2018Guhap64740 Action Demanding revocation of sanctions against national research and development projects

A

Law Firm Jungwon, Attorney Jung-won

[Defendant-Appellee]

The Minister of Science and ICT

Government Law Firm Corporation, Attorneys Kim Chang-soo, and literature-related legal representative

Litigation performers shall be commercialized;

January 11, 2019

February 20, 2019

1. The part concerning the claim for revocation of the disposition of restitution of research funds among the lawsuit of this case shall be dismissed.

2. The Defendant’s disposition of restricting participation in national research and development projects against the Plaintiff on February 23, 2018 is revoked. 3. Of the litigation costs, 1/2 is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Order 2 and the Defendant’s disposition of restitution of research funds against B University Industry-Academic Cooperation Foundation on February 23, 2018 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a professor of the landscape architecture of the Agricultural University at B University, and the industry-academic cooperation foundation of B University is a corporation established to take charge of the affairs relating to industry-academia-research cooperation under the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act.

B. On April 201, an industry-academic cooperation foundation of B University entered into an agreement with the Korean Research Foundation (hereinafter referred to as the "Korea Research Foundation") which was delegated by the Minister of Education, Science and Technology (hereinafter referred to as the "Convention") to carry out research and development projects (hereinafter referred to as the "Convention"), and the following table (hereinafter referred to as the "Convention"), and the Plaintiff participated in the research and development project of this case as a person in charge of research and development project of this case.

C. In accordance with the instant agreement, the Korea Research Foundation paid KRW 300 million research and development expenses to the Industry-Academic Cooperation Foundation for B University, and the Industry-Academic Cooperation Foundation for B University completed all of the instant research and development tasks.

D. From September 15, 2014 to October 17, 2014, the Board of Audit and Inspection conducted an audit on the state R&D; the management status of participating researchers (hereinafter “audit of this case”). After conducting the audit of this case, the Board of Audit and Inspection requested the head of Buniversity to take disciplinary action against the Plaintiff on the ground that the Plaintiff obtained research funds and carried out fraudulent execution as follows:

From 2010 to 2014, the Plaintiff was responsible for the management of 7 research tasks, including the instant research tasks. From 2010 to 2014, the Plaintiff was responsible for the management of 10 research tasks, 200, 30,000,000, and 12.3,000,000,000,000,000,000,000,000,000 7,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,000,00,000,00,00,00,00,00,00.

E. On August 18, 2015, the General Disciplinary Committee on Public Educational Officials at B University decided to dismiss the Plaintiff on the ground that the Plaintiff violated the provisions on the management, etc. of the National Research and Development Projects and the provisions on research funds at B University Research and Development Projects and the provision on the management of research funds at B University, and it is difficult to view the false and unfair registration of participating researchers, joint management, and the fact that there was no provision on the degree of misconduct and intentional conduct. However, the president of B University decided to dismiss the Plaintiff on January 23, 2017. Accordingly, on May 24, 2018, the Plaintiff filed a lawsuit seeking the revocation of the above dismissal disposition as the Daegu District Court Decision 2017Guhap22314, and the above court appears to have directly participated in two research tasks such as the instant research and development task, but the rest of the disposition is recognized. However, the Plaintiff’s decision on the dismissal of the Plaintiff’s research project that did not go beyond the bounds of equity in the research and disciplinary measures and its payment.

F. Meanwhile, on the other hand, on December 29, 2015, the Daegu District Prosecutors’ Office: (a) falsely registered C among the audit results of the instant case as a participating researcher; and (b) prosecuted only the remainder other than the portion unfairly paid research expenses; and (c) rendered a judgment of conviction of a fine of KRW 10 million against the Plaintiff on September 8, 2016, Daegu District Court (Seoul District Court Decision 2015No6357) rendered a judgment of conviction of the Plaintiff. While the Prosecutor appealed, the said appellate court (Seoul High Court 2016No3846) rendered a judgment of dismissal on April 14, 2017, the said judgment became final and conclusive on April 22, 2017.

