2018Guhap51652 Action for revocation, such as a disposition of restriction on participation

A

[Judgment of the court below]

1. The Minister of Education;

Law Firm Loplus et al., Counsel for the defendant-appellant

Attorney Lee In-bok

2. The Minister of Science and ICT;

Law Firm Lee & Lee, Counsel for the plaintiff-appellant

Attorney Park Jong-hoon, Counsel for the defendant-appellant

July 13, 2018

August 31, 2018

1. All of the Plaintiff’s claims are dismissed. 2. Costs of lawsuit are assessed against the Plaintiff.

The Defendant Minister’s disposition of KRW 3 years of restriction on participation related to “BK21 Plus Project” on November 28, 2017, and KRW 9,630,00, and KRW 4,741,760 related to “basic research project” on January 5, 2018 is revoked. The disposition of KRW 3 years of restriction on participation and restitution, KRW 3,69,720, issued by the Minister of Science and ICT on October 27, 2017, is revoked in entirety. 1)

1. Details of the disposition;

A. The Defendant Minister of Education shall entrust the academic support projects to the Korea Research Foundation pursuant to the Science Promotion Act, and the Defendant Minister shall delegate the national research and development projects to the Korea Research Foundation pursuant to the Framework Act on Science and Technology.

B.1) (1) The Minister of Education (the president of the Research Foundation of Korea) entered into an agreement with the Hadon University, BK21 Plus Project (U.S. Foundation) and the total project period: From September 1, 2013 to August 31, 2020 (hereinafter referred to as “1 project”). ② The Defendant’s Minister of Education (the president of the Research Foundation of Korea) entered into a research project with B University Industry-Academic Cooperation Foundation: Basic research project; project name of the B University: minority group of de facto carbris, research and development period: from September 1, 2010 to August 31, 2013; the agreement was entered into between BK21 Plus Project (hereinafter referred to as “2 project”); the Defendant’s research and development project’s president and the 25th project name (hereinafter referred to as “the 20th project site”); and the 1.5th project name (hereinafter referred to as “the 20th project name of the 20th project”).

3) 원고는 제1사업의 연구자(사업단장)이자 제2, 3사업의 연구책임자이다.다. 1) 원고 연구실 소속 대학원생 G의 제보로 "원고가 지원받은 연구비 중 대학원생들의 인건비를 가로챘다."는 등의 언론기사가 2014년 7월경 보도되었다.

2) As a result of examining the details on the execution of research scholarships from July 2014 to September 2014, the Presidential Committee on the Truth of B University confirmed the fact that KRW 18,071,00, out of the personnel expenses of graduate students, was repaid to the joint laboratory expenses [3,490,000, tuition fees of KRW 8,430,000 (C2,370,000, KRW 33,630,000, E 2,430,000), personnel expenses of KRW 1,195,00 (E 717,000, KRW 478,000, KRW 4,956,00,000, KRW 184,30,000, KRW 96,000, KRW 300, and KRW 200, KRW 16,000, KRW 300, and KRW 300,000.

3) The Korean Research Foundation inspected KRW 8,441,00, such as common expenses, the source of which is unclear in November 2014 (i.e., KRW 18,071,00, KRW 9,630,00), and verified the source of KRW 4,741,760 as secondary projects, 3,69,720 as third projects.

D. 1) On March 3, 2015, the Korea Research Foundation imposed a disposition of KRW 3 years, 9,630,000 on the Plaintiff on the restriction on participation in national research and development projects related to the first project. On March 25, 2015, the disposition of KRW 3 years, 3 years, 3,69,720 on the restriction on participation in national research and development projects related to the third project, and on October 22, 2015, imposed a disposition of KRW 3 years, 4,741,760 on the restriction on participation in national research and development projects related to the second project.

2) On March 31, 2016, the Plaintiff filed an administrative litigation and the court rendered a judgment revoking each of the above dispositions on the grounds that the Korea Research Foundation did not have the authority to take the above dispositions (Seoul District Court Decision 2015Guhap102339). The judgment became final and conclusive on December 9, 2016. E. The Defendants, on the ground that the Plaintiff used labor costs paid to graduate students for purposes other than the purpose of using research and development costs (project costs) for common expenses, the Defendant Minister of Education, on November 28, 2017 regarding the first project, imposed the Plaintiff restrictions on participation (excluding the selection of scientific support recipients) three years, B University’s redemption of KRW 9,630,00, KRW 200, KRW 3 years, KRW 4,741,760 on January 5, 2018, and Defendant 2, 2017 or KRW 360 on July 36, 2017, 2017.

