2019Guhap15561 Demanding nullification of partial refund of subsidies

A Stock Company

Attorney Kim Young-deok, Counsel for the plaintiff-appellant

Attorney Kim Jong-young

The President of the Korea Creative Content Agency

Attorneys Choi Jung-young et al., Counsel for the plaintiff-appellant-appellant

2020,7.2

2020, 9,10

1. The instant lawsuit shall be dismissed.

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

On June 21, 2019, the Defendant confirmed that a partial refund of subsidy against the Plaintiff is null and void.

1. Basic facts

A. The Plaintiff is a corporation established for the purpose of developing, producing and selling software, and the Korea Creative Content Promotion Agency (hereinafter referred to as the “Promotion Agency”) is a corporation established by the Government to efficiently support the advancement and development of cultural industries pursuant to Article 31 of the Framework Act on the Promotion of Cultural Industries.

B. On February 14, 2017, the Promotion Agency publicly announced “B” with the content of subsidization of research expenses for research tasks designated by the Promotion Agency. On January 1, 2018, the Promotion Agency entered into the B Convention with the Plaintiff (hereinafter “instant Convention”) with the content as follows.

B. B. B: The project period for the pertinent year from 01, 2017 to 31, 2019: from 01, 2017 to 01 December 201, 2019: (a) from 01, 2018 to 31, 2018, the purpose of this Convention is to clarify the rights and obligations of the Agency, the managing research institute, and the joint research institute, and to determine the matters necessary for the management of the support tasks, and to clarify the rights and obligations of the Agency, the managing research institute, and the joint research institute, and to determine the purpose of this Convention, Article 1 (Purpose) of the Convention:

1. Regulations on the Management, etc. of National Research and Development Projects (Presidential Decree No. 2. 2. 3. Regulations on the Management, etc. of Culture, Sports and Tourism Research and Development Projects (Direction of the Ministry of Culture, Sports and Tourism), and Article 4 (Payment of Research and Development Expenses), the Promotion Institute, etc., shall pay an agreement subsidy (hereinafter referred to as "subsidies") out of the research and development expenses for the performance of the project to each institution after receipt of the application documents for subsidies from each institution. Article 5 (Management, Use, etc. of Research and Development Expenses) (3) The managing research institute and joint research institution shall return the balance of the execution of research and development expenses and the balance of the settlement (including unrecognized amount) to the Promotion Institute within 15 days from the date of receipt of the notification thereof. ① The main research institute, the head of the main research institute, the head of the main research institute, and all persons (including institutions) participating in the main task, such as a research director, etc. shall comply

C. Pursuant to the instant agreement, the Promotion Institute subsidized KRW 180 million for research and development expenses to the Plaintiff. On May 31, 2019, the Defendant notified the Plaintiff that some of the personnel expenses, research equipment and material expenses executed by the Plaintiff cannot be recognized as the expenditure for research and development expenses (hereinafter “prior notification”). As such, the Defendant requested the Plaintiff to return KRW 53,629,963 for non-recognized amount (hereinafter “prior notification”).

D. On June 21, 2019, the Plaintiff filed an objection against the instant prior notice, and the Defendant, on June 21, 2019, notified the Defendant that, inasmuch as the measures were not implemented despite being ordered to take corrective measures on the expenditure of cash personnel expenses, the Plaintiff did not object to the notification, that the purchase of a device out of research equipment and material expenses was recognized, and that other surtax recognized the objection as partial recognition of the objection, and accordingly requested the return of the amount of KRW 52,759,349, which was not recognized (hereinafter “instant notification”).

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 3, Eul evidence Nos. 1, 4 through 6, the purport of the whole pleadings

2. The plaintiff's assertion

A. For the following reasons, the instant notice is unlawful, and its defect is obvious and null and void. (1) The Defendant did not present the legal basis or reason for the instant notice, thereby violating Article 23 of the Administrative Procedures Act.

2) The instant notification is on the ground that the Plaintiff did not implement a corrective measure. As such, the relevant statute does not stipulate the non-performance of a corrective measure as the grounds for the recovery of subsidies, the instant notification goes against the principle of statutory reservation.

3) Even if the instant notice complies with the procedure and has legal basis, the recovery of subsidies is discretionary act by an administrative agency, and the Defendant was fully recovered without considering the circumstances under which partial reduction of the amount of subsidies would have been possible, and thus, the instant notice exceeded and abused its discretion.

C. The purport of the instant notification is to seek revocation of a lawsuit seeking nullification even if the defect in the instant notification is not serious and clear, and thus, the instant notification must be revoked.

3. Relevant statutes;

It is as shown in the attached Form.

