Representative B

2. C

[Judgment of the court below]

[Defendant-Appellee]

Law Firm Min-young, Counsel for the plaintiff-appellant

Attorney Shin Sang-hoon

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

A. Progress of litigation related to the previous disposition

1) An industry-academic cooperation foundation for Plaintiff A University (hereinafter referred to as “Plaintiff-academic cooperation foundation”) is a corporation established pursuant to Article 25 of the former Act on Promotion of Industrial Education and Industry-Academic Cooperation (amended by Act No. 10907, Jul. 25, 2011); Plaintiff C is an electronic and information engineering and professor of Auniversity; the Korea Research Foundation (hereinafter referred to as “Korea Research Foundation”) is a corporation established pursuant to the Korea Research Foundation Act, which is established pursuant to the Framework Act on Science and Technology; Article 11(4) of the Framework Act on Science and Technology; Article 10(1) of the former Regulations on the Management of Research and Development Projects under the jurisdiction of the Ministry of Science and ICT (amended by Ordinance of the Ministry of Science and ICT No. 3, Aug. 24, 2017; hereinafter referred to as “Ordinance of the Ministry of Science, ICT and Future Planning”).

2) The Korean Research Foundation concluded a standard agreement on research and development tasks with the Plaintiff-academic cooperation foundation on May 1, 201 to April 30, 2014, with regard to "300 million won of total research and development expenses", "30 million won of total research and development expenses", and "the Plaintiff C," respectively.

3) Under the standard agreement on the research and development task, Plaintiff-academic cooperation foundation received research expenses of KRW 100 million for the first year (from May 1, 201 to April 30, 201), KRW 20 million for the second year (from May 1, 2012 to April 30, 201), KRW 300 million for the third year (from May 1, 2013 to April 30, 201), and KRW 300 million for the third year (from April 1, 2014 to April 30, 201) in accordance with the said research and development task. The research foundation of Korea received research expenses of KRW 100 million for the first year (from May 1, 201 to April 30, 201). The main contents of the said final evaluation result are as follows.

Evaluation score: Grade 59 of the D comprehensive opinion: In order to find out and improve the characteristics of semiconductor novels whose characteristics have improved, one relevant thesis (at a rate of 50%) and several patents performance results (part of patents related to research) were judged to have failed to achieve the research goal. 5) The Plaintiffs submitted to the Korea Research Foundation on August 12, 2014, a written explanation to the effect that "the current two thesis are submitted in academic journal, and the expected publication is different in consideration of the future revision process." However, on December 5, 2014, the Korea Research Foundation was examined by the Review Committee on February 2, 2015, and on March 13, 2015, "the President of the Korea Research Foundation" was evaluated as "the final research and development task in the class DD and the results of the instant research and development task in the class D, 300 won, 200 won, 300 won, 200 won, 2008 won, 2000 won, 208.

6) On March 18, 2015, the Plaintiffs filed an objection with the Korean Research Foundation to the effect that the Plaintiff “C” published a thesis related to the instant research and development task on December 12, 2013, which was within the research period, on the part of the Plaintiff’s Research Foundation, and then requested the withdrawal of the instant previous disposition in consideration of the publication in the said personal name on January 2015. However, on April 27, 2015, the Korea Research Foundation decided to dismiss the Plaintiffs’ objection, and on May 26, 2015, the Korea Research Foundation notified the President of A University of the final evaluation on May 26, 2015 on the ground that “the results after the completion of the research shall not be considered” is not subject to consideration.

7) Accordingly, the plaintiffs filed a lawsuit against the Korean Research Foundation to confirm the invalidity of the previous dispositions of this case as Daejeon District Court 2015Guhap103271. On October 13, 2016, the above court rendered a judgment that the previous dispositions of this case cannot be deemed to be invalid on the grounds that the Korean Research Foundation cannot be deemed to have the authority to recover research expenses based on Article 11-2(1)1 of the Framework Act on Science and Technology, Article 27 of the Regulations on the Management, etc. of National Research and Development Projects (hereinafter “Management Regulations”), Article 45 of the Ministry of Science, ICT and Future Planning Regulations, and the above judgment became final and conclusive around that time.

B. On April 10, 2017, the Basic Research Headquarters PM council, held on April 10, 2017, decided that it approved the same content as the previous disposition, and that the sanctions assessment group held on April 18, 2017 approved the same content as the previous disposition.

