2018Nu35614. Revocation of disposition, such as redemption of research funds

1. A university, industry-academic cooperation foundation;

Representative B

2. C

[Judgment of the court below]

[Defendant-Appellee]

The Minister of Science and ICT

Government Legal Service Corporation (Law Firm LLC)

Attorney Kim Chang-soo

Seoul Administrative Court Decision 2017Guhap67292 Decided January 12, 2018

June 21, 2018

July 19, 2018

1. Revocation of a judgment of the first instance;

2. All of the plaintiffs' claims are dismissed. 3. Total costs of litigation are assessed against the plaintiffs.

1. Purport of claim

The Defendant’s reimbursement of KRW 61,220,00 for research expenses to the Industry-Academic Cooperation Foundation of the Plaintiff A University on May 1, 2017

Each disposition of restriction on participation in national research and development projects conducted to Sector and Plaintiff C shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

The reasons for the court's explanation on this part are as follows: "and the results of the final evaluation of the results of this case's research and development task submitted by the plaintiffs are included in the results of the evaluation of the results of this case's research and development task, and according to the opinion that "the method of producing the so-called so-called 'the method of producing the so-called 'the results' among the achievements presented by the plaintiffs is expected to contribute to a certain part of the research field." It is evaluated as class 3 with the opinion that the 'the method of producing the so-called 'the 'the method of producing the so-called 'the 'the 'the 'the 'the method of producing the so-called 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the ' the 'the 'the ' the 'the 'the 'the 'the 'the 'the 'the 'the ' the ' the 15th 'the 'the 'the 'the 'the 'the 'the 'the 'the 2 'the 'the 'the 15'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 10.

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, since it is the same as the corresponding part of the judgment of the court of first instance (Article 5 (6) through 6).

(b) Relevant statutes;

Attached Acts and subordinate statutes, etc. shall be as listed.

(c)the existence of procedural illegality;

D. Whether the principle of statutory reservation is violated

C. The reasons for the explanation concerning paragraph (d) are the same as the corresponding part of the judgment of the court of first instance (as 6, 12 to 7, 14, 7, 16 to 9, 2). Thus, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

E. Whether the grounds for the disposition are recognized

1) Facts of recognition

The court's explanation concerning this part is identical to the corresponding part of the judgment of the court of first instance (as of 7,10 through 13, 15, 16, the corresponding part of the judgment of the court of first instance (as of 9, 4 through 14, 8) except that the following is added between the 12, 2 and 3, 3 of the judgment of the court of first instance, 3 of the same 21 of the same 3 of the same 3 of the same 3 of the same 3 of the same 3 of the same 3 of the same 3 of the same 3 of the same 3 of the same 4 of the 14th 8 of the 14th 8 of the 14th 8th 14th 14th 14th 200).

(B) The organization and evaluation process of the evaluation team for the performance and sanctions of research and development;

(1) In February 2014 and May 201 of the same year, the Defendant prepared a detailed evaluation plan (hereinafter “evaluation plan for the instant basic research project”) on the main body, method of evaluation, evaluation criteria, etc. to conduct evaluations of basic research projects in accordance with the relevant laws and regulations, including the Framework Act on Science and Technology, and the evaluation of the instant research and development tasks also conducted by applying the evaluation plan for the instant basic research project.

(2) The evaluation methods, evaluation criteria, etc. according to the evaluation plan of the instant basic research project are as follows.

○ First of all, the final evaluation of the performance of the research and development task is conducted and accordingly the evaluation is conducted as ‘D grade (less than 60 points)', which is an extremely poor research results, the evaluation of whether the performance of the work is performed or not.This evaluation is conducted by organizing an appropriate panel in consideration of the academic field and the number of the subjects subject to evaluation, but the evaluation committee shall be recommended by the members of the Basic Research Center of the Korea Research Foundation, and shall be organized by the members of the PM council of the Basic Research Center of the Korea, and the evaluation committee shall be composed of seven experts in the related fields of each panel and shall be operated flexibly to the extent that the expertise can be secured. In the case of the final evaluation, the evaluation of whether the work is performed in good faith shall be excluded from experts who have interests, such as the same project executor, and

The evaluation committee members selected as above will evaluate the research task through discussions, etc., and according to the evaluation items and evaluation indexes for the final evaluation consisting of the followings, and according to the evaluation items and evaluation indexes for the quality level of the research outcomes as referenced in the evaluation of the quality level, the evaluation items and evaluation indexes for the final evaluation are specifically set forth the items to be considered for each item, such as breaththrough-type knowledge or technology (international upper level) to 5th grade from "the level of research performance, 'the level of research research, 'the level of quality of the thesis', 'the level of quality', 'technology level', 'technology transfer', etc., which can contribute to the exploitation of new fields or the settlement of problems in the field under their jurisdiction.

On the other hand, it is necessary to determine the appropriateness of the research implementation method and the process in accordance with the following: 'the first research objective of the Party is considered to be dangerous, 'the possibility of failure' is recognized to be established entirely, 'the research outcomes are 1 and 2 grades of the qualitative standards for the level of research outcomes', 'the achievement of the research goal has been failed at least once after the failure to draw the research goal, 'the fulfillment of the data such as research notes', and 'the systematic and faithfulness of the data and various data such as research notes'.

