(영문) 광주지방법원 2019.10.31.선고 2019구합10412 판결

1. The Defendant’s disposition of ordering the return of subsidies against the Plaintiff on December 18, 2018 is revoked. 2. The costs of lawsuit are assessed against the Defendant.

Purport of claim

The part of the claim for the cancellation of the decision to grant subsidies and the cancellation of the disposition to suspend the grant was withdrawn.

Reasons

1. Details of the disposition;

A. The plaintiff is a provider of coastal cargo transportation under the Marine Transportation Act, and the defendant is an affiliated agency of the Ministry of Oceans and Fisheries.

B. On February 28, 2018, the chief of the Gunsan Coast Guard notified the director of the regional maritime affairs and fisheries office of the investigation results on the violation (Fraud) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) regarding the oil tax subsidy to the stock company B (the representative: C; hereinafter referred to as "B"). The investigation results include the following : B purchased oil, the source of which is unclear in amount of KRW 5,616,585,910 from January 4, 2016 to October 30, 2017 without the issuance of a tax invoice; B purchased the same without the issuance of the tax invoice; 1,401,728,545 won out of the above non-material oil; 30 days from February 23, 2016 to October 14, 2017; 30 days from the purchase price of the oil to the Plaintiff (the victim 50 days from the actual purchase price of the oil; 30 days from the Plaintiff (the representative director of Busan District).

D. From November 30, 2016 to November 12, 2017, the Defendant used transit through transactions with B. Based on Article 41-2(2) of the Marine Transportation Act, Article 31(1) of the Subsidy Management Act, Article 11(2) of the Subsidies Act (hereinafter “Subsidy Act”), Article 175, 404, and Article 11(2) of the Guidelines for the Payment of Fuel Tax Subsidies to the Plaintiff on the ground that the Plaintiff used transit through transactions with B between November 30, 2016 and November 12, 2017, the Plaintiff ordered the Plaintiff to offset the amount of 175,298,478,90 won to be returned, and to return the amount of 76,290,90,000 won to the Plaintiff (hereinafter “the amount of 39,000 won”) and to exclude the amount of 175,590 won from the amount of 19,090 won (hereinafter “the instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 10 evidence, Eul evidence 1, the purport of the whole pleadings

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) Article 41-2 of the Marine Transportation Act provides that the Minister of Oceans and Fisheries shall order a provider of coastal cargo transport services who received subsidies by fraud or other improper means to return subsidies. In light of the provisions on delegation and entrustment of the Marine Transportation Act and administrative authority, the Defendant is not delegated the authority to take the instant disposition, and Articles 30 and 31 of the Subsidy Act provide that the head of a central government agency shall order the return of subsidies and interest accrued therefrom if a subsidized business operator received subsidies by fraud or other improper means. However, the head of a central government agency, who is the head of a central government agency, does not have been delegated the authority to take the instant disposition by the Minister of Oceans and Fisheries, to the Defendant. Accordingly, the Defendant is a person who

2) When the Plaintiff purchases oil from B, the Plaintiff was unaware of the fact that B sold the oil without material by not only purchasing the oil after obtaining confirmation as to the quality or source of the oil, but also receiving a tax invoice from B after the transaction. Therefore, the Plaintiff did not receive the subsidy by fraud or other improper means.

(b) Relevant statutes;

It is as shown in the attached Form.

C. 1) Whether the delegation of administrative authority has the authority to take the instant disposition under its own name, i.e., transferring a specific authority to another administrative agency pursuant to the law and allowing the delegation of authority to exercise the authority of the delegated administrative agency. Thus, it is recognized only where a law permits delegation of authority. On the contrary, even in cases where a law does not permit delegation of authority, the internal delegation of administrative authority allows its subsidiary organs or subordinate administrative agencies to actually exercise its authority in order to promote the convenience of internal administrative affairs of the administrative agency. Thus, in the case of delegation of authority, the delegated administrative agency may exercise its authority under its own name, but in the case of internal delegation, the delegated administrative agency can exercise its authority only under its own name (see, e.g., Supreme Court Decisions 94Nu6475, Nov. 28, 199).

2) First of all, whether the Defendant has the authority to issue an order to return a subsidy to a provider of coastal cargo transport services under Article 41-2(2) of the Marine Transportation Act under his/her own name, taking into account the following legal principles: (a) the Marine Transportation Act; (b) the Enforcement Decree of the said Act; (c) the Guidelines for Payment of Oil Tax Subsidies by a provider of coastal cargo transport services (hereinafter “Guidelines for Payment of Oil Tax Subsidies”); and (d) the details and structure of the provisions on delegation and entrustment of administrative authority, the Defendant cannot be deemed to have the authority to issue an order

A) Article 41-2(2) of the Marine Transportation Act provides that "the Minister of Oceans and Fisheries shall order an ocean-going cargo transport business operator who has received oil tax subsidies by fraud or other improper means to return oil tax subsidies, and the Minister shall recover the subsidies, loans and oil tax in the same manner as delinquent national taxes are collected, and Article 53(1) of the same Act provides that the authority of the Minister of Oceans and Fisheries for the Minister of Oceans and Fisheries under this Act may be delegated to the head of an affiliated agency, as prescribed by Presidential Decree

B) The Enforcement Decree of the Marine Transportation Act lists the authority delegated by the Minister of Oceans and Fisheries to the chief of a regional maritime affairs and fisheries office pursuant to Article 53 of the Marine Transportation Act, and among which, does not include the authority to issue an order to return a subsidy under Article 4