2) On May 10, 2017, the Defendant gave prior notice to the Plaintiffs, and on May 19, 2017, notified the Plaintiffs that Plaintiff C will be subject to the restriction on participation in national research and development projects for three years on the ground that “the result of the instant research and development project was determined as a failed project as a result of the Defendant’s evaluation on the ground that “the result of the instant research and development project was extremely poor.”

[Ground of recognition] Facts without dispute, Gap evidence 1 to 8, Eul evidence 1 to 6 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) Since the defendant presented only the basis for the instant disposition and did not present a specific reason, there is a procedural error in the instant disposition.

2) Since there is no specific standard to determine the failure due to extremely poor results of the instant research and development task, the instant disposition cannot be deemed a disposition based on the legal basis. Therefore, the instant disposition is against the principle of statutory reservation.

3) Non-existence of grounds for disposition

The result of a research and development task shall be determined on the basis of static standards, such as whether the final research objective prescribed in the original research and development task has been achieved, and shall not be determined on the basis of quantitative standards such as the publication of a thesis or the frequency of patent applications. Nevertheless, the Defendant determined that the result of the research and development task of this case was extremely poor, based solely on the quantitative standards such as the frequency of publication of a thesis or the frequency of patent applications, etc., through only deliberation and resolution by the Basic Research Headquarters PM council, etc. comprised of members who have no expertise in

4) Article 45(11) and [Attachment 11] 1 of the Regulations on the Management of Ministry of Science, ICT and Future Planning provides that where research and development outcomes are determined as a failed task due to extremely poor outcomes, a contribution shall be recovered within “within the total amount of contributions for the pertinent year.” Since the Defendant issued the instant disposition on the ground that the third year performance was poor, it was able to recover only the third year research expenses pursuant to the foregoing provision, it was recovered in the first year research expenses and the second year research expenses. Accordingly, the instant disposition on the recovery of research expenses in the instant disposition was erroneous.

(b) Relevant statutes;

Attached Acts and subordinate statutes, etc. shall be as listed.

(c) procedural illegality;

Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall provide the basis and reasons to the parties when rendering a disposition. This purport is to exclude the arbitrary decision of the administrative agency and allow the parties to properly cope with the administrative remedy procedure. Therefore, in full view of the contents stated in the written disposition, relevant statutes, and the overall process up to the relevant disposition, where it is sufficiently possible to find out which basis and reason the parties have made at the time of the disposition, and it is deemed that there was no particular hindrance to moving into the administrative remedy procedure, the disposition cannot be deemed unlawful due to such failure, even if the grounds and reasons for the disposition are not specified in the written disposition (see, e.g., Supreme Court Decisions 2007Du20348, Dec. 10, 2009; 201Du18571, Nov. 14, 2013).

On August 7, 2014, the Korean Research Foundation notified the president of A University of the final evaluation results of D grade on the ground that the research objective related to the instant research and development task is insufficient, and that the Plaintiffs submitted a written vindication and raised an objection, but the Korean Research Foundation was taking the previous disposition and dismissed the Plaintiffs’ objection on the ground that the research objective is insufficient. Furthermore, according to each of the evidence Nos. 2, 8, and 9, the Plaintiffs filed a lawsuit seeking the revocation of the previous disposition in this case with the Daejeon District Court and filed a lawsuit seeking the revocation of the previous disposition in this case, and each of the facts that the grounds for the previous disposition in this case were more specifically presented in the course of the said lawsuit, and the grounds for the disposition and the reasons for the disposition in the written prior notice of disposition in this case can

According to the above facts, the plaintiffs were fully aware of the grounds and reasons for the disposition of this case through the prior notice of disposition of this case and the written notification of disposition of this case, and they could sufficiently recognize the specific reasons for the disposition of this case through the objection to the previous disposition of this case and the specific reasons for disposition known in the process of litigation. Therefore, it cannot be deemed that there was an obstacle to the plaintiffs' moving into the administrative remedy procedure due to objection to the disposition of this case. Thus, this part of the plaintiffs' assertion is without merit

