2020 Gohap74931 Revocation of a suspension of qualification

March 19, 2021

April 2, 2021

1. The Defendant’s disposition suspending the qualification of the president for three months against the Plaintiff on April 27, 2020 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff is the president of "E" (hereinafter referred to as "child care center of this case"), who is a private child care center in Seoul ○○-gu* ○○○○-ro* (○○-dong)* (○○-dong), and F, who is the plaintiff and the intermediary, is the founder and operator of the child care center of this case (representative).

B. On November 22, 2019, the Defendant confirmed that F, who is not qualified as a cook, conducts cooking work through guidance and inspection of the instant childcare center, and, on the ground that “The Plaintiff, even though the instant childcare center was an meal service facility, had a person disqualified as a cook, employed and conducted cooking work.” On April 27, 2020, the Defendant issued a disposition of suspending qualification for three months against the Plaintiff pursuant to Article 51 of the former Food Sanitation Act (amended by Act No. 17785, Dec. 29, 2020; hereinafter the same), Article 46 subparag. 2 of the Infant Care Act (amended by Act No. 17785, Dec. 29, 2020), Article 39(2) [Attachment Table 10] of the Enforcement Rule of the Infant Care Act, Article 51 of the former Food Sanitation Act (amended by Act No. 17809, Dec. 29, 2020).

C. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Seoul Special Metropolitan City Administrative Appeals Commission on May 7, 2020, but was ruled dismissed on July 20, 2020.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 2 and 4, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

A) On December 17, 2019, prior to the instant disposition, the Plaintiff employed a cook license holder and had him/her engage in cooking work. As such, the Plaintiff did not have any grounds for disposition or had it terminated.

B) Article 46 subparagraph 2 of the former Infant Care Act (hereinafter referred to as “instant provision”) which is a law based on the instant disposition provides that only where a cook hires a person who is not qualified to perform the pertinent duties and carries out the duties of “child care teachers, nurses, or dietitians, etc.” shall be subject to the suspension of qualification. Thus, the aforementioned provision shall not be deemed to include the above “child care teachers, nurses, or dietitians, etc.”

C) Article 51(1) of the former Food Sanitation Act applies only to the operation of meal service facilities within an industrial enterprise, and the child-care center of this case is not an industrial enterprise (Article 2 of the Enforcement Decree of the Food Sanitation Act), and the above provision is not applicable. Furthermore, according to the “child-care center guidance of the Ministry of Health and Welfare for the child-care business guidance of the Ministry of Health and Welfare in 2019 (hereinafter the “instant guidelines”), which is the basis of the instant disposition, only the “child-care center providing meals to not less than 50 persons at a time per hour” constitutes a meal service facility under Article 51(1) of the former Food Sanitation Act. Thus, the instant child-care center cannot be deemed to have provided meals to not less than 50 persons on a regular basis due to the redevelopment of neighboring areas,

2) Violation of the principle of statutory reservation

The instant provision provides that the scope of duties, which are grounds for the suspension of the qualification of the president, shall be limited to “child care teachers, nurses, or dietitians,” and it does not clearly predict the scope thereof through delegation by subordinate statutes (in the case of child care centers with 40 to 80 infants under the delegation by Article 17(5) of the former Enforcement Rule of the Infant Care Act, Article 10, attached Table 2, and 1(e) of the Enforcement Rule of the Infant Care Act, and Article 17(5) of the former Infant Care Act, only one cook shall be assigned, and only one cook shall be assigned, if he is not a cook. This case’s disposition violates the principle of statutory reservation based on the instant guidelines, which is merely an internal administrative work rule of the administrative organization, with the content of which is not clearly delegated by the law, and is therefore not a legal basis.

3) unconstitutionality of the instant provision

The provision of this case goes against the principle of clarity under the Constitution, even though the provision of this case is subject to a heavy sanction such as suspension of the qualification of the president when it is in violation of this provision, it is extremely difficult to clearly predict the scope of duties prohibited by the language alone, and thus is contrary to the principle of clarity under the Constitution. In addition, the provision of this case uniformly applies not only to national and public childcare centers which pay cooking wages to the government, but also to small private childcare centers which have no choice but to cover cooking wages by themselves without subsidies. This is essentially different group, and thus, violates the right of equality. Accordingly, the provision of this case is unconstitutional

(iv) deviation from and abuse of discretionary power;

The instant disposition is too harsh to the Plaintiff, as it did not disregard the actual status of the operation of a small private childcare center, so that the suspension of the qualification of the president can not be performed as the president by ordering the suspension of qualification on one occasion, and thus, the instant disposition is too harsh to the Plaintiff. In light of other circumstances, the instant disposition is in violation of the law of deviation

(b) Fact of recognition;

1) According to the application and payment details of subsidies for child care centers of this case managed by the Defendant, the child care centers of this case were 45 to 65 infants belonging to the instant childcare center from July 2017 to December 2019, and 50-72 total number of meals (food) to 2 to 7 infant care teachers and staff belonging to the instant childcare center.

