(영문) 서울행정법원 2012.4.5.선고 2011구합35583 판결

The defendant's disposition to restrict the participation in national research and development projects conducted by the plaintiffs on August 31, 2011 for three years is revoked.

Reasons

1. Details of the disposition;

A. Status of the plaintiffs

The plaintiff A(hereinafter referred to as the "Plaintiff A") is a company that designs and manufactures marine equipment and prevents environmental pollution. The plaintiff B is the representative director of the plaintiff company.

B. Conclusion of agreements by the Plaintiff Company

(1) On September 15, 2009, the Plaintiff Company entered into an agreement on research and development of national land technology (hereinafter referred to as the “first agreement of this case”) with C institutions (hereinafter referred to as “C”) on the research period from September 1, 2009 to August 31, 2010, research and development costs of 200,000,000, 133,33,000,000, 266,67,000 won in total, and 600,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000, and the person in charge of research and development, who is the Plaintiff B (hereinafter referred to as “the first agreement of this case”).

(2) On September 28, 2010, the Plaintiff Company entered into an agreement on research and development of national maritime technology (hereinafter referred to as the “instant agreement”) with respect to the “E” business (hereinafter referred to as the “E” business (hereinafter referred to as the “the instant second agreement”) with C, which is the main research institute from July 20, 2009 to July 19, 201, with the research period as the main research institute, from July 20, 2009 to July 20, 225,340,000, and the land research and development project with the contents of “E” business (hereinafter referred to as the “instant agreement”) with the Plaintiff as the main research institute.

C. Article 4 (Management and Use of Research and Development Costs) of the instant agreement on research and development costs (C'A', the Plaintiff Company's "B", and the Plaintiff B's "diseases").

(1) Upon receipt of Government contributions and participant enterprises' contributions, Eul shall manage them as follows by establishing a separate account: Provided, That where at least two projects for the research and development of national land and marine technology are concurrently implemented, a separate account shall be established and managed, but matters concerning the accounting management used for each research and development task shall be proven:

1. Where Eul establishes a management account for research and development expenses in a financial institution, it shall be established in the name of the affiliated institution (research institute) to which Eul has been delegated, or the department in exclusive charge of research and development expenses, and shall not be established in the name of an individual: Provided, That it may be established in the name of a specific individual delegated by Eul with the approval of Eul, if it is inevitable for the execution of research;

2. Affairs concerning research and development expenses shall be handled by a person designated by B or C from among his/her employees (hereinafter referred to as a "non-manager of research and development"), and a person designated as a manager of research and development expenses shall manage research and development expenses with the care of the full manager thereof;

3. The manager of research and development expenses shall keep basically cash receipts and disbursements or other documents corresponding to the management of research and development expenses, and record and manage the current status of receipt and disbursement by item;

4. A manager of research and development expenses shall prepare a written resolution and receipt concerning the payment, and other evidential documents necessary to verify the details of payment, such as a written request for a written estimate or written contract inspection report, if necessary, and shall be bound and bound by classifying them monthly or quarterly, and the total number of cases to be purchased and the names of the manager shall be stated and sealed

5. A manager of research and development expenses shall keep the documents for deposit and operation, books, evidential documents, etc. in his/her own regulations, but shall keep them for at least five years after the end of the relevant tasks.

(2) B shall use research and development expenses paid under Article 3 only for the performance of the relevant research and development task according to the standards determined by the Convention at the proposal of a person in charge of research.

(3) Where research and development expenses for each item are to be modified by at least 20 percent, after obtaining approval from A, they shall be disbursed: Provided, That research allowances and indirect expenses shall not be modified by exceeding the amount specified in the initial research and development plan.

