The purpose of Article 10 [Attachment 2] 2 (a) of the Enforcement Rule of the former Infant Care Act prescribing the prohibition of transfer and concurrent holding of positions by the head of the nursery facility, and whether the head of the nursery facility is allowed to engage in a separate business other than infant care (negative in principle)

Article 17 of the former Infant Care Act (amended by Act No. 10789, Jun. 7, 201; hereinafter the same shall apply); Article 10 [Attachment 2] of the former Enforcement Rule of the Infant Care Act (amended by Ordinance of the Ministry of Health and Welfare No. 92, Dec. 8, 2011); (a) the legislative purport and purpose of the Infant Care Act; (b) the duties of the heads of nursery facilities; (c) the provisions of the Enforcement Rule of the Infant Care Act, including the provisions of the Enforcement Rule; and (d) the system and contents of the Infant Care Act, such as the provision of the Enforcement Rule of the Infant Care Act (hereinafter referred to as the “Enforcement Rule”); (b) the Infant Care Act provides for subsidies such as personnel expenses by having infants take responsibility for infant care on behalf of the State or local governments; and (c) the head of the infant and child care facilities shall assist the head of the infant and child at all times in performing his/her duties other than the duties of care and supervision; and (d) the purpose of the head of the infant and child care.

Therefore, it is deemed that the head of a nursery is not allowed to engage in activities other than infant care services as a separate business pursuant to the provisions of the Enforcement Rule, unless there are special circumstances, and the performance of other duties is not the main purpose of profit-making or is not physically overlapped with the operation time of the nursery.

Articles 1, 3(2), 4(2), 17(2), 18(1), and 36 of the former Infant Care Act (Amended by Act No. 10789, Jun. 7, 201); Article 10 [Attachment 2] subparagraph 2(a) of the former Enforcement Rule of the Infant Care Act (Amended by Ordinance of the Ministry of Health and Welfare No. 92, Dec. 8, 201); Article 10 [Attachment 2] subparagraph 2(a) of the former Enforcement Rule of the Infant Care Act (Amended by Ordinance of the Ministry of Health and Welfare,

Unclaimed Child Care Center (Attorney Park Jong-dae, Counsel for the plaintiff-appellant)

Guns of Iron;

Seoul High Court Decision 2011Nu33671 decided May 30, 2012

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 17 of the former Infant Care Act (amended by Act No. 10789, Jun. 7, 2011; hereinafter “Child Care Act”) delegates matters necessary for the standards, etc. for the placement of workers in childcare facilities to be placed in childcare facilities to the regulations of the Ordinance of the Ministry of Health and Welfare. According to the delegation, Article 10 [Attachment 2] [Attachment 2] of the former Enforcement Rule of the Infant Care Act (amended by Ordinance of the Ministry of Health and Welfare No. 92, Dec. 8, 2011) provides that “The head of childcare facilities shall be full-time and shall not concurrently hold the office of other facilities” (hereinafter “Enforcement Rule of the instant case”).

Meanwhile, the purpose of the Infant Care Act is to “to contribute to the promotion of family welfare by fostering infants as healthy members of society through the protection and sound education of their mind and body, as well as by facilitating their guardians’ economic and social activities (Article 1); and “neither childcare shall be permitted to ensure infants grow healthy in a safe and pleasant environment” (Article 3(2)); and the head of a nursery imposes on the head of a nursery (Article 18(1) the duties of supervising nursery facilities and guiding and supervising infant care teachers and other employees, and infant care for infants” (Article 18(1)). In addition, the State and local governments are liable to nurture infants in a sound manner along with their guardians (Article 4(2)). Accordingly, the State and local governments are required to fully or partially subsidize the personnel expenses, etc. of infant care teachers, including the head of the nursery facilities (Article 36).

In addition to the legislative purport and purpose of the Infant Care Act, contents of the duties of the head of the nursery, and the system and contents of the Infant Care Act, including the provision of this case, as well as the system and contents of the Enforcement Rule of the Infant Care Act, ① The head of the nursery facility is responsible for safe and healthy life of infants on behalf of their parents during the operation hours, ② the Infant Care Act provides for personnel expenses, etc., ③ the Infant Care Act provides for childcare facilities as an agent for the State or a local government, ③ the high risk of safety accidents, etc. due to the characteristics of infants and children using the nursery facilities, ③ the head of the nursery facility requires a high level of duty of care to the employees of the nursery facilities. ④ In particular, the head of the nursery facility must direct and supervise other infant care teachers, and the purpose of the Enforcement Rule of the instant case prescribing the prohibition of the transfer and concurrent office of the head of the nursery facility is to prevent any substantial interference with the infant’s childcare affairs by continuously and repeatedly performing other work than the infant care service, and to have the head of the nursery facility provide full attention and care to work.

Therefore, it shall be deemed that the head of a nursery is not allowed to conduct any other work except infant care services as a separate business pursuant to the provisions of the Enforcement Rule of this case, barring special circumstances, and the performance of other work is not the main purpose of profit-making or is not physically overlapped with the hours of operation of the nursery.

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning. The non-party appointed as the head of the child-care center of this case, but did not work as the head of the child-care center of this case. The above act constitutes a violation of the provisions of the Enforcement Rule of this case, and thus, determined that the disposition of this case based on this premise is legitimate.

In light of the above legal principles, the judgment below is just, and there is no error of misapprehending the legal principles on the interpretation of the Enforcement Rule of this case or exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below rejected the Plaintiff’s assertion of violation of the principle of protection of trust on the ground that there is no evidence to prove that the Defendant, even if the Nonparty was not transferred to the Plaintiff as the head of the child-care center of this case, was trusted to grant subsidies, or that the Nonparty was trusted to not give the instant disposition when replacing the Nonparty at the

Examining the records in light of the relevant legal principles, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on violation of the principle of trust protection.

3. As to the third ground for appeal

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion of deviation and abuse of discretionary power on the ground that the non-party did not perform the duties of the head of the child-care center of this case and judged that it was excessive to the head of the facility in his name; the defendant did not take other measures such as suspension of operation and imposition of penalty in addition to ordering the return of subsidies granted to the plaintiff; and unless the non-party did not perform the duties of the head of the child-care center of this case, it is reasonable to recover the full amount of subsidies granted under the premise that the non-party is the head of

Examining the records in light of the relevant legal principles, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on deviation and abuse of discretion due to violation of the principle of proportionality.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Chang-soo (Presiding Justice)