4. Judgment on the main defense of this case

A. The defendant's assertion

The instant notice is not a redemption disposition based on Article 11-2 of the former Framework Act on Science and Technology (amended by Act No. 16526, Aug. 27, 2019; hereinafter the same) but a redemption disposition based on Article 11-2 of the former Framework Act on Science and Technology (amended by Presidential Decree No. 29625, Mar. 19, 2019; hereinafter referred to as the “instant provision”), Article 19(4)1 of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 29625, Mar. 19, 2019; hereinafter referred to as the “Rules”). Thus, the instant lawsuit

B. Relevant legal principles

The issue of whether a certain act of an administrative agency can be a subject of appeal cannot be determined abstractly, and in a specific case, an administrative disposition is an enforcement of law with regard to a specific fact conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people, based on the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the actual relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of rule of law administration, and the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court Decisions 2010Du7321, Jun. 10, 2011): Provided, That in order to fall under a disposition subject to appeal litigation, an administrative agency’s unilateral exercise of authority with superior status, and thus, an expression of intent based on the relevant contract does not constitute such act (see, e.g., Supreme Court Decisions 2013Du6244, Apr. 24, 2014>

C. Determination

In light of the above legal principles, comprehensively taking account of the following circumstances that can be acknowledged by the health team, the aforementioned basic facts, the evidence, and the purport of the entire pleadings, the notice of this case merely gives notice to the defendant to return research and development expenses settled on the basis of the agreement as equal status to the parties, which does not constitute an administrative disposition subject to appeal litigation. Therefore, the plaintiff's lawsuit of this case is unlawful, and the defendant's defense of this case is justified.

1) The former Framework Act on Science and Technology provides that the head of a central administrative agency may restrict the participation in national research and development projects if the institutions, organizations, etc. participating in national research and development projects are determined to be suspended or failed as a research and development task conducted by the central administrative agency due to extremely poor outcomes of research and development (Article 11-2). On the other hand, where the institutions, etc. participating in national research and development projects have executed research and development projects wrongfully, there is no provision on the settlement of the relevant research and development expenses. Regarding the settlement of research and development expenses, Article 19 of the former Framework Act on Science and Technology and Article 24 of the Regulations on the Management of Culture, Sports and Tourism (hereinafter “the instant management regulations”) enacted to stipulate matters necessary for research and development projects implemented by the Minister of Culture, Sports and Tourism in accordance with the Framework Act on Science and Technology (hereinafter “the instant regulations”), and Article 11(2) of the former Framework Act on Science and Technology provides that the head of a central administrative agency may act on behalf of an institution or organization under its jurisdiction for planning of national research and development projects (Article 11(4).

2) ① At the time of the prior notification, the Defendant notified “the time to return the amount to be returned” as “the time to inform the results of the settlement of research and development costs within the time limit,” and “the results of the settlement of accounts and the results of the settlement of research and development costs therefrom,” even at the time of the instant disposition. The prior notification and the instant notification appears to have been notified of the matters concerning the settlement of research and development costs; ② the Defendant calculated the amount to be returned out of the amount wrongfully executed by the Plaintiff as the amount to be returned; ② the Defendant calculated the amount to be returned, based on the provisions related to the settlement of research and development costs, such as Article 19(4) of the instant provision and Article 24(4) of the instant management regulations. Ultimately, the Defendant calculated the amount to be returned

The instant notification was made for the purpose of the settlement of research and development expenses pursuant to Article 19 of the previous Regulations and Article 24 of the instant management regulations, and it is reasonable to view that such notification was an expression of intent under the instant agreement, which is a public contract concluded between the Plaintiff and the Promotion Agency as equal

3) Even if the Plaintiff unfairly disbursed research and development expenses or did not comply with the request for refund of settlement money, the Defendant is subject to sanctions under public law against the Plaintiff or the pertinent amount in the same manner as delinquent taxes are collected.

In light of the fact that there is no legal basis to collect the amount, the notification of this case is merely the peremptory notice to return the amount of settlement, and there is no reason to deem that the notification of this case constitutes the exercise of public authority by the defendant in a superior position

4) Meanwhile, as seen earlier, Article 11-2 of the former Framework Act on Science and Technology provides for the recovery of project costs, and Article 27 of the instant provision and Article 40 of the instant management regulations specify the details thereof. However, as seen earlier, the instant notification is related to the settlement of research and development costs; the former Framework Act on Science and Technology and the instant provision only stipulate the recovery of project costs based on the “head of the central administrative agency”; and otherwise, it is difficult to view the instant notification as a recovery disposition of project costs based on the former Framework Act on Science and Technology, in view of the fact that there is no other authority to recover project costs.

5. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

The presiding judge, judge and salter;

Judges Kim Gin-Un

Judges Lee Jin-jin

1) Although the Defendant cited Article 19(4)2 of the Regulations on the Management, etc. of National Research and Development Projects as a basis provision, the Defendant cited the same.

Article 1 of the Addenda (No. 29625, No. 3, 19.) of the above Regulation provides that "this Decree shall enter into force on September 1, 2019"

In this case, the provision of this case is applied, and this case is with the same content as the provision of this case cited by the defendant.

In accordance with Article 19(4) of the Regulations, the defendant's assertion shall be asserted.