D. Whether the principle of statutory reservation is violated

The principle of statutory reservation derived from the principle of the rule of law under the Constitution means that the exercise of administrative power should be done based on law. However, barring special circumstances, the law enacted by the National Assembly, which is a representative body of the people, is presumed to be constitutional until the Constitutional Court makes a decision of unconstitutionality. Thus, even in a situation where it is doubtful that certain laws violate the principle of statutory reservation and are unconstitutional, the exercise of administrative power based on the law does not violate the principle of statutory reservation unless the Constitutional Court explicitly

The head of the instant disposition was based on Article 11-2 (1) 1 of the Framework Act on Science and Technology, which provides that where research and development outcomes are extremely poor and the central administrative agency determines as a research and development task suspended or failed as a result of evaluation conducted by the central administrative agency, the restriction on participation in national development projects and the recovery of project costs may be imposed. The instant disposition based on the foregoing provision, which is presumed to be constitutional due to the Constitutional Court’s decision of unconstitutionality, does not violate the principle of statutory reservation. Therefore, the Plaintiff’s assertion on this part is without merit.

[Reference] We examine whether the above provision itself is unconstitutional or not in violation of the principle of statutory reservation. It is understood that today's legal reservation doctrine is understood that the area of basic and important meaning for the state community and its members, especially the area related to the realization of the fundamental rights of the people, should not be entrusted to the administration, but the legislator, the representative of the people, must make a decision on its essential matters (see Constitutional Court Order 98HunBa70, May 27, 199, etc.). However, in the disposition of sanctions, essential matters that must be provided by law refer to the subject and objects of the disposition, grounds for sanctions, and limits of sanctions. Article 11-2 (1) 1 of the Framework Act on Science and Technology provides for the subject and objects of the disposition, and the grounds for sanctions, and thus, the above provision does not violate the principle of statutory reservation. Accordingly, the plaintiff asserts to the effect that the above provision does not clearly stipulate the criteria for determining whether the results of the former development, which is the grounds for sanctions, are extremely poor, and that it does not necessarily constitute an individual concept of statutory discretion.

Therefore, the plaintiff's above assertion is without merit.

E. Whether the grounds for disposition are recognized

1) Facts of recognition

A) Research goals and research results of the instant research and development task

(1) The research goal of the instant research and development task indicated in the research plan submitted by the Plaintiffs is as follows.

The final objective of the study is to contribute to the development of the space and the enhancement of the ability of national defense by obtaining leading technologies in the fields where technology transfer is difficult from developed countries, by evaluating reliability arising from exposure to radiation of the next generation's semiconductor elements which will constitute a new space, military, and industrial use, and further to enhance the characteristics of internal radiation. The research objective of the 1st year is to contribute to the development of the space and the enhancement of the ability of national defense by obtaining leading technologies in the fields where technology transfer is difficult from developed countries. - The research objective of the 2nd year - the evaluation of the reliability of semiconductors of semiconductors and radiation survey equipment and radiation survey equipment - the evaluation of high voltage/metallics of high voltages and its physical mechanisms - the evaluation of the characteristics of the radiation research conducted by a computer camera for the second year - the research purpose of the 2nd year - the analysis of reliability and its physical mechanism of the radiation source material's radiation exposure and the results of the evaluation of the credibility of the plaintiffs's final radiation impact on the 2nd year by the radiation circuit design-type.

The results of this study are as follows: (a) analysis of changes in the characteristics of 1string radiation research; (b) 2nding from 1strings to 3thrings by 1strings; (c) 4thrings by 1strings; (d) 1strings by 1strings; (e) 4thrings by 1strings; (e) 1strings by 2ndrings by 1strings; and (e) 1strings by 4thrings by 2ndrings; (e) 1strings by 3thrings by 1strings; and (e) 1strings by 4thrings by 1strings; and (e) 1strings by 2ndrings by 1strings; and (e) 1strings by 4thrings by 2ndings of nuclear technology; (f) analysiss by 1strings by 1strings; (f) research results by 1strings by 5things.

B) Details of the evaluation of the instant research and development task by the sanctions evaluation team, etc.

(1) The results of the assessment of good faith performed by the Research Foundation of Korea show that the assessment of the characteristics of the semiconductor tenant’s interior line is the main task, and other results in addition to Part I of the SCI, are shown to be related to the nature of the tenant’s radiation. In addition, the thesis examined also somewhat little in terms of the nature of the tenant’s radiation. Considering that the sampling of the task was conducted mainly in the assessment and mechanism research conducted by the SMATH, it states that the sampling of the task is somewhat insufficient in the research achievement drawing.

