2019Guhap8187 Revocation of Disposition, such as restrictions on participation in national research and development projects

Action of Claim

A Stock Company

B Representative Director

Attorney Lee Young-young, Counsel for the defendant-appellant

The Minister of Science and ICT

Government Legal Service Corporation (Law Firm LLC)

[Defendant-Appellant]

Park Jong-sung et al.

April 21, 2020

May 21, 2020

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of restricting participation in national research and development projects for three years against the Plaintiff on August 26, 2019 and disposition of recovering KRW 60,000,000, respectively, shall be revoked.

1. Details of the disposition;

A. The Plaintiff, under the supervision of the Korea Industrial Technology Association in 2017 and the Defendant’s jurisdiction, was selected as the subject of the above Support Project in collusion with the research task “a project for developing the surface temperature tracking smart chain using a heating image camera” (hereinafter “instant task”). Accordingly, the Plaintiff received KRW 200 million from the Defendant.

B. On April 30, 2018, in the course of performing the instant task, the Plaintiff transferred KRW 100 million, which is part of the 200 million government contributions to the account of the Plaintiff’s major shareholder, to the account of the Kudong Machinery (hereinafter “ Kudong Machinery”), but was returned on May 10, 2018, and again transferred the same amount to the account of Kudong Machinery on May 31, 2018, but was returned on June 7, 2018. The Korea Industrial Technology Promotion Association confirmed the details of the Plaintiff’s transfer and held a meeting of the sanctions assessment board on July 31, 2019, and notified the Defendant of the result thereof, and the Defendant issued a disposition of restriction on participation in the National Research and Development Project (hereinafter “Rules of Restriction on Participation in National Research and Development”) in accordance with Article 11-2 of the Framework Act on Science and Technology and Article 207 of the National Research and Development Projects Management Act (hereinafter “Rules of Restriction on Participation in National Research and Development Project”).

[Reasons for Recognition] Facts without dispute, Gap evidence 7, 8, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff recognized that part of the government contributions for the instant task was used for any purpose other than its original purpose, the period of use for the other purpose is shorter than seven days, ten days long, and the entire subsidies was collected. As a result, the Plaintiff did not interfere with the implementation of the instant research task. In fact, the Plaintiff was judged as a "sexuality" as a result of evaluation by the Korea Industrial Technology Promotion Association by completing the instant task. In light of such circumstances, the instant disposition was in violation of the law that the Plaintiff abused and abused much disadvantage than the public interest to be achieved.

B. Relevant statutes

It is as shown in the attached Form.

D. Determination

1) Whether a punitive administrative disposition deviates from or abused the discretionary power under the social norms ought to be determined by objectively examining the content of the offense subject to the disposition, the purpose of the public interest to achieve the disposition, and all the relevant circumstances, and by comparing the degree of infringement on the public interest and the disadvantages suffered by an individual (see, e.g., Supreme Court Decision 2004Du3854, Apr. 14, 2006). If the criteria for punitive administrative disposition are prescribed in the form of Presidential Decree or Ordinance of the Ministries, the criteria for disposition do not in itself conform with the Constitution or laws, or, unless there are reasonable grounds to believe that such disposition is considerably unreasonable in light of the content of the offense subject to the disposition, and the content and purport of the relevant statutes, the disposition should not be determined by readily concluding that the disposition has deviates from or abused the discretionary power (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 207).

2) According to the statements in Gap evidence Nos. 5 and 10 (including various numbers), it is recognized that the plaintiff performed the instant task and received a patent decision from the Korean Intellectual Property Office on September 2019 as to the "place presumption device and method of presumption of location to measure the A-out temperature in response to the new e-mail change" from the Korean Industrial Technology Promotion Association, and the plaintiff assessed the outcome of the instant task from the Korea Industrial Technology Promotion Association as a "sexual public" and paid KRW 15,040,675 of the royalties to the Korea Industrial Technology Promotion Association. However, in light of the following circumstances revealed through the whole evidence and the purport of oral argument, the instant disposition cannot be deemed to have violated the principle of proportionality, and thus, the plaintiff's assertion cannot be accepted.

(1) The research and development expenses paid to a research institution is paid in order to promote the national economy, improve the quality of life of the people, and support the national research and development projects to contribute to the development of human society by innovative science and technology, strengthening the national competitiveness, and thus, the public interest to be properly disbursed according to the payment purpose and usage is highly high. In addition, since the use of the research and development expenses paid by a person who carries out the national research and development project for any other purpose is highly likely to lead

② The Plaintiff’s usage amount is KRW 200,000,000,000 won for the instant task. Furthermore, it appears that the Plaintiff provided the said contribution to the extreme machinery, which was not good financial standing, without any security. As such, the degree of the violation is not somewhat less than that of the Plaintiff.

③ The instant disposition is an appropriate means to recover the portion of research and development expenses paid to the Plaintiff Company in relation to the instant task, to restrict the participation in national research and development projects for three years for the Plaintiff who committed the instant violation, and to impose sanctions on the act of using research and development expenses for any purpose other than the original purpose, and to induce research institutes and persons in charge of research and development projects who conduct the next national research and development projects to use them in compliance with the purpose and purpose for which

④ Articles 27(1) [Attachment 4-2] and 27(1) [Attachment 4-2] of the Management Regulations pursuant to delegation of Article 11-2(1) and (3) of the Framework Act on Science and Technology provide that the period of restriction on participation may be reduced to at least one year if the amount used for any purpose other than the original purpose exceeds 30 percent of research and development funds for the pertinent year. However, if the amount used for any purpose other than the original purpose is already recovered from the research and development fund account, the period of restriction on participation may be reduced to at least one year. Since the Plaintiff’s total amount used for any purpose other than the original purpose was restored to the management account of the instant task, the period of restriction on participation pursuant to the above Management Regulations falls within four years. However, the period of restriction on participation is three years.

(5) Article 27(11) [Attachment 5] of the Management Regulations provides that research and development expenses shall be recovered within the total amount of contributions for the relevant year when using them for any purpose other than the intended purpose. The defendant has made a disposition to recover only KRW 60 million, which is less than KRW 200,000,000, which is the project cost used for the purpose other than the intended purpose of the instant task, and it is determined that the disposition to recover is reasonable within

(6) It is difficult to see that each of the above dispositions criteria per se conforms to the Constitution or Acts and subordinate statutes, and the disposition in this case is obviously unreasonable in light of the substance of the offense and the content and purport of relevant statutes

7. In order to promote the soundness of the finance of national research and development projects and to secure transparency in the operation thereof, project costs shall be strictly controlled and managed, and any disadvantage that the plaintiffs are entitled to receive due to the disposition in this case shall not be deemed greater

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

presiding judge, judge Park Jong-yang

Judges Kim Gin-ju

Judge Lee Professor

1) This is the period of restriction on participation applicable in cases where the recovery of the violation is one time, and where the violation is recovered twice, the participation between 5 and 7 years and 6 months.

The Defendant applies the period of restriction on participation, deeming that the Plaintiff’s use of research and development funds for any purpose other than that of use constitutes one time.

Since it is applied (see the 9th written reply), it will be followed.