Government Law Firm Corporation, Attorney Jeon Tae-tae, Counsel for defendant-appellant

2. The Defendant’s disposition of restricting participation in the three-year national research and development project against the Plaintiff on September 6, 2018 is revoked.

3. The Defendant is responsible for total costs of litigation between the Plaintiff and the Defendant.

2. The plaintiff's assertion

A. The assertion on the grounds for disposition

The reasoning for the court's explanation on this part is that the plaintiff paid 407,518,00 won among the 8th 14th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th.) to the plaintiff.

(b) Claim for aggregate of the periods of restrictions on participation;

The court's reasoning concerning this part is as follows: "No. 8 of the first instance judgment 9" is "(1)"; "No. 7 of the first instance judgment 5" is "(2)"; "the defendant" of the first instance judgment 9 is "the defendant and the co-defendants of the first instance court 2-B and 5 of the grounds of the second instance judgment excluding the case where "the defendant and the co-defendants of the first instance court 2-B and 420 of the Civil Procedure Act"; therefore, it is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

(c) argument on deviation from and abuse of discretionary authority;

In the case of regular payment of personnel expenses, it cannot be deemed that it was directly paid to each student. However, it is erroneous that the excessive payment of the instant case was made by deeming it to be used for the purpose other than the entire regular payment of personnel expenses. Also, even if the total amount of KRW 211,06,052, including regular payment of personnel expenses, is not less than KRW 5,353,978,461, the total amount is not less than KRW 5,353,978,461, and the regular payment of personnel expenses was immediately paid to each student, and there was no personal amount used by the Plaintiff. In addition, the Plaintiff already deposited the amount exceeding the amount of personnel expenses paid to each individual student. In such a case, the Defendant should be deemed to be the recovery of the amount wrongfully used, but the Defendant did not consider it, the purport of the system, the degree of violation, the purpose of use for purposes other than the original management regulations, and the research tasks performed faithfully.

Therefore, the disposition of excessive donation of this case is illegal since it was made by deviating from and abusing discretionary power.

3. Determination as to the legitimacy of the disposition of excessive donation of this case

A. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. The reasoning for the court’s explanation as to the allegation on the grounds for disposition is as follows. Thus, the reasoning for the court’s explanation is as stated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except for a partial change in the judgment of the court of first instance as follows. Thus, this part is cited in accordance with

C. Foods

○ 11 sets up “75%” in Part 19 of the 19th page as “75% (which is equivalent to regular personnel expenses, which is more accurate, but which is 75.75%), but which read “25%” in Part 20 as “25% (which is equivalent to other personnel expenses for use, and which is more accurate, 24.24%), but which is described as 25% in the below).

The following is added at the end of the 13th page. “The amount paid to the above student is merely a total of KRW 72,420,000 or total of KRW 46,818,00 for the personnel expenses paid to the above student in the above student’s account, and only KRW 64.64% out of the personnel expenses paid to the above student in the above student’s account. However, in the case of C student, the amount paid to the above student’s account out of KRW 45,200,180 or the regular personnel expenses paid to the above student is about KRW 41,80,000 for the total of KRW 41,80,000 for the personnel expenses paid to the above student or KRW 92.47% out of the personnel expenses paid to the above student’s account from the above student’s account.”

○○ 13 is the 5th page of the 13th page "........................... even if the expenditure equivalent to the regular payment of personnel expenses was made in terms of personnel expenses for students’ researchers from the public money whose specific nature as a director's personnel expenses was lost, it cannot be viewed that the amount equivalent to the regular payment of personnel expenses has not been used again for other purposes."

C. The grounds for the court’s explanation as to this part of the argument regarding the addition of the period of restriction on participation are as follows. Thus, the reasoning for this part is as stated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except for the dismissal of part of the judgment of the court of first instance as follows.

C. Foods

○ Part 2 of the title 14 is "(1) judgment on the first argument," respectively, and the title 16 is "2) judgment on the second argument."