2. Relevant statutes;

It is as shown in the attached Form.

3. Determination on this safety defense

The Minister of Science and ICT asserts that the subject of the instant disposition is not the Plaintiff but the industry-academic cooperation foundation, and that the Plaintiff has no legal interest in dispute over the restitution disposition, and that this part of the lawsuit should be dismissed.

In light of the following facts and circumstances, which can be recognized based on the purport of the entire facts and arguments as seen earlier, namely, ① science support projects and research funds support for national research and development projects are conducted for each specific laboratory belonging to the university, not for the university, ② the industry-academic cooperation foundation of the university and the university is not for the university, ② the agreement on the project as the principal agent of the management and execution of research funds stipulated in the Science Promotion Act, Framework Act on Science and Technology, or the substantial interest arising from the agreement belongs to the laboratory, which is the principal agent of the implementation, ③ the Plaintiff, who is the researcher of the instant project and the person in charge of research of the instant project, may be directly affected by the disposition on restriction on participation and the disposition on recovery. Accordingly, the Plaintiff is deemed to have a legal interest in dispute over the validity of

4. Whether the instant disposition is lawful

(a) the existence of the reasons for the measure;

1) Summary of the Plaintiff’s assertion

The common expenses of this case are not collected by the plaintiff for personal use, but are created for voluntary convenience by graduate students. Therefore, it does not constitute "the use of research and development costs (project costs) for any purpose other than the original purpose."

2) Determination

In full view of the following facts and circumstances acknowledged earlier, it is reasonable to view that the Plaintiff, a research entity, made graduate students raise and use personnel expenses paid to him/her as a joint expense for the purpose other than the use of research and development expenses (project costs). The instant disposition causes exist.

A) Article 19(2)1 of the Sciences Promotion Act provides that "the Minister of Education may suspend the payment of project costs or recover all or part of the project costs already paid if a researcher or university, etc. subsidized project costs uses them for any purpose other than the original purpose." Article 20(1) of the same Act provides that "The Minister of Education shall exclude a researcher or university, etc., who falls under any subparagraph of Article 19(2) from the selection of persons eligible for science support under Article 6(1) within the scope of not less than one year but not more than five years, as prescribed by Presidential Decree, where all or part of the project costs suspended or paid are recovered."

Article 11-2 (1) of the former Framework Act on Science and Technology (amended by Act No. 12869, Dec. 30, 2014; hereinafter the same) provides that "the head of a central administrative agency may restrict the participation of national research and development projects within five years where the person in charge of research and development projects, etc. who participated in the relevant national research and development project uses research and development expenses for any purpose other than the intended purpose, and recover all or part of

Article 28(4) of the BK (BK) 21 Plus Business Operation Guidelines under the foregoing Act provides that “Inasmuch as the research scholarship for a graduate school student is paid to an individual who participates in BK21 Plus Business, the act of managing each individual’s passbook or seal en bloc or recovering a certain amount from the graduate students is strictly limited.” Article 12(5) [Attachment 2] of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 25544, Aug. 12, 2014; hereinafter the same shall apply) provides that “A non- high school shall not jointly manage student personnel expenses paid to the research institute by the person in charge of research.”

The reason why the above guidelines and regulations strictly prohibit the joint management of student personnel expenses is that researchers are seriously embling or using student personnel expenses under the pretext of joint management of student personnel expenses by taking advantage of their position, and is to protect the rights of graduate students and enhance transparency in the execution of research expenses by blocking them in advance. In light of the contents and purport of the above guidelines and regulations, the joint management of student personnel expenses constitutes “the use of research and development expenses (project expenses) for purposes other than those for use.”

B) The student personnel expenses of the instant project are transferred from a foundation for industry-academic cooperation to a graduate student’s personal account if the Plaintiff (or a graduate student delegated by the Plaintiff) who is a researcher files an application for payment to the B University Industry-Academic Cooperation Foundation, a research expense management department. The Plaintiff filed an application for an additional amount of KRW 300,000 to KRW 40,000 per month, compared to his/her personnel expenses (it is alleged that the Plaintiff was a graduate student’s autonomous decision. However, the Plaintiff asserted that the Plaintiff was a graduate student’s autonomous decision, but G was in the position to pay the student personnel expenses in a fair and transparent manner, and G was in the position to manage part of the student personnel expenses as a joint expense with the Plaintiff’s instruction, and F reported the current status of the operation of the joint expense to the Plaintiff, and thus, the Plaintiff’s assertion cannot be accepted). The Plaintiff received a report on the details, balance, etc. of the use of the joint expense or ordered a certain amount (such

C) Even if other graduate students except G did not express explicit complaints about joint management of personnel expenses, considering that the Plaintiff, a professor, is in a position to select students who will participate in research tasks among the students in a laboratory, give degrees to the students in a master or doctoral course, and to exercise significant influence over the future career of the students, it would have not been easy for graduate students to raise an objection or to display a complaint. Therefore, it is difficult to readily conclude that the instant common expenses solely are created by the autonomous will of graduate students. Whether procedural illegality is, etc.

