(영문) 부산지방법원 2010.7.1.선고 2009구합4051 판결

1. On November 25, 2008, the defendant confirmed that the disposition of the return of the subsidy of KRW 120 million against the plaintiff on November 25, 2008 is null and void.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The text shall be as shown in the text.

Reasons

1. Details of the disposition;

가. 원고(또는 ‘원고 마을회'라고 한다)는 부산 강서구 대저1동 소통(◆)에 거주하는 세대주로 구성되어 있고, 주민 상호간의 단합과 친선 도모, 경조사 상부상조, 마을 발전 및 주민 복지를 위한 공익사업에 기여하기 위하여 설립되었다.

나. 부산 강서구 대저1동 소통(◆) 지역은 항공기 소음피해지역으로 지정·고시된 지역이었는데, 피고는 이에 대한 보상의 일환으로 항공소음피해지역내 주민공동이용시설 설치사업을 지원하고 있었다. 원고 마을회는 위 지원사업으로 ◆마을 공동구판장 설치사업(이하 '이 사건 사업'이라고 한다)을 신청하였고, 피고는 2007. 2. 22. 이 사건 사업을 주민공동이용시설 설치사업으로 선정하였으며, 같은 해 4. 24. 이 사건 사업의 시행과 관련하여 공사비 3억 3,700만 원 중 1억 2,000만 원은 피고가, 2억 1,700만 원은 주민들이 부담하기로 하는 민간자본보조사업으로 하기로 결정하였다.다. 원고 마을회는 2007. 5. 30. 부산 강서구 대저1동 ○ 전 3,220m에 대하여 소유권이전등기를 경료하였고, 같은 해 11. 6. 위 토지를 부산 강서구 대저1동 이 전 1,220 ㎡와 부산 강서구 대저1동 O-1 전 2,000m로 분할하였다. 원고 마을회는 2007. 7. 1. 이 사건 사업을 착공하여, 2007. 12. 3. 부산 강서구 대저1동 ○ 지상에 주민공동이용 시설인 에이동 492㎡와 비이동 20㎡을, 부산 강서구 대저1동 ○-1 지상에 주민공동이 용시설인 에이동 492㎡와 비이동 492㎡(이하 '이 사건 건물들'이라고 한다)을 각 준공하였고, 원고 마을회의 회원 30인은 2008. 1. 10. 이 사건 건물들에 대하여 소유권보존등기를 경료한 후, 같은 날 원고 마을회에 소유권이전등기를 경료해 주었다.

라. 한편, 피고는 2007. 8. 29. 경 원고 마을회와 대저1동 소통(◆)마을 공동구판장 설치지원에 관한 협약을 체결하였고, 원고 마을회에 이 사건 사업의 기성고에 따라

On September 20, 2007, the first subsidy of KRW 60 million and the second subsidy of KRW 60 million on December 28, 2007 were paid respectively.

E. The Busan District Prosecutors' Office discovered that the instant building was used as a vehicle parts delivery base from around December 2007, and ordered the Defendant to recover KRW 120 million of the subsidy granted to the instant project on October 8, 2008 and October 13, 2008. Furthermore, the Busan District Prosecutors' Office prosecuted on the charge of fraud, violation of the Act on Special Measures for Designation and Management of Development Restriction Zones, on the ground that Park Jong-C, the representative of the Plaintiff Village Association, prepared a false business plan and obtained a building permit in the development restriction zone, and used it as a construction cost by receiving the air noise countermeasure project subsidy in a false business plan, and prosecuted on October 23, 2008 and 3 other than Busan District Prosecutors' Office as Busan District Court Decision 2008Da57844.

F. On December 2, 2008, the Busan District Court recognized the facts charged as above and sentenced to one year and six months of imprisonment with prison labor. GambC appealed appealed as Busan District Court 2008No4747. On August 14, 2009, the appellate court recognized the substance of the Plaintiff’s Village, but declared that Park C was sentenced to one year and two months of imprisonment with prison labor. Park C was dissatisfied with this judgment and appealed as Supreme Court Decision 2009Do8751. On November 12, 2009, the appellate court reversed and remanded the judgment of the court below which acquitted the Defendant of violation of the Act on Special Measures for the Management of Subsidies and Subsidies by 209Do4209. The appellate court found the Defendant not guilty of the violation of the Act on Special Measures for the Management of Subsidies and the Act on Special Measures for the Management of Gambling Areas. After remanding the judgment, the Busan District Court convicted the Defendant of the violation of the Act on Dec. 12, 2009.

G. On November 25, 2008, the Defendant issued a return disposition of a subsidy of KRW 120 million to the Plaintiff Village Association (hereinafter referred to as the “instant disposition”). Thereafter, the Defendant issued a demand disposition on February 25, 2009, and attached the instant building and its site on April 1, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 12, 18 through 25, 28, Eul evidence and video (including paper numbers), the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant asserts that the lawsuit in this case is unlawful, since the plaintiff village association is not equipped with the organization, since it has no capacity to be a party.

