The meaning of “false or any other fraudulent means,” which is the requirement for disposition, such as an order to return subsidies prescribed in Article 40 of the former Infant Care Act, and in such cases, whether there is an active act (negative)

Article 36 of the former Infant Care Act (amended by Act No. 932, Jan. 18, 2010) refers to the affirmative and passive act that may affect the decision-making on granting of subsidies by deceptive means or other acts deemed unfair under the generally accepted social norms, even though it is not possible to receive subsidies through normal procedures. In light of the nature of each of the above dispositions or the financial resources, purpose of payment, object, requirements, etc. of the subsidies for personnel expenses, such subsidies do not necessarily require active misconduct, such as “Fraud or other unlawful act” at issue in the punishment of a tax offense or return of a retirement pension, or “false or other unlawful means.”

Articles 36, 40 subparag. 3, 45(1)1, and 45(2)4, and 46 subparag. 4 of the former Infant Care Act (Amended by Act No. 9932, Jan. 18, 2010); Article 24 of the former Enforcement Decree of the Infant Care Act (Amended by Presidential Decree No. 22075, Mar. 15, 2010);

Supreme Court Decision 2006Do8870 Decided December 27, 2007

Plaintiff (Attorney Choi Young-young et al., Counsel for the plaintiff-appellant)

Sacheon Market (Attorney Lee In-hee, Counsel for the plaintiff-appellant)

Busan High Court Decision 2010Nu6038 decided November 9, 2011

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

The grounds of appeal are examined.

Article 36 of the former Infant Care Act (amended by Act No. 9932, Jan. 18, 2010; hereinafter “former Act”) provides that the State or a local government shall fully or partially subsidize expenses incurred in infant care services, such as personnel expenses of infant care teachers, as prescribed by Presidential Decree. Article 24(2) of the former Enforcement Decree of the Act (amended by Presidential Decree No. 22075, Mar. 15, 2010; hereinafter “the former Enforcement Decree”) provides that matters necessary for the methods of subsidizing such expenses shall be determined by the Minister of Health, Welfare and Family Affairs or the head of the relevant local government. Article 24(2) of the former Enforcement Decree of the Act provides that the Minister of Health, Welfare and Family Affairs shall provide that the Minister of Health, Welfare and Family Affairs or the head of the relevant local government shall provide the head with 80% of monthly amount of infant care teachers paid to the head and the current employees of infant care facilities (hereinafter “the instant guidelines”). Article 40(1) of the former Enforcement Decree of the Act provides that an order to suspend subsidies (hereinafter “the foregoing”).

In light of the nature of each disposition of this case or the financial resources, purpose, object, and requirements of personnel expenses subsidies under the former Act, the term “false or other unlawful means” which are the requirements of each disposition of this case refers to the affirmative and passive act that may affect the decision-making on granting of subsidies by deceptive means or other acts deemed unfair by social norms even though they cannot be paid subsidies through normal procedures (see Supreme Court Decision 2006Do8870, Dec. 27, 2007). In light of the nature of each disposition of this case or the financial resources, purpose, object, and requirements of personnel expenses, such subsidies do not necessarily require active misconduct, such as “Fraud or other unlawful act” at issue in the punishment of a tax offense or return of retirement pension, or “false or other unlawful means.”

The reasoning of the judgment below and the evidence duly admitted by the court below are as follows: ① The plaintiff is organized with 32 infant care centers designated as 36 infant care centers in this case and composed of 23 infant care centers, 25 infant care centers, 9 infant care centers, and 12 infant care centers other than 30% of the total number of infant care centers (in accordance with the guidelines of this case, infant care centers can be provided for up to 30% of the total number of infant care centers) in accordance with the guidelines for placement of 36 infant care centers; ② The regular infant care team and the regular infant care team were operated in the form of joint team and the regular infant care center were changed to 21 infant care centers, and Non-party 1 (the changed to 21 infant care center), who is the regular infant care center and the regular infant care center, share part of education on them periodically; when the plaintiff 3 and 4 nurses come to work on behalf of the regular infant care center, and the defendant did not notify the plaintiff of the fact that the plaintiff was paid to the plaintiff and the regular infant care center.

In light of the relevant provisions and legal principles seen earlier, the Plaintiff, while taking care of 12 young children and 12 young children on consignment, had the existing infant care teachers take care of them in excess of the guidelines for placement, and the Defendant paid the above subsidies on the premise that proper infant care according to the guidelines for placement was performed. Therefore, it is reasonable to deem that the Plaintiff did not receive subsidies through normal procedures and affected the Defendant’s decision-making regarding the grant of subsidies by conducting active and passive acts as seen earlier. Accordingly, each of the instant dispositions based on the premise that the Plaintiff falls under the “case of receiving subsidies by fraud or other improper means.”

According to the reasoning of the judgment below, the court below held that, in the case of violation of the former Act of the Republic of Korea, the former Act stipulates that a child-care center in violation of the standards for placement should proceed to an administrative disposition with high strength successively through a corrective order, etc. (Article 44 subparagraph 3, Article 45 (1) 3, and Article 54 (3) 7) and that, immediately, if a child-care center in violation of the standards for placement is subject to strong administrative disposition due to the illegal receipt of subsidies, it would result in an excessive harsh result contrary to the purport of the former Act. However, in light of the overall structure and contents of the provisions of the former Act, and the purport of granting subsidies in this case, etc., the administrative disposition following the violation of the standards for placement is premised on the general situation in which subsidies are not paid, and as long as the plaintiff simply received subsidies without violating the standards for placement, it cannot be deemed unfair to take any more strong administrative disposition accordingly. Therefore

Nevertheless, the lower court determined that the Plaintiff could not be deemed to have received subsidies in a fraudulent manner on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on “cases of receiving subsidies by false or other unlawful means,” which are the requirements for each of the instant dispositions, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit

Therefore, 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 Park Poe-dae (Presiding Justice)