(영문) 서울행정법원 2017.8.24. 선고 2016구합72471 판결

2. The Defendant’s disposition of restitution of project costs and disposition of restriction on participation in KRW 362,886,043 against Plaintiff B on July 29, 2016 shall be revoked, respectively.

3. Of the litigation costs, the portion arising between the Plaintiff A and the Defendant shall be borne by the industry-academic cooperation foundation of the Plaintiff University, while the portion arising between the Plaintiff B and the Defendant shall be borne by the Defendant

Purport of claim

The Defendant’s disposition to recover project costs of KRW 362,886,043 against the Plaintiffs on July 29, 2016 and each disposition to restrict participation against Plaintiff B shall be revoked.

Reasons

1. Details of the disposition;

A. The Defendant delegated the Korea Research Foundation to implement academic support projects, etc., and the Plaintiff A University Industry-Academic Cooperation Foundation (hereinafter “Plaintiff A”) selected Plaintiff B, a professor of chemical and biological engineering, as a researcher, and entered into an agreement on the following academic support projects (hereinafter “each of the instant projects”) with the content that the Defendant would pay the project cost, and the Defendant paid the project cost in accordance with the agreement.

A person shall be appointed.

B. From September 15, 2014 to October 17, 2014, the Board of Audit and Inspection conducted an audit on 12 national universities, including A, which performed national research and development tasks (hereinafter “the audit of this case”). Plaintiff B, a researcher of each of the instant projects, returned the amount exceeding the amount of salaries determined in the research institute, which was paid to the students of the research institute H, to which he belongs. Accordingly, Plaintiff B’s graduate students of the research institute, deposited the research cost and research scholarship received into a separate account managed by the administrative institute. Unlike the plan for using each of the instant project costs, H used some of the said funds in student registration fees, salaries, food expenses, etc., and executed them differently from the research plan used as personal credit card payment, etc., and notified the president of the withdrawal of the Plaintiff’s participation in the national research and development project, and urged the Plaintiff B’s participation in the research and development project.

C. According to the result of the instant audit, on July 29, 2016, the Defendant collected part of the personnel expenses paid to Plaintiff B through Plaintiff BO H and jointly managed them as a laboratory operation expenses, etc., and used them for each of the instant projects for purposes other than the purpose of each of the instant project expenses. As to each of the instant projects, the Defendant issued a disposition to recover the project expenses (hereinafter referred to as “the instant redemption disposition”) in which the sum of the amounts collected from the student personnel expenses and jointly managed and operated, as follows, was excluded from the designation of a scholarship recipient for three years from July 26, 2016 to July 25, 2019 (hereinafter referred to as “instant disposition to restrict participation” and “the instant redemption disposition along with the instant redemption disposition”).

A person shall be appointed.

D. Meanwhile, since Plaintiff B had already completed the participation in each of the instant projects before each of the instant dispositions, each of the instant project costs with respect to Plaintiff B on the ground that it was used for purposes other than those of the project cost.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 4, evidence 6 to 9 (including each number), the purport of the whole pleadings

2. Whether the lawsuit of the plaintiff industry-academic cooperation foundation is legitimate;

A. The defendant's main defense

Since each disposition of this case is a disposition against Plaintiff B and it is clear that it is not a disposition against Plaintiff Industry-Academic Cooperation Foundation, Plaintiff Industry-Academic Cooperation Foundation has no legal interest to seek cancellation of each disposition of this case.

B. Determination

When an administrative agency takes a disposition under Article 24(1) of the Administrative Procedures Act, the provision that an administrative agency shall provide in writing, except as otherwise expressly provided for in other Acts and subordinate statutes, to ensure clarity of the content of the disposition and prevent dispute over the existence of the disposition. In light of the purport of the provisions of the Administrative Procedures Act, barring special circumstances, such as where an administrative agency takes a disposition by means of a document is unclear, it shall be determined as to which disposition has been made in accordance with the language and text thereof. Even though the language and text of the disposition alone is clear, it shall not be extended to include other disposition in light of other circumstances, such as the process of the disposition or the attitude of the other party after the disposition (see, e.g., Supreme Court Decision 2003Du469, Jul. 28,

However, according to the language and text of the sanctions against the Plaintiff B on July 29, 2016, each of the dispositions in this case is clearly restricted to participation and recovery of project costs. The Defendant cannot be deemed to have made any disposition against the Plaintiff Industry-Academic Cooperation Foundation. There is no assertion or proof as to the legal interest in dispute over each of the dispositions in this case, in addition to the fact that the Plaintiff Industry-Academic Cooperation Foundation was the party who entered into the agreement on each of the projects in this case with the Defendant.

