(영문) 대구고등법원 2012.10.26.선고 2012누1694 판결

A. On September 27, 2005, the Plaintiff acquired 'D Child Care Center' (hereinafter "Child Care Center") located at C, 000, Dong C, Dong C, 000, from the Defendant. On April 10, 2007, the Plaintiff obtained on September 27, 2005, approval from the Defendant for changing the location of the child’s home to 00, Daegu E-dong E-dong E-dong, the representative as the Plaintiff, and the fixed number from 33 to 49. On December 19, 2008, the Plaintiff was authorized to change the fixed number of the child care center from 49 to 68.

B. On January 27, 2012, the Plaintiff filed an application with the Defendant for authorization to change the number of the instant childcare center from 68 to 121.

C. On February 2, 2012, the Defendant rendered the instant disposition rejecting authorization for the change of nursery facilities against the Plaintiff on the ground that the supply of nursery facilities exceeds the demand for infant care. [Grounds for recognition] The Defendant did not dispute the fact that there is no dispute, the entry of the evidence No. 2 No. 1 and the purport of the entire pleadings on January 23, 2012.

2. Summary of the parties’ assertion

A. The plaintiff

(1) Article 5(3) of the Enforcement Rule of the Infant Care Act does not stipulate that the Infant Care Act does not restrict the authorization of the establishment of a child care center, but Article 5(3) of the Enforcement Rule of the Infant Care Act provides that "after confirming the demand for infant care in the relevant area, it shall be determined whether to grant the authorization." Thus, the above Rule constitutes a rule that restricts the authorization of the establishment of a child care

(2) The Defendant’s demand rate for infant care is based on the fact-finding survey data in 2004, and it is unreasonable to predict the demand for infant care based on which the actual demand for infant care is much different from the actual demand for infant care. In light of the fact that the number of waitings for child care centers in this case reaches 77, and that the Plaintiff spent 429,500,000 won for the purpose of changing the number of capacity, the instant disposition is deemed to have exceeded and abused discretionary authority.

B. Defendant

The Defendant investigated the demand for infant care by applying relevant statutes, such as the Infant Care Act, guidelines of the Ministry of Health and Welfare, and the Defendant’s new authorization and handling guidelines for infant care facilities (hereinafter referred to as the “instant authorization guidelines”), and applying 30.2% of the infant care rate, 42.2% of the infant, and 42.2% of the infant care. In the case of E- consent to which the instant child care center is located, the supply of childcare facilities with 360 infant care facilities exceeds the infant care demand. As such, the Defendant, in accordance with relevant statutes, refused the Plaintiff’s authorization to change childcare facilities in order to prevent the malfunction of childcare facilities and the deterioration of the quality of infant care services. Accordingly, the instant disposition is lawful in accordance with relevant statutes, etc.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Judgment on the Plaintiff’s assertion No. 2-A. (1)

(1) Article 11(1) of the Infant Care Act provides that the Minister of Health and Welfare, the Mayor/Do Governor, and the head of a Si/Gun/Gu office shall establish and implement a child care plan, including a plan for supply and demand of child care centers, in cases of the Minister of Health and Welfare in order to facilitate child care services; and Article 13(1) of the same Act provides that a person who intends to establish and operate a child care center, other than national and public child care centers, shall obtain authorization from the head of the Gu, etc.; the same shall also apply to cases where he/she intends to change important matters among the authorized matters; and Article 11(2) of the former Enforcement Rule of the Infant Care Act provides that matters necessary for authorization shall be prescribed by Ordinance of the Ministry of Health and Welfare. Article 5(1) of the former Enforcement Rule of the Infant Care Act (amended by Ordinance of the Ministry of Health and Welfare No. 104, Feb. 3, 2012; Article 5(3) provides that a person who intends to obtain authorization for establishment of a child care center shall submit an application for authorization for change to the head of the above.

(2) Although the Enforcement Decree or the Enforcement Rule of a false Act does not change or supplement the contents of rights and obligations of an individual, or does not stipulate any new contents that are not prescribed by the Act, if the legislative purport of the parent law or the contents of the Enforcement Rule are not merely to clarify the possibility of interpretation of the parent law through an organic and systematic examination of the entire provisions related to the legislative purport of the parent law and the relevant provisions, or if it is intended to embody them based on the purport of the parent law, it shall not be deemed to go beyond the scope of the parent law. Thus, even if the parent law did not directly delegate the provisions thereof, it shall not be deemed null and void (see, e.g., Supreme Court Decision 2010Du1750, Aug. 19, 2010; 2008Du13637, Jun. 11, 2009).

