(영문) 서울행정법원 2016.2.4.선고 2014구합75049 판결

The Defendant’s disposition to recover 70% (1,462,300,000 won) of the government contributions in the last year to an industry-academic cooperation foundation for the Plaintiff University on September 24, 2014 and the two-year disposition of restriction on participation made against the Plaintiff B is revoked.

Reasons

1. Details of disposition;

A. The Plaintiff A.I. Industry Cooperation Institute (hereinafter referred to as the “Plaintiff Cooperation Institute”) ordered the Defendant in 2004 to “C Research and Development Project” (hereinafter referred to as the “C Research and Development Project”). The Plaintiff B is the director of the Research Group who performed the instant project as a professor of the Regional Institute of Science and Technology of A.I.D. The Defendant assigned the Korea Institute of Marine Science and Technology (hereinafter referred to as the “Promotion Institute”) to act on behalf of the Plaintiff for the planning, evaluation, etc. of the instant project.

B. The instant project is the final objective of “development of at least eight original new drugs and new technology for the development of treatment chemicals for the present three representative diseases (e.g., chronic disease, immunodeficiency disease, communicable disease),” and the objectives at each stage are as follows: 1) development of effective substances in marine natural substances, securing of marine biological resources for patent applications and securing of marine biological resources for patent applications, and development of biological active substances through mass search of natural marine substances, large-scale search by the establishment of a large quantity search method of marine substances based on genetic information on human body and pathogenss before the outbreak and prevention of diseases, and determination of the structure of marine natural substances, and by making decisions on the refining and rescue of marine substances:

- the development of effective marine life cultivating and cultivating technology, and mass gathering;

- Synthetics of marine natural substances;

(ii) the optimalization of leading substances based on the living body of the leading substances using genetic information from 2 levels (2007~2009) (2) marine natural substances development-related pro ratas-related pro ratas-related protein structures, and synthetic leading substances based on proteinal structure based on a proteination structure based on the genetic information from diseases;

-development of mass technology for leading materials for pre-clinical trials;

3) Development of new drug candidates throughout the third stage (2010~2013) global new drug preparations and technology : (i) development of new drug candidates through mass synthetic clinical trials (toxicity and stability) of useful natural substances leading to securing a large quantity of useful natural substances through the cultivation and cultivation of marine organisms;

-technology transfer for industrialization

C. As a result of the Institute’s interim evaluation in 201, it was classified as the subject of in-depth evaluation on the grounds of “the uncertainty of the composition system of the research group”, “data omission at the time of preparation of the results”, “the completion of mass production of candidate substances for full time”, “rest reflection of opinions on the previous year evaluation”, etc., and conducted in-depth evaluation on January 19, 2012. As a result of the in-depth evaluation, the lower score of 60.7 points (100 points) was presented as a comprehensive opinion, and the following was presented as a comprehensive opinion:

- - It appears that eight technology transfer, the initial objective of which is to be modified to a level that can achieve the research objectives, and as a result of the reduction of research costs, could not reach the original goal. Accordingly, at the present stage of re-establishment of the objectives for innovation of the research system and of re-establishment of the objectives, only the research costs required for the technology transfer of these materials shall be subsidized by completely organizing research programmes and research research teams by concentrating on potential candidates (e.g., research subjects for CMF 3571(c) and CMF 4813(regional), etc.) (e.g., selection of researchers).

D. Accordingly, the Agency set down the basic research-oriented strategy that has been progress so far with the Plaintiff Cooperation Agency as “not less than two technology transfer goals,” and urged the Plaintiff Cooperation Agency to reorganize the research team structure to choose and concentrate the choice and concentration in order to derive visible outcomes, considering economic feasibility, etc. as much as at the last three stages, and as a result, to reach this end. However, the Plaintiff Cooperation Agency’s achievements of research and development in 2012 were also 60.71 at an ordinary point.

E. On April 5, 2013, the Agency entered into a research and development agreement with the Plaintiff Cooperation Agency with the amount of KRW 2,089,000 for research and development expenses (in the relevant year) for the last year of the instant project (from January 1, 2013 to January 12, 31, 2013). The final goal was to develop three types of creative new medicine candidates for the development of chronological diseases, immunity, and infectious disease treatment chemicals, and transfer two technologies by 2013.

