보조금 부정청구에 대한 부정이익 환수 및 제재에 관한 연구

In the case of applying subsidies by improper means, Subsidy Management Act and other specific laws have provisions on the return of all or part of the subsidy without distinguishing the improper gain as the subsidy applied by improper means from the portion that was in excess of the improper gain. However, the Public Finance Restitution Act, which was recently enacted as the General Act on applying Subsidies by improper means Fraud Claims, stipulates only the return of the improper gain, and the return of the portion exceeding the improper gain is not separately prescribed, but also the suspension of payment and the additional sanction amount as a sanction against improper application of subsidy. This can be interpreted as reflecting the fact that improper gains are from the viewpoint of restitution of unjust enrichment and sanctions are applied to the portion exceeding the improper gain. The dual view of such restitution of unjust enrichment and sanctions should also be applied to the interpretation of Subsidy Management Act and other specific laws. First of all, the subsidy corresponding to the improper gains is subject to restitution of unjust enrichment, so it is difficult to say that the discretion of the administrative agency can not be acknowledged in the return of improper gains. On the other hand, improper gains are the basis for the calculation of the additional monetary sanction, so that any portion that has a punitive nature beyond the scope of the unjust enrichment should not be included in improper gains. Since the return of subsidies exceeding improper gains has the nature of a sanction similar to the additional monetary sanctions, it should not be double imposed with the additional monetary sanctions. Furthermore, the Public Finance Restitution Act does not have any specific provisions on the scope of the suspension of payment, which may be regarded as a violation of non-delegation doctrine in view of the fact that the scope of the suspension of payment in Subsidy Management Act and other specific laws are variously defined. Finally multi-layered sanction of (1) the return of the portion exceeding the improper gain, (2) the suspension of payment, (3) restriction of participation, (4) additional monetary sanctions, (5) criminal penalty needs to be reorganized institutionally from the perspective of proportional principle and equality principle so that aggregate sanction is not overly excessive and the level of sanctions does not vary though the level of illegality is similar.