In light of the fact that Article 11 (1) of the Infant Care Act provides that the Minister of Health and Welfare, etc. shall establish and implement a childcare plan including a plan for supply and demand of childcare centers in order to facilitate the infant care service. ② According to Article 13 (1) and (3) of the Infant Care Act, a person who intends to establish and operate a childcare center shall obtain authorization from the head of the Gu, etc.; and the matters necessary for authorization shall be delegated to the Ordinance of the Ministry of Health and Welfare; ③ the fact that Article 5 (3) of the former Enforcement Rule of the Infant Care Act provides that the determination of authorization shall be made after confirming the demand for infant care in the relevant area; ③ the fact that the fact that Article 5 (3) of the former Enforcement Rule of the Infant Care Act was enacted without delegation of the Infant Care Act, or that it was exceeded the purport of delegation. Therefore, the Plaintiff’s assertion in this part is without merit.

B. Determination as to the Plaintiff’s assertion No. 2-A (B)

(1) Facts of recognition

(A) On July 19, 201, the Plaintiff obtained permission to extend childcare facilities from the Defendant, and completed the extension of childcare facilities of this case, and obtained approval for use on January 20, 2012.

(B) The Minister of Health and Welfare has established and implemented a childcare plan including a childcare facility supply and demand plan pursuant to Article 11 of the Infant Care Act. According to the "child care program guidance from 2006 to 2010" published by the Ministry of Gender Equality and Family and the Ministry of Health and Welfare, the rate of infant care demand is 30.2% in large cities, 31.5% in small and medium cities, 42.5% in Eup and Myeon, 42.2% in large cities, 43.9% in small and medium cities, 63.8% in Eup and Myeon, and Myeon 63.8% in small and medium cities, 20% in cases of infant care facilities, and 20 years in cases of infant care facilities, the rate of infant care demand from 2006 to 20 years in cases of infant care facilities is less than that of infant care facilities.

(C) According to the Defendant’s instant authorization guidelines, the criteria for determining the supply and demand of childcare are as follows.

○ Infant Care : Number of children to be in infant care X Infant Care Fees

· The number of children eligible for childcare: the number of children who have not attended the school in the area of use (0 to five years of age);

1. Infant care rate: 30.2% of infants and 42.2% of infants in the number of children subject to infant care.

○ Infant care supply: Number of existing nursery facilities + expected number of nursery facilities for pre-counseling;

○ Area for Using Child Care Facilities: Establishment on the basis of administrative Dongs

○ Child care demand in accordance with the criteria for determining the supply and demand of infant care.

Suppression of Establishment of Nursery Facilities

Child care facilities to be mandatorily installed in the ○ Multi-Family Housing Complex and the department in charge before this guideline is enforced.

building or building for the purpose of which infant and child care facilities may be established through prior consultation (consultation)

A facility which has obtained permission for Do alteration or which has taken place as a possible area shall be excluded from the application of this Guidelines.

(D) According to the "Demand and Supply Status of Infant Care Facilities" as of February 1, 2012 of the Daegu-gu Edong (hereinafter referred to as the "Edong") prepared by the Defendant, the number of children subject to infant care is 644 persons (322 persons for infant care, 322 persons for infant care), 233 persons for infant care (322 children subject to infant care + 30.2% of the x infant care rate of 322 children subject to infant care + 42.2% of the x infant care rate of 322 children subject to infant care), and 360 children for infant care who are nursery facilities.

(E) Meanwhile, the current number of infants and young children attending a childcare center located in Edong around the time of the instant disposition is 165, 165, and 163, 163, and 328 (360, 360, and 5, including the instant childcare center, are equal to 100% of the current number of young children and young children, and in particular, the number of young children and young children enrolled in the Plaintiff’s childcare center is about 77.

(F) As of 2010, the nationwide average of the nursing capacity satisfaction rate, which is the current ratio of the quota of childcare centers as of the current number of childcare centers, is 82.2%.

