Where the head of a central government agency seeks the return of subsidies pursuant to Article 31(1) of the Act on the Budgeting and Management of Subsidies, whether the head of a central government agency may request the return of subsidies by means of civil procedure (negative)

Article 30(1) of the Act on the Budgeting and Management of Subsidies provides that the head of a central government agency may revoke all or part of the decision to grant subsidies in cases where a subsidy program operator has received subsidies by false application or other unlawful means. Article 31(1) provides that in cases where the decision to grant subsidies has been revoked, the head of a central government agency shall order the return of subsidies already granted to the subsidy program in the part where the decision to grant subsidies has already been revoked. Article 33(1) provides that with respect to subsidies to be returned as above, the head of a central government agency may collect the subsidies to be returned in the same manner as national taxes are national taxes are collected. As such, the head of a central government agency may compulsorily collect the subsidies to be returned in the same manner as national taxes are national taxes are national taxes, and the right to collect subsidies to be returned by the head of a central government agency is different from claims under private law, so the head of a central

Articles 30(1), 31(1), and 33(1) of the Act on the Budgeting and Management of Subsidies

Jin-gun (Attorney Choi Byung-jin, Counsel for the defendant-appellant)

(1) An incorporated farming association and two others;

Gwangju High Court Decision 2010Na5358 decided January 14, 2011

The part of the judgment of the court below on Defendant 3 and the part on the claim for the return of subsidies against Defendant 2 shall be reversed, and the corresponding part of the judgment of the court of first instance shall be revoked, and this part of the lawsuit shall be dismissed. The appeal by Defendant 3 shall be dismissed. The costs of appeal as to the dismissed appeal shall be borne by Defendant 3, and all costs of appeal as

1. Ex officio determination

Article 30(1) of the Act on Budget and Management of Subsidies (hereinafter “Subsidy Act”) provides that the head of a central government agency may revoke all or part of the decision to grant subsidies in cases where a subsidy program operator receives subsidies by false application or other unlawful means. Article 31(1) of the same Act provides that the head of a central government agency shall order the return of subsidies already granted to a subsidy program in the part where the decision to grant subsidies has been revoked. Article 33(1) of the same Act provides that with respect to subsidies to be returned as above, the head of a central government agency may collect subsidies to be returned in the same manner as national taxes are national taxes are collected. As such, the head of a central government agency may compulsorily collect subsidies to be returned in accordance with the example of national taxes in arrears, and the right to collect subsidies to be returned by the head of a central government agency is a private right under public law, and thus, the head of a central government agency cannot request a return of subsidies by means of civil procedure against a person who is to return

However, according to the reasoning of the judgment below and the records, the plaintiff's claim of this case against the defendant Lee Insin Agricultural Partnership (hereinafter "the defendant corporation") was cancelled since the plaintiff was delegated with the authority of the head of central government agency under the Subsidy Act and the decision to grant the subsidy of this case against the defendant corporation. The part of the claim of this case against the defendant 2 is that the defendant corporation's member of the defendant corporation is responsible for the amount of the subsidy to be returned according to the cancellation of the above decision to grant the subsidy of this case.

Examining this in light of the above legal principles, each of the above claims against the Plaintiff and Defendant 2 are related to the right to collect subsidies to be returned under Article 31(1) of the Subsidy Act, which is a right under public law, and cannot be prosecuted in civil procedure.

Nevertheless, the court below erred by misapprehending the legal principles as to Article 31 (1) of the Subsidy Act, which affected the conclusion of the judgment, on each of the above claims.

2. Determination on Defendant 3’s grounds of appeal

The lower court determined that the evidence, as indicated in its reasoning, is insufficient to recognize that the relevant public official’s administrative guidance on Defendant 3 was erroneous, and even if the administrative guidance on Defendant 3 was inappropriate, it is difficult to deem that Defendant 3 submitted false documents to the Plaintiff and received subsidies illegally, Defendant 3 provided a direct motive in carrying out the aforementioned illegal act, or that such circumstance constitutes a ground for limitation of liability recognized in accordance with the principle of fairness, and that it cannot be deemed that Defendant 3’s illegal act is justified.

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

3. Conclusion

Therefore, among the judgment of the court below, the part on the defendant Simin Agricultural Partnership and the part on the claim for the return of subsidies against the defendant 2 are reversed without examining the above defendants' grounds of appeal. Since this part of the judgment of the court below is deemed sufficient to be judged directly by this court, this part of the judgment of the court of first instance is reversed, and the corresponding part of the judgment of the court of first instance is revoked, and this part of the lawsuit is dismissed. The appeal by the defendant 3 is dismissed, and the costs of appeal and the total costs

Justices Lee In-bok (Presiding Justice)