(영문) 광주지방법원 2019.12.19. 선고 2019구합11668 판결

The defendant's disposition of rejection of an application for closure of a kindergarten B on April 3, 2019 against the plaintiff, and the corrective order for closure of a kindergarten B on April 24, 2019 shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a person who establishes and operates a kindergarten B (hereinafter referred to as “instant kindergarten”).

B. On February 20, 2019, the Plaintiff filed an application with the Defendant for authorization of the kindergarten of this case on the ground that “I will inevitably abolish the kindergarten of this case due to serious difficulty in establishing 20 students among the 118 students less than 37 graduates among the present 118 students, as a result of improving the health of the founder and checking the source of financial resources in 2019.”

C. On March 22, 2019, the Defendant notified the Plaintiff of the submission of the cash receipt and disbursement book, collection book, and disbursement book, but the Plaintiff did not submit the audit data. Accordingly, although six public officials in charge of audit and inspection belonging to the Defendant visited the instant kindergarten on March 26, 2019 for the purpose of audit, the Plaintiff was refused to do so. The Defendant notified the Plaintiff of the corrective order that “when visiting a kindergarten on the same day, an audit place is provided and the audit data is shipped out,” and on March 27, 2019, two public officials in charge of audit and inspection belonging to the Defendant visited the said kindergarten for the purpose of audit again, the Plaintiff was also rejected.

D. On March 27, 2019, the Plaintiff notified the Defendant of the closure of the instant kindergarten. On April 3, 2019, the Defendant rejected the Plaintiff’s application for authorization of closure (hereinafter “instant return disposition”) on the following grounds, and notified the Plaintiff of the following corrective order (hereinafter “instant corrective order”).

In March 27, 2019, the Korean Office of Education, which issued a notice of corrective order following the rejection of audit data (in March 26, 2019, implementation of official text), issued a notice of corrective order following the rejection of audit data, but rejected an audit and failed to comply with a corrective order, issued a notice of corrective order on March 27, 2019 to illegally close kindergarten facilities without permission, to the present day in the case of a private kindergarten that was accused of a reason for refusal of audit or a failure to submit audit data.

Even if all of the notified audit dispositions are implemented, it is difficult to view that the audit has been completed, and return the application for authorization for closure.

2. Warning and corrective order 2. Private kindergartens shall obtain authorization from the superintendent of the Office of Education in cases where a person who establishes and operates a private kindergarten pursuant to Article 8(4) of the Early Childhood Education Act intends to close a kindergarten; 3. The kindergarten of this case submitted an application for authorization to close a school on February 20, 2019; however, on March 27, 2019, the private kindergarten was shipped out to the Office of Education on the ground that it was not authorized to close the kindergarten. This constitutes a failure to obtain authorization to close the private kindergarten under Article 34(2) of the Early Childhood Education Act or authorization to alter the private kindergarten. This is a severe warning as it constitutes a failure to obtain authorization to close the private kindergarten or authorization to change the private kindergarten under Article 34(Penal Provisions) of the Early Childhood Education Act, and take measures within the specified date and subject to the schedule

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 5 to 7, the purport of the whole pleadings

2. The plaintiff's assertion

A. As to the disposition on the return of this case

1) The Plaintiff filed an application by satisfying all the requirements for authorization for the closure of a kindergarten, and the authorization for the closure of a kindergarten is binding, and the Defendant is obligated to authorize the closure of a kindergarten to the Plaintiff. Nevertheless, the Defendant’s rejection of the Plaintiff’s above application,

2) The Defendant issued a disposition on the ground that the Plaintiff refused to conduct an audit under the Public Audit Act (hereinafter “Public Audit Act”) and did not submit audit data, but the Public Audit Act cannot be applied to a kindergarten established and operated by a private person, such as the instant kindergarten. Thus, the above disposition grounds cannot be acknowledged.

3) The instant return disposition deviates from and abused discretionary power.

B. As to the corrective order of this case

1) As the Defendant did not comply with the procedure of prior notice and hearing of opinions while rendering the instant corrective order, the said disposition is procedurally unlawful.

2) The Defendant’s disposition of this case’s corrective order without any ground-based statute was unlawful.

3. Relevant statutes;

It is as shown in the attached Form.

4. Whether the return disposition of this case is legitimate

A. Legal nature of authorization for closure of a private kindergarten

Whether an administrative act is a binding act cannot be uniformly defined. Determination should be made by taking into account both the form and language of the legal system that forms the basis of the pertinent act, the main purpose and characteristics of the administrative sector to which the pertinent act belongs, the individual nature and type of the pertinent act itself (see Supreme Court Decision 2012Du16787, Apr. 10, 2014).

