2018Nu52435 Action Demanding revocation of disposition on national research and development project sanctions

A

Law Firm Bululul, Counsel for the plaintiff-appellant

[Defendant-Appellant]

The Minister of Science and ICT

Litigation performers shall be commercialized;

Government Legal Service Corporation (Law Firm LLC)

Attorney Kim Chang-soo

Seoul Administrative Court Decision 2017Guhap71499 decided June 8, 2018

October 11, 2018

November 1, 2018

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of restriction on participation in national research and development projects for three years imposed on the Plaintiff on July 3, 2017 and B universities.

Each disposition to recover KRW 144,761,477 for research expenses to the school industry-academic cooperation foundation shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

The reasoning for this Court's explanation is as follows, and this part of the reasoning of the judgment of the court of first instance is the same as that of the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the reasoning is cited by Article 8 (2) of the Administrative Litigation Act and Article 420

Article 11-2 (1) 1 of the Framework Act on Science and Technology, Article 11-2 (1) 1 of the former Framework Act on Science and Technology, Article 27 of the former Regulations on the Management, etc. of National Research and Development Projects (hereinafter referred to as "National Research and Development Projects Management Regulations"), Article 11-2 (1) 1 of the Framework Act on Science and Technology, Article 27 of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Act No. 12673, May 28, 2014; hereinafter referred to as "former Framework Act on Science and Technology"), Article 11-2 (1) 1 of the Framework Act on Science and Technology, Article 14 of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 23788, May 14, 2012; hereinafter referred to as "former Regulations on National Research and Development Projects").

2. Judgment on the Defendant’s main defense

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

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

A. The plaintiff's assertion

The issue of whether the research and development outcomes of this case are extremely poor should be determined based on the circumstances that occurred until the time of each of the dispositions in this case. Nevertheless, the Defendant determined the research and development outcomes of this case without reviewing the situation that occurred after the expiration of the research and development period. In addition, even though the Plaintiff had made outstanding research and development of this case, such as publishing a large number of papers to the author with the highest 10% or more, the Defendant determined that the research and development outcomes of this case was extremely poor on a arbitrary basis. Accordingly, each of the dispositions in this case should

(b) Relevant statutes;

Attached Form 1 "Related Acts and subordinate statutes, etc." shall be as stated.

C. Determination

1) Facts of recognition

A) Research goals and research results of the instant research and development

(1) The objective, contents, and expected effects of the instant research and development indicated in the research plan submitted by the Plaintiff to the Defendant are as follows.

(2) The research findings and utilization plans stated in the final report submitted by the Plaintiff are as follows.

(3) The research plan and interim report submitted by the Plaintiff to the Defendant contain 14 copies of a foreign thesis (SCI author; hereinafter the same shall apply) and 11 patents from the Republic of Korea and abroad during the total research period. However, the Plaintiff published 4 copies of an overseas thesis (attached Table 2 No. 1, 5 and 7) until February 28, 2014, which is the date of the research and development period, and applied for or registered 2 patents from Korea and abroad (attached Table 2 No. 2, No. 3, 5 of the Attached Table 2, No. 3, 2014. After February 28, 2014, the Plaintiff published 3 copies of an overseas thesis (attached Table 2, No. 2, No. 4 of the Attached Table 2, No. 1, 2016, No. 1, 2016, No. 2, 2014 and 5 of the Attached Table 2, No. 1, 2751, 165.

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

(1) In order to conduct evaluation of basic research projects in accordance with the relevant laws and regulations, such as the Framework Act on Science and Technology, the Defendant prepared detailed evaluation plans (hereinafter “evaluation plans for basic research projects of this case”) on the main body of evaluation, evaluation methods, evaluation standards, etc. on February and May of the same year, and the evaluation plans of this case also applied the evaluation plans for basic research projects of this case.

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

(A) First of all, if the final evaluation of the performance of a 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 performance, the evaluation of whether it has been performed in good faith.

