영유아보육법상 보조금의 부정수령 및 유용에 관한 판례분석

The purpose of Infant Care Act (ICA) is to contribute to promoting the welfare of infants and their families by fostering infants to healthy members of the society by nurturing their minds and bodies, and their sound education, and by facilitating their guardians’ economic and social activities. In order to fulfil its purpose, it requires the govern- ment to provide infant care fees or child home-care allowances to the guardians, and support the child-care center operators with various expenses such as expenses incurred in establishingㆍexpandingㆍimproving or repairing child- care centers, personnel expenses for infant care teachers, expenses for teaching materials, and vehicle operating expenses. On the other hand, the ICA provides various means to prevent wasteful spending of public funding - such as order to refund subsidies, business suspension or closure of child-care center, suspension of qualification as principal of child-care center, or criminal penalty. However, since the ICA has not been in force for long and has been revised several times, there has been some problems raised throughout its enforcement. Also, there has been many lower court cases that was over- turned by the supreme court. In this paper, I first go over the subsidies on the ICA and the penalties against the wrongful use of subsidies. And then I examine the court’s position and suggest some solutions for the problems raised regarding the ICA. The main issues are as follows. The most debated problem regarding the ICA subsidies was whether the child-care fee in Article 34 is for the operator of child-care center or the guardian of the infant. In the lower court cases there had been divided opinions, but in June 12, 2014, the supreme court stated that it was for the latter. It seems that the supreme court’s decision is correct considering the current ICA, but this interpretation raises the problem that it is difficult to prevent the operators from falsely altering the amount subsidy. Therefore further revision is required regarding this issue. The ICA delegates the details of free infant care to the Minister of Health and Welfare. Therefore the Minister of Health and Welfare publishes annual guideline called ‘Guide for Child-care business’ and determines details such as application requirements, procedure, and refunds of subsidies. However, there are some details in the guideline that was not delegated by the ICA, such as the refund of the subsidy. The important matters regarding the infant care subsidy that is closely related to people’s rights, should be regulated in the law itself, and when it is necessary to delegate it, the ground and scope needs to be specified by the law. The current ICA has a major problem regarding the instance when the operator of child-care center misappropriates the subsidy. When the operator of child-care center consumes for private use from an account that holds both the subsidy and non-subsidy funding, the court states that it is impossible to order the refund of subsidy because it is impossible to separate the subsidy from the non-subsidy funding. Therefore it is im- possible to take punitive action against the operator even if they use the subsidy for private use. So further revision is required regarding this issue.