The 18th part of the 2nd part of the 18th part of the 198th part of the 2nd part is as follows. "The participation of the defendant and the first part of the 19th part of the 2nd part of the 2nd part of the 198th part of the 2nd part of the 198th part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 198th part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of

D. As to the assertion on deviation from and abuse of discretionary power

1) Relevant legal principles

Article 11-2 (1) 5 of the former Framework Act on Science and Technology provides that the head of a central administrative agency may restrict participation in national research and development projects under his/her jurisdiction within five years when using research and development funds for any purpose other than the intended purpose. Article 27 (1) 5 of the former Management Regulations enacted upon delegation under Article 11-2 (5) of the Framework Act on Science and Technology provides for the criteria for restriction on participation. In light of the content and purport of the aforementioned provision, whether to set the period of restriction on participation within the criteria prescribed by the former Framework Act on Science and Technology or the former Management Regulations should be within the discretion of the competent administrative agency. However, if there is a serious error in the fact-finding that served as the basis for the determination of discretion, or if there is a reason for significantly losing validity in light of social norms, it shall be deemed unlawful as a deviation or abuse of discretionary authority (see Supreme Court Decision 2015Du36256, May 28, 2015).

2) Determination

However, as seen earlier, it is reasonable to regard the regular payment of personnel expenses as the use of them for the purpose other than the purpose of the student personnel expenses, and thus, it cannot be deemed that there is any misunderstanding of facts constituting the basis of the discretionary judgment, but on the other hand, considering the following circumstances as revealed in light of the overall purport of the facts and the evidence evidence as seen earlier, even though it is necessary to consider the grounds for the disposition of the instant excessive contribution as well as the overall purport of the arguments, the disposition of the restriction of participation for three years, which is the upper limit of the restriction of participation pursuant to the criteria for the restriction of participation under the former Management Regulations, is contrary to the principle of proportion as excessive compared to

① The total amount of research funds for the task of excessive donation (Attached Nos. 1, 353, 978,461) is KRW 5,353,978,461. Of these, the amount used by the Defendant for the purpose other than its original purpose constitutes KRW 211,006,052, which is 3.94% compared to the total amount of the research funds. However, according to Article 27(1)5(a) of the former Management Regulations, where the amount used for the purpose other than its original purpose is less than 20% of the research funds for the pertinent year, a disposition of restriction on participation for not more than three years may be imposed. Although the instant disposition of excessive donation was made within the scope of the above disposition criteria, it is significant to deem that the non-use ratio is more than three years and only three years are more than three 94%, which is the maximum limit of the research funds for the Plaintiff.

(2) Of course, there is a possibility of criticism in that the scale of the task for excessive donation is large to exceed five billion won in the cost of the national project, and the absolute size of the amount used for other purpose is equivalent to or more than 200 million won, and finally, the cost of the national project created by the national tax is not reasonably distributed and the cost is not used for another scientific and technological research urgently necessary.

Furthermore, the research expenses used for purposes in this case are the students' personnel expenses paid as the salary for research activities, and at the same time, social security and national policy benefits paid for the purpose of stabilizing the livelihood of the students and raising awareness of the desire for the development of science and technology of the State are constantly prohibited from strictly regulating that the student personnel expenses are deposited in the account opened in the relevant student’s name and the joint management by the person in charge of research is strictly prohibited in the relevant Acts and subordinate statutes. Since the professor in charge of research in a graduate school uses the student personnel expenses generated from the student’s share in the affiliated research researcher by using his absolute authority for the purpose other than the purpose, it is socially problematic that the Plaintiff needs to impose sanctions corresponding thereto in regard to the Plaintiff’s use of such personnel expenses for other purposes.

