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

Attorney Dog-won, Counsel for the plaintiff-appellant

Government Legal Service Corporation (Law Firm LLC)

[Defendant-Appellant]

Park Jong-sung et al.

2. The costs of lawsuit shall be borne by the Plaintiff.

A. From 2013 to 2017, the Industry-Academic Cooperation Foundation (Cooperative Institute) entered into a cooperative research agreement with the same industry-academic cooperation foundation (main institution) and the Plaintiff, who is a professor of the Food Nutrition of the University at B, as a person in charge of research, as specified in the following table (hereinafter referred to as "each "the research of this case," hereinafter referred to as "the research of this case"). In the course of performing the research of this case, the Plaintiff used each money (hereinafter referred to as "the personnel expenses of this case") written in the student personnel expense table for the researchers as stated in the attached table 1, by obtaining and managing the head of the research institute of the Food Nutrition and Clinical Research Center at B, or by receiving some of the personnel expenses received by the researchers.

B. On January 15, 2018, the Korean Research Foundation judged that the result of the instant research conducted jointly with the instant personnel expenses and executed the instant personnel expenses for any purpose other than the intended purpose. On January 15, 2019, the Defendant issued a five-year restriction on participation in the national research and development project (hereinafter referred to as "restriction on participation restriction") and Article 27(1) [Attachment 4-2] and 27(2) [Attachment 4-2] and [Attachment 5] and 27-4(1) [Attachment 6] of the former Regulations on Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 29625, Mar. 19, 2019; hereinafter referred to as "Management Regulations"), with respect to the Plaintiff’s personnel expenses (hereinafter referred to as "the restriction on participation restriction") and the Plaintiff’s recovery of the amount corresponding to the instant research expenses (hereinafter referred to as "the two-year restriction on participation restriction").

C. On the other hand, on August 30, 2019, the Plaintiff was sentenced to the suspension of indictment on the charge of deceiving KRW 768,423,257 for the instant personnel expenses (Seoul Western District Prosecutors' Office 2018 type No. 11175, hereinafter referred to as "related criminal cases") and on September 13, 2018, the Plaintiff was assessed as 2-A. Research conducted by the head of the project team for the Promotion of Information on Genetic Consent for Traditional Natural Substances.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, 13, 29 (including branch numbers; hereinafter the same shall apply), Eul evidence 1, and the purport of the whole pleadings

2. Judgment on the Defendant’s main defense

A. The defendant's assertion

The other party to the disposition of restitution of research expenses is the president of the B University Industry-Academic Cooperation Foundation, and the plaintiff's direct and specific interest is not infringed by the law, so there is no standing to sue to seek cancellation of the above disposition.

B. Determination

1) Relevant legal principles

A third party, who is not the direct counter-party of an administrative disposition, has the right to file a lawsuit seeking revocation, where the legal interests protected by the administrative disposition are infringed by law. The legal interests referred to in this context refer to cases where there are individual, direct, and specific interests protected by the relevant laws and regulations and relevant laws and regulations. This does not include cases where a person has a factual and economic interest, such as the general, indirect and abstract interests commonly held by the general public as a result of protecting public interest. In addition, the legal interests protected by the relevant laws and regulations and relevant laws and regulations are not protected by the law and regulations on the grounds of the relevant disposition, but are not protected by the law and regulations on the grounds of the relevant disposition, but are clearly protected by the law and regulations on the grounds of the relevant disposition, the legal interests clearly protected by the law and regulations on the grounds of the relevant disposition and the relevant laws and regulations on the reasonable interpretation of the relevant laws and regulations are interpreted to include individual, direct, and specific interests, not pure public interests protected by the relevant administrative agency (see, e.g., Supreme Court Decision 2001Du1284.

2) Specific determination

Article 11 (2) of the Framework Act on Science and Technology provides that "the Government shall carry out the national research and development projects according to the following subparagraphs when promoting the national research and development projects," and the support to enhance the research and development capacity by creating the highest research environment for research institutes and researchers shall be strengthened (Article 11 (2) and the autonomy of research institutes and researchers shall be considered as the top priority in preparing systems and regulations related to national research and development projects (Article 11 (

According to the above provisions of the Framework Act on Science and Technology, it seems that the purpose of the State to contribute research funds to the industry-academic cooperation foundation, the main research institute of national research and development projects, is not only to foster the industry-academic cooperation foundation, but also to strengthen the capacity of research personnel belonging to the industry-academic cooperation foundation. In principle, the research funds support for the national research and development projects is basically conducted for the research and development of the research team belonging to the industry-academic cooperation group, not the industry-academic cooperation foundation itself, and the industry-academic cooperation foundation is an external entity of the management execution, and the substantial interest arising from the agreement is attributed to the research team, the main entity of the relevant research and development project, and therefore, the measures to recover

