amount of subsidies that have already been granted as prescribed by Ordinance of the local government.

In full view of the above statutory provisions and the above legal principles, Article 17 of the Ordinance of this case provides almost the grounds for the return of subsidies existing in the Social Welfare Services Act as they are, and thus, local governments shall be separately regulated within the scope of the Act and subordinate statutes, so it shall not be deemed that it violates the statutes of the State.

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

3) As to the assertion of violation of Article 17-2(2) of the Local Finance Act

Article 17-2 of the former Local Finance Act (Amended by Act No. 12687, May 28, 2014) was newly established on July 16, 2013 and was deleted on May 28, 2014, and there was no provision at the time of the instant disposition.

Therefore, this part of the Plaintiff’s assertion, which was premised on the existence of the above provision at the time of the instant disposition, is without merit.

4) As to the non-existence of the grounds for disposition

According to the statements in Gap evidence 3, 6, Eul, 3, and 4 (including each number number), the Daejeon Metropolitan City did not pay special allowances to facility workers employed after July 1, 2008 following the enforcement of the long-term care insurance system for older persons. The Daejeon Metropolitan City notifies five autonomous Gus within its jurisdiction of the revised guidelines; the plaintiffs received full facility operation expenses from the defendants before July 1, 2008, while the plaintiffs received special allowances from the defendants for facility workers employed before July 1, 2008, and the application for subsidies also can be recognized only as a special allowance for the entire facility operation expenses.

According to the above facts, it appears that the plaintiffs were aware that the details of subsidies granted by the Defendants were modified from July 2008, and since the plaintiffs received subsidies from the Defendants contrary to the terms and conditions of support for facility workers, and paid subsidies to facility workers who do not fall under the scope of support, this constitutes use other than the purpose of support, so the plaintiffs' assertion that there is no ground for support does not exist.

5) As to the assertion of deviation and abuse of discretionary power

When there is a defect in an administrative act, a disposition agency that has conducted an administrative act can cancel it by itself even if there is no separate legal basis. Provided, That when the act is a so-called beneficial administrative act that gives citizens rights or interests, it may cancel it only when it is highly necessary for the public interest to cancel it, and when it is necessary for the public interest to compare it with disadvantage such as infringement of the right to obtain and to protect trust and stability of legal life, etc. due to its cancellation, and then when it is highly necessary for the public interest to justify disadvantage such as infringement of the right to obtain (see Supreme Court Decision 85Nu664 delivered on February 25, 196, etc.).

In light of the above legal principles, the following circumstances revealed from the above fact of recognition are as follows: ① the amount of the subsidy of this case is not smaller than the amount, ② the period of unfair payment is extended to a relatively long period of time from January to June, ② the Plaintiff’s holding of the benefit without any counter-payment of the subsidy of this case is contrary to the purport of granting the subsidy; ③ the unfair payment of the subsidy of this case may bring about a serious public interest need for effective administrative sanctions on the grounds that the public interest to be achieved through the disposition of this case may not be deemed to be less unfavorable than the disadvantage of the Plaintiff, such as the Plaintiff’s vested right, trust protection, and infringement of legal stability, etc.

6) Whether the instant disposition is void as a matter of course

Ultimately, the instant disposition does not constitute an unlawful ground as asserted by the Plaintiff, and there is no other circumstance to deem the instant disposition unlawful, so the instant disposition cannot be deemed null and void as a matter of course.

3. Conclusion

Therefore, the plaintiffs' claims against the defendants are dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges Kim Byung-sik

Judges senior promotion

Judges Jeong-chul

1) Although the application for the correction of attached Form (1) dated June 16, 2015 is written as "12, 688, 900 won", it appears to be a clerical error in "12, 688, 890 won";

2) On June 16, 2015, an application for correction of Appendix (1) is written as “8,086,000 won”, but it appears to be written as “8,086,00 won”.

3) On June 16, 2015, an application for correction of Appendix (1) is written as “10, 978, 900 won”, but it appears to be written as “10, 978, 300 won”.