However, considering that government contributions used for other purposes are 211,06,052 won, but 75% of them are deemed to have been paid to the students regularly every month as personnel expenses, and most of the remaining amounts are paid to the students with incentives, etc. or used for research and development purposes, and unlike the Plaintiff’s situation where the above student personnel expenses were used for personal purposes, it is deemed that the possibility of criticism against the Plaintiff is relatively low compared to other cases at which the professor used the school personnel expenses for other purposes. In addition, on June 10, 2016 when the Plaintiff was under criminal trial, most of the students researchers except for some foreign students were deposited in the amount equivalent to the school personnel expenses, and thus, it is necessary to consider these circumstances to determine the level of sanctions against the Plaintiff (However, the Plaintiff’s assertion that the aforementioned amount can be seen as the same as the case where the research and development project had already been recovered after the completion of research and development project’s use under the premise that the aforementioned amount can be seen as the same as the case where it had already been discovered.

③ Meanwhile, the Plaintiff is aware of the commencement of audit in around 2015, and it is anticipated that the Plaintiff’s research and development project was suspended due to the Plaintiff’s use of the school personnel expenses or closed the laboratory, and that there was difficulty in academic affairs and employment of the Plaintiff as well as the students belonging to the laboratory, so it appears that the Plaintiff made the aforementioned false statement through discussions between the Plaintiff and the students, and that franc was jointly managed by the Plaintiff, and that franc was jointly managed by the Plaintiff, and that franc made the statement from fran A to franc, and that franc was false. In other words, there is no ground to believe that the Plaintiff had forced the students to make a false statement, in consideration of these circumstances.

④ The Plaintiff, who served as a professor due to the instant case, was subject to disciplinary action against the instant school, and thus, the Plaintiff may be deemed to have suffered significant disadvantage. Furthermore, when the instant excess donation is maintained, the Plaintiff’s participation in the national development research task for the next three years (which is limited to the task subject to restriction on direct participation, but is limited to the task subject to restriction on participation in excess of contributions, and the Plaintiff’s occupational freedom is at risk of being at the time of participation in the pertinent national research task after being notified to other administrative agencies. Furthermore, it seems that the Plaintiff’s use of the student’s personnel cost for the purpose of its original purpose does not seem to have caused substantial financial damage to the students. Furthermore, as seen earlier, the Plaintiff’s deposit was transferred to Namado, and the Plaintiff appears to have paid incentives, etc. by separating a certain amount from the student’s personnel cost for the purpose of attracting research performance as well as by constituting a joint research project, and considering that the Plaintiff’s act cannot be evaluated as having a strong intent to use it for this purpose, compared with the case’s unlawful donation.

4. Conclusion

Thus, the plaintiff's claim of this case shall be accepted on the ground of its reasoning. Since the part against the defendant among the judgment of the court of first instance is unfair on the ground of its conclusion, the plaintiff's appeal is accepted, and the part of the judgment of the court of first instance is revoked, and it is so decided as per Disposition by the assent of

Judge Park Jong-ok

Judges Han Young-young

On September 6, 2018, the first instance court filed a claim against the Plaintiff seeking revocation of the disposition of restriction on participation in national research and development projects for three years, which was conducted against the Plaintiff.

The former, among the above requests for cancellation, has cited the former and has rendered a decision to dismiss the latter, and only the plaintiff is dissatisfied with the part against which it has lost, and no appeal shall be filed.

In addition, the part concerning the co-defendants of the first instance judgment among the co-defendants of the first instance judgment is separated and confirmed by the Minister of Education due to the failure to appeal.

was determined.

2) The total student personnel expenses paid in connection with the over-contribution task shall be 352,825,080 won, and the Korean Research Foundation’s contributions shall be 211,006,052 won and non-government contributions.

amounted to KRW 141,819,028.

3) The instant excessive donation was made by deeming the full amount of KRW 211,006,052 contributed by the Research Foundation of Korea as being used for other purposes.

(iv)407,518,000 won: 537,957,080 Won 75.75% (Small occupation third)

(v)130,439,080 won: 537,957,080 Won 24.24% (Small occupation third)

6) KRW 46,818,00: KRW 72,420,000 64.64% (round to the third decimal place);

7) KRW 41,800,000: KRW 45,200,180 = 92.47% (round to the third decimal place); and