2014 High Court Decision 533 Violation of Infant Care Act, Fraud

New○ (1961 Life) Operation of Child Care Centers

Red tin (prosecutions) and papering type (trials)

(Limited)Law Firm

Attorney Injury Day in charge

July 16, 2015

The defendant shall be innocent.

The summary of this decision shall be published.

Summary of Facts charged

[Article 1]

From June 17, 1998 to June 17, 1998, the defendant is a representative director of a social welfare foundation A and the head of a child care center attached B, who is operating the child care center.

No establisher or operator of a childcare center shall collect childcare fees, etc. by fraud or other improper means.

The Defendant, by appropriating teaching materials and instructors’ allowances for the special activity programs conducted in addition to the age-based childcare programs according to the standard childcare process in a childcare center in excess of 3.3% to 50% of the actual supply price, enter into a contract with the special activity enterprise and notify the child (guardian) of the amount appropriated as such to be paid to the child (guardian) every month to receive the illegal receipt of the special activity expenses;

In spite of the conclusion of a contract to supply 10,000 won per 10,000 won per person of the special activity expenses of C Institute C, which was held in Jeju, in February 2010:

2. At the end of the same year, the child parents of child care children held at the above B B-care center gave notice of special activity expenses as if they were concluded at KRW 15,00 per capita a month.

Therefore, on March 4, 2010, at the ○○○○○ branch located in Seopo-si, Seopo-si, Seopo-si, Seopo-si, 5,000 won was received from ○○○○ to receive 15,000 won as special activity expenses for March 2010.

From March 4, 2010 to July 4, 2013, the Defendant unlawfully received KRW 10,195,000 through 2,039 times as stated in the annexed crime list, and, at the same time, deceiving a child in child care (guardian) and deceiving him/her to acquire the said money from the victims.

[Attachment 2]

The defendant is a person who is operating a child-care center B in Seocho-si.

The founder and operator of a childcare center shall not collect childcare fees, etc. by fraud or other improper means, and the special activity expenses shall be used for the personnel expenses of special activity instructors, the teaching materials for special activities, and the purchase expenses of school districts for each year of the publication of the Ministry of Health and Welfare, and the details thereof shall be calculated semi-annually by settling the amount received by the guardian, the amount of actual use, and the remaining amount, and shall be notified to the childcare center steering committee or to the guardian.

On February 2, 2010, the Defendant had to pay the special activity expenses of KRW 15,00 per 15,00 per person in case of special classes of subjects to the guardians of the victimized children in the child care center.

However, in fact, part of the special activity expenses paid to C Institute, which is the defendant, was returned from D Teaching Institutes, and was scheduled to be used for other purposes.

Nevertheless, on March 4, 2010, the Defendant received 15,000 won as special activity expenses from the guardian of the child care child care care who received 15,000 won from the guardian of the victim care child care and received 5,000 won out of them from the DNA education company from that time until July 4, 2013, without settling accounts for special activity expenses as above to the guardian of the child care child care, and without notifying the defendant that he would receive part of the special activity expenses from the special activity company, and by deceiving the victims at the same time, acquired the above amount of 10,195,00 won from the victims as shown in the list of crimes in the attached Table from July 4, 2013.

Judgment

1. Relevant statutes;

It is as shown in the attached Form.

2. The deception as a requirement for fraud refers to all affirmative and passive acts that have a good faith and duty to observe each other in the context of property transaction. It does not necessarily require false indication as to the important part of a juristic act, and it is sufficient to say that the other party's act is the basis of judgment in order to make an actor take a disposition of property which he wishes by omitting the other party in mistake. Whether the act constitutes it should be determined from the perspective of the original criminal law, regardless of whether the act is legally effective under the interpretation of other Acts, such as the Civil Act or the Civil Act (see Supreme Court Decision 2004Do6083, Oct. 27, 2006). In addition, where it is recognized that the other party to a transaction would not have taken place in the transaction if the other party to the transaction was notified of certain circumstances, the person who received the property or acquired the property benefits through such transaction has a duty to notify the other party of such circumstances in advance in accordance with the principle of good faith. Nevertheless, not notifying the above, it constitutes a crime of fraud by deceiving the other party (see Supreme Court Decision 2004Do.

