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

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

June 5, 2013

1. The part of the order of return of KRW 1,023,90, which was issued on June 25, 2012 against the Plaintiff, exceeds KRW 169,000 among the order of return of KRW 1,023,90, and the disposition of suspending the qualification of the president on July 20, 2012 shall be revoked, respectively.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Disposition 15 days of suspension of principal qualification as stated in paragraph 1 shall be suspended until the judgment of the appellate court of this case is rendered.

The Defendant’s disposition of ordering the Plaintiff to return subsidies of KRW 1,023,90,00 as of June 25, 2012, and the disposition of imposing a penalty surcharge of KRW 1,050,00 (the period from January 17, 2013 to January 31, 2013 as of January 31, 2013 as of July 20, 2012 is likely to stipulate the original disposition by mistake of the mitigated disposition) and the disposition of imposing a penalty surcharge of KRW 1,00 (the period from January 17, 2013 to January 31, 2013 as of January 2013 as of January 15, 2013 as well as KRW 2,10,000 in lieu of one month of the suspension of operation stated in the purport of the complaint).

1. Details of the disposition;

A. From December 21, 2001, the Plaintiff operated the “○○○○ Child Care Center” (hereinafter “instant child care center”) which is an infant and child childcare facility in Jeju-si ( Address omitted), and the Minister of Health and Welfare granted the instant child care center an assessment of childcare facilities on December 15, 2009 (term of validity: from January 1, 201 to December 31, 201), and designated as a public child care center on July 15, 201.

B. The non-party, who is a child of a multicultural family, (the non-party on August 7, 2007), was admitted to the child care center of this case on or around the beginning of March 2009 and was in significant support to the present day. The non-party, who was a child of a multicultural family, was absent from Vietnam for visiting from the Republic of Korea for visiting from September 1, 2009 to October 1, 209.

C. The basic childcare fees are paid in proportion to the number of children registered in the childcare center. The number of children is calculated based on the computerized list registered in the “e-Child Care System” (current Child Care Integration System) on the fifth day of each month. However, even if the Nonparty did not attend the aforementioned system from September 1, 2009 to October 1, 2009, the Plaintiff received from the Defendant the payment of KRW 169,000 from the Nonparty on September 2009 due to the Nonparty’s failure to register an alteration to the said system (hereinafter “instant childcare subsidy”). Accordingly, the Plaintiff did not refund it to the Defendant.

D. 1) On June 25, 2012, the Defendant issued an order to return subsidies of KRW 1,023,90,00, totaling KRW 788,000, which is the total amount of basic childcare fees for September 2009 registered by the Nonparty pursuant to Articles 40 and 41 of the Infant Care Act, to the Plaintiff on the ground of the false request for subsidies to a child departing from Korea (hereinafter “instant order to return subsidies”).

2) On July 20, 2012, the Defendant issued a disposition to suspend the Plaintiff’s qualification pursuant to Articles 45, 45-2, and 46 of the Infant Care Act (from August 1, 2012 to August 31, 2012) and a disposition to impose a penalty surcharge of KRW 2,100,000 in lieu of one month of the suspension of the operation of a child care center, on the ground that the above suspension period of the Plaintiff’s qualification was 15 days (from January 17, 2013 to January 31, 2012) (hereinafter referred to as “disposition to impose the instant disposition to suspend the operation of the child care center”) and the penalty surcharge was modified to KRW 1,050,00 in lieu of the suspension of the operation of the child care center (hereinafter referred to as “instant disposition to impose the penalty surcharge”).

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 3, Gap's 6 through 8, Gap's 10, and the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Common illegality of each of the dispositions of this case

Each disposition of this case shall be revoked as it is unlawful as seen below.

A) Article 34 of the Infant Care Act provides for the provision of subsidies for expenses incurred in relation to childcare for which an infant’s guardian applies for and received childcare expenses, and Article 35 of the Infant Care Act provides for the provision of subsidies for expenses incurred in relation to operation expenses that a child care center operator requests and received. Since the Infant Care Act was amended by Act No. 10789 on June 7, 201, Article 40-2, the provision was newly established to recover the amount of subsidies for childcare expenses from the guardian of infant care children. In light of the fact that the instant subsidies for childcare expenses are expenses incurred in infant care provided in Article 34 of the Infant Care Act, which are funds provided by the State or local governments, the Nonparty shall be deemed the Nonparty’s guardian, not the Plaintiff. Therefore, the instant subsidies for childcare expenses cannot be deemed as subsidies for childcare expenses provided in Articles 40 subparag. 3 and 45(1)1, and Articles 45-2(1) and 46 subparag. 4 of the Infant Care Act.