F. During the instant project period (from October 1, 2004 to December 31, 2013), government contributions were used in total of KRW 32,683,546,000, as stated in the annual agreement amount in the instant project, as shown in the separate agreement.

G. After the completion of the instant project on December 31, 2013, the Promotion Agency judged the “moutment” at a comprehensive level of 57.67 points in assessing the research and development outcomes of the Plaintiff Cooperation Agency.

H. On September 24, 2014, pursuant to Article 11-2 of the National Science and Technology Act and Article 27 of the Regulations on the Management, etc. of National Research and Development Projects, the Defendant issued a disposition to recover 70% (1,462,30,000) of the government contributions in the last year to the Plaintiff Cooperation Agency, which is a managing research institute, and issued a disposition of two years (2 years from September 24, 2014 to September 23, 2016) of restriction on participation (hereinafter referred to as “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1-3, 7, Eul evidence Nos. 1-5, 10, 11 (including paper numbers), fact-finding results on the Promotion Agency of this Court, the purport of the whole pleadings

2. Whether the disposition is lawful;

(a) Whether the final objective is achieved;

If Gap evidence Nos. 4-54, Eul evidence Nos. 4, 5, 11, and 12 (including paper numbers), and the result of the fact-finding conducted by this court on the Promotion Agency, the final objective of the instant business was to transfer the technology by not later than 2013 (the number of new drug candidates was initially 8 to 2 cases) for the commercialization of the original new drug candidates, but the Plaintiff Cooperation Agency did not transfer only one new drug candidates to the pharmaceutical company until December 31, 2013, and thus, it cannot be deemed that the final objective of the research and development project was achieved (the "marine Mobro-production technology" claimed by the Plaintiff as a business performance cannot be deemed as the technology transfer for mass production, etc., which constitutes a technology for the mass production of the above substances, and it does not constitute a functional substance of new drug 20 years after the date of the instant business operation, not the Plaintiffs' new drug transfer improvement target of new drug 3, a functional substance at the time of the technology transfer.

Therefore, the plaintiffs' assertion that there is no reason for disposition by accomplishing the final goal of business is without merit.

(b) Ministry of Clinical Trials;

6) According to Gap evidence Nos. 4-54, Eul evidence Nos. 4, 5, 9, 11, 12 (including serial numbers) and the overall purport of the argument of the Institute for fact inquiries, ① The previous clinical trial refers to a test conducted to identify adverse effects, toxicity, effects, etc. of new drug candidates before using new drug-related substances to those newly developed. The present project sets out "the time of public announcement for the new drug-related clinical trial" for three stages (2010-2013). ② The plaintiff Cooperation Agency's final goal was low in the research and development of new drug-related materials 20 billion won after the 20th anniversary of the date of public announcement of the plan for new drug-related research and development; ② The research and development of new drug-related substances 20 billion won after the 20th anniversary of the initial research and development of new drug-related substances 3rd of the 20th anniversary of the initial goal of the 20th anniversary of the plan for new drug-related research and development.

According to this, even though the term "pre-clinical trial" in the above 2013 Research and Development Promotion Plan does not stipulate it as one of the business objectives, the project in this case was specified as the development of new drug candidates through "pre-clinical trial (toxicity and stability)" from the time of the public announcement of the project in this case, and since the technology transfer target number has been adjusted from 8 to 2 cases, and the research cost has been reduced partially, it cannot be viewed as exemption from pre-clinical trial (toxicity and stability) as naturally required to achieve the business objectives in light of the supported research cost scale, etc., and even in the annual performance plan (stage) performance submitted by the Cooperation Agency at the time of the 2013 Research and Development Convention, it can be deemed that the test (stage and stability) meaning the pre-clinical trial (stage and stability), the implementation of the pre-clinical test should still be deemed necessary in order to achieve the final goal of "technology transfer for the commercialization of new drug substances."

Therefore, even though the previous clinical trial was not required under the Convention on Research and Development in 2013, there is no reason for the plaintiffs' assertion that the evaluation members of the Institute misleads them.C. Whether the results of research and development are "cases determined as a failed research and development task due to extremely poor results."

Article 11-2 (1) 1 of the Framework Act on Science and Technology provides that "the head of a central administrative agency may restrict the participation of national research and development projects under his/her jurisdiction within five years and recover all or part of the project cost already contributed or subsidized if it is recognized that the research and development has been conducted in good faith, and the head of a central administrative agency may reduce or exempt the period of restriction on participation and the amount of recovery of project cost."