[Attachment 1]

List

1. The head of Seo-gu Daejeon Metropolitan City on October 26, 2012:

A. Special allowances for employees of the facility for the Plaintiff’s facility A to the medical care center

57, 642, 140 won;

B. Special allowances for facility workers employed by the Plaintiff’s social welfare foundation B’s facility B 12,688,890 won 1)

‘‘(b) special allowances of 13,034, 780 won for facilities employed in respect of ‘‘(b)

C. Special allowances for facility workers, 086, 010 won 2) for the facilities C of the Plaintiff’s social welfare foundation C

subparagraph of this section,

D. Special allowances of 22,040, 760 won for the facilities of Plaintiff D’s social welfare foundation

E.S.

(e) A special number of employees of the Plaintiff E’s facility specializing in older persons;

- 10, 978, 300 Won 3) ;

2. To substitute the head of Dong-gu Daejeon Metropolitan City on November 8, 2012 to F facilities of the Plaintiff’s social welfare foundation F

15, 896, 770 won

Each Measure for Refund of Subsidies

[Attachment 2]

Relevant statutes

Welfare of the Aged Act

Article 47 (Subsidization of Expenses)

The State or local governments may subsidize expenses incurred in establishing and operating welfare facilities for older persons, as prescribed by Presidential Decree.

【Social Welfare Services Act

Article 42 (Subsidies, etc.)

(1) The State or a local government shall subsidize persons prescribed by Presidential Decree among those who implement social welfare programs.

all or part of the use may be subsidized.

(2) No subsidy granted under paragraph (1) shall be used for any purpose other than its original purpose.

(3) The State or a local government shall grant a subsidy under paragraph (1) in any of the following cases:

(2) If the subsidy has been already paid, it may be ordered to return all or part of the subsidy already paid.

1. Where he/she has received subsidies by fraud or other improper means;

2. Where he/she has used subsidies for purposes other than those for a project;

3. Where he/she violates this Act or any order issued under this Act.

【Enforcement Decree of the Social Welfare Services Act

Article 20 (Subsidies, etc.)

"Persons prescribed by Presidential Decree" in Article 42 (1) of the Act means any of the following persons:

1. Social welfare corporations;

2. Non-profit corporations that implement social welfare programs;

3. Social welfare centers to expropriate persons eligible for protection of social welfare facilities, or to provide counseling and support for self-reliance;

(1) An individual who establishes and operates a

(1) The former Local Finance Act (amended by Act No. 12687, May 28, 2014)

Article 17-2 (Cancellation of Subsidy Programs, Refund of Subsidies, etc.)

(1) The head of a local government shall receive subsidies pursuant to Article 17 (1) and implement a subsidy program.

(n) Where a subsidized project operator (hereinafter referred to as "subsidized project operator") falls under any of the following subparagraphs, a subsidy shall be granted:

The decision to grant may be revoked in whole or in part.

1. Where he/she has used subsidies for other purposes;

2. Where he/she violates Acts and subordinate statutes, the details of decision to grant subsidies, or the dispositions taken by the heads of local governments;

3. Where he/she has received subsidies by making a false application or by other unlawful means;

(2) The heads of local governments shall replace the portion of subsidy programs whose decision to grant subsidies is revoked with other subsidy programs.

(2) If the subsidy has already been granted, the subsidy corresponding to the cancelled part of the subsidy.

shall order the return of the interest accrued therefrom.

(3) The head of a local government shall determine the amount of subsidies to be granted to a subsidy program operator.

any subsidy already granted and any interest accrued therefrom as a result of such determination by the

If the amount exceeds the finalized amount, the return of the excess amount shall be ordered with a fixed time limit.

(4) The head of a local government shall grant subsidies to be returned to a subsidy program operator pursuant to paragraph (2) or (3).

Tax collection may be collected in the same manner as taxes are collected. In such cases, refunds shall be collected except for national taxes and local taxes.

The public charges shall take precedence over other public charges.

(5) Other completions to ensure the sound and efficient operation of subsidies, such as post-evaluation of subsidy programs.

Matters required shall be prescribed by Presidential Decree.

The former Local Finance Act (Amended by Act No. 11900, Jul. 16, 2013)

Article 17 (Restrictions on Donations, Subsidies or Contributions)

(1) No local government shall grant contributions, subsidies or disburse public funds to individuals or organizations.

Provided, That any of the following subparagraphs shall apply to affairs under the jurisdiction of a local government:

this paragraph shall not apply to payments made by public institutions.

1. Where any provision is prescribed by Acts;

2. Where a subsidy is granted from the National Treasury and has been designated by the State.

3. Where purposes of donations have been designated;

4. Where a local government is unable to conduct a project without granting a subsidy, which is recommended by such local government.

