Social welfare foundation (Law Firm aiming at Law, Attorneys Hy-sik et al., Counsel for defendant-appellant)

Yangyang-gun (Court of Law, Attorney Seo-young, Counsel for defendant-appellant)

December 1, 2016

Suwon District Court Decision 2015Guhap61024 Decided June 29, 2016

1. The judgment of the court of first instance is modified as follows.

A. On November 11, 2014, the Defendant’s disposition of improvement order No. 2014-4 6 in the attached Form 1 List against the Plaintiff is revoked.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 90% is borne by the Plaintiff, and the remainder is borne by the Defendant.

1. Purport of claim

On November 11, 2014, the Defendant revoked each disposition in the separate disposition number column as indicated in the separate disposition number column as indicated in the separate disposition list as indicated in the separate disposition list as indicated in attached Table 1. With respect to the disposition disposition No. 2014-4 (3), the Defendant issued an order for improvement that ordered the Plaintiff to return KRW 21,210,000 as the Plaintiff’s corporate account, but revoked ex officio the total of KRW 14,410,000, which constitutes the disposition for the refund of duty allowances from 2010 to February 2013, 2016, the Defendant sought revocation of the order for the return of KRW 6,80,000,000, as well as the Plaintiff’s claim for the above disposition at the trial.

2. Purport of appeal

A. The plaintiff

The part against the plaintiff in the judgment of the court of first instance shall be revoked. Each disposition of the defendant on November 11, 2014 in the separate sheet of Disposition No. 2014-4, excluding the improvement order disposition No. 5, shall be revoked.

B. Defendant

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

1. Details of the disposition;

The reasoning for the court's decision on this part is as follows: (a) adding "No. 22" to "No. 4" under the table of the judgment of the court of first instance (which is the ground for recognition); (b) adding "No. 22" to "No. 4; and (c) adding the above above to the corresponding part of the reasoning of the judgment of the court of first instance; and (d) cite it as it is in accordance with Article 8

“C. The Defendant revoked ex officio the part exceeding the part of the order to return KRW 6,800,000 of the disposition No. 2014-43, Nov. 9, 2016, which was pending in the trial proceedings (hereinafter referred to as “disposition No. 2014-4, Mar. 3, 2016”).

2. The plaintiff's assertion

The reasoning for this Court’s judgment on this part is as follows: (a) there is an additional assertion by the Plaintiff in the trial regarding the disposition No. 2014-4 (3) of the first instance judgment on the ground for individual disposition No. 4 of the first instance judgment, i.e., the second part of the first instance judgment on the ground for individual disposition No. 2014-4 (2). However, as seen earlier, since the Defendant partly revoked the above disposition on Nov. 9,

Except for deletion or modification of some of the following, it is identical to the corresponding part of the reasoning of the judgment of the court of first instance, and thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○, No. 5 of the first instance judgment, the part of the first instance judgment, “If the Plaintiff fails to comply with the Financial Accounting Rules,” shall be deleted.

○ The fifth to eighth shall be amended as follows. The fifth to eighth shall be amended as follows.

[A] Claim related to disposition No. 2014-4 (1)

It is true that the Plaintiff did not manage the food preparation received from the employees of the Egypt's house, circular protective workplace, and Logypt's house as a separate passbook and deposited the money into the passbook in the name of the Plaintiff corporation. However, the money was used for the Plaintiff corporation and the persons with disabilities admitted to the Plaintiff corporation. There is no limitation on the method of keeping the food preparation and the place of its use. Therefore, the Plaintiff's above act does not constitute a violation of the Financial Accounting Rules

○ From 6th of the first instance judgment, the first instance judgment was amended to 12th of the same day.

【Ma) No. 2014-4 (6) Any assertion related to disposition.

The Defendant’s disposition is based on the violation of the standards for using non-designated support payments. However, the management guidance for social welfare facilities in 2011 and 2012, which was enforced during the period from June 2, 2011 to April 25, 2012, when the Plaintiff repaid loans and interest related to the purchase of apartment units of Experience Homes with non-designated support payment that was non-designated support payments by the Plaintiff corporation, shall be used for the management guidance for social welfare facilities in the name of the corporation’s operating expenses or facility operating expenses: Provided, That the above provision does not have any external binding force since it does not have any provision regarding the contents of the standards for using non-designated support payments and the restriction on the use of non-designated support payments in 2012, and the Plaintiff’s use of the above support fund constitutes an act of using the Plaintiff’s facility under the name of the Plaintiff’s Financial and Social Welfare Foundation and Social Welfare Facility Rules (which was enforced on August 7, 2012).

3. Relevant statutes.

As shown in the attached Table 2, the guidelines for the management guidance of social welfare foundation and the guidelines for the management guidance of social welfare foundation shall be as follows: evidence No. 34 through 36 and evidence No. 16, evidence No. 23-1 and 2 of evidence No. 23).