G. On February 23, 2018, the Defendant notified by the Board of Audit and Inspection of the audit result of the instant research and development project, on the ground that the Plaintiff, a person in charge of the instant research and development project, obtained false and unfair registration of participating researchers and received unfair research expenses and jointly manages personnel expenses, etc., and used research expenses of KRW 219,132,120 for purposes other than the original indicated below, as follows, B University Industry Cooperation Foundation (amended by Act No. 12673, May 28, 2014; hereinafter referred to as the “former Framework Act on Science and Technology”); Article 11-2(1)5 of the former Framework Act on Science and Technology; Article 45(9) [Attachment 9] of the former Regulations on the Management of Research and Development Projects under the jurisdiction of the Ministry of Education, Science and Technology (wholly amended by Ordinance No. 258 on June 29, 2012; hereinafter referred to as the “former Regulations on the Disposal of Research and Development Projects”); Article 12(15) of the former Framework Regulation on the Research and Development Project.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 4, 6 through 9, 13, 14, Eul evidence 1 and 2 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the part concerning the claim for revocation of the restitution disposition of this case among the lawsuit of this case is legitimate

A. The defendant's assertion

The other party to the restitution disposition of this case is not the Plaintiff but the industry-academic cooperation foundation. Therefore, the Plaintiff has no legal interest in seeking the revocation of the restitution disposition of this case.

B. Determination

1) Article 12(1) of the Administrative Litigation Act provides that “A revocation lawsuit may be instituted by a person who has a legal interest in seeking the revocation of a disposition, etc.” Therefore, even if a person is a third party, who is not the other party to an administrative disposition, if the interests protected by law are infringed due to the pertinent administrative disposition, he/she is entitled to obtain a decision of propriety by filing an administrative litigation seeking the revocation or confirmation of invalidation of the disposition.” However, the term “interest protected by law” refers to cases where there are individual, direct, and specific interests protected by the relevant laws and regulations and relevant laws and regulations, and there is no benefit in filing a lawsuit, either indirectly, factual, or economic interest (see Supreme Court Decision 2011Du20598, Mar. 29, 2012).

2) As seen earlier, an industry-academic cooperation foundation, who is not the other party to the instant restitution disposition, shall be acknowledged as having violated the Plaintiff’s individual, direct, and specific interests protected by the relevant laws and regulations in order to have standing to sue to seek revocation of the instant restitution disposition. However, in full view of the following circumstances, it is reasonable to deem that the Plaintiff merely has an indirect, factual, and economic interest with respect to the instant restitution disposition. Therefore, there is no standing to sue to seek revocation of the instant restitution disposition. Accordingly, the part concerning the claim for revocation of the instant restitution disposition among the instant lawsuit is inappropriate as having a standing to sue, and the Defendant’s assertion pointing this out is with merit.

A) The Plaintiff asserts to the effect that the Plaintiff’s right to reimbursement was infringed upon upon upon the Plaintiff’s individual, direct, and specific interest due to the instant restitution disposition. However, the former Framework Act on Science and Technology and its subordinate statutes, which are the grounds for the instant restitution disposition, do not stipulate that the institution participating in the national research and development project, is obligated to seek reimbursement from the person in charge of research, etc., in a case where the said institution is subject to the Defendant’s reimbursement disposition, or that the said participating institution may claim reimbursement from the said person in charge of research, etc., regarding the research expenses actually returned according to the restitution disposition. Therefore, the Plaintiff cannot claim reimbursement from the Plaintiff based on the laws and regulations on the instant restitution disposition, on the ground that the instant restitution disposition was taken against B University Industry Cooperation Foundation. Moreover, the return of research expenses pursuant to the instant restitution disposition is merely a performance of its duty of return of research expenses. Accordingly, it is difficult to deem that the Plaintiff could have received a civil claim for reimbursement from the Plaintiff, who is the person in charge of research, due to the instant restitution disposition.

B) If the Industry Cooperation Foundation for Home University refunds research funds to the Defendant according to the instant restitution disposition, even if the Plaintiff was to have the duty of reimbursement against the Plaintiff, the Plaintiff’s interest in the instant restitution disposition is merely an indirect interest. Thus, the Plaintiff, who is not the direct party to the instant restitution disposition, cannot be deemed to have a direct and specific interest in seeking cancellation of the instant restitution disposition against the Defendant (see Supreme Court Decision 93Nu24247, Apr. 12, 1994).