In any of the following cases, Eul and Byung shall return an amount equivalent to the share of government contributions out of the relevant amount to the account designated by Gap:

1. Where it fails to prove the amount used for research and development expenses under paragraph (1), the relevant amount;

2. Where research and development expenses for each item are modified and used in excess without obtaining approval for modification under paragraph (3), the relevant amount;

3. Where it is used in excess of the standards for each item of Article 28 (1) of the Operating Rules, the relevant amount;

4. Where the relevant amount is executed regardless of the execution of the research and development task;

Article 19 (Restrictions) (1) Where a person in charge of research and development, a research institute, a participating enterprise (hereinafter referred to as "persons, etc.") participating in a research and development project by Eul, Byung, or this research and development project falls under any of the following cases, A may restrict him/her from participating in a research and development project for the national land and maritime technology for any of the following periods:

11. Where a contribution is used for any purpose other than the use of research and development expenses: Three years;

(4) Eul, etc. shall submit to Gap a letter of commitment to the implementation of an agreement, to comply with the provisions of this Article.

D. The plaintiffs' use of research and development funds for other purposes

The Plaintiffs, like the attached research and development funds transfer sheet, transferred the total amount of KRW 191,00,000,000 from the corporate bank F account, which is the management accounts of research and development expenses under the first agreement and the corporate bank G account, which is the management accounts of research and development expenses under the second agreement, to the Plaintiff Company’s general account, and used it for any other purpose than the purpose of the instant agreement, such as the company’s expenses and monthly salary for employees, and then

E. On May 19, 201, the Defendant issued a disposition to restrict the participation in national research and development projects for three years (hereinafter referred to as the “instant disposition”) on the grounds that the Defendant’s management status of research and development expenses was examined, and confirmed the details of the Plaintiffs’ use of research and development expenses for any purpose other than the purpose of research and development expenses. On August 31, 2011, the Defendant imposed a disposition to restrict the Plaintiffs from participating in national research and development projects for three years (from August 31, 2011 to August 30, 201).

F. C notified the Plaintiff Company of the result of the final evaluation of the instant secondary project on December 6, 201, and on August 25, 2011, “the termination of each of the instant secondary projects.” [Grounds for recognition]: (a) the absence of dispute; (b) each of the entry in Gap 1, 2, 6 through 13, and 15 evidence; and (c) Eul 1 through 2 evidence (including two number); and (d) the purport of the entire pleadings;

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(1) Non-existence of grounds for disposition

Since the Plaintiffs used research and development funds for temporary use, not for using them for any other purpose, the instant disposition that imposed restrictions on participation in research and development funds for three years is unlawful.

(2) A deviation from or abuse of discretionary power

Considering the following circumstances: (a) the Plaintiffs temporarily used research and development costs for other purposes; (b) the full recovery was made; and (c) the restriction on the Plaintiff Company’s participation in the instant disposition was sufficient to achieve the purpose of the instant disposition; and (b) the instant disposition may result in the closure of business by the Plaintiff Company; and (c) the instant disposition is unlawful as it deviates from and abused the discretionary authority.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

(1) Whether there is a ground for disposition

(A) Article 20(1)5 of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 22328, Aug. 11, 2010) applicable to the act of using research and development funds for any purpose other than the original purpose of the instant primary project (amended by Presidential Decree No. 22328, Aug. 11, 201) provides that “where contributions are used for any purpose other than the use of research and development funds: 5 years: Provided, That Article 27(1)5 of the former Regulations on the Management, etc. of National Research and Development Projects applicable to the act of using research and development funds for any purpose other than the original purpose of the instant secondary project (amended by Presidential Decree No. 22721, Mar. 28, 2011) provides that “(a) where research and development funds are embezzled, stolen, or useful: 5 years from three to two years, and (c) years from the temporary diversion of research and development funds for any purpose other than the instant secondary project.

(B) Comprehensively taking account of the facts acknowledged earlier and the following circumstances recognized by the aforementioned evidence, the term "temporary diversion" refers to the use of funds by arbitrarily lending the limited amount to other items, and the term "use" refers to the use of funds for purposes other than limited purposes, and as long as the funds, the use of which has limited purposes, were withdrawn for purposes other than the use, it shall be deemed useful even if the funds are returned thereafter.

Accordingly, the plaintiffs shall use the research and development costs of this case for purposes other than specified uses.

As long as such withdrawals were made, the plaintiffs are deemed to have appropriated the above research and development costs, so the plaintiffs' assertion that they are merely temporary diversion is without merit.