4. Determination

The reasoning for the court's judgment on this part is as follows, and this part of the judgment is identical to the corresponding part of the reasoning of the judgment of the first instance except for the addition and modification as follows. Thus, this part of the judgment is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of

Article 41-7(2) of the Financial Accounting Rules provides that “The Minister of Health and Welfare may set standards for support payments for which a sponsor has not designated the purpose of use,” and accordingly add “the 2013 and 2014” prepared by the Minister of Health and Welfare.

○ The 14th written judgment of the first instance is amended from 14th to 11th of the same page.

“The Plaintiff may recognize the fact that Nonparty 1, the head of the beneficiary office, is the job allowance of KRW 500,000 per month from March 2013 to May 2014, 2014, and that Nonparty 2, the head of beneficiary office, is the job allowance of KRW 300,000 per month from January 2014 to April 2014, and the total amount paid in excess is KRW 6,80,000 per month.”

○ Heading 20 to 15 pages 14 of the first instance judgment shall be amended as follows.

(5) Disposition No. 2014-4)

Article 41-7(2) of the Financial Accounting Rules provides that "the Minister of Health and Welfare may determine the standards for use of support payments for which the sponsor has not designated the purpose of use." Accordingly, the guidelines for the management guidance of social welfare foundation and the management guidance of social welfare facilities in 2013 formulated by the Minister of Health and Welfare provide that "non-designated support payments shall be used as corporate operating expenses and operating expenses, but the ratio used as indirect expenses shall not exceed 50%: Provided, That it is prohibited in principle, but it is possible to purchase any house, equipment, etc. necessary for operating facilities except land and buildings, and according to the purport of the evidence No. 17-1 through 4 of the evidence No. 17 and No. 21-2 of the evidence No. 21-2 of the Financial Accounting Accounting Rules, according to the whole purport of the arguments and arguments, the plaintiff's act of using support payments to the plaintiff can be acknowledged as being used for purposes other than the above provision No. 400, Mar. 5, 2013.

○ Heading 5 to 14 of the 15th judgment of the first instance is amended as follows.

(e) Disposition No. 2014-4 6

(1) Facts of recognition

In full view of the overall purport of the statements and arguments in Gap evidence 18, 34, and 36, Eul evidence 6, 16, Eul evidence 13-1, 3, 4, and Eul evidence 23-1, and 2 of Eul evidence 13-2, experience home projects constitute the plaintiff's purpose of business by providing a certain residential space for the disabled who are deemed to have been living in the disabled living facilities and to have been in need of living in the community, and supporting self-reliance preparation. The plaintiff received some of the funds to purchase experience home apartment units under the name of the plaintiff corporation on May 2, 2011 following the resolution of the board of directors; the plaintiff's loan from June 2, 2011 to April 25, 2012; the defendant's loan of 63,811, and 490 won (hereinafter "the loan of the plaintiff corporation of this case") to be used as non-designated social welfare facility guidance; the above provision of this case's loan management guidelines was not applied mutatis mutandis.

(2) Whether a disposition is lawful under Article 2014-4 (6)

The defendant, based on the above disposition, provides guidance on the management of social welfare facilities at the time of repayment of the loan of this case. However, according to Gap evidence No. 34, the above guidance merely provides for the management guidance of social welfare facilities at the time of repayment of the loan of this case, and it cannot be deemed to have an external binding legal order, and there was no provision that "the Minister of Health and Welfare may set standards for the use of non-designated donations for which the sponsor did not designate the purpose of use." The above provision was newly established only under Article 41-7 (2) of the Financial Accounting Rules amended on August 7, 2012, and the above disposition is merely based on the management guidance of social welfare facilities without external binding force, and thus, the defendant's disposition ordering the plaintiff to pay the above amount of loan of this case pursuant to Article 40 (1) 4 of the Social Welfare Services Act is unlawful.

No. 20 of the judgment of the court of first instance, the term “No. 20” in the second sentence shall be changed to “?”, and the term “accounting division” in the fourth sentence shall be changed to “accounting”, respectively.

5. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, it is so decided as per Disposition by accepting part of the plaintiff's appeal and the defendant's appeal, and by modifying the judgment of the court of first instance as above.

[Attachment]

Judges Yoon Sung-won (Presiding Judge)

1) As to the disposition No. 2014-4 in the separate disposition No. 2014-4 in the separate disposition list No. 1, the Defendant issued an order to order the Plaintiff to return KRW 21,210,000 to the Plaintiff’s corporate account, but on November 9, 2016, the Defendant revoked ex officio the total of KRW 14,410,000, which constitutes the disposition of return of duty allowances from 2010 to February 2013, and accordingly, the Plaintiff reduced the Plaintiff’s claim as to the above disposition to seek revocation of the order to return KRW 6,80,000.

2) Although the Plaintiff alleged an additional assertion in the trial regarding the disposition No. 2014-43, the Plaintiff’s assertion is not indicated separately, as seen earlier, since the Defendant’s partial revocation of the above disposition on November 9, 2016, reflecting the assertion.