C) Generally, in a case where an administrative disposition or an administrative appeal ruling becomes final and conclusive after the lapse of the appeal period, its final and conclusive power means that the person against whom the legal interest was infringed cannot no longer dispute the validity of the relevant disposition or ruling. Furthermore, since res judicata such as the judgment is not recognized, factual or legal judgment which forms the basis of the relevant disposition becomes final and conclusive, and the parties or the court cannot make any assertion or judgment inconsistent with it (see, e.g., Supreme Court Decisions 92Nu17181, Apr. 13, 1993; 2002Du11288, Jul. 8, 2004). Therefore, even if the 2002Du1288, which did not dispute the recovery disposition of the instant case, and the 2002Du202, which became the basis of the instant disposition cannot be seen as unlawful, since the 200 industry-academic cooperation foundation seeks monetary payment equivalent to the expenses for the recovery disposition of the instant case against the Plaintiff due to its exercise of rights or tort.

D) There may be cases where a participating institution in a national research and development project subject to a disposition of restitution of research funds imposes pressure on its person in charge of research, etc. to assume the obligation of redemption of research funds, or where the person in charge of research, etc. is responsible and bears the obligation of redemption of research funds, but

the interest of a person in charge of research, etc. belonging to the participating institution is only an indirect, historical, and economic interest at the night.

3. Whether the instant disposition of restriction on participation is legitimate

A. Summary of the plaintiff's assertion

1) The instant disposition of restriction on participation should be revoked as it is unlawful because there is no ground for disposition for the following reasons.

A) Since C directly performs the instant research and development task, it is not a falsely registered researcher. Therefore, the part related to C among the grounds for the disposition of restriction on participation in the instant case does not exist (hereinafter “instant proposal”).

B) It is true that the Plaintiff was aware that D was employed by the E Research Institute as a commissioned researcher and received personnel expenses from the relevant institution, and received research expenses by unfairly registering D as a participating researcher in the instant research and development task, but since this research expense was used for the instant research and development task, it cannot be deemed as “use for other purposes” (hereinafter “the instant note”).

C) The term “use of research expenses for other purposes” means the use of research expenses in any place other than a research and development task, based on the objective meaning of the language and text thereof. The fact that the Plaintiff jointly managed personnel expenses paid to the Institute for the purpose of carrying out the instant research and development task, but as long as the Plaintiff used them for the purpose of carrying out the instant research and development task, it cannot be deemed as “use for other purposes” (hereinafter referred to as “the main text of this case”).

D) Although Article 11-2 (1) 5 of the former Framework Act on Science and Technology provides that "where research and development costs are used for any purpose other than the original purpose," the head of the parent corporation may impose restrictions on participation and recovery of research costs, it is invalid that Article 27 (1) 5 (a) of the former Regulations on the Management of National Research and Development Projects, which is its subordinate statute, stipulates "contestation" as one of the grounds for restrictions on participation goes beyond the delegation scope of the mother law, so the "contestation of research costs" cannot be the grounds for the restriction on participation in this case. Even if the "contestation of research costs" can be the grounds for the restriction on participation in this case, it refers to the receipt of research costs by deception without the intent to use the research costs in the research and development task in this case, and therefore, it does not constitute the "contestation" in the case where the plaintiff actually used the research costs as the plaintiff. Therefore, it cannot be deemed that the plaintiff used the research costs for any purpose other than the original purpose (hereinafter referred to as the "head of this case").

2) According to the results of the instant audit and inspection, personnel expenses, etc. for the Plaintiff’s joint management of seven tasks, including the instant research and development task, are total of KRW 274,730,00, and the amount paid to participating researchers under the pretext of labor expenses, etc. among them is KRW 124,650,00, and the amount paid as the expenses for one’s research and development task is KRW 27,738,100, and the amount in cash is KRW 38,600, and the amount in cash is KRW 83,741,90,00, which is unclear. Thus, the above 274,730,000, out of KRW 274,741,90, which is merely KRW 83,741,900, and the amount related to the instant research and development task cannot be determined as the total amount of KRW 154,50,000, which is the basis of the instant research and development task’s joint management.