(2) On December 5, 2014, the review opinion of the review committee held on December 5, 201, stating that “1 and the second-year task shall be deemed to have been faithfully performed compared to the research objectives, but the third-year task shall be deemed to have been low in the performance of the research plan.”

(3) On February 2, 2015, the review results of the Basic Research Headquarters PM Council held on February 2, 2015 indicate that “the first and second years are deemed to have been faithfully performed, but they have no record of performance for the third years.”

(4) On April 27, 2015, the review result of the sanctions assessment group held on April 27, 2015 contains a statement that the publication on January 2015 is insufficient in terms of research goals. The final evaluation is subject to the results derived within the total research period.

(5) On April 18, 2017, the results of the review by the sanctions evaluation group held on the disciplinary measure conducted on April 18, 2017 include the following: “1 and the second year task shall be deemed to have been performed in good faith compared to the research objectives, but the third year shall be deemed to have been low in preparation for the research plan.”

C) Opinions of evaluators and professors in electrical and electronic fields related to the instant research and development task

(1) In the written opinion by an evaluation committee member whose personal information is not specified (No. 11 evidence), the research and development task of this case is to study the reliability evaluation for the development of semiconductors in the internal radiation. However, most of the results submitted by the plaintiffs are related to the tenant design, and only one of the SCI thesis published in December 1, 2012 and one of the paper published in the domestic academic conference. In conclusion, even though the results of the evaluation of the radiation reliability and the heatation mechanism should be submitted in the third year, the research results of this case are irrelevant, and the patent related to this research task was submitted as a result of the research, and there was no explanation as to the relationship between this research task and the patent."

(2) A written opinion by an evaluation committee member whose personal information is not specified (No. 12) contains the following: (a) there is no intent in the case of a thesis published on January 2015; (b) Plaintiff C’s contribution to the said thesis is limited to within 30%; and (c) there was no research on the heat mechanism by radiation, which is the main subject of the instant research and development task; and (d) therefore, it is difficult to regard the said thesis as the outcome of the instant research and development task.

(3) On the other hand, in the written opinion written by D University Electronic Engineering and Professor E on January 2015, this paper takes two major approaches for the purpose of research of the cohesion mechanism of semiconductor elements by radiation. First, the impact of radiation on the action of semiconductor elements by investigating radiation of the produced elements and measuring the characteristics thereafter is identified.

Second, the theoretical approach to identify the physical characteristics of the ion current generated by radiation and its impact is followed by the theoretical approach. Therefore, this paper states that "I seem to have sufficient relevance to the research and development task of this case."

(4) In addition, each opinion written by the FF university’s semiconductor system engineering and associate professor G and H University’s electronic engineering and associate professor I also describe the following as follows: (a) The published paper is based on the theoretical method to identify the physical characteristics of the electric current and impact of the radiation generated by the radiation as a means of research on the heating mechanism of semiconductors by radiation; and (b) thus, it appears that the research task in this case seems to have sufficient relevance.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 10, 16 through 18, 20, 23, Eul evidence Nos. 1, 2, 4, 6, 10 through 13, and the purport of the whole pleadings

2) Determination

If an administrative agency has made a high level of professional and technical judgment as prescribed by the relevant Acts and subordinate statutes, it shall be respected. However, if there are special circumstances, such as a serious error in fact-finding, which forms the basis of such judgment, or an objectively unreasonable and unreasonable judgment, such judgment is unlawful as a deviation and abuse of discretion judgment.

Inasmuch as the indefinite concept of ‘unafford failure' requires highly professional and technical judgments due to extremely poor outcomes of research and development, the determination of the result of the research and development task based on the result of the deliberation by the sanctions evaluation group organized under Article 27(6) of the Management Regulations and Article 45(6) of the Regulation on the Scientific Processing of Future Creation Science should be respected. However, the Defendant’s determination that the result of the research and development task of this case was extremely poor and unreasonable for the following reasons, and thus, the above determination by the Defendant is unlawful as a deviation or abuse of discretion.