Therefore, the plaintiff industry-academic cooperation foundation's lawsuit is not a plaintiff's standing to sue, and the defendant's above assertion is reasonable.

3. Whether each of the dispositions in this case is legitimate

A. Plaintiff B’s assertion

1) Non-existence of grounds for disposition

Plaintiff B paid personnel expenses out of each project cost of this case to researchers, and the student researchers voluntarily collected and jointly managed funds that need to be jointly used in the course of group life for a long time, and the Plaintiff B did not participate in all. In other words, Plaintiff B did not use each project cost of this case for any other purpose, so each disposition of this case is unlawful as the grounds for each disposition of this case did not exist.

(ii) the deviation and abuse of discretionary power;

Even if the grounds for each of the dispositions of this case are recognized, since the private interests such as deprivation of research opportunity and economic difficulties of Plaintiff B due to a large amount of recovery amount are much more than that of the public interests to be achieved by each of the dispositions of this case, each of the dispositions of this case is unlawful as it deviates from and abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

1) Plaintiff B established the I Center (hereinafter “instant Center”). H worked as an employee of the instant Center. H is merely an employee of the instant Center, not an employee of A University.

2) On December 14, 2009, the students of the J Research Center operated by Plaintiff B (hereinafter referred to as “the Research Center in this case”) entered a separate deposit account opened in his name (hereinafter referred to as “the separate deposit account”) and the “J” stamped with each of the deposit accounts opened in his name (hereinafter referred to as “the separate deposit account”) and asked for the commission of research expenses, etc. for research tasks in which the students of the instant research institute participate, joint management of personnel expenses, etc., and H deposited with the separate deposit account from December 14, 2009 to the deposit account opened in his name (hereinafter referred to as “joint deposit account in the Research Center”). New students of the instant research institute in this case also opened a separate account with H using the aforementioned seal.

3) The researchers affiliated with the instant research institute and registered as researchers of the research institute were remitted the amount of personnel expenses to be paid for their research tasks to their own bank accounts. Among them, the amount of personnel expenses for the students determined in the instant research institute (in the instant research institute, the amount of tuition fees, monthly salary of KRW 400,000,000, monthly salary of KRW 700,000, monthly wage of KRW 7000,000, monthly wage of KRW 1,960,054, monthly salary of KRW 1,037,630,021 of the tuition fees, and monthly salary of KRW 20,000,000, monthly wage of KRW 1,000,000, monthly wage of KRW 30,000,000 from December 209 to September 2014 was transferred to separate accounts.

4) As above, 709,899,273 of the funds deposited into a separate account or a joint research account managed by H and joint management (hereinafter “joint management of this case”) was used for the student researchers’ personnel expenses, student researchers’ tuition fees, meal expenses, etc., which were paid less labor costs than the above criteria, even if the research was not paid or participated in the research task because it was impossible to participate in the research task, and some of the funds were paid for environmental improvement expenses, such as the installation of air conditioners, and expenses for repair of laboratory equipment, and the remainder was stored in a separate account or a joint research account. However, H arbitrarily used some of the funds, such as the payment for personal credit card. After the audit, money deposited in a separate account or a joint research account was paid to all students belonging to the instant laboratory.

5) From 2009 to 2010, Plaintiff B confirmed the details of expenditure, etc. prepared by the head of the joint laboratory account and H once every month from 2009 to 2010. From 2011 to 2012, Plaintiff B convened with the head of the instant research team and the head of the research team on the details of the use of the amount jointly managed as above. From 2012 to 2012, Plaintiff B instructed Defendant B to confirm how the amount of joint management remains if the amount of personnel expenses would be increased for students by a certain amount. Plaintiff B was aware that labor expenses paid to the student researcher participating in the research task would not be collected again and managed jointly.