3) In light of the fact that most part of the research funds managed by the Plaintiff were used in the personnel expenses, tuition fees, etc. of the participating researchers, and that the Plaintiff acquired them individually, and that the Plaintiff returned 83,741,900 won, which was pointed out as a result of the instant audit and inspection, to B University Industry-Academic Cooperation Foundation, and that the Plaintiff included considerable performance through the instant research and development task, etc., the Defendant’s disposition of restriction on participation in the instant case at the highest level within the scope prescribed by the relevant statutes is deemed to have exceeded the discretion and abused the Plaintiff’s discretion (hereinafter “instant Chapter 6”).

B. Relevant statutes

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

C. Determination

1) As to the ground of appeal No. 1

In light of the following facts and circumstances, which can be recognized by comprehensively considering the purport of the entire pleadings, evidence Nos. 14 and evidence Nos. 14, it is insufficient to recognize that the Plaintiff received 17,084,780 won for research funds by falsely registering C as a research institute participating in the instant research and development task, and there is no other evidence to acknowledge that the Plaintiff received 17,084,780 won for research funds. Therefore, the part of the Plaintiff’s assertion pointing this out is without merit.

A) Around August 2012, C, along with the Plaintiff, etc., published a thesis of "the development and application of landscape assessment models and application based on the classification of non-top type" in the Korea Scenic Conference, and published a thesis of "B-BAT development and application of non-top conservation value" in February 2013, and published a thesis of "the above thesis as co-owner." In addition, C, with the Plaintiff, etc., participated in the 2012 Estimated Korea Scenic Conference and published a thesis of "the landscape assessment and landscape plan based on the classification of landscape" in the 2012 Estimated Korea Scenic Conference, and published the thesis of "the results of the study of this case" as "the results of the study of the study of this case" as "the results of the study of the study of the 2013 Escopic development model and application of the landscape plan based on non-top ecological guidance" in the 2012 Modeld Korea Scenic Conference."

B) C appears to have performed the following duties with respect to the instant research and development task.

C) Although C resided in Seoul, it appears to be present at the seminars, etc. of the instant research and development task at the end of each week. The instant research and development task consists of types, guidance, preparation, evaluation, etc. based on the collected data. Unlike the research accompanied by experiments, the researchers seem to have been able to perform the research and development task even if they did not reside in the laboratory.

D) In light of the fact that C’s performance of the instant research and development task does not seem to have reached the degree of difficulty in performing any other work, and C has renounced it while preparing for study. In light of the fact that C appears not to have been able to have been able to perform any other work at all, it does not seem that C is impossible to concurrently perform the instant research and development task and make preparations for study. Therefore, it cannot be readily concluded that C was unable to participate in the instant research and development task solely on the ground that C was preparing for study.

E) The Daegu District Prosecutors’ Office prosecuted the Plaintiff for fraud in relation to the use of the research fund supported by the instant research and development task, and excluded the portion of unfair payment due to false registration of researchers related to C in the facts charged.

2) The fact that the principal of the instant case (2) the Plaintiff was aware of the fact that D was employed by the E Research Institute as a member of the E Research Institute and received personnel expenses from the E Research Institute that D was unfairly registered as a member of the E Research Institute, and that D was paid a total of KRW 37.517,700,00 in research expenses ( personnel expenses, research allowances, domestic travel expenses, research activity expenses) to D as a member of the E Research and Development Institute, or that the principal of the instant case did not dispute between the parties, or that part of the evidence No. 1 and the statement No. 2 of

Therefore, the Plaintiff already belonged to an external research institute and received research expenses in the name of D, which does not fall under the payment of personnel expenses, from the relevant institution, and used them at a place where the research expenses should not be used. This part of the Plaintiff’s act constitutes a case where the Plaintiff’s act itself uses the research expenses for any purpose other than its original purpose. Accordingly, the Plaintiff’s assertion on a different premise is without merit.

