Maamo-ro 7 A University in Nam-gu, Nam-gu

Representative of the Board of Governors /Sgd.

Law Firm Barun (LLC)

Attorney Kim Hong-do, and Sark-young

The Minister of Justice shall grant his/her legal representative stay.

Litigation performers shall be commercialized;

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Lee Young-young

2. It is confirmed that there is no obligation to return research and development expenses to the Defendant for the joint use of 1,836,568,560 won for the Defendant.

3. All costs of the lawsuit shall be borne by the defendant.

A. Status of the parties

The plaintiff is a school operations institution of A University, a private university, and the B Research Institute affiliated with A University (hereinafter referred to as the "Research Institute of this case") has been performing the research project for joint use of radiation radiation (hereinafter referred to as the "Project of this case") from 1995.

(1) Where research and development projects are carried out by the Ministry of Science, ICT and Future Planning on July 26, 2017 (the Ministry of Science, ICT and Future Planning has been reorganized; hereinafter referred to as the "Ministry of Science, ICT and Future Planning") after the conclusion of a research and development agreement on the instant research and development project and the amount of funds transferred to each of the following 0-year government research and development projects (the amount of funds transferred to each of the Ministry of Science, ICT and Future Planning for separate research and development projects shall be 0-year government research and development projects; 2) the amount of funds transferred to each of the following 0-year government research and development projects shall be 0-year government research and development project regulations (the amount of funds transferred to each of the Ministry of Science, ICT and Future Planning for separate and 3-year research and development projects; 3) and the amount of funds transferred to each of the following 0-year research and development project regulations for separate use of research and development projects (the amount of funds transferred to each of the Ministry of Science, ICT and Future Planning shall be 15-year.

1) On May 2016, the Minister of Science and ICT and the Korean Research Foundation, as its affiliated foundation, have settled the accounts of the actual usage of research and development expenses paid pursuant to the instant agreement (hereinafter “the instant research and development expenses”).

2) On August 24, 2016, the Minister of Science and ICT notified the Plaintiff of the measure following the instant close business settlement to the effect that the Plaintiff, a school operations institution, bears the corporate contributions for the Private School Teachers and Staff (hereinafter “private school teachers’ pension”) from the research and development expenses received in relation to the instant project since 2013. As such, the corporate contributions, etc. were to be recovered pursuant to Article 19 of the Management Regulations, etc., and thus, the said amount was returned to the National Treasury.

3) On June 1, 2017, the Minister of Information and Communication notified the Plaintiff that the Plaintiff would not pay the amount in full (hereinafter referred to as the “instant notice of payment”) to the effect that the Plaintiff would pay KRW 1,836,568,560 for returned expenses following the above settlement (hereinafter referred to as the “instant notice of payment”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1, 3 through 5, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

Since the private school pension corporation contributions for employees of the research institute of this case are included in the subject of the instant research and development expenses, the Plaintiff did not have a duty to refund an amount equivalent to the Plaintiff’s contributions paid from the instant research and development expenses to the Defendant, the subject of the settlement of the instant research and development expenses.

B. Relevant provisions

It is as shown in the attached Form.

C. Determination

1) The meaning of the instant notice of payment and the standard for determining propriety

A) According to the instant payment notice, the Minister of Science and ICT examined the usage results of research and development projects after the termination of the term of the instant agreement concluded with the Plaintiff, which is an institution conducting research and development projects, and notified that the corporate contributions of private school pension out of the personnel expenses paid to researchers directly participating in the research and development projects of the instant project would be refunded on the ground that the instant agreement violates the instant agreement. Therefore, in determining whether the instant research and development expenses were unfairly disbursed as corporate contributions of private school pension out of the personnel expenses of researchers participating in the instant project, the provisions of the instant agreement regarding the standards for managing and using the instant research and development expenses shall be first considered as the standard.

B) Meanwhile, according to Article 4 of the Convention, the Plaintiff established a separate account for the instant research and development expenses as prescribed by the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 28210, Jul. 26, 2017; hereinafter “former Management Regulations”), the Enforcement Rule of the same Regulations and the former Regulations on the Disposal of Research and Development Projects under the jurisdiction of the Ministry of Science, ICT and Future Planning (amended by Ordinance of the Ministry of Science and ICT No. 1, Jul. 27, 2017; hereinafter “former Management Regulations”), and managed the instant research and development expenses with a credit card connected to the same account (Article 4(1) of the Convention), and used the instant research and development expenses in accordance with the standards for calculating research and development expenses by item of item of attached Table 2 of the former Management Regulations, and the detailed appropriation and execution standards by item of item of attached Table 3 of the former Management Regulations (Article 4(2) of the Convention). In addition, according to the former Management Rules No. 2 and attached Table 3, the amount of research funds and retirement funds directly paid to the Plaintiff’s.