On the other hand, Article 54 (3) 6 of the Infant Care Act refers to the active and passive act that may affect the decision-making on the payment of infant care fees, etc., even though it is impossible to collect infant care fees, etc. under normal procedures under Article 38 of the Infant Care Act, and thus, it refers to the active and passive act that may affect the decision-making on the payment of infant care fees, etc.., so the case where infant care fees, etc. are received under Article 38 by a marb or other unlawful means refers to collecting infant care fees, etc. or receiving infant care fees, etc. exceeding the limit of infant care fees, etc., including necessary expenses, if it is impossible to collect infant care fees, etc., and it does not fall under the case where infant care fees, etc. are received in a case where it is used as a means that may be deemed to lack some justification in collecting infant care fees, etc. (see Supreme Court Decision 2009Do8751, Nov. 12, 2009).

3. The evidence presented by the prosecution alone for the following reasons is insufficient to recognize the facts charged in each of the instant charges (the selective charges No. 1 and 2) as constituting a crime of fraud under Article 347 of the Criminal Act and a crime of violation under Articles 54(3)6 and 38 of the Infant Care Act, and there is no other evidence to acknowledge otherwise.

A. The relationship between the two crimes

In the event that a person who establishes and operates a child-care center receives special activity expenses from his/her guardian in excess of the above actual supply price even though he/she entered into a special activity supply contract with a trader (Cschool), both fraud against an infant’s guardian and a crime of violating Articles 54(3)6 and 38 of the Infant Care Act are all established, and both crimes are in a commercial competition relationship (the determination of whether the two crimes are committed should coincide with each other in principle).

(b) the existence of side contracts;

Of the selective facts charged No. 1, the Defendant and the trader entered into a false contract at KRW 15,00 by appropriating the actual supply price in excess of 10,000,000, which is the actual supply price, with the special activity expenses per infant between the Defendant and the trader. As to the police statement of the trader operator, it is difficult to conclude that the above contract was concluded solely on the ground that the trader operator entered into a false contract at the same time as the above in this court, and the police statement at the police station was discharged by the testimony to the effect that the trader did not have entered into a side map as the above in this court, and that the statement at the police station was made the above statement in accordance with the reverse (in the second trial record, referring to the witness Kim○-○’s statement in the second trial record), and that the trader paid the amount of 1/3 (5,000 won per infant) of the special activity expenses per month to the Defendant.

(c)with regard to the duty of the establisher and operator of a child-care center to report on the settlement of special activity expenses among the facts charged of the second selective charge;

In full view of the contents of the relevant laws and regulations, necessary expenses items, including special expenses, are variable in the amount, so the relevant Mayor/Do Governor shall set the limit of receipt (limited). However, since 2012, it is merely a provision on the duty to report the settlement of accounts to the establisher/operator of the child care center in order to transparently manage the place of use of expenses and the remaining amount, and it cannot be deemed that the obligation of the establisher/operator of the child care center, which is the premise of the violation of Article 54(3)6 and Article 38 of the Infant Care Act, is the subject of the duty of prior disclosure under the Criminal Act.

D. As to the duty of disclosure of the establisher and operator of a child care center

From around 2007, the Defendant entered into a special activity supply contract with the trading company with 15,00 won for each infant (the details of the trading company, special activities, age of childcare children, etc.) and received special activity expenses from the guardian of the infant and paid them as they are. The above KRW 15,000 constitutes the actual supply price of the trading company, and there was no illegality at the time.

However, even if the Defendant, from March 2010 to around 15,00 won, maintained the special activity expenses for each infant and received 1/3 price of the above special activity expenses from a trader as a reward for transaction or transaction continuation, insofar as the establisher and operator of a child care center prohibits the trader from receiving economic benefits from the trader engaging in the special activity, and there is no provision punishing the latter (Articles 88-2 and 23-2 of the Medical Service Act prohibits the medical practitioner, etc. from receiving economic benefits from the pharmacist, etc.), unlike the previous facts, the Defendant is obligated to receive only the amount excluding the money and valuables in the name of honorarium from the existing special activity expenses from the guardian, or there is no new duty to notify the guardian of the fact that the Defendant receives money and valuables in the name of honorarium from the trader.

E. As to so-called "actual expenses"

Unlike the previous guidelines, the guidance for child care business guidance in 2012 was required by the establisher and operator of the child care center from the guardian using the child care center within the limit of the amount determined by the Mayor/Do governor. However, if the actual expenses are received in excess of the actual expenses, the criminal complaint is taken (the child care fees under Article 38 are received by fraud or other improper means under Article 54(3)6 of the Act, and Article 38).