3) As to the instant claim (3)

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 if a person in charge of research and development projects, a research institute, etc. participating in a national research and development project uses research and development project funds for any purpose other than the intended purpose, and may recover all or part of the project funds already contributed," and Article 12 (5) [Attachment 2] and (3) of the former Regulations on the Management of National Research Projects provides that "the personnel expenses to be paid to the student researchers of universities and specific research institutes (limited to the relevant institutions) out of external personnel expenses shall not be

From May 1, 2011 to March 2012, 201, the Plaintiff: (a) had D withdraw research funds using a passbook or cash card of the student researchers registered as participating researchers on the instant research and development task; and (b) had the student researchers registered as participating researchers on the instant research and development task from March 1, 2012 to April 30, 201 and receive them; and (c) had them withdraw research funds from their own accounts and receive them through D; and (d) the fact that the Plaintiff jointly managed them through cash delivery of the total amount of KRW 164,529,640 paid to the participating researchers (hereinafter referred to as “labor expenses, etc.”) may be recognized by comprehensively considering the following: (a) there is no dispute between the parties; and (b) the part of subparagraph 1 and subparagraph 2 are written; and (c) the purport of the entire evidence No. 2 are written.

The Plaintiff asserts to the effect that, even if the Plaintiff managed the personnel expenses paid to the participating researchers by receiving them for the purpose of performing the instant research and development task, it cannot be deemed that the said personnel expenses were used for any purpose other than the original purpose. However, in full view of the above-mentioned facts and the overall purport of the arguments on the evidence as seen earlier, the Plaintiff’s act of managing the personnel expenses paid to the participating researchers registered as the participating researchers by receiving full payments from the participating researchers, regardless of whether a part of them were returned to the participating researchers, constitutes an act of using them for any other purpose. Accordingly, the Plaintiff’s assertion on this part is without merit.

A) The main purpose of Article 12(5) [Attachment 2] and Article 12(3) of the former Regulations on the Management of National Research and Development Projects prohibiting joint management of personnel expenses paid by a person in charge of research to a student researcher is to ensure that personnel expenses paid to a student researcher are in the number of the student researcher himself/herself and to be in charge of his/her free disposition, and to protect the livelihood of the student researcher. The B university industry-academic cooperation foundation also has transferred personnel expenses to the student researcher’s account directly out of the research expenses subsidized by the Defendant to execute the research expenses in accordance with such purport. Thus, the personnel expenses for the student researcher out of the research expenses subsidized for the instant research and development project constitute the use of the original purpose by having the student researcher directly paid to the student researcher and clearly enter the number of the student researcher himself/herself and take a free disposition.

B) The fact that the Plaintiff, who is a person in charge of research, received personnel expenses paid by the student researchers and arbitrarily disposed of while taking advantage of them is obviously contrary to the original purpose of the personnel expenses to be used in the free disposition of the student researchers. Even if the Plaintiff subsequently returned some of the personnel expenses from the money jointly managed by the Plaintiff to the student researchers, this is also subject to the Plaintiff’s voluntary disposition, and thus, it cannot be deemed to have been used for purposes other

C) The Plaintiff, a person in charge of research, received personnel expenses, etc. from a student researcher and mixed them with public funds for the performance of the instant research and development task, is in a situation where it would be used for any other purpose by losing its specific nature. As a natural consequence, in the event that operating expenses, etc. are disbursed from the above public funds, it would result in using the mixed personnel expenses, etc. in the above public funds as laboratory operating expenses, etc., and even if the personnel expenses, etc. for the student researchers are paid ex post facto from the above public funds, it cannot be deemed that the said funds were paid from the initial Defendant. Therefore, it is reasonable to view that the act of mixing them with public funds for the performance of the instant research and development task upon receiving personnel expenses, etc. paid by the student researchers, etc.

4) As to the instant claim

A) Article 11-2(1)5 of the former Framework Act on Science and Technology provides, “The head of a central administrative agency may restrict participation in national research and development projects under his/her jurisdiction where a person in charge of research, a research institute, etc. participating in a national research and development project uses research and development funds for any purpose other than the intended purpose, and may recover all or part of the project funds already contributed,” and Article 27(1)5(a) of the former Regulations on Management of National Research and Development Projects formulated by delegation under Article 27(5) of the former Regulations on Management of National Research and Development Projects provides that the period of restriction on participation in cases of embezzlement, fraud, or misappropriation shall be from

Since Article 27 (1) 5 (a) of the former Regulations on the Management of National Research and Development Projects provides that the act of deceiving research funds by deception without any intent to use the research funds for the specified purpose and by deception itself constitutes "use for other purposes", it cannot be deemed that the parent corporation deviates from the scope of delegation under Article 11-2 (5) of the former Framework Act on Science and Technology because Article 27 (1) 5 (a) of the former Regulations on the Management of National Research and Development Projects provides "use for other purposes." Therefore, the plaintiff's assertion on a different premise is without merit.

