209Nu3705 Requests for the cancellation of a subsidy recovery order

Social Welfare FoundationO

Busan

Representative

Attorney Kang Jae-soo, Counsel for the defendant-appellant

부산광역시 ◆◆구청장

A litigation performer's address;

Busan District Court Decision 2009Guhap172 Decided June 19, 2009

November 6, 2009

November 27, 2009

1. Revocation of a judgment of the first instance;

2. On June 26, 2008, the Defendant revoked the disposition of ordering the Plaintiff to recover a subsidy of KRW 4,657,000.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry of Gap evidence 1, Eul evidence 1 through 4, 6, 7, and 9:

가. 원고는 1986. 6. 11.부터 양산시 --- 에서 ★★★★★(장애인 생활시설)과 ◎◎◎ ◎(장애인 직업재활시설)을 운영하는 자이다.

나. 원고는 ★★★★★ 부족한 생활용수와 음용수 확보를 위하여 2007. 8. 17. 피고 에게, 다음과 같은 내용의 국고보조사업 수행계획서를 첨부하여 장애인 복지시설 기능 보강사업 보조금 교부신청을 하였다.

(c) Details of implementation plans for projects subsidized by the National Treasury;

(1) Necessity of a project: A project operator needs water of 160 tons a day, but intends to stably supply water by securing at least 80 tons a day and supplying water of 80 tons a day, which is insufficient to ensure that groundwater of 80 tons a day is being supplied.

② Business promotion schedule: from August 1, 2007 to December 31, 2007

(3) The scale of business: Installation of one hole (100 tons/day), 250 meters or more from the commencement of groundwater works, and 10HP underwater mortars.

(4) Project costs: 57,00,000 won (the National Treasury 28,500,000 won, the local expenses of 28,50,000 won, and the local expenses of 0 won); and

D. Accordingly, on October 8, 2007, the defendant sent a reply to the first review result that the plaintiff's water pumping capacity per day exceeds 100 tons by summing up the water pumping capacity in the same place of business, and that it should conduct a groundwater impact investigation under the Groundwater Act, and that it should obtain permission for extension of the effective period every five years, along with a local sewage impact assessment report. On October 16, 2007, the plaintiff sent a reply that the plan for the investigation of groundwater impact assessment after the construction of groundwater development and the construction of groundwater was planned on the design details.

E. On February 21, 2008, the Plaintiff received KRW 57,000,000 from the Defendant by claiming a subsidy, after completing the construction work for the development of groundwater (hereinafter referred to as the “construction work”).

F. However, the defendant found that the power equipment has a capacity of 5HP, the depth of the pump installation, 150 meters a day a pumping capacity of 41 tons a day, unlike the audit decision in the social welfare field conducted from April 25, 2008 to May 2, 2008, the report on the change (change) of the development and utilization of groundwater of the instant construction, and the permit for completion of completion of the national subsidy project, and issued an order to recover KRW 4,657,000 among the subsidies already granted to the plaintiff on the ground of this on June 26, 2008 (hereinafter referred to as the "disposition in this case").

G. The Plaintiff filed an administrative appeal against the instant disposition, but the Busan Metropolitan City administrative appeals commission dismissed the Plaintiff’s claim on October 6, 2008.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the following grounds.

(1) The defendant, who is the head of a local government, is not a person entitled to order the recovery of subsidies.

(2) Even if the decision to grant a subsidy is revoked, the Defendant erred in the disposition in this case without cancelling the decision to grant a subsidy.

(3) 펌프설치를 위한 굴착깊이와 동력장치는 설계도서에 따라 시공하였으나, 다만 5년마다 작성하여야 하는 지하수영향조사비용 등을 절감하기 위하여 이 사건 공사의 지하수개발 · 이용(변경)신고 및 준공확인증신고서에만 동력장치를 5HP, 양수능력을 41 톤으로 감축하여 기재한 것이고, 이러한 사정은 시공자 조정래가 있는 자리에서 부산 광역시 연제구청 소속 공무원인 ■■■과 충분히 협의하였다.

(4) In the execution of the development and utilization of groundwater, the details of the water pumping equipment, i.e., the depth of the power equipment, the depth of the water pumping equipment, and the change of the water pumping capacity are not subject to the change of business but falls under the scope of the Plaintiff’s discretion, and it

(5) Since the cost of groundwater impact assessment has already been used as the cost of calculating the acquisition volume, etc., all of the subsidies are not obligated to return the subsidies corresponding to that cost.

(6) No standards for the recovery of subsidies are available.

(7) In accordance with the proviso of Article 21 of the Act on the Budgeting and Management of Subsidies (amended by Act No. 9347 of Jan. 30, 2009; hereinafter referred to as the "Act"), the decision to grant subsidies may not be revoked in whole or in part with respect to a subsidy program for the portion already implemented, and the decision to grant subsidies may not be revoked since the Plaintiff completed the instant construction before performing it.

(b) Relevant statutes;

It is as shown in the attached Form.

C. Determination

In the first argument, in accordance with the provisions of Articles 30 and 31 of the Act and the provisions of Article 17 of the Enforcement Decree, the head of a central government agency may cancel all or part of the decision to grant a subsidy if the subsidized project operator uses the subsidy for any other purpose, or violates the provisions of statutes, the decision to grant a subsidy, or the disposition of the head of a central government agency in accordance with statutes. If the subsidy has already been granted, he/she shall order the return of the subsidy corresponding to the revoked portion, and the head of the central government agency shall delegate the affairs determined and publicly notified by the head of the central government agency

In the end, there is no evidence as to the fact that the Minister of Health and Welfare, the head of a central government agency, delegated the instant case to the Defendant through public notice among the dispositions concerning the return of subsidies for welfare facilities for persons with disabilities, and the Minister of Health and Welfare, the head of a local government. Thus, the Defendant cannot be deemed to have a legitimate authority to take

Therefore, since the disposition of this case is illegal because it was conducted by the defendant without the authority to dispose of the case, the first argument of the plaintiff is reasonable, and the remaining argument of the plaintiff is not examined further.