(G) As of the end of September 201, 201, 177 Sis/Guns/Gus nationwide restrict the establishment of childcare houses within their jurisdiction (79 Sis/Guns/Gus) or at a specific Eup/Myeon/Dong (98 Sis/Guns/Gus), taking into account the supply and demand conditions of childcare facilities, and the remaining Sis/Guns/Gus do not restrict the establishment of childcare centers taking into account the supply and demand conditions of childcare facilities. From among the areas where the establishment of childcare centers is restricted around the time of the instant disposition, 30.2% of the number of infants in the case of Gies, 30.2% of the number of infants, 42.2% of the number of infants, 7% of the number of infants in the area where childcare facilities is exceeded, 6% of the number of infants and infants in the area where childcare facilities is established, 7% of the number of infants and infants in the area where childcare facilities is established, 7% of the number of infants and infants in the area where childcare facilities is established, 87% of the average number of infants and infants in the area 8.7% of the city.

(h) The number of children subject to full care of the Daegu District shall be 27,417 as of January 1, 2010, 26,48 as of January 1, 201, 26,07 as of January 1, 201, and 26,07 as of January 1, 2012.

[Basis] Facts without dispute, Gap's evidence Nos. 3, 4. 16 through 37, Gap's evidence No. 5-1. 2. Gap's evidence Nos. 8-1 through 6, Eul's evidence Nos. 1 through 4, and the purport of the whole pleadings

2) Determination

According to the aforementioned relevant Acts and subordinate statutes such as the Infant Care Act, the authorization for the change of nursery facilities is a so-called beneficial administrative disposition that entails the effect of granting rights or interests to the other party, and is not prescribed in the laws and regulations as well as granting discretion to whether to grant authorization. Thus, the instant disposition constitutes discretionary action.

However, in this case, the following circumstances are recognized by the above-mentioned facts, i.e., the defendant's 2-year infant care demand rate of 104 infant care education provided by the 201-year infant care guidelines, and the Ministry of Health and Welfare provides that infant care services shall be separately established until 2010; since 2011, the previous rate of infant care demand shall be deleted; and the rate of infant care shall be set to be suitable for regional conditions; ii) infant care service shall be higher than the current rate of current infant care staff for 3-year infant care facilities, which is the average rate of 1-year infant care for 2-year infant care for 64 infant and child care services; and (3) infant care service shall be more reasonable than the current rate of 2-year infant care demand for 3-year infant and child care service for 2-year infant and child care service for 3-year infant and child care service.

6. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is reasonable, and it shall be accepted, and the judgment of the court of first instance, which has different conclusions, is unfair, and it is so revoked and it is so decided as per Disposition.

Judges

(Presiding Judge)

Newly Inserted by Act.

[Judgment]

Site of separate sheet

Related Acts and subordinate statutes

Infant Care Act

Article 11 (Formulation and Implementation of Infant Care Plans)

(1) The Minister of Health and Welfare, a Mayor/Do Governor, and the head of a Si/Gun/Gu shall formulate and implement an infant care plan, including a plan for supply and demand of young houses, in cases of the Minister of Health and Welfare of the Health Care Branch, and in other cases, after deliberation by each local infant care policy committee.

(2) If necessary for formulating and implementing a child care plan under paragraph (1), the Minister of Health and Welfare, a Mayor/Do Governor, or the head of a Si/Gun/Gu may request a child care center, a corporation, organization, etc. related to child care to provide data, etc., and the child care center and the corporation, organization, etc. related to child care so requested shall comply with such request, except in extenuating circumstances

(2) Matters necessary for the details, timing, procedures, etc. of infant care plans under paragraph (1) shall be prescribed by Presidential Decree.

Article 13 (Establishment of Child Care Centers Other Than National or Public Child Care Centers)

(1) A person who intends to establish and operate a child-care center other than national or public child-care centers shall obtain authorization from the Governor of a Special Self-Governing Province, the head of a Si/Gun/Gu. The same shall also apply where he/she intends to change important matters among

(3) Matters necessary for authorization under paragraph (1) shall be prescribed by Ordinance of the Ministry of Health and Welfare.