B) As seen earlier, the reason for the disposition of the disposition of the restriction on participation in the instant case is that the Plaintiff was using the research expenses of KRW 219,132,120 by falsely and wrongfully registering the participating researchers and jointly managing the personnel expenses for any purpose other than the original purpose. Of these, the part of the “unfair payment of the research expenses due to the false registration of the participating researchers” was already examined in the aforementioned Paragraph 1, which is not recognized as the reason for the disposition of the restriction on participation in the instant case, and thus, it is not judged separately in this regard. The portion of the “unfair payment of the research expenses due to the wrongful registration of the researcher” and “joint management, such as the “payment of the research expenses due to the improper registration of the researcher” among the reasons for the disposition of the restriction on participation in the instant case, falls under the use of the research expenses for any purpose other than the purpose of the research expenses. Accordingly, even if the Plaintiff could not use the research expenses for the instant research and development project, the Plaintiff’s assertion to the purport that this part of the disposition is unnecessary.

5) As to the allegation 6 of this case

After the Defendant calculated the Plaintiff’s non-use amount of 219,132,120 won (referring to the amount exceeding 300 million won, which is the total amount of research funds subsidized for the research and development task of this case) with respect to the research and development task of this case, and applied Article 45(1)5(c) of the former Rules on the Disposal of Research and Development Projects, the period of restriction on participation is five years as stated in the preceding disposition. However, the Defendant’s disposition of restriction on participation is as follows: 17,084,780 won, which is the amount related to the false-registered research and development project of 219,132,120 won calculated by the Defendant’s calculation, is not recognized as the amount used for non-use and non-use purposes; 17,517,700 won, which is the amount related to joint research and development project of this case; 250,740 won, which is the basis for the establishment of the Plaintiff’s restriction on participation in research and development task of this case.

Ultimately, the legitimacy of the decision of the period of restriction on participation should be determined in accordance with Article 27(1)5(a) of the former Regulations on the Management, etc. of National Research and Development Projects, which are superior laws and subordinate statutes. 2) Accordingly, as seen above, the Defendant’s determination of the period of restriction on participation against the Plaintiff was limited to the application of the former Regulations on the Management of Research and Development Projects, which serves as the basis for five years for determining the period of restriction on participation, or that the amount used for any purpose other than the original purpose was calculated erroneously can be a single factor in determining whether the disposition of this case’s restriction on participation under the higher laws and regulations, and thus, the determination on this part can be added to the judgment under Article 27(1)5(a) of the same Act. Therefore

6) As to the sixth note of this case

A) Article 11-2(1)5 of the former Framework Act on Science and Technology provides, “The head of a central administrative agency may restrict participation in national research and development projects under his/her jurisdiction where a person in charge of research and development, a research institute, etc. participating in national research and development projects uses research and development funds for any purpose other than the intended purpose, and may recover all or part of the project funds already contributed.” In light of the content and purport of the aforementioned provision, where a reason for restricting participation in national research and development projects arises due to use of research and development funds for any purpose other than the intended purpose, discretion is given to the Defendant as to whether such restriction on participation is imposed and the period thereof. However, if there is such reason as misconception of the fact in exercising such discretion or contrary to the principle of proportionality, it is unlawful as a deviation or abuse of discretionary power (see, e.g., Supreme Court Decision 201

B) In light of the aforementioned legal principles, the following facts and circumstances, which can be recognized by comprehensively taking account of the developments leading up to the above disposition and the purport of the entire arguments as seen earlier, were committed when the Defendant committed the instant disposition of restriction on participation against the Plaintiff by setting the period of restriction on participation as five years, which is the highest legal level, and was committed in a state of misunderstanding some of the facts. Furthermore, the disadvantage suffered by the Plaintiff compared to the public interest to be achieved by the said disposition is excessively large, and thus, it shall be revoked as it is unlawful and unjust. Accordingly, the Plaintiff’s assertion