B. According to the above evidence, the plaintiff village association acquired co-ownership shares in the site of the village village association on August 31, 1981, the plaintiff village association established rules around April 15, 2005, and elected officers. The plaintiff village association had long existed since it had long been established in around April 15, 2005, and it appears that the officers were elected with specific organization, so the plaintiff's ability to be a party, and the lawsuit of this case is legitimate. The defendant's above assertion is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff used the entire subsidy received from the Defendant as the construction cost of the instant building, and thus did not violate the Act on the Budgeting and Management of Subsidies. Although ParkC was punished as a violation of the Act on Special Measures for the Obstruction of Execution of Fraudulent Public Officials and the Designation and Management of Development Restriction Zones, this is not due to the fact that it failed to operate the instant building appropriately, nor was it appropriated subsidies. The Defendant’s disposition is a disposition following the revocation of the decision to grant subsidies as prescribed in Articles 30 and 31 of the Act on the Budgeting and Management of Subsidies. The Defendant’s disposition of this case was null and void.

B. Relevant statutes

A person who intends to receive a subsidy under Article 16 (Application for Grant of Subsidies) of the Act on the Budgeting and Management of Subsidies (amended by Act No. 9347 of January 30, 2009) shall submit to the head of a central government agency an application stating the purpose and contents of a subsidy program, expenses required for a subsidy program and other necessary matters, accompanied by the documents determined by the head of the central government agency, within the period designated by the head of the central government agency

Article 17 (Decisions to Grant Subsidies) Where an application for the grant of subsidies referred to in Article 16 is submitted, the head of a central government agency shall investigate the following matters and determine whether to grant subsidies without delay:

1. Whether the purposes of statutes and budget are met;

2. Propriety of the subsidized project contents;

3. Whether there exists any error in the calculation of the amount;

4. Ability to bear expenses with own funds (limited to the case where a subsidized enterpriser bears part of the funds).

Article 22 (Prohibition of Use for Other Purpose)

(1) A subsidy program operator shall faithfully perform the subsidy program with due care as a good manager according to the provisions of Acts and subordinate statutes, the details of decision to grant subsidies, or the portion of the head of a central government agency as referred to in Acts and subordinate statutes,

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

(1) The head of a central government agency may revoke all or part of the decision to grant a subsidy, when a subsidy program operator uses a subsidy for other purposes, or violates the provisions of Acts and subordinate statutes, the decision to grant a subsidy, the disposition taken by the head of a central government agency in accordance with Acts and subordinate statutes, or

Article 31 (Return of Subsidies)

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

Those who have been granted subsidies or indirect subsidies by false application or other improper means, or those who have knowingly granted subsidies or indirect subsidies shall be punished by imprisonment for not more than five years or by a fine not exceeding five million won.

C. Determination

Article 40 of the Act on the Budgeting and Management of Subsidies refers to active and passive acts that may affect the decision-making on the grant of subsidies by deceptive means or other acts which are considered to be unfair by social norms even though they cannot receive subsidies under the same Act through normal procedures. In addition, Article 40 of the same Act provides separate penal provisions for the violation of individual administrative procedures under Article 42 of the same Act, since punishment is imposed only when subsidies, etc. are actually granted, the purport of the provision is to punish the violation of the State's financial interests as the protected legal interest and to punish the violation of the order or fairness of the administration of subsidies or the violation of individual administrative procedures, and it is not to punish the violation of the order or fairness of the administration of subsidies or by abstract means of "the grant of subsidies" means the grant of subsidies in excess of the amount to be granted for the affairs or projects that are not subject to the provision of subsidies under the same Act, and the provision of subsidies is not legitimate (see, e.g., Supreme Court Decision 2008Do1680, Jul. 27, 2001).

As to this case, the following circumstances are acknowledged in light of the relevant laws and regulations and the facts as seen earlier. ① The Plaintiff Village is subject to the project to support the establishment of a resident-use facility under the Korea Airports Corporation Act due to noise damage caused by the aircraft; ② the Plaintiff Village Association received subsidies from the Defendant to use the total amount of subsidies for the construction costs of the building in this case; ③ the Defendant issued the instant disposition on the grounds that the Plaintiff’s act of receiving subsidies pursuant to Article 31 of the Act on the Budgeting and Management of Subsidies constitutes a case where the Plaintiff received false applications or other unlawful methods; ③ the 4 subsidies’ budget and management of the subsidies’s subsidies’ fraudulent application or other unlawful methods; and “the case where the subsidies were granted in a fraudulent manner” refers to the work or business that is not subject to the subsidies under the normal procedure and other acts that are deemed unfair by social norms, and thus, the Plaintiff Village is not subject to punishment for violation of the individual administrative procedures, such as the degree of the eligibility for the provision of subsidies and other unlawful methods. ⑤ The Plaintiff Village was the representative of the Plaintiff Village Association.

u. The plaintiff's assertion is with merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.