(3) For the final evaluation of the instant research and development task, the Korean Research Foundation organized an evaluation group with ten experts, including two exclusive evaluation members in the field of 'organic materials', 'electronic and information and communications engineering', and conducted an evaluation by the method of debate evaluation. The evaluation of good faith was conducted by four experts, including one exclusive evaluation member, who is an expert in the field of 's semiconductor materials'.

(4) On August 7, 2014, the Korean Research Foundation notified the president of A University of the final evaluation results of the instant research and development task, following the aforementioned evaluation process regarding the instant research and development task.

(5) Meanwhile, in accordance with the relevant statutes, where research and development outcomes are extremely poor, the Korea Research Foundation organized and operates a sanctions evaluation group to deliberate on whether to restrict participation in national research and development projects, and the scope thereof. The Korea Research Foundation, prior to its deliberation by the sanctions evaluation group on December 5, 2014, shall first undergo a deliberation by the "Committee on Review on Scope of Recovery of Research Expenses," comprised of four evaluation members, including experts who majored in semiconductor materials, etc., on December 16, 2015, after deliberation by the sanctions evaluation group consisting of the members of the sanctions evaluation group on February 11, 2015.

2) Determination

A) According to Article 11-2(1)11 of the former Framework Act on Science and Technology (amended by Act No. 12673, May 28, 2014; hereinafter “former Framework Act on Science and Technology”), where the head of a central administrative agency determines as a research and development task suspended or failed in compliance with the evaluation conducted by a central administrative agency due to extremely poor research and development outcomes, he/she may restrict the participation in the relevant national research and development project within five years, and may recover all or part of the project expenses already contributed or subsidized, and the detailed criteria prescribed by Presidential Decree under Article 27(5) of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 2579, Nov. 28, 2014; hereinafter “former Management Regulations”), Article 27(1)1 of the same Act sets the period of restriction on participation in national research and development projects as three years, and Article 11-2(10) of the same Act provides that “the entire amount of the project expenses to be recovered within five years or less than the relevant year.”

In full view of the language and text of these provisions, structure, form, and former Framework Act on Science and Technology requires the Government to implement national research and development projects as a means of achieving the legislative purpose (see Article 1 of the former Framework Act on Science and Technology) to contribute to the sustainable development of the national economy and the enhancement of national quality of life by promoting scientific and technological innovation and raising the national competitiveness, and the evaluation of research and development outcomes and performance of national research and development projects is an area requiring high level of expertise. In cases where an administrative agency made a specialized judgment on the aforementioned evaluation as prescribed by relevant Acts and subordinate statutes, barring special circumstances, such as serious errors in finding facts on which the judgment was based, or unreasonable or unreasonable, and dispositions taken by an administrative agency as an exercise of discretionary power based on the aforementioned specialized judgment cannot be deemed unlawful unless it violates the principle of proportionality, or seriously loses validity in light of social norms (see, e.g., Supreme Court Decision 2013Du12401, Jan. 28, 2016).

B) Examining the facts acknowledged earlier and the following circumstances revealed by the relevant laws and regulations in light of the aforementioned legal principles, the court held that the research and development outcome of the instant research and development task does not fall under a case where the research and development result is extremely poor and faithfully performed, and that the instant previous disposition and the instant disposition that approved it are justifiable, and there is no error of misconception of facts, or of deviation from or abuse of discretion.

(1) The instant research and development task aims at “the assessment of reliability due to exposure to radiation of the next generation semiconductor elements and the improvement of the characteristics of internal radiation.” However, theses, patents, etc. submitted by the Plaintiffs during the research implementation period fall short of the quantitative goals established by the initial research plan, and the evaluation results of the members of the Korea Research Foundation are merely one of the external papers published around December 2012. The remainder of the research task is related to the semiconductor tenant design or is deemed to be weak in relation thereto. Even according to the final report submitted by the Plaintiffs on their own, the objective of the research project is only 80% of the detailed research goals directly related to the above final objective, and only the implementation of the “intestic circuit impact assessment” by the 'intestic circuit assessment,” and the reliability of the 20% of the 20% of the results of the research task submitted by the Plaintiffs on the basis of the evaluation of the members of the Korea Research Foundation.

(2) The plaintiffs asserted that the results of the instant research and development task should be considered even if they were published in a well-known academic journal, and are published after the research period. According to the Gap evidence No. 19, the "Written 2012" requires that the research and development task of this case should be entered into the Korea Research Foundation's performance management system for five years after the completion of the research and development. However, the above outline of the application is merely for the systematic management of the outcomes of the instant research and development project including the instant research and development task. On the other hand, according to the evidence No. 13, it seems that the above outline of the research and development project is merely for the ex post facto systematic management of the outcomes of the research and development project of this case, and it is difficult to view that the defendant's results of the research and development project of this case were not directly related to the aforementioned research and development task of this case by the time of its initial research and development project's announcement (including the fixed research outcomes of this case's announcement) within the scope of 5 of the final research and development model of this case's submission.