(b)The evaluation shall be conducted by an adequate panel taking into account the field of study and the number of subjects subject to evaluation. The evaluation committee shall be composed of a panel recommended by members of the Basic Research Center PM council of the Korea Research Foundation on recommendation by the members of the Basic Research Center PM council. In the case of the final evaluation, the evaluation committee shall be composed of seven experts in the relevant fields by panel and shall be operated flexibly to the extent that expertise can be secured, and the same project executor, etc. shall be excluded. On the other hand, where there is an objection against the evaluation results, the evaluation of whether the evaluation results are faithfully performed for the subjects subject to the D

(C) As above, the evaluation committee members selected as above shall conduct an absolute evaluation of the research task in the form of announcement evaluation in the case of the Do governor-funded research project, such as the instant research and development project. The evaluation items and the evaluation index for the final evaluation consists of the following:

Among them, according to the "Guidelines for Quality Level of Research Results", which is to be referred to as the evaluation of the quality level of research outcomes, the classification of ‘the level of research performance', ‘the level of research performance', ‘the level of quality of the thesis', ‘the level of quality of the thesis', ‘the level of quality of technology', ‘the level of research performance', ‘the level of technology', ‘technology transfer', etc. shall be specified in detail in the classification of ‘the level of research performance', ‘the level of ‘the level of quality of the thesis', ‘the level of technology transfer', which can be used as the results of the first or highest level of the world that is the first grade or the highest level of the field that can develop new fields or contribute to solving the problems in the field under its 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: in the evaluation of whether the original research objective of the Party is high in consideration of risks, whether the failure is recognized as a failure entirely established, whether the research performance falls under the category 1 and 2 of the quality standards for research outcomes; in the case of a research which can be repeatedly implemented according to the nature of the research, whether the data such as the data and various data such as the research back at least once after the failure to draw the research goal, whether the data such as the research notes have been systematically and faithfully performed, and whether there is a tangible or intangible product such as the modified model and test data proving the process of the research.

(3) The Korea Research Foundation organized an evaluation group with a total of eight experts for the final evaluation of the instant research and development, and conducted an evaluation in the form of a presentation evaluation1). On the other hand, the said evaluation group determined the research and development outcomes of the instant case as D on the grounds as seen earlier. On the other hand, in the case of the evaluation of the performance of the instant research and development conducted additionally as it is assessed as D, the evaluation group was organized with four experts who do not overlap with the members of the said evaluation group, and the evaluation group was determined as “unfaithful as to whether the research and development of the instant case was faithfully performed for the following reasons.”

1. The author agrees to the opinion of the review committee (class 5 and class 4) and has no objection to the opinion. 2. It is judged that the research project that is relatively quantitative evaluation is very low even though it is a task that has used a large number of research costs due to a pharmaceutical research among the projects for supporting the main researchers. In addition, the literature for the publication can not be excluded from being related to the research project, but it is not judged that it is not directly related to the research project, and there is a doubt that the sub-committeeed literature submitted as supporting material can be regarded as the research project outcome. 3. Also, the literature company described in the literature company is irrelevant to the research project and overlapping with the research project. 4. In order to verify the research outcomes and contents of the project because it is not judged to be faithful compared to the details and the period of support for the project, it is necessary to present a lot of quantitative and qualitative research outcomes for the support project.

(4) The Research Foundation of Korea, following the aforementioned evaluation process as to the research and development outcomes of the instant case, issued the previous disposition to the president of B University on March 13, 2015. Thereafter, following the court’s final and conclusive judgment that the instant previous disposition becomes null and void, the Defendant approved a proposal for re-disposition as to the instant previous disposition, which was held on June 16, 2017 by the Sanctions Evaluation Board, in accordance with the resolution that approves the proposal for re-disposition as to the instant previous disposition.

[Ground of recognition] A without dispute, Gap evidence 1 through Gap evidence 13, Gap evidence 16, Gap evidence 20, Gap evidence 21, Eul evidence 5 through Eul evidence 13, Eul evidence 20, Eul evidence 20, the result of the first instance court's questioning of the plaintiff himself, the purport of whole pleadings

2) Determination

A) According to Article 11-2(1)1 of the former Framework Act on Science and Technology, the head of a central administrative agency may restrict participation in national research and development projects under his/her jurisdiction, where a failure is determined as a project due to an evaluation conducted by a central administrative agency due to extremely poor outcomes of research and development, and may recover all or part of the project cost already contributed. According to Article 11-2(1)1 of the former Framework Act on Science and Technology, matters necessary for detailed standards for the period of restriction on participation by reason of restriction on participation, redemption of project cost, etc. are prescribed by Presidential Decree. Accordingly, Article 27(11)1 of the former Framework Act on Science and Technology sets the period of restriction on participation in national research and development projects under Article 11-2(1)1 of the former Framework Act on Science and Technology as three years, and Article 27(11) of the former Regulations on the Management, etc. of National Research and Development Projects (hereinafter “Management Regulations”) provides that “within the total amount of contributions for the relevant year” in accordance with [Attachment 5].