The Enforcement Rule of the Infant Care Act (amended by Ordinance of the Ministry of Health and Welfare No. 104 on February 3, 2012)

Article 5 (Authorization, etc. of Establishment of Child Care Centers)

(1) A person who intends to obtain authorization for the establishment of a child-care center pursuant to Articles 13 (1) and 14 (1) of the Act shall submit an application for authorization of a child-care center in attached Form 4 to the Governor of the competent Special Self-Governing Province or the head of the competent Si/Gun/Gu, along with the following documents (including electronic documents):

(4) The Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu who has received an application for authorization pursuant to paragraph (1) shall verify whether a child-care center meets the standards for establishment under Article 9 and the demand for infant care in the relevant area, determine whether to grant authorization, and issue a certificate of authorization to the applicant for child-care center in attached Form 5, if he/she has obtained authorization.

Article 5-2 (Authorization, etc. to Change Child Care Centers)

(1) Where a person who operates a child-care center after obtaining authorization for the establishment of a child-care center pursuant to Article 5 (3) intends to change the representative of the child-care center or the principal of the child-care center, the location of the type of the child-care center, or the fixed number of the child-care center, he/she shall submit an application for authorization for the change of the child-care center in attached Form 6 (including an application in electronic form) accompanied by the following

(3) Upon receipt of an application for authorization for modification under paragraph (1), the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu shall determine whether to grant authorization for modification after verifying the modification, and when he/she has granted authorization for modification, he/she shall issue

director New Authorization Handling Guidelines for Infant Nursery Facilities in Daegu Metropolitan City (established Rules No. 163, Feb. 28, 2007)

1. Object;

The ○ Guidelines shall clarify the criteria for prior consultation and authorization for the establishment of childcare facilities pursuant to Articles 4-2 and 5 (3) of the Enforcement Rules of the Infant Care Act.

○ intending to prevent insolvency of nursery facilities due to the establishment of facilities and to improve their quality.

2. Persons subject to application;

○ Private nursery facilities and family nursery facilities

4. Authorization processing standards;

A. Criteria for determining the supply and demand of infant care

(1) Calculation of childcare.

○ Infant care demand: Number of children subject to infant care 】 Child care demand rate.

(c) The number of children eligible for infant care: the number of children who have not been enrolled in the usage area (0 to five years of age);

Infant care demand rate: 30.2% of the number of children subject to infant care, 42.2% of the infant.

○ Infant care supply: Number of existing nursery facilities + expected number of nursery facilities for pre-counseling;

· the number of existing nursery facilities in the area of use;

· the expected number of persons for childcare of facilities that have obtained prior counseling within the area to be used;

○ Area for Using Child Care Facilities: Establishment on the basis of administrative Dongs

(2) The base date for determining the supply and demand of infant care: February to August of each year (Provided, That the number of prospective infant care in advance counseling facilities shall be determined as at the base date of the application).

(4) An area exceeding nursery facilities.

○ Regions with higher infant care supply than infant care demand (child care supply)

(4) An area lacking nursery facilities.

○ Regions with less infant care supply than infant care demand (child care supply)

○ Control of establishment of nursery facilities in excess of nursery facilities according to the criteria for determining the supply and demand of childcare.

○ actively encourage the installation of radio facilities in areas short of childcare facilities.

Where the head of the Gu deems it particularly necessary to revitalize infant care projects, he/she may grant authorization after deliberation by the Infant Care Policy Committee.

A nursery facility that must be mandatorily established in a multi-family housing complex and a nursery facility that is required to be established in a multi-family housing complex and a facility that has obtained permission to construct or change the purpose of use for which infant and child childcare facilities can be established through prior consultation (cooperative) with the department in charge before this guideline is implemented. A facility that has received a possible area shall be excluded from the application of this guideline (Provided, That where a facility fails to grant permission to construct or apply for authorization for the use of a nursery facility within three months from the date of the above consultation (consultation), it shall be deemed that there is no intention to apply for authorization at the time of infant care (pre-consultation and consultation)

If the location of the existing nursery facilities of the second or upper floor of the building is changed, installation of facilities may also be permitted in excess areas of the nursery facilities, and in this case, the scale of the facilities may be increased within the limit of 10% of the existing nursery facilities, and the application period shall be within two years from the date of implementation of the guidelines

Finally

심급 사건

-대구지방법원 2012.7.18.선고 2012구합777

대구고등법원 2012.10.26.선고 2012누1694

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