1) Summary of the Plaintiff’s assertion

After the revocation of the disposition of the Korea Research Foundation, the Defendants’ instant disposition must undergo a further investigation into the grounds for the disposition. The instant disposition did not specify the period of restriction on participation. In relation to the first project, the Minister of Education did not specify the period of restriction on participation pursuant to Article 20(1) of the Promotion of Sciences

Only a disposition that is excluded from the selection of a person eligible for science support may be taken and an active disposition of restriction on participation shall not be taken.

2) Determination

In full view of the following facts and circumstances acknowledged earlier, Gap evidence Nos. 21, 22, 23, and Eul evidence Nos. 21, 22, and 23, and Eul evidence Nos. 1 and the purport of the whole pleadings, the disposition of this case cannot be deemed as unlawful as alleged by the plaintiff.

A) The purport of the final and conclusive judgment revoking the disposition of the National Research Foundation of Korea is that the National Research Foundation of Korea has no authority to impose the disposition of restriction on participation and the disposition of recovery. The Defendants may take the instant disposition on the basis of the materials investigated by the National Research Foundation in accordance with the purport of the final and conclusive judgment and the materials revealed in the course of litigation. In addition, the Defendants notified the instant disposition prior to the instant disposition, and the Plaintiff

B) The Defendants specified the period of restriction on participation in the instant disposition as "three years, respectively," and, in relation to the projects Nos. 2 and 3, ordered the period [No. 2 projects: 694 days ( February 24, 2015), and No. 3 projects: 697 days], excluding the period during which the previous lawsuit was executed.

C) Although the Minister of Education stated that the Defendant’s disposition related to the First Project is “restriction on participation (excluding the selection of a person eligible for scientific support), it does not seem that the restriction on participation and the selection of a person eligible for scientific support do not mean any other disposition. Even if other dispositions are taken, the Defendant Minister of Education excluded the selection of a person eligible for scientific support under Article 20(1) of the

C. Whether the discretion is deviates or abused

In full view of the following facts and circumstances that can be recognized by comprehensively taking into account the aforementioned facts and the purport of the entire arguments, considering the fact that the Plaintiff was not individually using the student personnel expenses, and the Plaintiff’s administrative disposition was revoked in the administrative litigation filed by the Korea Research Foundation in relation to the instant case, it is difficult to view the instant disposition as a deviation from and abuse of discretionary power, as it is not significantly disadvantageous to the Plaintiff compared to the public interest to be achieved in the administrative litigation filed by the Plaintiff.

A) If the student personnel expenses are used for any purpose other than the original purpose, it is highly likely that it will lead to the insolvency of science support projects and national research and development projects promoted by the State as it might collapse the economic foundation of graduate students and decrease their desire for research. Therefore, it is necessary for the public interest to prohibit them.

B) Although the Plaintiff is responsible for managing and supervising the personnel expenses to be fully paid to the graduate students participating in the instant project as a faculty member and graduate students of the instant project, the Plaintiff was required to create part of the personnel expenses as joint expenses, and received a report on the operating situation, etc., and some of the amount was also designated even for the purpose.

C) Of the instant dispositions, the recovery disposition is related to the amount confirmed as joint expenses as a result of the investigation conducted by the Truth Investigation Committee of B University and the Korea Research Foundation. It appears to be the minimum degree to achieve the public interest purpose. Of the instant dispositions, the disposition of restriction on participation was conducted within the period prescribed in Article 20(1) of the Sciences Promotion Act, Article 20 Subparag. 3(b) of the Enforcement Decree of the same Act, Article 11-2(1)5 of the former Framework Act on Science and Technology, Article 27(1)5 of the former Regulations on the Management

5. Conclusion

All of the plaintiff's claims are dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge, judges and assistant judges;

Judges Lee Jae-he

Judges Lee Jin-hee

1) According to the evidence evidence Nos. 21, 22, and 23, the Defendants’ restitution disposition was limited to the Industry-Academic Cooperation Agency, but Plaintiff A did not appear to have been limited to the Industry-Academic Cooperation Agency.

Pursuant to the purport of the claim, entry is made (as of July 9, 2018, the new letter of request for change in the ground of the request).