B) In light of the circumstances, the Plaintiff’s receipt of the instant childcare subsidy merely refers to the receipt of subsidies by mistake or minor negligence, and cannot be deemed to have received subsidies by fraud or other improper means, as the premise of each of the instant dispositions by the Defendant. Furthermore, Article 40 Subparag. 5 of the current Infant Care Act, which provides for “cases of receiving subsidies by mistake or minor negligence,” as the grounds for the refund of subsidies, was newly established as the Infant Care Act was amended by Act No. 111144, Dec. 31, 201; thus, it does not apply to the instant case, which was previously received childcare subsidies.

2) Illegality of the instant order of return of subsidies

It is unlawful that the Defendant ordered the return of KRW 1,023,90,00 in total, including the total amount of basic childcare fees of the non-party registered and 70% of the childcare fees in agricultural and fishing villages, even though the Plaintiff received an excessive subsidy of KRW 169,00, is an abuse of discretion and discretion.

3) Each illegality of the disposition imposing the instant penalty surcharge and the disposition suspending the qualification for the president

In light of the fact that the Plaintiff operated the child care center of this case for more than 10 years, there was no administrative disposition other than each of the dispositions in this case, and received commendation from the Defendant, the Plaintiff’s excessive subsidy was a small amount of negligence, and the Plaintiff’s excessive subsidy was caused by the Plaintiff’s negligence, according to the detailed criteria for the administrative disposition on the violation of the Infant Care Act by the Ministry of Health and Welfare, where inevitable reasons exist for children and the amount of unjust enrichment is low, only the amount of unjust enrichment can be recovered, and where there was a contribution to the development of child care and the amount of violation is less than 50,000 won, the Plaintiff did not request the deliberation on suspension of status as the head of the child care center. The disposition

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) As to the assertion of common illegality of each of the dispositions of this case

A) As to the assertion of the above A-A-A-be

According to Articles 34(1), 34-3(1), and 34-4(1) of the Infant Care Act, the State or local governments shall bear all or part of the expenses necessary for infant care for recipients under the National Basic Living Security Act and their children below a certain amount of income prescribed by Ordinance of the Ministry of Health and Welfare. The right to use infant care services may be paid to the guardians of infants and children. The guardian of infants may apply for the payment of expenses under Article 34. However, the child care subsidy in this case is paid by the plaintiff, and it cannot be deemed that the non-party’s guardian applied for the payment of basic infant care fees from the defendant. Article 45(1)1 of the Infant Care Act cannot be deemed that the non-party’s guardian paid the child care fees again to the plaintiff. However, the Plaintiff’s provision of Article 36 subparag. 4 of the Infant Care Act is not limited to the Plaintiff’s provision of Article 36 of the Infant Care Act or the Plaintiff’s provision of Article 45(1)1 of the Infant Care Act.

B) As to the assertion of the above A-A-B

(1) If the number of monthly attending school is zero days, the defendant is not obligated to pay the child care subsidy to the relevant child care center. Although the plaintiff was absent from September 1, 2009 to October 1, 2009, the defendant received 169,000 won of the basic infant care subsidy for the non-party on September 1, 2009 from the defendant. In light of the fact that Article 40 of the Infant Care Act is stated in the "Notice of Decision on Refund of Child Care Subsidies in Violation of the Infant Care Act" (No. 2-1 of the evidence No. 2-1 of the Infant Care Act), the defendant deemed that the above act of the plaintiff constitutes the "cases where the subsidy was received by fraudulent or other illegal means" as stipulated in subparagraph 3 of Article 40 of the Infant Care Act, it appears that the defendant issued the order to return the subsidy of this case, although Article 41 of the Infant Care Act (Evidence No. 2-9 of the Evidence No. 2 of the Infant Care Act).

(2) Article 40 subparag. 3, Article 45(1)1, Article 45-2(1), and Article 46 subparag. 4 of the Infant Care Act provide that the establisher or operator of a child care center who has received subsidies by fraud or other improper means may order the return of subsidies, and a penalty surcharge not exceeding 30 million won may be imposed in lieu of the order to suspend the operation of the child care center or the disposition to suspend the operation of the child care center, and the suspension of the operation of the child care center may be imposed on the head of the child care center. Here, the term “when a subsidy is granted by fraud or other improper means” means when a subsidy is granted by a deceptive scheme or other improper means, which is deemed to be unfair by social norms, although a subsidy cannot be granted by a normal procedure, is considered to mean the time when a subsidy is granted by affirmative and passive acts that may affect the decision-making on the grant of a subsidy (see Supreme Court Decision 9Do4101, Jan. 5, 2001).

In light of the above legal principles, as long as the non-party did not appear at all from September 1, 2009 to October 1, 2009, the plaintiff did not register the change in the "e-child care system" due to the non-party's failure to attend the child care center of this case from September 1, 2009 to October 1, 2009, and ② even if the "e-child care system" is calculated as of September 5, 2009 because the plaintiff could not accurately confirm his intention to discharge from the non-party at the time of September 5, 2009, the non-party could not be seen as being unable to register the change because he could not know the non-party's intention to discharge from the non-party, and it could not be seen that the plaintiff could not easily be seen as having been paid the child care fees of this case by the non-party's negligence or error in the operation of the child care center of this case for 8 years.