2) Specific determination

In full view of the following circumstances, it is reasonable to interpret that the total amount of the research and development expenses of the Plaintiff’s research and development project under the attached Table 2 and attached Table 3 of the former Management Regulations should be included in the total amount of the private pension’s personal expenses and the corporation’s expenses if the research institute directly participating in the research and development project of the instant project is a private school pension participant, as well as in the total amount of the expenses to be borne by the research institute under the attached Table 2 and attached Table 3 of the former Management Regulations. In other words, Article 12(2) of the former Management Regulations and Article 23(2) of the former Management Regulations provide that the head of the central administrative agency should not, in principle, bear the research and development expenses if a non-profit corporation, such as a university or college, is a managing research and development institute. Considering the purport of the above, it is reasonable to interpret the Plaintiff’s total amount of the expenses to be borne by the research institute under the research and development project of this case, which is the research and development project of this case.

② Private school pension and national pension are similar in legal nature or structure to the social insurance system aimed at stabilizing the economic life and improving welfare of the pension subscribers, and a private school pension subscriber is excluded from the eligibility to subscribe to the National Pension (proviso to Article 6 of the National Pension Act). In addition, according to the criteria for calculating personnel expenses among the criteria for appropriation and enforcement of research and development funds prescribed in the attached Table 2 and the attached Table 3 of the former Management Regulations, the research institute of this case can use the amount calculated by multiplying the "amount of actual payment under the provisions of the affiliated research and development institution" by the "ratio of participation in the relevant research and development expenses" as personnel expenses. It is difficult to readily conclude that the research institute's interpretation of the attached Table 2 of the former Management Regulations does not include the "amount of actual personnel expenses paid to the research institute" in the case of government-funded research and development institutions and specific research and development institutions to which the standards for calculating personnel expenses are applied, as well as the "amount of actual payment of the research and development funds actually spent by the affiliated research institute" as labor expenses.

③ The Defendant asserts to the effect that the instant research and development expenses would be unreasonable against Article 47 of the Pension for Private School Teachers and Staff Act (hereinafter “the Pension Act”). Article 29 of the Private School Act provides that the accounts of school juristic persons shall be divided into those of the juristic persons and those of the schools established and operated by the said juristic persons, and Article 47(1) and (2) of the Private School Act provides that the corporate contributions shall be borne by the school operations organization, and the relevant school operations organization shall not bear all or part of the corporate contributions necessary for the school, with the approval of the Minister of Education. The purport of the aforementioned provisions is to prevent the insolvency of school expenses and to promote the loyalty of education of the private universities by improving financial soundness. The above provisions of the Private School Act are merely regulating the internal relations of the relevant school juristic person, and that the government of the instant case may not provide funds directly for the establishment of private school funds from the date of the implementation of the instant research and development projects to the date of the implementation of the instant provisions.

④ Pursuant to Articles 11-3(1) and 11-4(1) of the Framework Act on Science and Technology, Article 20(1) and (2) of the former Management Regulations, Article 22(1) of the same Act, and Articles 10 and 13(1) and (2) of the Convention, the Plaintiff may gain profits from owning tangible and intangible outcomes acquired through research and development outcomes in certain cases and collecting royalties therefor. However, the Plaintiff’s use of radioactive emitting as the result of the instant research and development project is equivalent to national facilities, which have been used as public research and development facilities for the development of basic science and for the promotion of basic science, and the Plaintiff appears to have appropriated both the royalties and usage fees collected from radioactive ray users for the research and development project’s operating expenses. Rather, there was a point of view that there was a need to take measures to realize radioactive emitting usage fees on several occasions, and the Plaintiff’s use of the instant contributions from the research institute’s implementation of the instant research and development project from the date of the instant research and development project.

D. Sub-determination

Therefore, since private school pension corporation contributions are also included in the subject of the instant research and development expenses, the Plaintiff’s assertion that there is no obligation to refund the amount equivalent to the Plaintiff’s private school pension corporation contributions disbursed and used from the instant research and development expenses to the Defendant is with merit.

3. Conclusion

If so, the plaintiff's claim of this case should be accepted as reasonable. Since the judgment of the court of first instance differs from this conclusion, it is so decided as per Disposition by the assent of all participating Justices on the ground that the plaintiff's appeal is accepted and the plaintiff's obligation to return research and development funds of this case against the defendant is not

Judges Kim Gung-sik

Judges Dokwon Line

was terminated.

2) Although the Minister of Science, ICT and Future Planning and the President of Auniversity are indicated as a party to the instant agreement;

The parties to the instant agreement are entitled to the rights and obligations under the instant agreement, and as to the Defendant

There seems to be no dispute.