Where it is deemed necessary for the project;

(2) "Public institution" in the proviso to paragraph (1) means any institution related to affairs under the jurisdiction of the relevant local government.

Any of the following institutions which conduct projects recommended by local governments:

1. Institutions the purpose and establishment of which are prescribed by Acts and subordinate statutes or Municipal Ordinance of the local government;

2. Public interest corporations the members of which are local governments;

(3) If local governments intend to grant subsidies pursuant to paragraph (1), they shall suspend or suspend a subsidy program.

to manage the finance in a sound and efficient manner, such as disposal, settlement, and ex post facto evaluation of the remaining assets at the time of completion;

necessary measures shall be taken, as prescribed by Presidential Decree.

Enforcement Decree of the former Local Finance Act (Amended by Presidential Decree No. 25781, Nov. 28, 2014);

Article 29 (Restrictions on Donations, Subsidies or Contributions)

(5) Classes for the disbursement of subsidies or other public funds of local governments provided for in Article 17 (1) of the Act.

Matters necessary for application for non-application, decision to grant and use, etc. shall be determined by Municipal Ordinance of the relevant local government.

Article 30-4 (Reporting on Performance of Subsidy Programs and Settlement of Accounts Thereof)

(1) When a subsidy program operator completes a subsidy program, suspends a subsidy program, or ends of a fiscal year.

When a performance report on a subsidized project is prepared and the head of the relevant local government is prepared.

shall be submitted.

The head of a local government shall receive reports on the performance of a subsidy program from a subsidy program operator pursuant to paragraph (1).

Results of the project, details of the decision to grant subsidies, or disposition by the head of a local government under statutes;

It shall be examined as to whether it is appropriate. In such cases, a field investigation shall be conducted, if deemed necessary.

(3) The head of a local government shall meet the standards for examination referred to in paragraph (2) with respect to the results of subsidy programs.

If deemed, the amount of the subsidy to be granted shall be determined and notified to the subsidized project operator.

(2) if the subsidy already granted exceeds the final amount, the amount in excess shall be refunded.

must be taken.

Article 1 (Purpose) of the Seo-gu Daejeon Metropolitan City Ordinance on the Management of Local Subsidies (Amended by Ordinance No. 1263, Dec. 22, 2014)

The purpose of this Ordinance is to prescribe matters necessary for the subsidiary methods and use of subsidies pursuant to Article 17 of the Local Finance Act and Article 29 (5) of the Enforcement Decree of the same Act.

Article 11 (Prohibition of Use for Other Purposes)

A subsidized project operator shall faithfully perform the subsidized project with the care of a good manager in accordance with the details and conditions of Acts and subordinate statutes and the decision to grant subsidies, and shall not use the subsidy for any other purpose.

Article 17 (Sanctions against Persons Eligible for Subsidies)

When the head of the Gu deems that a person who has received a subsidy falls under any of the following, he/she may suspend the grant of the subsidy or order him/her to return all or part of the subsidy already granted:

1. Where he/she violates Acts and subordinate statutes or the condition of subsidization;

2. When there is no possibility of success in the subsidized project;

3. When it suspends all or part of its business;

4. When the purpose of the grant of subsidies is not to contribute to the public.

5. Where he has received the subsidy by fraudulent or other illegal means;

6. Where he violates an order or disposition issued or taken under this Ordinance, or refuses an inspection, or makes a false report.

Article 1 (Purpose) of the Dong-gu Daejeon Metropolitan City Ordinance on Management of Local Subsidies (Amended by Ordinance No. 990, Sept. 27, 2013)

The purpose of this Ordinance is to prescribe matters necessary for the objects, methods, purposes, etc. of granting subsidies, which are financed with financial resources pursuant to Article 17 of the Local Finance Act and Article 29 of the Enforcement Decree of the same Act.

When the head of the Gu deems that a subsidy recipient falls under any of the following subparagraphs, he/she may suspend the grant of the subsidy or order him/her to return all or part of the subsidy already granted:

1. Where he/she violates Acts and subordinate statutes or the condition of subsidization;

3. When it suspends all or part of its business;

4. When the purpose of the grant of subsidies is not to contribute to the public.

5. Where he has received the subsidy by fraudulent or other illegal means;

6. Where he violates an order or disposition issued or taken under this Ordinance, or refuses an inspection, or makes a false report.