C) In addition, Article 11(2) of the Guidelines for the Payment of Oil Tax Subsidies (Notice of the Ministry of Oceans and Fisheries) provides that if a provider of coastal cargo transportation services commits an act prohibited under each subparagraph of Article 41-3(1) of the Act and Article 26-4 of the Enforcement Rule of the same Act and has paid oil tax subsidies by unlawful means, or if it is confirmed that the payment was made by mistake, the chief of a regional maritime affairs and fisheries office shall take measures to recover the oil tax subsidies paid with respect to the relevant oil content, such as an order to return subsidies, etc., by the chief of a regional maritime affairs and fisheries office, he/she shall take measures to recover the oil tax subsidies paid to him/her. However, this is not related to matters for which the Minister of Oceans and Fisheries

D) Article 41-2(1) through (3) of the Regulations on Delegation and Entrustment of Administrative Authority enacted pursuant to Article 6(1) of the Government Organization Act delegates some of the authority of the Minister of Oceans and Fisheries to the chief of a regional maritime affairs and fisheries office, but does not include some of his/her authority the authority to issue an order to return subsidies under Article 41-2

3) Next, considering the following legal principles, whether the Defendant has the authority to issue an order to return a subsidy under Article 31(1) of the Subsidy Act in his own name (Article 31(1) of the Subsidy Act appears to have been indicated as the grounds for ordering the return of interest, but there is room to deem that the instant disposition was made based on the order to return a subsidy under the Subsidy Act, and therefore, it cannot be deemed that the Defendant has the authority to issue an order to return a subsidy under Article 31(1) of the Subsidy Act in his own name, in addition, Article 31(1) of the Subsidy Act provides that the head of a central government agency may issue an order to return a subsidy “where the head of a central government agency revokes the decision to cancel the decision to grant a subsidy,” unlike Article 41-2(2) of the Marine Transportation Act, it does not appear to have existed prior to the revocation of the decision to grant a subsidy).

(A) Article 31(1) of the Subsidy Act provides that the head of a central government agency revokes a decision to grant a subsidy;

e. Article 38 of the Act provides that when a subsidy has already been granted to a subsidy program for the revoked portion, a subsidy corresponding to the revoked portion and the interest accrued therefrom shall be ordered to be returned within a specified period, while Article 38 of the Act provides that the head of a central government agency with regard to the grant and management of a subsidy may delegate part of the subsidy to the head of the agency to which he/

B) Article 17 of the Enforcement Decree of the Subsidy Act provides that the affairs determined and publicly announced by the head of the relevant central government agency among the affairs falling under any of the subparagraphs shall be delegated to the head of the relevant central government agency, and subparagraph 6 of the same Article provides that "dispositions concerning the return of subsidies under Article 31 of the Act" shall be one of the affairs falling under any of the subparagraphs, but it is not deemed that the delegation of a disposition concerning the return of subsidies to the head of the competent local

C) As seen earlier, Article 11(2) of the Guidelines for the Payment of Oil Tax Subsidies provides that the chief of a regional maritime affairs and fisheries office shall take measures to recover the oil tax paid to a provider of coastal cargo transportation services by unlawful means or by erroneous means. However, the above provision does not delegate the authority to order the return of subsidies under Article 31 of the Subsidy Act to the chief of a regional maritime affairs and fisheries office. ② The above guidelines are public notices for the purpose of determining the standards, procedures, methods, etc. for the payment of the support program in granting oil tax to a coastal cargo transportation business operator pursuant to Article 41 of the Marine Transportation Act and subordinate statutes (Article 1 of the above Guidelines), ③ other public notices that delegate the duties of granting and managing the subsidy under Article 17 of the Enforcement Decree of the Subsidy Act to the chief of a regional maritime affairs and fisheries office in accordance with Article 11(2) of the Subsidy Act.

4) Ultimately, even if one mother is viewed, it cannot be deemed that the Defendant has the authority to take the instant disposition under his own name.

D. Sub-determination

Therefore, considering that the Defendant’s disposition was unlawful as a disposition by an unauthorized person (as seen earlier, the Prosecutor of the Busan District Prosecutors’ Office, the Prosecutor of the Busan District Prosecutors’ Office, and the Defendant’s Office, as seen earlier, sold oil without data to its customers including the Plaintiff, as if it were oil purchased in the normal course, and received the proceeds therefrom, the Defendant’s actual operator and the representative director, etc. were indicted, it is insufficient to recognize that the Plaintiff received oil tax subsidies by fraud or other improper means, and the instant disposition is unlawful on the ground that there is no other evidence to acknowledge it).

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

Judges

The presiding judge shall be appointed from among judges.

Judges Gincheon-soo

Attorney Won-won

Note tin

(1) A subsidy project, such as notification of intangible cultural heritage of the Cultural Heritage Administration and provision of subsidies under its jurisdiction (public notification of the Cultural Heritage Administration) and installation of exhaust gas reduction devices

Public notification (public notification of the Ministry of Environment), public notification (public notification of the Ministry of Environment), grant of subsidies and delegation of management affairs, and support for private arboretums;

(Public notice to the National Forest Service) of affairs concerning the issuance, management, etc. of subsidies, and the granting and management of subsidies for the promotion of social enterprises;

Delegation Provisions (Public Notice of Ministry of Employment and Labor)