In case where an operator of a child care center commits fraud or other improper means in the course of settlement of infant care fees with a child care service voucher presented by the guardian of the infant who uses the child care center, whether the child care center operator may order the return of subsidies or the suspension or closure of the operation of the child care center under Article 40 subparagraph 3 or Article 45 (1) 1 of the former Infant Care Act (negative in principle)

In full view of the provisions of Articles 34, 34-2, 34-3, 35, 36, 40 subparagraph 3, 40-2, 45(1)1, 46 subparagraph 4, and 5 of Article 54(2), (3)4, and 54(5) of the former Infant Care Act (amended by Act No. 11003, Aug. 4, 201; hereinafter “former Infant Care Act”), the State or local governments shall bear or subsidize expenses incurred in infant care, rearing, or free education to their protectors pursuant to Articles 34, 34-2, and 35 of the former Infant Care Act and subsidize expenses incurred in infant care services to operators of child care centers pursuant to Article 36.

In addition, if the State or a local government issues the right to use childcare services to the guardians of infants pursuant to Article 34-3 (1) and (3) of the former Infant Care Act, and Article 35-3 (1) of the Enforcement Rule of the Infant Care Act, and the guardian presents it to the child care center and pays the childcare fee that the State or the local government pays to the guardians of infants in accordance with Article 34 (1) of the former Infant Care Act, and the person who receives childcare fees paid with the right to use childcare services is not the child care center operator but the guardian of the infant.

Therefore, even if a child-care center operator's child-care center operator's child-care service voucher presented by the guardian of the infant-care center, the child-care center operator's child-care center operator's child-care center operator's child-care service voucher is involved in the process of paying the child-care fee by fraud or other improper means, barring any special circumstance, the order to return the subsidy or to suspend the operation of the child-care center (including imposition of penalty surcharges under Article 45-2 of the former Infant Care Act on behalf of the child-care center) or to close the child-care center shall not be ordered,

Articles 34, 34-2, 34-3, and 35 of the former Infant Care Act (Amended by Act No. 11003, Aug. 4, 201); Articles 36, 40 subparag. 3, 40-2, 45(1)1, 46 subparag. 4, and 54(2), 4, and 54(3)4, and 54(3)5 of the Infant Care Act; Article 35-3(1) of the Enforcement Rule of the Infant Care Act

Plaintiff (Attorney Go Jong-soo, Counsel for the plaintiff-appellant)

State Mayor (Attorney Go Young-young, Counsel for defendant-appellant)

Gwangju High Court ( Jeju) Decision 2012Nu456 decided November 14, 2012

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

In full view of the respective provisions of Article 34, Article 34-2, Article 34-3, Article 35, Article 36, Article 40 subparagraph 3, Article 40-2, Article 45 (1) 1, Article 46 subparagraph 4, Article 54 (2) 4, and Article 54 (3) 5 of the former Infant Care Act (amended by Act No. 11003, Aug. 4, 201; hereinafter referred to as the “Act”), and their legislative developments, the State or local governments shall be deemed to have borne or subsidized expenses incurred in infant care or infant care without compensation to their guardians pursuant to Articles 34, 34-2, and Article 35 of the Act (including cases where the State or local governments order the operation of infant and child care centers to close infant and child care facilities or provide infant and child care services to their protectors for infant and child care services without any specific provision of Article 34-3, Article 34-1, 35 of the Act.

According to the facts acknowledged by the court below, the plaintiff operated the child care center of this case under the name of "○○○ Child care Center" in Jeju-si, Do, and the State or local governments shall divide the child care fees for the use of the child care center into three sections according to Article 34 (1) of the Act, and if the number of days of attendance is not more than five days per month, 25% of the total amount of the monthly child care subsidies, 50% of the total amount of the monthly child care subsidies, 100% of the total amount of the monthly child care subsidies, and 10% of the total amount of the monthly child care subsidies if the number of days of attendance is at least 11 days per month, 30% of the child care subsidies, and 10% of the total amount of the monthly child care subsidies, which are registered with the child care center of this case (the child care center of this case on January 15, 206) in lieu of the non-party 1 (the child care center of this case).

Examining these facts in light of the legal principles as seen earlier, barring special circumstances, the Defendant (the Jeju) subsidized Nonparty 2’s guardian Nonparty 1’s child care expenses pursuant to Article 34 of the Act, and the person who received the subsidy is not the Plaintiff but Nonparty 2. Thus, each of the dispositions of this case issued pursuant to Articles 40 subparag. 3, 45(1)1, and 45-2 of the Act, on the premise that the Plaintiff received the subsidy, shall not be deemed unlawful.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court deemed the Plaintiff to have received the instant subsidy and determined that each of the instant dispositions was lawful. In so doing, the lower court erred by misapprehending the meaning of subsidies or the legal doctrine on the recipient of subsidies under Articles 40 subparag. 3 and 45(1)1 of the Act, thereby adversely affecting the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)