1) Article 12 of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 22721, Mar. 28, 201) provides that “The items of research and development expenses shall consist of personnel expenses, direct expenses, entrusted research and development expenses, and indirect expenses, and where the head of the main research institute intends to increase the personnel expenses or entrusted research and development expenses out of research and development expenses by at least 20 percent of the amount indicated in the research and development plan or annual performance and plan, he/she shall obtain approval from the head of the central administrative agency or the head of the specialized agency (Article 5 and 10). In addition, Article 4 of the Convention provides that “When the Government contributions are received, he/she shall establish and manage a separate account, separate accounts shall be established and managed, and the relevant research and development expenses shall be used only for the performance of the relevant research and development project according to the standards stipulated in the Convention by the person in charge of research and development, and where the amount of each item is changed by at least 20

In light of the above provisions, government contributions received under the agreement of this case are strictly limited not only to their use, but also to their cost items. In such a case, using funds for purposes other than limited use itself is the act of using them (see Supreme Court Decision 2003Do4570, Dec. 24, 2004). In this case, the plaintiffs withdrawn government contributions on eight occasions and used them for purposes other than their original purposes, and the amount is 190 million won. Thus, it is difficult to deem that the plaintiffs intended to temporarily use government contributions for other purposes, and there was no intention of unlawful acquisition.

2) Article 27(1)5(a) of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 22721, Mar. 28, 201) provides that cases where research and development expenses are embezzled, stolen, or useful. Since embezzlement, defraudation, or misappropriation is recognized as an intention of unlawful acquisition, and the form of an act whose illegality is similar to that of such act is recognized, such as embezzlement, deception, or misappropriation is listed, it shall be deemed useful if the intent of unlawful acquisition is recognized as such as the Plaintiffs, and it shall not be deemed as temporary diversion and shall not be deemed as being subject to Article 27(1)5(c) of

3) The National Science and Technology Council established in accordance with Article 9 of the Framework Act on Science and Technology defined that the term "use" means "a return" that is written in south or in another place, and the term "temporary diversion" means "a mutual financing of the amount between each of the three paragraphs and the items within the scope determined by the need." In the case where the Plaintiff Company used research and development funds for other purposes than the pre-determined scope, it is desirable to determine it as useful.

4) The common operational guidelines for knowledge and economy technological innovation projects presented by the plaintiffs as the criteria for distinguishing the utilization and temporary use (hereinafter referred to as "public notice") are not applicable to this case as based on the Industrial Technology Innovation Promotion Act and the Enforcement Decree of the same Act. In addition, with respect to the case of illegal use of project costs, such as utilization, fraud, embezzlement, etc., the public notice of the Ministry of Knowledge Economy is merely an assessment of the degree of responsibility different depending on the degree of responsibility and the ratio of the amount used for other purposes, and it cannot be said that the criteria for distinguishing the use and the temporary use of the land has been discovered.

(2) Whether the discretion is deviates or abused

(A) Whether a punitive administrative disposition deviatess from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement of public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the offense, which is the reason for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 2007)

(B) The former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 22721, Mar. 28, 2011) stipulate specific criteria for the period of restriction on participation by reasons of restriction on participation according to delegation under Article 11-2(5) of the Framework Act on Science and Technology, and is an external binding legal order, and Article 27(1)5(a) of the said Regulations provides that “if research and development costs are embezzled, stolen, or useful, it shall be three to five years.”

(C) We examine the facts that the plaintiffs successfully completed the project of this case, as seen earlier, and the fact that the project of this case was fully restored to the original state.

However, since the Plaintiff Company is a party to the instant agreement, it is directly responsible for the instant wrongful act. Therefore, it cannot be deemed that there was an error of deviation or abuse of discretionary authority on the ground that it rendered the instant disposition to the Plaintiff Company, other than Plaintiff B, a research manager, and the managing research manager.

In addition, as long as the plaintiffs useful the research and development costs of this case, the defendant has no choice but to impose a restriction on participation from 3 to 5 years pursuant to Article 27 (1) 5 (a) of the above provision. Since the disposition of this case sets the three-year period of restriction on participation, which is the lowest limit, it shall not be deemed that there was an error of deviation from or abuse of discretionary power even in consideration of the

Therefore, this part of the plaintiffs' assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in its entirety as it is without merit. It is so decided as per Disposition.