2) As to the allegation of illegality of the instant order to return subsidies

In Article 40 of the Infant Care Act, the State or a local government may order the establisher and operator of a nursery to return all or part of the subsidy granted in cases where the subsidy is granted in an unlawful manner. If the subsidized operator cancels the decision to grant the subsidy by a false application or other unlawful means, and if the subsidized operator cancels the whole or part of the decision to grant the subsidy, the scope of the revocation shall be individually determined by comprehensively taking into account the purpose and contents of the subsidized project, the motive in which the subsidy was granted in an improper manner, the ratio of the subsidy granted in an unlawful manner among the entire amount of the subsidy, the ratio of the subsidy granted in an unlawful manner among the entire amount of the subsidy, and the ratio of the subsidy used in accordance with the conditions and contents thereof (see Supreme Court Decision 200Du1165, Jan. 28, 200

With respect to this case, the following circumstances are considered to be comprehensively taken into account the facts and the purport of the entire argument as follows: ① The basic childcare fees are paid in proportion to the number of infants registered in the childcare facilities for the public interest purpose of promoting the establishment of the childcare facilities and preventing the increase of childcare fees and ultimately allowing them to benefit to the infants using the childcare facilities; ② the subsidies received by the Plaintiff in an unlawful manner is 1/69,000 of the non-party’s basic childcare fees for September 2009, which the non-party registered with the Defendant during the above period, and ③ the Defendant received the basic childcare fees for the childcare business guidance of the Ministry of Health and Welfare in 2011 by falsely reporting the children to the childcare business guidance of the Ministry of Health and Welfare in 2011, but it is merely an internal standard of the administrative agency, ④ there is no evidence to deem that the subsidies received by the Plaintiff were used for any other purpose, and ④ the subsidies received by the non-party, which appears to have not been used by the Plaintiff due to any unlawful use of the subsidies by the non-party.

3) As to the allegation of illegality of the instant penalty surcharge imposition and the disposition suspending the qualification for the president

A) As to the imposition of the instant penalty surcharge

In light of the fact that the act of illegally receiving subsidies from a child care center violates the purpose of the Infant Care Act, i.e., giving child care benefits to vulnerable child care with limited financial resources, and (ii) the need for public interest to improve the quality of infant care services and to prevent the leakage of subsidies in light of the purport of the subsidy system that the Plaintiff wants to improve the quality of infant care services, and (iii) according to Article 38(1) [Attachment 9] of the Enforcement Rule of the Infant Care Act (amended by Ordinance of the Ministry of Health and Welfare No. 129 of Jun. 29, 2012), the act of violation is subject to suspension of operation within six months if the act of violation is first, and the defendant is likely to cause inconvenience to the operation of the child care center in the event of suspending the operation of the child care center in this case. In light of the fact that the Plaintiff asserted that the purpose of the imposition of the penalty surcharge in this case would cause any disadvantage to the Plaintiff, thus, it cannot be deemed that the Plaintiff’s legitimate disposition of imposition of the penalty surcharge in this case may not be justified.

B) As to the instant disposition of suspending the status as the principal of the case

In full view of the following circumstances, Gap evidence No. 9’s overall purport of pleadings, namely, ① the subsidies received by the plaintiff by unlawful means are merely 169,000 won, ② the plaintiff appears to have faithfully operated the child care center of this case until the above illegal receipt was made, ③ the suspension of qualification for the head of this case may cause considerable impediment to the existence and operation of the child care center of this case, ③ the purpose of the relevant statutes and the necessity of public interest to achieve the suspension of qualification for the head of this case, even if considering the public interest to achieve the suspension of qualification for the head of this case, the suspension of qualification for the head of this case is deemed to have abused and abused discretionary power by excessively improper means compared to the plaintiff’s act.

4) Sub-committee

Therefore, the imposition of the instant penalty surcharge is lawful, and the portion of the subsidy exceeding the amount of 169,000 won out of the disposition of ordering the return of the instant subsidy and the disposition of suspending the qualification of the head of the instant case is unlawful.

3. Suspension of suspension of disposition of suspension of the original qualification of this case;

According to the records of this case, it is recognized that there is an urgent need to prevent the damage that the plaintiff may suffer from the execution of the above disposition of suspending the qualification for the president, and there is no other evidence to recognize that the suspension of execution may have a significant impact on the public welfare. Thus, the validity of the disposition of suspending the above qualification shall be suspended

4. Conclusion

Therefore, the plaintiff's claim for revocation of revocation of qualification as the president among the claims in this case is justified, and the claim for revocation of the order to return subsidies is accepted within the scope of the above recognition, and the remaining claim for revocation of the disposition of revocation of the penalty surcharge is dismissed as it is without merit. It is so decided as

[Attachment Omission of Related Acts]

Judges Choi Yong-ho (Presiding Judge)