As a result, the legal interest of researchers or research teams protected under the Framework Act on Science and Technology is infringed, and the researchers, etc. can at least dispute the validity of the disposition of restitution of research funds through the person in charge of the management representing the interest. Therefore, it is reasonable to deem that the Plaintiff, who is the person in charge of the research of this case, has a legal interest in dispute over the disposition of restitution of research funds. Thus, if the Plaintiff, who is the person in charge of the research of this case, does not have a legal interest in dispute over the disposition of restitution of research funds, the Defendant’s main safety objection is without merit (if it is deemed that there is no legal interest in dispute over the Plaintiff, who is the

3. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

In light of the fact that the plaintiff used the labor cost of this case for the research of this case, there is no private useful fact, and that money which can not explain the user was returned to all the private funds for the research of this case. Besides, the joint management of the labor cost of this case was made with the consent of the researcher for the inevitable expenditure of the research expenses, the plaintiff's research results, including the research of this case, have been very excellent, and the related criminal cases were subject to the suspension of indictment in consideration of the above circumstances, the management regulations that uniformly impose five-year restriction on participation in the labor cost management exceeded the delegation scope, are not binding, and it is too harsh to recover the total labor cost of this case under the joint management. Accordingly, each disposition of this case is an unlawful act of deviating from and abusing discretion in violation of the principle of proportionality.

B. Relevant statutes

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

C. Determination

In light of the following circumstances admitted by the evidence as seen earlier, the evidence alone submitted by the Plaintiff is insufficient to acknowledge that there was an error of deviation or abuse of discretionary power in violation of the principle of proportionality, and there is no other sufficient evidence to acknowledge this differently.

1) The Management Regulations [Attachment 2] provides that the personnel expenses paid to the student researcher shall not be jointly managed. The purpose of the above provision is to ensure that the personnel expenses paid to the student researcher shall be reverted to the principal of the student researcher, thereby allowing him/her to be subject to his/her free disposition, and further promoting the stabilization of the livelihood of the student researcher and the promotion of the school entrance intent. Therefore, the personnel expenses paid to the student researcher constitutes a direct payment to the student researcher. Therefore, the personnel expenses paid to the student researcher are in itself used for the original purpose. Accordingly, even if a person in charge of research manages the passbook of the student researcher and the personnel expenses paid to him/her are paid to the student researcher from the public funds whose specific nature as personnel expenses was lost, it cannot be used for the first purpose. Meanwhile, even if the researcher received the personnel expenses paid to the student researcher from his/her account and collected part of them through his/her authority, it shall be deemed that it is used for any other purposes.

In addition, all of the personnel expenses of this case under joint management by the plaintiff shall be deemed to constitute the amount used for other purposes.

2) Research and development expenses paid to a managing research institute in accordance with the management regulations delegated by the Framework Act on Science and Technology are paid to promote the development of national economy by innovative science and technology, strengthening national competitiveness, and to support national research and development projects to contribute to the development of human society. As such, Article 11-2(1)5 of the Framework Act on Science and Technology provides that national research and development projects shall be faithfully implemented by ensuring that such research and development projects are appropriately disbursed according to the payment purpose and usage. In particular, Article 12(5) [Attachment Table 2] of the Management Regulations explicitly prohibits the use of research and development expenses for any purpose other than the purpose of use, and in order to prevent the elimination of the school personnel expenses due to joint management. However, it is highly necessary to uniformly impose strict sanctions on the fact that the joint management of the school personnel expenses is still being implemented on the ground that it is a practice. Therefore, it is difficult to see that the period of restriction on participation in the project expenses clearly deviates from the delegation of the project expenses for a period of five years or more.

3) Article 11-2(1)5 of the Framework Act on Science and Technology provides that the whole or part of the project cost may be recovered if research and development costs are used for any purpose other than the original purpose, and Article 27(11) [Attachment 5] of the Management Regulations provides that the amount recovered shall not be limited to the amount recovered for any purpose other than the original purpose. In light of the need for sanctions as seen earlier, it is difficult to see that the Defendant’s recovery of only KRW 299,930,593, which is the amount equivalent to the instant personnel cost, from among the instant research costs of KRW 3,351,00,000, is too harsh.

4) Although the Plaintiff received an evaluation of "recognition of Fidelity Performance" for the second research, it does not fall under the grounds for reduction or exemption of each of the dispositions of this case under Article 11-2 (1) 5 of the Framework Act on Science and Technology, and it is difficult to view that the Plaintiff's illegality is low in light of the period, amount, scale, number, etc. of joint management of student personnel expenses, and the Plaintiff's research of this case, even if considering all the circumstances asserted by the Plaintiff, it does not seem too harsh.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Lee Jae-chul

Judge Powers Governing Authority

2) Additional statutes were stated in cases where sanctions against the Plaintiff were substantially modified.