2) However, the Plaintiff did not separately employ cooks during the above period, and did not report the establishment and operation of meal service facilities under Article 88(1) of the former Food Sanitation Act. The Defendant issued the instant disposition based on Article 46 of the former Infant Care Act on the ground that the Plaintiff did not separately employ cooks and let F without being allowed to engage in cooking duties, and imposed an administrative fine of one million won on the ground that the Plaintiff did not report the establishment and operation of meal service facilities.

3) From June 2017 to June 2018, F, the Plaintiff’s intermediary, was paid KRW 2.6 million each month for the year 2018, and KRW 3 million each month for the year 2019, and on June 10, 2019, the Defendant was appointed and dismissed as the manager of the instant childcare center. The Plaintiff’s mother I, the Plaintiff’s mother, was paid KRW 1 million each month from March 2018 to February 10, 2019 while performing the cooking of the instant childcare center, and was appointed and dismissed as the guardian of the instant childcare center on June 10, 2019. From March 3, 2018 to February 2, 2019, F, from March 2018, I and from March 1, 2019 to December 16, 2016, respectively.

4) On December 17, 2019, the Plaintiff, after the Defendant’s guidance and inspection, employed J as a cook, holding a cooking license.

5) Of the 106 pages and 202 pages of the instant guidelines, the part of the kitchen for childcare staff (Article 17 of the former Infant Care Act and Article 10 of the Enforcement Rule of the Infant Care Act), which provides meals to at least 50 persons at a regular time pursuant to the Food Sanitation Act, includes “neither childcare center that provides meals to at least 50 persons at a time shall be reported and operated as meal service facilities to the department related to sanitation of the Si/Gun/Gu office and assign cooks with cooking licenses.”

[Reasons for Recognition] Class A, Evidence Nos. 3, 4, Eul Nos. 2, 4, 6, 8, and 9, and the purport of the whole pleadings

C. Determination

1) Whether the grounds for disposition cease to exist

In light of the language and text of Article 46 subparagraph 2 of the former Infant Care Act and the text, structure, etc. of the part other than the above subparagraphs of the same Article, the disposition of this case was conducted as a sanction for the past act that the plaintiff employed an unqualified person as infant care teacher, nurse, dietitian, etc. while operating the child care center of this case. Thus, it cannot be deemed that the grounds for the previous disposition have ceased to exist on the ground that the plaintiff employed a qualified person before the disposition of this case and had him/her perform the duties of infant care teacher, nurse, dietitian, etc.

2) Whether Article 2 subparag. 12 and the main sentence of Article 51(1) of the former Food Sanitation Act are applicable

A) Article 2 subparag. 12 (d) of the former Food Sanitation Act provides that meal facilities for social welfare facilities that provide food to many and specified persons without profit-making purposes and that provide meals to at least 50 persons each time (Article 2 subparag. 12 (d) of the same Act, and Article 2 of the Enforcement Decree of the Food Sanitation Act). Article 2 of the same Act provides that meal service facilities shall employ cooks holding a cooking license under the National Technical Qualifications Act, in principle, except for cases where a meal service facility operator or food service business operator prepares food and drink himself/herself as cooks, where the number of meal service facilities is less than 10 persons per meal time, and where a dietitian holding a cooking license is located (Article 51(1) of the former Food Sanitation Act

B) We examine whether the instant childcare center constitutes a meal service facility that ought to employ cooks. The instant childcare center has provided meals to at least 50 private childcare centers established and operated under the Infant Care Act once, as seen earlier. As such, the instant childcare center constitutes a meal service facility, and the instant childcare center is not recognized as an exceptional ground under the proviso to Article 51(1) of the former Food Sanitation Act, and therefore, it is necessary to employ cooks pursuant to the main sentence of the same Article (the Plaintiff’s assertion that the instant childcare center cannot be a meal service facility because it is not an industrial enterprise, since it does not necessarily mean that the instant childcare center is established only under the premise that it is established in an industrial enterprise).

3) Whether it falls under the instant provision

A) As such, although the child-care center of this case is a meal service facility under the former Food Sanitation Act, the Plaintiff had I and F (hereinafter referred to as "I et al.") perform the cooking of the child-care center of this case without a cooking license, as seen earlier.

