2015Guhap51242 Revocation of a disposition, such as the suspension of principal qualifications.

Fixed00

Law Firm Dokdo, Attorneys Yju-young, Counsel for the plaintiff-appellant

The Nam-gu Incheon Metropolitan City

The nature of the litigation performer and the Korean Commercialization;

September 10, 2015

October 29, 2015

1. The disposition that the Defendant ordered the Plaintiff to fully return KRW 5,126,000 of the total amount of rebates for special activity expenses on March 9, 2015 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

The Defendant’s disposition of suspending the qualification of the head of a child-care center against the Plaintiff on March 9, 2015 (from April 20, 2015 to June 19, 2015) and each disposition of refunding the total amount of KRW 5,126,00,00 for special activity expenses rebates, shall be revoked.

1. Details of the disposition;

A. The Plaintiff is the head of a child-care center operating ○○ Child-Care Center located in 000 apartment units in Nam-gu Incheon Metropolitan City. However, on May 8, 2013, the Seoul Yangyang Police Station notified the Mayor of Incheon Metropolitan City of the fact that the Plaintiff was punished on the ground that the Plaintiff was refunded KRW 5,126,00 for special child-care center activity expenses from April 201 to February 201, and the Mayor of Incheon Metropolitan City requested the Defendant to take an administrative disposition against the Plaintiff on the same day. On August 9, 2013, the Defendant issued an administrative disposition against the Plaintiff on the ground of the foregoing facts. On March 9, 2015, the Defendant revoked ex officio on the ground of procedural defects, and then on March 20, 2015, the suspension of qualification of the president’s qualification (hereinafter “Special Disposition”) from April 20 to June 19, 2015 (hereinafter “Special Disposition”).

A disposition that orders the total return of 5,126,00 won of the rebates amount to the parents of children (hereinafter referred to as the "instant return order disposition") was made.

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

A. The plaintiff's assertion

1) The Plaintiff received a refund of KRW 5,126,00,00 from an enterprise out of the money received as expenses for the special activities of a child care center, but the Infant Care Act provides that a corrective order shall be issued only when the child care fee is paid in excess of the limit. The Plaintiff received special activities expenses within the extent not exceeding KRW 90,000 per month prescribed by the Mayor of Incheon Metropolitan City, and thus, the instant return order disposition is illegal disposition without any legal basis.

2) According to the Infant Care Act, the head of a nursery facility may suspend a person’s qualification in cases where the head of the nursery facility causes damages to the nursery facility. The damages here refer to the Plaintiff’s damages to the nursery facility. As such, the Plaintiff paid the money which was refunded as rebates to a child care center’s driver’s fees to the nursery school and did not inflict damages to the nursery school, the instant suspension of qualification is unlawful on a different premise. 3) In light of the fact that the Plaintiff used the money which the Plaintiff received as rebates as operating expenses of the nursery facility and that other administrative agencies than the Defendant applied the relaxed administrative disposition standards against the same type

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) According to Article 38 of the former Infant Care Act, a person who establishes and operates a nursery may receive infant care fees and other necessary expenses from users of the nursery within the extent determined by the Mayor/Do governor having jurisdiction over the location of the nursery. According to Article 44 subparagraph 5 of the former Infant Care Act, where the nursery exceeds the maximum amount of infant care fees under Article 38, the head of the nursery or the installer and operator of the nursery may order such correction.

In addition, according to the Incheon Metropolitan City Child Care Business Guidance (No. 2) in 2010, the Mayor of Incheon Metropolitan City set the limit of necessary expenses attached to the consent of the guardian at two to five years of age in the case of private educational facilities, and the head of the nursery facilities voluntarily after consultation with the guardian within the above limit, when he receives the amount of expenses other than the childcare fees and the amount of other necessary expenses in 2010 of the Infant Care Act, excluding the childcare fees and the admission fees under Article 38 of the Infant Care Act.

The legislative intent of Articles 38 and 44 subparag. 5 of the former Infant Care Act is to restrict the payment of excessive childcare fees, etc. by the head of a nursery facility exceeding the statutory limit, and it cannot be deemed that the head of a nursery facility would not actually use childcare fees, etc. within the statutory limit and make it possible to regulate the case where the head of a nursery facility receives a refund of childcare fees, etc. in the form of rebates from an enterprise without using them for childcare. Therefore, even though the head of a nursery facility conceals the fact that part of the special activity expenses are refunded as rebates and receives special activity expenses from his/her guardian, the guardian may claim the refund of childcare fees, etc. by means of civil damages, etc., under the former Infant Care Act, which regulates the amount exceeding the statutory limit of childcare fees, etc.

As to the instant case, there is no dispute between the parties that the Plaintiff received special activity expenses within the limits of KRW 90,000 as determined by the Mayor of Incheon Metropolitan City from his guardian, and thus, the disposition of the return order of this case shall be revoked in an unlawful manner,

2) According to Article 46 of the former Infant Care Act, the Minister of Health and Welfare may suspend the qualification of the head of a nursery within one year when he/she causes damage to the nursery facilities intentionally or by gross negligence in the course of performing his/her duties. Considering the legislative intent of the former Infant Care Act and the object of protection, the above provision cannot be interpreted as a case where the head of the nursery facilities causes damage to the nursery facilities operated by him/her, and Article 46 of the former Infant Care Act is revised as a case where he/she causes damage to the infant, and the purpose of the provision

With respect to this case, it is sufficient to see that the Plaintiff intentionally sustained special activity expenses from guardians of infants and their guardians by concealing the fact that the Plaintiff received part of the special activity expenses from the special activity enterprises as rebates. Thus, the Plaintiff’s assertion disputing this case is without merit.

3) Article 39(2) and attached Table 10 of the Enforcement Rule of the Infant Care Act under delegation by Article 46 of the former Infant Care Act provides that suspension of qualifications for the primary violation shall be imposed for three months in other cases where the principal of a child care center causes serious damage to the life, body, or mental health of the infant, or where the principal of a child care center intentionally or by gross negligence during the performance of his/her duties, or where the day of operation or the hours of operation intentionally violates the standards, or where the principal of a child care center

As to the instant case, in full view of the following facts: (a) the Plaintiff’s disposition of suspending the instant disposition was rendered on a large amount of money which the Plaintiff received as rebates and was mitigated than the administrative disposition criteria set forth in the Enforcement Rule of the Infant Care Act; (b) there is no evidence to deem that the Plaintiff used the money received as rebates as operating expenses of a child care center; (c) the Defendant and the head of the Young-gu Seoul Metropolitan City Office separately determines the same or strict suspension of qualifications for the same type of case (Evidence No. 4); and (d) the operating standards for child care centers depending on regional characteristics, and (e) the extent of regulation on child care centers is different; and (e) the Plaintiff’s assertion that the instant disposition criteria for imposing the instant disposition is not equally applicable to the Defendant; and

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judgment of the presiding judge;

Prosecutor General-Type

Judges Hong Sung-gi