6) In the instant case, K, a researcher affiliated with the instant laboratory, was present as a witness and conducted research in the instant laboratory, rather than distinguishing the students participating in the instant research institute from participating in the project, K, a researcher affiliated with the instant laboratory, was required to participate in the research and receive personnel expenses and registration fees, and the student researchers affiliated with the instant laboratory agreed to this. The Plaintiff B and the instant research institute stated to the effect that “if the student researchers discussed about the increase in personnel expenses and the balance of the personnel expenses under joint management of the instant laboratory, the Plaintiff B determined that the research institute was almost the same if they recommended to the Plaintiff B.”

[Ground of recognition] Facts without dispute, Gap evidence 5, 8, Eul evidence 1 to 5, Eul evidence 8 to 10, Eul evidence 8 to 10 (including each number), the witness K's testimony, the purport of the whole pleadings

D. Determination

1) Whether the grounds for each of the dispositions in this case exist

A) Article 19(2)1 of the Sciences Promotion Act provides that the Minister of Education may suspend the payment of project costs or recover all or part of the project costs already paid if the researcher or university, etc. subsidized project costs uses them for any purpose other than the original purpose. Article 20(1) of the same Act provides that the Minister of Education shall exclude a researcher or university, etc. from the selection of persons eligible for science support pursuant to Article 6(1) within the scope of not less than one year but not more than five years, as prescribed by Presidential Decree, if all or part of the project costs suspended or paid by the researcher or university, etc. falls under any subparagraph of

In addition, Article 22(4) of the "E Business Management Guidelines", Article 28(4) of the "C Business Management and Operation Guidelines", Article 20(1) [Attachment Table 2] and Article 20(1)2 of the "Guidelines for the Management and Operation of Research-Oriented University Promotion Project at World Level", and Article 7(3) of the "Guidelines for the Integrated Management of Students' Labor Cost", which is the Ministry of Science, ICT and Future Planning public notice, provide that since all of the students' labor cost paid as a research scholarship, etc. to graduate students participating in each of the projects of this case is paid to an individual who is a graduate student, the collection of a certain amount and joint management or the management

B) Comprehensively taking into account the following circumstances as seen earlier, Plaintiff B is a researcher who received subsidies for each of the instant project costs from the student research institutes participating in the instant project through H under his direction and supervision and jointly manages part of the personnel expenses, and uses the relevant money for any purpose other than its original purpose. Accordingly, the grounds for each of the instant dispositions are recognized, and the Plaintiff’s assertion on this part is without merit.

① As to the research tasks performed by the Plaintiff B, the Plaintiff was aware of the fact that the amount exceeding the specific standards set forth in the instant research institute, out of the personnel expenses paid by the student research institute, was recovered from the student research institute and under joint management. The joint management manager of the instant case was not an employee or a student of the A University, but an employee of the instant center established by the Plaintiff B.

② Plaintiff B decided on or involved in the amount of tuition fees and the increase of wages for the students in the instant research institute, which is jointly managed by the students participating in the research task, and received reports from H on the details or balance of the use of joint management funds.

③ Even if the students agreed to the joint management of this case, it is difficult to view that the joint management of personnel expenses solely based on the students’ voluntary will, as the Plaintiff B, who is a guidance professor, is in a position to exercise a significant influence on the students’ selection of students to participate in the research task, whether to confer degrees on the students, and their future career, among the students who belong to the instant laboratory.

0 The management of the co-management fund seems to have exceeded the control of students, considering the management status of the co-management fund, such as using part of the co-management fund for personal purposes.

3) Whether the discretionary authority is deviates or abused

A) According to Article 19(2) of the Sciences Promotion Act, the Defendant may suspend the payment of the project cost or recover all or part of the project cost already paid if the researcher subsidized the project cost for any purpose other than the purpose of using the project cost. In light of the content and purport of the above provision, the Defendant is given discretion in determining whether the project cost is recovered and the amount thereof is determined. However, if there are grounds such as misconception of facts or violating the principle of proportionality and equality in exercising such discretion, it is unlawful as a deviation from and abuse of discretionary power. Whether the administrative disposition deviates from or abused from the scope of discretionary power should be determined by objectively examining the content and degree of the violation as the grounds for the disposition, the degree of the violation, the necessity of the public interest to be achieved by the relevant disposition, the disadvantage suffered by an individual, and all the relevant circumstances, etc. (see, e.g., Supreme Court Decision 2011Du31635, Nov. 15, 2012).