A) Although a research was conducted to cite new scientific knowledge and technology, or to improve existing scientific knowledge and technology drastically, there are cases where publication of a thesis and patent application are not followed due to difficulties in solving and verifying the difficulty. However, there are cases where a number of copies and patent applications are filed solely on the grounds that the existing scientific knowledge and technology have somewhat differentiated in spite of having given answers to existing scientific knowledge and technology. As such, the outcome of science and technology should not be assessed solely by quantitative factors, such as publication of a thesis and the frequency of patent applications, and whether such scientific knowledge and technology are not existing drastically or have been significantly improved, determination should also be made by taking into account such positive factors as whether the existing scientific knowledge and technology are not existing.

B) Article 11-2(1)1 of the Framework Act on Science and Technology provides that “the requirements for a disposition taken to restrict participation in national research and development projects shall not be stipulated as a failure due to a failure to meet the results of research and development.” Therefore, in evaluating a research and development task, the Defendant shall not simply determine whether the results of the relevant research and development task failed to meet the final research objective; whether the outcomes of the relevant research and development task failed to meet the research objective; whether the relevant research and development task has achieved the research objective; and whether some research goals have the independent scientific and technological value corresponding to the final research objective if some research objective have been achieved, it shall be determined whether the relevant research and development task is somewhat defective or not.

The final report (No. 13) submitted by the plaintiffs states that the specific research objectives of this case are 10% achievement, 3 shall be 80% achievement, 10% achievement, and 10% shortage. Therefore, the defendant should have determined whether the above specific research objective of this case can be deemed as achievement of the final research and development objective of this case, and whether the above specific research objective of this case can be deemed as achievement of the final research and development objective of this case, and whether the above specific research objective of this case cannot be deemed as achievement of the final research objective of this case, 10% arbitrary achievement or 10% achievement by the plaintiffs despite the lack of most of the above detailed research objective of this case, 20% achievement by the plaintiffs' assertion, 3% achievement of the above detailed research objective of this case, 3rd achievement of the research and development task of this case can not be deemed as having independent scientific and technological value equivalent to the above final research objective of this case, 4.

However, as seen earlier, only abstract evaluation results, such as evaluation results of the Korea Research Foundation's implementation of the research and development task in good faith, review results of the Review Committee's review opinion, results of deliberation by the Basic Research Headquarters PM Council, results of deliberation by the sanctions evaluation group, "the achievement of the research is deemed to have been poor in terms of the achievement of the research task," "the achievement of the third year", and "the achievement of the research task in comparison with the research plan is not transferred to the third year," and it does not include any statement that considering the positive evaluation factors to be considered in determining whether the results of the research and development task in this case are extremely poor. No other evidence is found to prove that the defendant considered the above positive evaluation factors in determining the results of the research and development task in this case, and there is no evidence to prove that the defendant considered the above positive evaluation factors in determining the results of the research and development task in this case. In addition, the defendant's assertion that the above results of the research task in this case's implementation of the research task in this court were not clear enough.

C) Ultimately, the Defendant’s determination on the outcome of the instant research and development task is based only on the quantitative evaluation of the publication of the thesis and the lack of patent application frequency, without going beyond the limit, and thus, the above determination by the Defendant is objectively unreasonable and unreasonable.

D) Meanwhile, the Defendant asserts that only the papers, the publication of which has been completed within the total research period, should be considered as the result of the research and development task, and the publication in January 2015 did not appear as the result of the instant research and development task. However, as mentioned earlier, the Defendant’s determination of the outcome of the instant research and development task is unlawful even in that the research was conducted to make an invention of new scientific knowledge and technology that does not exist in the past or to improve the existing scientific knowledge and technology drastically, but it does not lead to the publication of the thesis due to the difficulty in understanding and verification, as well as that there is a lack of global authority, such as SIS or NV, and that considerable time takes place in the examination of the publication of the thesis. Accordingly, the Defendant’s determination of the outcome of the instant research and development task is also unlawful in that the publication of the thesis was not based on the result of the instant research and development task in January 2015.

3) Sub-decisions

Therefore, the grounds for the disposition of this case cannot be recognized, and without examining the remaining arguments of the plaintiff, the disposition of this case should be revoked as unlawful.

3. Conclusion

Therefore, the plaintiffs' claims of this case are justified, and all of them are accepted. It is so decided as per Disposition.

Judges Jae Jae-nam

Judges Slocks