(3) According to the Defendant’s plan for the evaluation of basic research projects, the degree of achievement of research objectives should be considered as the largest evaluation items, but in addition, the quality level of research outcomes and the feasibility of utilization of research outcomes should also be considered as evaluation items. In fact, evaluation members of the Korea Research Foundation may evaluate the performance of the instant research and development task in accordance with the above evaluation plan and give points to them (59, D class) and be deemed to have reached the previous disposition of this case (as seen earlier, the rating was given according to the above “the quality level of research outcomes” with respect to the performance presented in the letter of the presentation of the performance of the instant research and development task (as seen earlier). Ultimately, the instant research and development task of this case is simply based on the number of theses submitted by the Plaintiff, etc., as well as the quantitative evaluation based on the quality level of scientific and technological values related to the submitted outcomes and the feasibility of utilization in the relevant research field, etc., regardless of the objective of the research and development project. In light of the aforementioned evaluation plan’s nature of the research and development project of this case.

(4) According to a plan for evaluation of basic research projects, the evaluation of the performance of the instant research and development task shall be conducted in good faith by taking into account the reasons that the research objective was not achieved, the quality of the research outcomes themselves, the methods of conducting research, and the appropriateness of the process, etc., and the evaluation members of the Korea Research Foundation shall consider indexes according to the aforementioned evaluation plan based on the circumstances in which the achievement of the three-year research objective directly related to the final goal of the instant research and development task was failed. In particular, the articles published by Plaintiff C around January 2015 are deemed to have evaluated whether the instant research and development task was faithfully performed, taking into account the following factors at the final evaluation stage by the sanctions evaluation team for the instant previous dispositions (see, e.g., evidence Nos. 1-1, 4-1, 4-2). From the perspective of the aforementioned evaluation, there is no other reasonable vindication on the grounds that the Plaintiffs failed to achieve the final objective of the instant research and development task from the Plaintiffs up to the aforementioned evaluation. The evidence Nos. 13 through 15 is insufficient to acknowledge that each Plaintiff C performed the research task in good faith.

(5) The Korea Research Foundation organized a panel composed of experts in related fields, including experts in semiconductor fields, for the evaluation of the performance of the instant research and development task and the evaluation of whether the performance of the instant research and development task has been faithfully performed. In the evaluation of national research and development projects under the former Management Regulations, there is no provision stipulating the specific majors of the evaluation committee in the relevant field. Ultimately, no illegality or unreasonable circumstance exists in the composition of the evaluation group or the sanctions evaluation group for the performance of the instant research and development task. Furthermore, the Plaintiffs are issues of expertise of the Korea Research Foundation PM council and the sanctions evaluation group. However, the Basic Research Center PM council is not directly evaluation of the instant research and development task, but rather the role of the evaluation group of the research and development task in selecting the evaluation group of the research and development task. It is difficult to view that the evaluation group of sanctions has the same level of expertise to recommend experts in the relevant field. The evaluation group of national research and development projects is also composed to deliberate on the restriction on participation in national research and development projects and the recovery of project costs, and the evaluation group of sanctions cannot be deemed to have any special expertise or expertise in the aforementioned evaluation group.

(6) Ultimately, the Korean Research Foundation established a research and development task evaluation group, a sanctions evaluation group, and the scope of sanctions, such as the performance and sincere performance of the research and development task of this case, and the redemption of research expenses, pursuant to relevant provisions, such as the former Framework Act on Science and Technology and the former Management Regulations, and then notified the Defendant of the result of the deliberation. Based on these results, the Defendant rendered the previous dispositions of this case, and again rendered the previous dispositions of this case in the same manner as the previous dispositions of this case. The instant disposition was an exercise of discretionary authority based on a professional judgment, and there is no circumstance to deem that there was an error in fact-finding or that there is an objective or unreasonable ground for determining the criteria, procedure, method, and content of the judgment. Accordingly

F. Whether the subject of the disposition of redemption of research funds is illegal

According to the detailed criteria for recovery of project costs by reason of each type of Article 11-2(1) of the Framework Act on Science and Technology and Article 27(10) [Attachment 5] of the former Management Regulations, the criteria for recovery of project costs for "where a project is determined as a failed project due to evaluation conducted by central administrative agencies due to extremely poor results of research and development" shall be determined as "within the total amount of the contributions

Therefore, as seen earlier, insofar as the Defendant cannot be deemed to have committed any error in determining the entire research and development task of this case as a failure or failure, the Defendant may recover project costs within the scope of KRW 300,000,000, which is the total amount of the entire research period of the instant research and development task of this case, which is the pertinent year, within the scope of KRW 300,000,000, including the first year research allowances, the second year research allowances, and the third year research allowances. Therefore, the Defendant’s disposition of restitution of KRW 61,220,00 is lawful.

3. Conclusion

Therefore, the plaintiffs' claims in this case are all dismissed due to the lack of reasons, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and all claims of the plaintiffs are dismissed.

The presiding judge, Ginju

Judges Min Il-young

Judges Lee Jae-in