Article 9 of the Framework Act on Education and the Early Childhood Education, which determine the matters concerning early childhood education pursuant to Article 9 of the Framework Act on Education, provides for the establishment and admission of kindergartens as schools with public nature, the detailed provisions concerning the accounting of teachers and staff, expenses, subsidies of the State and local governments, etc., and provides for guidance, supervision, and evaluation by administrative agencies (Articles 18 and 19 of the Early Childhood Education Act). In addition, where a person who establishes and operates a private kindergarten intends to close a kindergarten, he/she shall be subject to the authorization of the superintendent of education, and where he/she intends to obtain authorization of closure in violation of Article 8(4) of the same Act, the penal provisions including imprisonment shall also apply to cases where he/she suspends, suspends, closes, or closes the relevant kindergarten (amended by Presidential Decree No. 3024, Aug. 6, 2019). Article 9(2) of the former Enforcement Decree of the Early Childhood Education Act (amended by Presidential Decree No. 2024, Aug. 6, 2019).

In light of the purport, contents, language, and structure of the relevant statutes and the ripple effect of the closure of a private kindergarten, it is reasonable to deem that the disposition to grant authorization for the closure of a kindergarten, which is an educational facility with high level public character, constitutes an administrative agency’s discretionary act that ought to be determined in consideration of the public interest related to the continuity and stability of early childhood education. Accordingly, the Plaintiff’s assertion on this different premise is rejected.

B. Whether the Public Audit Act is applied

Article 3(1) of the Public Audit Act applies the same Act to central administrative agencies, local governments, and public institutions (hereinafter referred to as "central administrative agencies, etc.") with respect to self-audit activities, etc., Article 2(1) of the same Act provides that "self-audit" shall be examined, inspected, verified, analyzed, and verified by the heads of central administrative agencies, local governments, and public institutions to which they belong (including their affiliated agencies and affiliated organizations) and persons belonging to such agencies, and all duties, activities, etc. of such agencies, and the results thereof shall be handled. Article 2(3) of the Act provides that the Office of Education of Metropolitan City is one local government, and Article 4 provides that "Public Audit Act shall apply to the operation of self-audit organizations of central administrative agencies, etc. and the system of audit activities of central administrative agencies, etc., if other Acts and subordinate statutes provide for otherwise.

Meanwhile, Article 4(1) of the Private School Act provides that private kindergartens and private school managers who establish and operate such private kindergartens shall be subject to guidance and supervision by the Special Metropolitan City, Metropolitan Cities, Special Self-Governing City, Do, and Special Self-Governing Province superintendent having jurisdiction over their domicile. Article 48 of the same Act that applies mutatis mutandis to private school managers pursuant to Article 51 of the Private School Act provides that when necessary for supervision, the competent authorities may order private school managers to submit reports, inspect account books, documents, etc., and order them to take necessary measures. In addition, the latter part of Article 18(1) of the Early Childhood Education Act provides that private kindergartens shall be subject to guidance and supervision by the superintendent of education. According to Article 19(1) of the same Act, the superintendent of education may also evaluate kindergarten operating conditions, etc., if necessary for efficiently providing early childhood education. Furthermore, Article 30(1) of the same Act provides that a kindergarten may order the founder, founder, or operator to correct or modify facilities, equipment, curriculum, increase in kindergarten tuition and other matters.

In full view of the purport, contents, language, system, etc. of the aforementioned relevant statutes, a private kindergarten constitutes a "organization under the jurisdiction of a Metropolitan City which is a local government, regardless of whether a person who establishes and operates a corporate body or a private kindergarten is an individual," and such interpretation cannot be deemed an analogical interpretation or non-permission of administrative regulations. Therefore, it constitutes a "self-audit" under Article 2 subparagraph 1 of the Public Audit Act to investigate, check, confirm, analyze, and verify the duties, activities, etc. of the kindergarten of this case, which is the head of the Metropolitan Office of Education (the head of the Metropolitan City Office of Education) and to process the result thereof, and thus, the Plaintiff’s assertion on a different premise is without merit.

C. Whether the discretionary authority is deviates or abused

In full view of the following circumstances, it is difficult to deem that there was an error of deviation or abuse of discretionary power in the instant disposition, taking into account the evidence as stated in the purport of the relevant Acts and subordinate statutes, including the Early Childhood Education Act, as well as the evidence as stated in subparagraphs 1 through 4, and 8 (including each number) and the overall purport of the pleading. The Plaintiff’s assertion on

1) The purport of requesting the superintendent of education to close a private kindergarten is to allow the superintendent of education who has received an application for closure to determine whether to close the private kindergarten in consideration of the circumstances such as securing the public nature of education, ensuring the sound operation of the kindergarten, guaranteeing the safe educational environment of the kindergarten children, etc. The above public interest that the Early Childhood Education Act intends to protect is very important in light of the importance of early childhood education as a starting point of creating the correct personality of the young children.