First of all, the above guidelines are not only unclear meaning of the term "actual cost necessary for the actual system", but also necessary expenses received by the establisher and operator of a child-care center are within the scope of the limit of the receipt, and even though it is given the establisher and operator of a child-care center an obligation to make a follow-up settlement report in the Land Business Guidance in 2012, it is difficult to avoid criticism of excessive regulation merely because actual expenses exceed the actual cost.

Each of the facts charged in the instant case is premised on the fact that the amount, other than money and valuables in the name of honorariums, received by the Defendant from the guardian of infants, is the actual supply price of the transaction company, i.e., the actual cost necessary for the actual system.

However, 15,00 won per infant and child is determined by a trader in consultation with the founder and operator of a child care center at an appropriate level in full in consideration of all circumstances (the existence of a competitor, the size of the child care center, the number of infants and young children and teaching materials in question, the restriction on the price of franchises, the personnel expenses to be paid to affiliated instructors, the financial status of the trader, etc.) and profits of the trader. As seen earlier, it is practically impossible for the trader to distinguish the above 15,000 won from the purchase cost item of teaching materials in detail, the non-items for external instructors, and the profit item of the trader.

② A trader shall pay some of the expenses for special activities to the establisher and operator of a child-care center under the pretext of honorarium for special activities in consideration of the relationship with the relevant child-care center with respect to the above 15,000 won already owned by him/her, possibility of future re-contracts, etc.

③ The transaction company paid money and valuables on the pretext only to some child-care centers, the size of which is large or which are smooth to trade, and the period and amount of payment cannot be determined to be specified. It is too reasonable to view that the actual supply price of the transaction company differs between the month in which the transaction company paid money and valuables, depending on whether the transaction company voluntarily paid money and valuables on the pretext of the honorarium.

In light of the above circumstances, it is reasonable to deem in this case that KRW 15,00,00, which is the special activity cost per infant per head, constitutes a justifiable amount in the case where childcare fees, etc. can be collected as the actual supply price of the transaction company. It cannot be deemed that the amount, except money and valuables in the name of honorarium, becomes the actual supply price of the transaction company.

(f) A causation;

The prosecutor asserts that the defendant could not easily respond to the amount of special activity expenses set by the defendant and the transaction company if the defendant knew that the guardian of the infant who is the victim of the crime of fraud is using part of the special activity expenses under the pretext of honorarium from the transaction company.

However, according to the records, the special activity expenses in the Jeju Special Self-Governing Province can be found to have been set at a reasonable and low level compared to the land regardless of its type, and the money in the name of honorarium received from the Defendant’s trading company is already delivered to the Defendant through the Defendant to the Defendant at its own discretion by the trading company. Therefore, the guardian’s interests are not directly related to the guardian’s interests, and rather, it is difficult for the guardian to find out special reasons to oppose the pertinent childcare center. Thus, it is difficult to accept the above assertion by the prosecutor, and there is no evidence to acknowledge this.

(g) Other matters.

In this case, the special activity expenses received by the defendant from the guardians of infants did not exceed the maximum amount of the childcare fees determined by the Governor of Jeju Special Self-Governing Province.

In addition, it is not directly related to the establishment of a crime of fraud and a crime of violation of Article 54 (3) 6 and Article 83 of the Infant Care Act in the Criminal Act, such as whether the defendant has received money and valuables in the name of the defendant as the defendant's personal passbook, whether he/she has used money and valuables in the name of the honorarium, and whether he/she has used money

H. Sub-committee

The evidence submitted by the prosecutor alone is insufficient to recognize that the defendant, even though he/she entered into a special activity supply contract (a side contract) with a trader, has a duty to receive special activity expenses from a infant guardian in excess of the above actual supply price, or to notify the defendant that he/she would receive a reward from a trader, and there is no other evidence to acknowledge that there is no other evidence.

The Defendant’s act of receiving money and valuables under the name of a trader may be subject to the crime of breach of trust under the Criminal Act, apart from whether the Defendant’s act of receiving money and valuables under the name of a trader may be subject to the crime of breach of trust under the Criminal Act. The Defendant may not be punished for the crime of fraud under the Criminal Act premised on the fact that the Defendant is subject to the obligation of prior disclosure, and the crime of violation of Articles 54(3)6 and 83 of the Infant Care Act under the premise that the Defendant is subject to the obligation of prior disclosure. The same applies to the case where the Defendant and the trader have repeatedly repeated the conclusion of a special activity supply contract for several years,

4. Conclusion

Since each of the facts charged in this case is insufficient to prove the crime, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of this judgment is publicly announced under Article 58(2) of the Criminal Act.

Degree of Nature