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 to contribute to the continuous development of the national economy and the enhancement of national competitiveness by promoting scientific and technological innovation and by enhancing the national competitiveness, and by enhancing the national competitiveness, and the evaluation of the outcomes and performance, etc. of national research and development projects is an area requiring high level of expertise as prescribed by relevant Acts and subordinate statutes, if the administrative agency made a professional decision on the aforementioned evaluation as prescribed by the relevant Acts and subordinate statutes, it shall be respected unless there are serious errors in the fact-finding on which the judgment was based, or there are special circumstances, such as objectively unreasonable or unreasonable such a determination. An administrative agency’s exercise of discretionary authority based on such a specialized judgment cannot be deemed unlawful unless it deviates from or abused discretion, such as violating the principle of proportionality or significantly lose validity under the social norms (see, e.g., Supreme Court Decision 2013Du21120, Jan. 28, 2016).

B) In light of the above legal principles, it is justifiable to determine that the Defendant did not constitute a case where the result of the instant research and development is extremely poor and faithfully performed, taking into account the following circumstances, comprehensively taking into account the health care account of the evidence mentioned above, evidence No. 14, evidence No. 14, and evidence No. 21 as well as the overall purport of the pleading No. 21. The Defendant did not err by misapprehending the facts of each of the instant dispositions or by abusing or abusing discretion. The Plaintiff’s assertion is without merit.

(1) The final goal of the instant research and development indicated in the research plan submitted by the Plaintiff is to develop Z-9R capable of transmitting siRA to a specific cell, and to develop Z-9R in human blood cells, tactary cells, large-type cells, surface cells, and navigation viruss siRNA in combination with Z-9R to treat ZV viruss. The Plaintiff presented 14 overseas and overseas patents 11 patents for the total period of 4 years and 10 months of research and development. However, the Plaintiff published 4 copies overseas for the research and development period, and filed and registered 2 copies domestically and overseas patents for the research and development period, and failed to sufficiently verify the results of the instant research and development, as well as to sufficiently confirm the results of the instant research and development.

(2) The Plaintiff, at the evaluation team comprised of experts, received the lowest class D grade out of the five-stage class, and filed an objection to such evaluation, but the evaluation team again reviewed the results of the instant research and development. The evaluation committee members participating in the evaluation of the instant research and development also dismissed such evaluation for the same reason. The evaluation committee members, who have participated in the evaluation of the instant research and development, failed to achieve the results of the reproduction of a sentent model, the standardization of delivery system, and the treatment and evaluation of the h virus. In the case of the thesis or patent submitted by the Plaintiff, the evaluation committee members were not able to achieve the goals presented in the research plan because they were neither the whole research and development of the instant research nor directly related to the instant research and development nor the research contents were insufficient to be faithfully carried out compared to the details and period of the instant research and development. The said evaluation is based on the expertise of the evaluation committee members, and do not seem to have any special circumstance, such as the lack of a significant error in fact

(3) As to the determination of the outcomes of research and development, the Plaintiff asserts that the research and development outcomes should also be considered as the outcomes of the instant research and development, given that all the circumstances revealed by the time when the research and development period ends, rather than the end of the research and development period, and that the research and development outcomes should also be considered. However, in principle, considering the legislative intent of the Framework Act on Science and Technology and the purport of the entire arguments on the evidence as

The judgment is reasonable to cover the outcome submitted until the final evaluation date. Therefore, even if the Defendant did not consider the Plaintiff’s overseas thesis, patent applied for or registered at home or abroad, each disposition of this case cannot be deemed unlawful.