(1) The disposition of restrictions on participation under Article 11-2(1) of the former Framework Act on Science and Technology excludes a competent supervising research institute or a person in charge of research from a national research and development project for a certain period of time, and is likely to hinder the ultimate purpose of the above Act, which aims to enhance national competitiveness through scientific and technological innovation and promote the development of the national economy. Therefore, the decision of administrative

(2) Under the premise that the Plaintiff falsely registered C as a participating researcher of the instant research and development task and used the research expense for any purpose other than its original purpose, the Defendant made the instant disposition of restriction on participation under the premise that the Plaintiff received unfair payment of KRW 17,084,780 for the research expense. The “unfair payment of the research expense due to false registration of the researcher” was made by falsely registering a person who did not participate in the instant research and development task, and the research expense was paid. Since the possibility of criticism is greater than that of the instant disposition of restriction on participation, the Defendant appears to have influenced the Defendant’s determination of the period of restriction on participation in the instant research and development task as the maximum legal level for five years. However, the Plaintiff did not register C as the participating researcher of the instant research and development task, the instant disposition of restriction on participation was found to have a significant error in the fact-finding that is the basis

(3) Article 45(1)5(c) of the former Regulations on the Management of Research and Development Projects provides that the period of restriction on participation in cases where the amount used for any purpose other than the original purpose exceeds 30% of the research and development expenses for the pertinent year shall be within five years. However, as seen in the above 5) above, the above provisions cannot be applied to the instant research and development task performed under the instant agreement. Nevertheless, the Defendant seems to have set the period of restriction on participation as five years, which is the statutory highest level by applying the above provisions.

(4) The purport of prohibiting joint management of research funds lies in guaranteeing the payment of research funds to researchers and preventing a person in charge of research from using them for personal purposes. The Plaintiff, a total of KRW 274,730,00,00, out of KRW 274,730,000, including the instant research and development task, was returned to participating researchers under the pretext of personnel expenses, etc., and KRW 27,738,100,00, was used as research expenses as public funds, and the amount of KRW 38,60,000 was kept as public funds. As a result, each of the above money was used or stored for the purpose of performing the research and development task, such as personnel expenses of participating researchers and common expenses of laboratories. Although it is unclear that the Plaintiff did not use it for personal purposes, the Plaintiff appears to have not used it for the personal purpose, and the Plaintiff received the full amount of KRW 83,741,90,000 from the Board of Audit and Inspection up to 38,007.

(5) The Plaintiff appears to have faithfully performed the instant research and development task and achieved the research purpose. In addition, the Plaintiff has fulfilled his/her gender in the field of study and academic studies for a long period of teaching service, and the outcome seems to have been significant.

(6) Considering that research funds paid to support national research and development projects need to be subject to strict sanctions against the use of research funds for purposes other than their payment purposes and usage, in light of the aforementioned circumstances, the Defendant’s recovery disposition against the Plaintiff on the total amount used for the purpose other than the original purpose and disposition of the instant restriction on participation by setting the period of restriction on participation to five years, which is the maximum legal level for the Plaintiff’s cooperation foundation, as well as the need to take the instant restriction on participation by setting the period of restriction on participation to five years, which seems to be too harsh for the Plaintiff.

4. Conclusion

Therefore, the part concerning the claim for cancellation of the restitution disposition of this case among the lawsuits of this case is unlawful and dismissed, and the remaining claims of the plaintiff are reasonable, and it is so decided as per Disposition by the assent of all participating Justices.

The presiding judge, the rank of the judge;

Judge Kim Gin-hun

Judges Kim Gin-jin

1) Each meeting expense described in Nos. 3, 4, 6, 9, and 10 of the "The current status of execution of meeting expenses, including unfair and false registration researchers" in Attached 1 shall be Kim Jin.

Effica and D are calculated to have executed 1/2 amount each.

2) Where research and development expenses are embezzled, stolen, or misappropriated: Three to five years;