2017Nu86444 Dispositions to receive contributions and to revoke restrictions on participation.

1. A stock company;

2. B

Minister of Oceans and Fisheries

Seoul Administrative Court Decision 2016Guhap76848 decided November 3, 2017

June 20, 2018

July 18, 2018

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

The decision of the first instance court is revoked. The defendant's recovery disposition of government contributions of KRW 328,582,080 against the plaintiff corporation A on August 26, 2016 and the disposition of restriction on participation for five years against the plaintiffs shall be revoked.

1. Quotation of judgment of the first instance;

The reasons for this Court concerning this case are as stated in the reasoning of the first instance judgment except for the dismissal or addition of a part of the judgment of the first instance as set forth in the following paragraph (2). Thus, the meaning of the language used in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter, the same shall apply to the judgment of the first instance).

2. The second part of the construction or addition is followed by the "954,000,000" later than the "954,000,000" for the second part of the 110th reason, and the "cooperative research institute" in the 11th part is added to the "cooperative research institute" (the corresponding amount of the plaintiff company among the above agreed research and development costs is 74,00,000 won).

After the 6th page of the 6th page, the following is added. “The Plaintiff’s funds equivalent to the research and development funds used to repay the debt of the Mappbook shall not be deemed to constitute “the use of the original research and development funds for the purpose other than the original purpose for the instant research and development project, even if the funds were later used for the original purpose for performing the instant research and development project, taking account of such ex post facto circumstances, using the original research and development funds for the repayment of the Plaintiff’s Marpbook debts,”

The following is added after the date of 11th of the 6th page. [The plaintiffs submitted additional evidence No. 106, No. 107 evidence No. 1 to 9 of the above Cash 20,000 won as evidence supporting that the plaintiff's executive officers and employees directly engaged in performing their duties from November 10, 2015 to December 24, 2015, while performing their duties at the time of the original budget execution plan for the research and development project of this case, and from November 10, 2015 to December 24, 2015, the plaintiff submitted additional evidence No. 106, No. 107, and No. 1 to 9 of the above Cash 20,000 won for the above cash 20,000 won for the special reasons which are recognized by the evidence existing by the plaintiffs (the above evidence No. 64 and No. 78, No. 215, Dec. 16, 2015).

○ The following shall be added to the 11th page:

F) As to this, the Plaintiffs were repeated in the trial. ① In the case of the instant restitution disposition, the Plaintiffs may either be recovered or recovered when considering the gravity of the act of violation and the possibility of achieving the objectives of the research and development task pursuant to the proviso of Article 61(10) of the Operating Rules. ② In the case of the instant disposition of restriction on participation, the Plaintiffs shall consider the fact that the period of restriction on participation can be mitigated for more than one year if the research and development expenses used for other purposes than the purpose under the proviso of Article 61(1)5 of the Operating Rules have been recovered into the account. As such, each of the instant dispositions, which did not reflect these circumstances properly, asserted that the Plaintiffs exceeded

However, (1) The proviso of Article 61(10) of the Operating Rules provides that the amount of recovery of project costs may be reduced in consideration of the severity of the act of violation and the possibility of achievement of the purpose of the research and development task, and the amount of recovery may not be reduced or recovered in cases where the research and development is deemed faithfully performed. In full view of the overall purport of the arguments in the statement No. 4-1, No. 2, No. 105-1, No. 105-2, the Plaintiff Company completed the research and development task of this case within a given period and evaluated as 84.80 (Continued Support) with the comprehensive evaluation score for the performance of the task. As a result, it is recognized that the Plaintiff Company continued the research and development task of this case for the fifth and the sixth year. However, even if considering the circumstances on the outcomes of this research, it is difficult to deem the degree of violation as seen earlier in light of the scale and circumstances of the amount used for other purpose, and thus, it cannot be viewed as a deviation or abuse of discretionary power.

Then, the proviso of Article 61(1)5 of the Operating Rules provides that "where the relevant amount has already been recovered to the account for research and development expenses when it was discovered that it was used for any purpose other than the original purpose, the relevant amount shall be limited to KRW 10,437,080 of the amount used for the purpose other than the original purpose, which is the premise of the disposition of the disposition of the restriction on participation in this case, shall be limited to KRW 10,437,080 of the amount already recovered to the account for research and development expenses at the time it was discovered. However, the amount equivalent to KRW 318,145,000 of the amount used for any purpose other than the original amount recovered shall be equivalent to KRW 42% of the project cost subsidized by the Plaintiff company, and the research and development expenses used for other than the above

Since there is no ground to interpret the expansion of the scope of inclusion, the above assertion cannot be accepted.

3. Conclusion

Therefore, the judgment of the first instance court is justifiable, and all appeals by the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judge and mining division

Judges Kim Jong-chul

Judges Song Sung-sung