(1) The project cost invested in the research and development of this case is prepared in a limited national budget to enhance national competitiveness, etc. through industrial technology development and innovation and to grow the economy, so an efficient and transparent execution shall be made. A person in charge of research, etc. who has received the project cost shall be responsible for faithfully performing the project during the research and development period, as proposed

(2) In Articles 15 and 16 of the Management Regulations, the head of a main research institute shall submit the final report on research and development, abstract, and self-evaluation opinion, etc. to the head of a central administrative agency within 45 days after the expiry of the agreement period. The head of a central administrative agency shall organize an evaluation group to evaluate the outcomes of research and development, and shall determine the outcomes of research and development as a failed research and development task if the outcomes of research and development are deemed extremely poor according to the evaluation result. Even according to the evaluation plan of a basic research project in this case, the evaluation group composed of the aforementioned provisions shall evaluate the outcomes of research and development based on the introduction of research outcomes and final report submitted by the researcher at the time of the completion of the research and development project. In addition, according to Article 5 of the Standard Convention on Research and Development (Evidence 15) concluded in relation to the research and development in this case, the Plaintiff shall submit the final report on the utilization of research and development outcomes, along with the final report on the utilization plan and self-evaluation opinion on the representative research officer's report on the representative research performance within five means.

③ The Defendant needs to take measures to prevent a research plan that does not have to be feasible or excessive objectives from being selected as a national research and development task, and to ensure fair competition from the selection of a research and development task by having researchers prepare a research plan within the scope that can be achieved during the research and development period given by the researchers. Considering all circumstances revealed by the Plaintiff by the time of the Defendant’s disposition, the evaluation and evaluation results vary depending on the Defendant’s disposal period, which is conducted through a certain procedure, and thus, may result in an inconsistency with equity. Accordingly, it is reasonable to lead to moral hazard that impedes the major institution’s sincere performance of tasks and the withdrawal of results. Ultimately, this may result in impeding fair competition at the selection stage of the research and development task (the previous disposition of this case, which was conducted through the evaluation procedure under relevant Acts and subordinate statutes, was conducted on March 13, 2015. The Plaintiff’s application, registration, and publication after the lapse of the evaluation period for the research and development project, but the Plaintiff’s application and registration of the research and development task should also be considered at any time and evaluation of the outcomes of this case.

④ As seen earlier, the Defendant’s disposition is based on the results of the evaluation by experts on the results of the research and development, and it would result in confusion in the government’s operation of national research and development projects, even after the completion of a separate research and development period, or re-evaluation by reflecting the relevant results, even after the final evaluation has been completed.

⑤ According to the evidence evidence No. 28, it is recognized that the Korean Research Foundation requested the submission of performance data on the ground that the task completed between 2012 and 2016 was subject to investigation for five years after the completion of research. However, it seems that it is only for the systematic management of the outcomes of national research and development projects after the fact.

(4) Considering the quality level, such as scientific and technological value related to the research objectives of the outcomes submitted in relation to the research and development of this case, and the feasibility of its use in the relevant research field, paragraph 1 of the [Attachment 2] List, this paper examines whether the Argin-endy synthetic bomer (Archine-ened bomer) is capable of transmitting siRNA to cancer cells by demonstrating its efficacy as a siRN delivery body. The evaluation committee of the outcomes of the research and development of this case conducted further research and development conducted after the expiration of the research and development period, it is difficult to determine that the above thesis is directly related to the final objectives of the research and development of the instant research and development. Furthermore, this paper reflecteds the evaluation of the implementation of the aforementioned research and development project in the evaluation of whether the aforementioned research and development task, which is related to viral cells, can be regarded as a patent-related research task that is irrelevant to viral cells, and presents an opinion on whether the aforementioned research task is related to 2.

(5) The Korea Research Foundation organized an evaluation team for the research and development of the instant case pursuant to relevant provisions, including the Framework Act on Science and Technology and the Management Regulations, and deliberated on the scope of sanctions, such as the outcome of the research and development of the instant case, the implementation of good faith, and the recovery of research expenses. Based on the results of such deliberation, the Defendant held a evaluation group for sanctions and approved a proposal for re-disposition as to the instant previous dispositions. Each of the instant dispositions was conducted based on the Defendant’s professional judgment, and there is no error in fact-finding or there is no objective or unreasonable circumstance to deem that there was an error in fact-finding or that there was an objective or unjust basis

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided

The presiding judge, senior senior judge;

Judges Park Jong-young

Judges Lee Jong-hwan

1) The Plaintiff, who is a person in charge of research, was unable to present and evaluate, and the evaluation was conducted through the presentation of alternative presenters.