B) In full view of the following circumstances revealed through the facts acknowledged earlier, since the disadvantage suffered by Plaintiff B is excessive compared to the public interest to be achieved by each of the instant dispositions, each of the instant dispositions is unlawful as it is in violation of the principle of proportionality and it is unlawful as it deviates from and abused discretionary power.

(1) For the purpose of contributing to the strengthening of the academic foundation, the balanced development of studies, and the creation of new knowledge pursuant to the Sciences Promotion Act, the expenses for academic support paid by the Defendant to universities, research institutes, academic societies, or researchers in order to develop and promote a project for promotion of sciences are ultimately high for the public interest to promote the development of the national economy and enhance the quality of life of the people by strengthening national competitiveness, and to be appropriately disbursed in accordance with the purpose of payment and purpose

On the other hand, however, the disposition of suspension or recovery of project costs under Article 19(2) of the Sciences Promotion Act and the disposition of restriction on participation under Article 20(1) shall be excluded from the national research and development project for a certain period of time, and the research expenses used for the research is recovered from the relevant managing research institution or a person in charge of research, which is capable of undermining the ultimate purpose of the Sciences Promotion Act. Therefore, it is necessary to carefully judge the administrative agency in determining whether or not the restriction on participation

② The purpose of prohibiting joint management of students’ personnel expenses lies in preventing a professor from destroying the minimum economic basis and undermining the desire for research because he/she did not use personnel expenses to be paid to the students for the original purpose by jointly managing the students’ personnel expenses in a superior position and dedicated them to other purposes. However, most of the money jointly managed in the instant laboratory was used for the students, such as the salary for the students belonging to the instant laboratory, graduate school registration fees, meal expenses, etc., and Plaintiff B did not have any personal interest, such as embezzlement or misappropriation of the students’ personnel expenses through joint management. Plaintiff B returned all the money jointly managed after the instant audit to the students, and the joint management of the students’ personnel expenses was no longer achieved in the instant laboratory. Considering the aforementioned circumstances, the instant joint management of the instant case is relatively likely to be subject to criticism in light of the purport prohibiting joint management of students’ personnel expenses.

③ Prior to Plaintiff B’s involvement in the instant laboratory project, the instant laboratory could have participated in the research and received personnel expenses and registration fees. The student researchers affiliated with the instant laboratory could have consented thereto; Plaintiff B could have widely permitted the disbursement of the money jointly managed by the instant institute according to the student’s needs; and Plaintiff B could have reflected the recommendation of the increase in personnel expenses when the student researchers recommended the increase in personnel expenses. In light of the above, Plaintiff B could have accepted existing practices and accepted the instant joint management.

④ In light of these circumstances, the Board of Audit and Inspection did not request the president of A University to call attention to the Plaintiff B, and did not request the disciplinary action against the Plaintiff B, even though the amount of joint management of the instant case is considerably high.

⑤ The amount of the recovery disposition of this case is extremely large to be borne by the Plaintiff B, who did not make an individual benefit through the joint management of this case. Article 20(1) of the Sciences Promotion Act provides that the Defendant shall exclude the relevant researcher, university, etc. from the selection of a person eligible for academic support for a period of not less than one year but not more than five years, as necessary, if the Plaintiff B, who is a global authority in the field of L such as high-performance cells, is excluded from the long-term academic support project, for a long time, if it is excluded from the long-term academic support project, the Plaintiff B, which is the global authority in the field of L such as high-performance cells, might reduce the distribution industry and the alternative energy industry, which is the next generation growth industry in Korea, and it is too harsh to the Plaintiff B, who has made a long-term research and efforts to

E. Sub-committee

Plaintiff B’s assertion is reasonable, and each of the dispositions of this case is unlawful.

3. Conclusion

Therefore, the plaintiff A University's action is dismissed as illegal, and the plaintiff B's claim shall be accepted for all reasons, and it is so decided as per Disposition.