2) Meanwhile, in order to guarantee the sound educational environment of private kindergartens, fair and stable financial operation is important. The Early Childhood Education Act, etc. provides subsidies to private kindergartens, return such subsidies, and criminal punishment, thereby guaranteeing the management of financial support and financial operation for the fair and stable financial operation of private kindergartens. The above fiscal operation environment should be guaranteed from the establishment and operation of private kindergartens to the closure of private kindergartens, and self-audit of the superintendent of education under the Public Audit Act is an effective and appropriate means for such purpose.

3) In addition, even though an operator of a private kindergarten commits an act detrimental to the fair and stable financial operation of the private kindergarten by receiving subsidies in violation of relevant laws and regulations, it is necessary to close the private kindergarten and avoid sanctions, such as self-audit. The Ministry of Education held the City/Do Office of Education on October 16, 2018 for audit and inspection of the private kindergarten, and the vice superintendent’s meeting on January 18, 2018. Accordingly, the Defendant established a self-audit plan on January 12, 2019 and notified the private kindergarten under his/her jurisdiction of the plan for conducting the audit and inspection of the private kindergarten on March 12, 2019, and conducted the audit and inspection procedure for the Plaintiff. Therefore, the above audit procedure cannot be deemed arbitrarily conducted after the instant application.

4) In light of the fact that the period required for self-audit does not extend, as well as the submission of documents and statement of opinion required to the Plaintiff in the process, the burden is not significant, and the Plaintiff is able to obtain authorization for closure after faithfully conducting self-audit, etc., the Plaintiff’s disadvantage due to the instant return disposition cannot be said to exceed the public interest.

5. Whether the corrective order or disposition of this case is legitimate

A. Whether procedural legitimacy is legitimate

According to Articles 21(1), 21(3), (4), and 22(3) and (4) of the Administrative Procedures Act, where an administrative agency imposes an obligation on a party or imposes a disposition restricting his/her rights and interests, it shall notify the parties, etc. of the matters such as "the title of the disposition", "the facts causing the disposition and the legal basis thereof", "the method for submitting opinions", "the name and address of the agency proposing opinions", "the due date for submitting opinions", and "the due date for submitting opinions", and "the submission of opinions" shall be determined in consideration of a reasonable period necessary for submitting opinions, and even in cases where other Acts and subordinate statutes stipulate that a hearing is essential or a public hearing is not held, the parties, etc. shall be given an opportunity to present opinions. However, prior notice or hearing of opinions may not be given only when there are reasonable grounds to recognize that the hearing of opinions is difficult or clearly unnecessary due to the nature of the relevant disposition."

The instant corrective order disposition is required to submit data, etc. in accordance with the self-audit of the Public Audit Act, and the period during which an auditor can submit his opinion is included in the preparation phase and is given to some extent. In addition, the process of hearing opinions on persons subject to audit from the submission phase may not only cause delay in the procedure but also hinder the achievement of the purpose of audit. Article 12(1) of the Enforcement Decree of the Public Audit Act provides that the instant corrective order disposition may not be notified of the self-audit plan itself in cases where there is an urgent reason to conduct an audit promptly or inevitable reason to achieve the effectiveness of audit. Comprehensively considering these circumstances, it is reasonable to deem that the instant corrective order disposition falls under “where there is a considerable reason to deem that the hearing of opinion is significantly difficult or clearly unnecessary due to the nature of the relevant disposition” and is excluded from those subject to prior notice of disposition and hearing of opinions. The Plaintiff’s allegation in this part is without merit.

B. Whether the disposition is based on statutes

According to Article 20 (1) and (3) of the Public Audit Act, the head of an audit organization may, when necessary for self-audit, request an institution subject to self-audit or its affiliated public official or employee to attend and answer, submit relevant documents, books, goods, etc., and the institution subject to self-audit and its affiliated public official or employee so requested shall comply with such request unless there is good cause not to do so.

In full view of the following circumstances, including the evidence mentioned above and the overall purport of the pleading, ① the Defendant’s self-audit of the instant kindergarten, as seen earlier, applies the Public Audit Act to the Defendant’s self-audit of the instant kindergarten, ② the Defendant presented the “Article 34(2) of the Early Childhood Education Act” under the relevant Acts and subordinate statutes as of April 24, 2019, but, on March 26, 2019, presented Article 20 of the Public Audit Act as the relevant Acts and subordinate statutes upon notifying the Defendant of the corrective order demanding the “providing the place of audit and the submission of audit data,” which is the same as the above disposition, and presented the same as the previous one. In full view of the following, the instant corrective order was issued based on Article 20 of the Public Audit Act, and thus, is lawful, and thus, the Plaintiff’s assertion that

6. Conclusion

The plaintiff's claim is without merit, and all of them are dismissed. It is so decided as per Disposition.