3. Conclusion

If so, the plaintiff's claim of this case is reasonable and acceptable. However, since the judgment of the court of first instance is unfair with different conclusions, it is so decided as per Disposition by cancelling the judgment of the court of first instance and demanding the disposition of this case.

Maleman (Presiding Judge)

Kim Jong-hee

Lee Jin-soo

Relevant statutes

The budget and management of subsidies (amended by Act No. 9347 of January 30, 2009)

Article 21 (Revocation, etc. of Decision to Grant due to Changes in Situation)

(1) If the head of a central government agency deems it particularly necessary when he/she has decided to grant a subsidy due to a change in the KU situation, he/she may change the details of the decision to grant a subsidy or revoke all or part of the decision to grant a subsidy: Provided, That this shall not apply to any subsidy program already implemented.

Article 22 (Prohibition of Use for Other Purpose)

(1) A subsidy program operator shall faithfully implement a subsidy program with due care as a good manager in accordance with provisions of Acts and subordinate statutes, the details of decision to grant subsidies, or the dispositions by the head of a central government agency under Acts and subordinate statutes, and shall not use

Article 23 (Modification, etc. of Details of Subsidized Project)

A subsidy program operator shall obtain approval from the head of a central government agency when a change in the details of a subsidy program or a change in the distribution of expenses required for the subsidy program: Provided, That this shall not apply to minor matters determined by the head of a central government agency

Article 30 (Revocation of Decision to Grant due to Violation of Acts and Subordinate Statutes)

(1) Where a subsidy program operator uses subsidies for other purposes, or violates Acts and subordinate statutes, the details of the decision to grant subsidies, the dispositions taken by the head of a central government agency in accordance with Acts and subordinate statutes, or receives subsidies by false application or other improper means, the head of a central government agency may fully or partially suspend the decision

Article 31 (Return of Subsidies)

(1) If subsidies have already been granted to a subsidy program in the part of which decision to grant a subsidy was revoked, the head of a central government agency shall issue an order to refund half of the subsidy corresponding to the revoked part within a specified deadline.

Enforcement Decree of the Act on Budget and Management of Subsidies

Article 17 (Delegation of Administrative Affairs)

The head of a central government agency shall delegate the affairs determined and announced publicly by the head of the government agency or the head of the local government to which he belongs among the following affairs:

1. Receipt of applications for subsidies referred to in Article 16 of the Act;

2. Decision on the grant of subsidies referred to in Article 17 of the Act;

3. Revocation of the decision to grant referred to in Articles 21 (1), 30 (1) and (2) of the Act;

4. Receipt of the performance report on a subsidized project as referred to in Article 27 (1) of the Act;

5. Examination of performance of subsidy programs and determination of the amount of subsidy programs referred to in Article 28 of the Act;

6. Dispositions concerning the refund of subsidies as referred to in Article 31 of the Act;

7. Receipt of reports, inspections and inquiries referred to in Article 36 of the Act.

/ Groundwater Act

Article 7 (Permission to Develop and Utilize Groundwater)

(1) A person who intends to develop and utilize groundwater shall obtain permission from the head of a Si/Gun in advance, as prescribed by Presidential Decree.

Article 8 (Report on Utilization of Groundwater Development)

(1) In any of the following cases, notwithstanding the provisions of Article 7, a person may develop groundwater after reporting to the head of Si/Gun in advance as prescribed by Presidential Decree:

5. Where groundwater is developed and utilized below the scale as prescribed by the Presidential Decree in cases other than subparagraphs 1 through 4.

Article 9 (Reporting on Completion of Construction Works)

(1) If a person who has obtained permission under Article 7 or filed a report under Article 8 completes the construction work, he/she shall report it to the head of a Si/Gun as prescribed by Presidential Decree.

(2) Where matters prescribed by the Decree, such as the location of facilities for the development and utilization of groundwater, among the details reported pursuant to the provisions of paragraph (1), are completed differently from the details permitted pursuant to the provisions of Article 7 or reported pursuant to the provisions of Article 8, the head of a Si/Gun may issue a corrective order or take necessary measures as prescribed by the Presidential Decree, and may order a person who fails to comply with such order without any justifiable reason to close the facilities for the utilization of groundwater.

【Enforcement Decree of the Groundwater Act

Article 13 (Report on Development and Utilization of Groundwater)

(4) The term "under the scale as prescribed by Presidential Decree" in Article 8 (1) 5 of the Act means cases where pumping capacity per day is not more than 100 tons of water (limited to cases where earthen pipes whose inner diameter is not more than 40 millimeters are used).

Article 14 (Reporting on Completion of Construction Works)

(4) "Matters prescribed by Presidential Decree, such as the location of facilities for the development and utilization of groundwater" in Article 9 (2) of the Act means the following matters:

1. Location of facilities for the development and utilization of groundwater;

2. Any of the following matters:

(a) The depth and diameter of excavation and planned volume of water intake among the contents of installation of facilities;

(b) The power equipment, inner diameter of earthen pipes, depth of installation, capacity of pumping among the details of pumping facilities;

Finally.