B) However, in full view of the following circumstances revealed through the language and structure of the relevant statutes and the facts acknowledged earlier, it is difficult to readily conclude that the Plaintiff’s aforementioned circumstance alone constitutes “a case where the Plaintiff hires a person who is not qualified to perform the pertinent duties under the former Infant Care Act beyond the violation of the obligations under the former Food Sanitation Act and carries out the duties of infant care teachers, nurses, or dietitians.” Accordingly, the instant disposition on a different premise should be revoked on the ground that it is unlawful without having to further examine the remainder of the Plaintiff’s assertion.

(1) The former Infant Care Act does not have any delegation provision concerning the meaning of the "child care teachers, nurses, or dietitians, etc." under the provisions of this case, and the guidance of this case does not have any provision specifying the meaning of the above "child care teachers, nurses, or dietitians, etc." (However, the defendant can interpret that the above "child care teachers, nurses, or dietitians, etc." can be sufficiently included in the above "child care teachers, nurses, or dietitians, etc." based on the contents of the former Food Sanitation Act, even if there is no direct definition provision. Therefore, whether the above "child care teachers, nurses, or dietitians, etc." are included in the above "child care teachers, nurses, or dietitians, etc." should be determined by comprehensively considering the language and structure of the provisions of this case, the system of the Infant Care Act and the purport of Article 51 (1)

(2) In the case of the provision of this case, the term "lights, etc." is used as "any other words indicating that the same kind of persons is greater than others," but it is also used as "a word indicating that the subject is limited only to two or more persons listed," as "a word indicating that the subject is used." In the case of only the language of the provision of this case, it is not evident that it falls under any one of the above, and it is not possible to interpret that the term "a person who is qualified to perform duties, such as infant care teachers, nurses, and dietitians, as argued by the defendant," the term "a person who is qualified to perform duties, such as infant care teachers, nurses, and dietitians," as well as "a person who is qualified to perform duties," as argued by the defendant.

(3) However, administrative laws and regulations, which serve as the basis for influence administrative acts, should be strictly interpreted and applied in accordance with the language and structure, and it is difficult to view that a cook is included in the "child care teacher, nurse, dietitian, etc." under the provisions of this case for the following reasons.

(A) Article 17(5) of the former Infant Care Act provides that matters necessary for the standards for placement of infant care teachers and other human resources shall be prescribed by Ordinance of the Ministry of Health and Welfare. Article 10 of the Enforcement Rule of the Infant Care Act and attached Table 2 provide that the kinds and number of infant care teachers, infant care teachers, nurses, dietitians, dietitians, and other infant care teachers (doctors, social workers, office workers, administrators, sanitation officers, drivers, and dietitians, etc.), which are required according to the number of infant care, shall be included in the standards for placement of infant care teachers and staff in accordance with the above attached Table 2. On the other hand, cooks shall not be included in the standards for placement of infant care teachers and staff ( regardless of whether they are qualified as cooks). The provision of this case provides that infant care teachers and staff who are required to engage in cooking shall be deemed to have a relationship with the above Article 17(2) of the Infant Care Act or 2 of the former Enforcement Rule of the Infant Care Act, which provides for safe and pleasant infant care for the purpose of infant care.

(B) Separately, the Food Sanitation Act aims to contribute to promoting the public health by preventing sanitary harm caused by food, promoting the qualitative improvement of food nutrition, and compelling a person to report and provide a cook on the same meal service facility as the child-care center of this case in order to achieve its intended purpose, while imposing an administrative fine not exceeding five million won (violation of duty to report) on a person operating a meal service facility who violates this provision, or imposing an administrative fine not exceeding three years (violation of duty to employ a cook) or a fine not exceeding 30 million won (violation of duty to employ a cook) (Article 51(1), Articles 8(1), 96, and 101(2)9 of the former Food Sanitation Act), and food sanitation as such.

The laws and regulations have enough regulations to regulate the operation of meal facilities without employing cooks. In addition to such sanctions, it is not recognized that the scope of application of the provisions of this case should be expanded through the interpretation that takes the grounds for suspending the qualification of the head of the child-care center.

(C) The narrow interpretation of the provision of this case as the latter is more appropriate to narrow the scope of the instant administrative act to ensure the predictability and legal stability of the criminals by narrowizing the scope of the instant administrative act. The broad interpretation of the provision of this case, like the former, is likely to undermine legal stability by lowering the predictability of the criminals. The former Food Sanitation Act sufficiently provides sanctions against the violation of Article 51(1). As such, it cannot be deemed that there is a need for significant public interest to apply the instant provision to the Plaintiff while impairing legal stability.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.