Whether the head of a local government may order a subsidy recipient who violates Acts and subordinate statutes to fully or partially return an indirect subsidy, by using an indirect subsidy for any purpose other than the purpose (affirmative)

Articles 2 (see current Article 2), 9 (see current Article 9) and 4 (1) [Attachment 1] of the former Enforcement Decree of the Act on the Budgeting and Management of Subsidies (Amended by Presidential Decree No. 16682, Dec. 31, 199); Article 42 (1) and (3) of the former Social Welfare Services Act (Amended by Act No. 6160, Jan. 12, 2000); Article 14 (1) [Attachment 1] of the former Enforcement Decree of the Act on the Budgeting and Management of Subsidies (Amended by Presidential Decree No. 16682, Dec. 31, 199); Article 42 (1) and (2) of the former Enforcement Decree of the Local Finance Act (Amended by Act No. 6160, Jan. 12, 200); Article 17 (1) and (2) of the former Local Finance Act (Amended by Act No. 6113, Jan. 12, 2000)

Social Welfare Foundation

Head of Seo-gu Incheon Metropolitan City (Law Firm Rois, Attorneys Jeju-Support et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu44681 decided September 7, 2011

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

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

1. Article 2 subparagraph 1 of the former Act on the Budgeting and Management of Subsidies (amended by Act No. 6400, Jan. 29, 2001; hereinafter “former Subsidy Act”) provides that “The term “subsidies” means subsidies (limited to those granted to local governments or those granted to facilities or operation funds of other corporations or individuals) granted by persons other than the State for the purpose of creating them or providing financial assistance, as prescribed by the Presidential Decree.” subparagraph 2 provides that “the term “the term “the term “the term “the term “the term “the term “the term “the term” means the term “the term “the term “the business or business” subject to the grant of subsidies,” subparagraph 3 provides that “the term “the term “the term “the term “the term “the term “the term “the term “the term” means the person who operates the subsidy”, Article 2 subparagraph 1 of the former Enforcement Decree of the Act provides that “the term “the term “the term “the term “the term “the term “the term “the term “the term” means the term “the term “the term” and “the term”.” means the term “the term”.”.” means the term “the term”.”.”.”.

Meanwhile, Article 42(1) of the former Social Welfare Services Act (amended by Act No. 6160 of Jan. 12, 200) provides that the State or a local government may grant subsidies to a person who implements social welfare programs. Article 18 of the Seo-gu Incheon Metropolitan City Ordinance on Subsidy Management may order the person who has received subsidies to return the subsidies if he/she has used the subsidies for any purpose other than its business purpose. In addition, Article 14(1) and (2) of the former Local Finance Act (amended by Act No. 6113 of Jan. 12, 2000) and Article 24(3) of the Enforcement Decree thereof (amended by Presidential Decree No. 1694 of Jan. 12, 200) provide that the head of the Gu may order the person who has already received subsidies to return the subsidies in violation of the statutes or the conditions of the subsidies.

In full view of the above provisions of the Acts and subordinate statutes, where a local government operates an indirect subsidy program that operates a facility for the protection of the disabled or a facility for the protection of the aged with the whole or part of the national subsidy granted to the operator of the social welfare foundation or social welfare facility with the indirect subsidy funding, if the local government violates the Acts and subordinate statutes by using the indirect subsidy received by the recipient for other purposes, etc., the head of the local government who performed the indirect subsidy program may order the return of all or part of the indirect subsidy already granted to him/her, and even if part of the indirect subsidy funding is the

2. According to the evidence duly admitted by the court below, ① the non-party, the head of the facility center of the Social Welfare Foundation (the name of the plaintiff was changed on March 24, 2003; hereinafter referred to as the "head of the facility center"), who is the non-party, has overall control over all the affairs such as accounting relations such as the management of the operation fund of the Lightingwon, personnel management, facility management, etc., ② the non-party, from July 1, 1992 to August 31, 1998, created a subsidy of 441,294,450 won (the subsidy of 34,984,984,160, the donation of 96,310,290 won). ③ The non-party, who is the head of the facility center of the facility center of the Lightingwon, was divided into the National Treasury subsidy and the Si subsidy (the subsidy of this case), ④ the Minister of Health and Welfare and Welfare directly delegated the decision to grant the subsidy to the defendant and the general subsidy of 98.

Examining the above facts in light of the legal principles as seen earlier, it is reasonable to order the Defendant to return the instant subsidy to the Plaintiff on the ground that the Nonparty, in light of the Nonparty’s status and duties, who is the head of the facilities of the Magwon, raised the instant subsidy with the national subsidy received from the Minister of Health and Welfare and the Si/Gun/Gu subsidy received from the head of Incheon Metropolitan City, and again granted it to the Magwon.

The judgment of the court below to the same purport is correct. Contrary to the grounds of appeal, there is no error of law by misapprehending the legal principles as to whether the person entitled to order the return of subsidies and the subsidy in this case

3. In addition, as long as the conclusion of the lower court that rejected the Plaintiff’s claim is justifiable, the legitimacy of the lower judgment on the Defendant’s assertion of violation of the principle of good faith does not affect the conclusion of the judgment, and the ground of appeal that there was an error in the misapprehension

4. 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 on the bench.

Justices Kim Chang-suk (Presiding Justice)