In light of the structure, contents, etc. of the above sanctions, if research and development results are extremely poor and it is determined as a failed research and development task according to the evaluation conducted by the central administrative agency, the results may be

Even if it is recognized that the research and development has been performed faithfully, restrictions on participation and the recovery of contributions under the above provision can be imposed, and the faithful performance of research and development is merely a cause of voluntary reduction or exemption.

The determination on whether research and development projects conducted appropriately in accordance with the initial plan requires a high level of professional judgment on science and technology. Thus, if the evaluation of research and development outcomes conducted by organizing a committee composed of professional human resources in the evaluation of research and development outcomes, and determined that the outcomes of research and development were extremely poor through the reexamination procedure following the filing of an objection to the evaluation results, it cannot be deemed unlawful unless the determination was based on factual basis or considerably unreasonable under the generally accepted social norms (see, e.g., Supreme Court Decisions 92Nu634, Apr. 4, 191; 24, etc.).

According to the reasoning of the judgment below, Gap's evidence Nos. 9, 11-13, Eul evidence Nos. 4 and 5 (including paper numbers), and fact-finding results of this court's fact-finding, ① The plaintiff Cooperation Agency failed to achieve its final objective because it failed to transfer new chemical substances through previous testing (toxicity, stability) within the project period, and it failed to secure mass technology, which is an important basis for accomplishing the final objective; ② The Evaluation Committee composed of experts as members of the Cooperation Agency based on the above fact-finding point 57.67 points on the final evaluation of the project (Article 39.1 of the Regulation on Maritime Affairs and Fisheries). The fact-finding committee's 20th evaluation team's evaluation team's 7th evaluation team's evaluation team's evaluation team's 10th evaluation team's evaluation team's 6th evaluation team's evaluation team's 60th evaluation team's evaluation team's 60th evaluation team's evaluation team's 7th evaluation team's evaluation team's evaluation team's 16th evaluation team.

As above, in light of the fact that the Plaintiff Cooperation Agency received a final evaluation point of 57.67 on the instant project as the result of the Committee evaluation comprised of experts, and the said evaluation point was based on objective facts, such as its failure to meet the final objective, and that the Plaintiff Cooperation Agency’s 57.67 points that the Plaintiff Cooperation Agency received falls under a very low point that can suspend research and development; the objection to the said final evaluation was dismissed as a unanimous decision by the members of the review committee; and that all of the members of the sanctions evaluation group determined that the instant project constituted a failed research and development task due to extremely poor research and development results; and that the objection raised thereto was dismissed as a unanimous decision by all the members of the review committee, it is difficult to deem that the Defendant’s determination that the instant project constituted a failed research and development task is unlawful.

The defendant's assertion that the above judgment is unlawful is without merit.

(d) whether a sanction is excessive and constitutes a deviation or abuse of discretionary power;

Whether a punitive administrative disposition deviates from or abused the scope of discretionary authority shall be determined by comparing the degree of infringement of public interest and disadvantages suffered by an individual due to such disposition, by objectively examining the content of the offense as the ground for the disposition, the degree of the violation, the degree of the violation, the necessity of the public interest to be achieved by the disposition, the disadvantage suffered by an individual, and all relevant circumstances (see, e.g., Supreme Court Decision 2011Du31635, Nov. 15, 2012).

Article 27 (1) 1 of the Regulations on the Management, etc. of National Research and Development Projects, which are Presidential Decree, provides that the period of restriction on participation in national research and development projects shall be three years, and Article 27 (11) and [Attachment 5] 1 provides that the standards for recovery of project costs shall be within the total amount of contributions for the relevant year," although the results of research and development are extremely poor and the central administrative agencies have determined as tasks suspended or failed to participate in the evaluation conducted, it shall not be deemed that the Plaintiff Cooperation Agency has faithfully performed research and development projects and the amount of redemption of project costs shall be reduced to 2 years, "70% of the total government contributions in the final year" under the proviso to Article 11-2 (1) of the Framework Act on Science and Technology, and that the above measures shall not be implemented for 32,683,546,000 won since the implementation of the research and development projects of this case, which were conducted by the central administrative agencies, are less than 10 years since the completion of the research and development projects.

3. Conclusion

If so, all of the plaintiffs' claims are without merit, they cannot be accepted.