2016 Gohap72419 Revocation of a disposition, etc. excluded from the selection of a person eligible for scientific support

1. A university, industry-academic cooperation foundation;

2. B

Plaintiffs (LLC) LLC et al., Counsel for the defendant-appellant

Attorney Kim Jong-chul, Ma-sung

The Minister of Education

Government Legal Service Corporation (Law Firm LLC)

Attorney Choi Han-hoon

August 25, 2017

September 15, 2017

1. The lawsuit shall be dismissed by the Plaintiff A University Industrial Cooperation Group.

2. On May 19, 2016, the Defendant’s disposition of 71,976,426 to exclude Plaintiff B from the selection of a person eligible for assistance in science for the three-year period of one-year period and the disposition of restitution of the project cost is revoked.

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, and the portion arising between the Plaintiff B and the Defendant shall be borne by the Defendant

The Defendant’s disposition of 71,976,426 won was revoked on May 19, 2016, which was excluded from the selection of persons eligible for academic support for three years against the Plaintiffs.

1. Details of the disposition;

A. The defendant shall carry out academic support projects by entrusting it to the Korean Research Foundation in accordance with the Sciences Promotion Act.

The Defendant (the president of the Research Foundation of Korea) selected A University as a person eligible for academic support, entered into an agreement with the president of A University and C (the business period from March 1, 2012 to February 28, 2013) agreement, "D business" agreement, "E business (the business period from September 1, 2013 to August 31, 201), "E business (the business period: the business period from December 1, 2008 to August 31, 2013) agreement (hereinafter referred to as "the instant business").

B. An industry-academic cooperation foundation of the Plaintiff A University is a department that manages the project cost of the instant project from the Defendant, and the Plaintiff B participated as a researcher of the instant project.

C. From April 22, 2015 to April 24, 2015, the Korean Research Foundation inspected the details of the execution of the project cost for the Plaintiff A University Industry Cooperation Foundation. As a result, Plaintiff B’s graduate students from May 201 to April 2015 were to deposit the total of KRW 71,976,426 (the sum of KRW 12,230,048, D Business 16,05,232, E Business 43,691,146 (hereinafter “the instant amount”) out of the personnel expenses paid from May 22, 2011 to April 2015, and confirmed that Plaintiff B’s graduate students were to use the money as a laboratory operating expenses, etc.

D. On May 19, 2016, the Defendant issued to Plaintiff B a disposition to exclude the selection of a person in need of academic support for three years on the ground of improper enforcement of a graduate school student scholarship (the fact of joint management of a student research personnel fee) and to recover KRW 71,976,426 on the project cost (hereinafter “instant disposition” in combination with the disposition excluded from the selection of a person in need of academic support”).

[Reasons for Recognition] Facts without dispute, Gap 1 through 3, 6 evidence, Eul 1 through 3, 9 evidence, the purport of the whole pleadings

2. Relevant statutes and guidelines for the operation of the project in this case;

The entries in the attached Table-related statutes are as follows.

3. Whether the litigation of the Plaintiff A University is legitimate;

According to the purport of Gap evidence 6 and Eul evidence 3 and the whole arguments, the other party to the disposition of this case may recognize the facts of plaintiff Eul, not the plaintiff A University Industry-Academic Cooperation Foundation, and the plaintiff A University Industry-Academic Cooperation Foundation does not assert and prove any disadvantage, etc. to be caused by the disposition of this case, and it does not appear that the other party to the disposition of this case gives disadvantages to the department in charge of managing project costs due to sanctions against researchers under relevant statutes, such as the Promotion of Sciences Act.

Therefore, the Industry-Academic Cooperation Foundation of the Plaintiff University seems to have no legal interest in seeking revocation of the instant disposition, so there is no standing to sue.

4. Whether the instant disposition is lawful

A. Facts of recognition

1) Method and payment criteria, etc. for research scholarships

A) In addition to the instant project, Plaintiff B participated in the F Project (the name of the Ministry of Science, ICT and Future Planning, task name G, and research period: from April 1, 2010 to February 28, 2019) as researchers.

B) In the case of C projects and D projects, if the Defendant pays the research scholarships to the Plaintiff A University Industry Cooperation Foundation, the Plaintiff’s industry-academic cooperation foundation manages them and pays the relevant student personnel expenses to the account of the relevant student researchers in the amount equivalent to the personnel expenses appropriated in the research plan for each research task at the request of the project group (H project group) to which the Plaintiff B belongs. In the case of E projects and F projects, the student personnel expenses are managed according to the “Integrated Personnel Cost Integration System” (former Personnel Cost Monitoring System). The integrated management system for the student personnel expenses of national research and development projects was implemented from 2009 to enhance the efficiency and transparency of the implementation of the student personnel expenses for national research and development projects, and secure stable personnel expenses of the student researchers. The integrated management system for the student personnel expenses of national research and development projects shall be integrated into a research institute or researcher unit, and if the researcher applies for the payment to the research funds management department in consideration

C) Plaintiff B had researchers working in the laboratory (a doctoral and doctoral students engaged in the above two projects, and paid a certain amount of personnel expenses for each degree course (a doctoral degree course of KRW 2 million to KRW 1.5 million to KRW 1.8 million to KRW 1.8 million to KRW 1.3 million to KRW 1.3 million to KRW 1.4 million to KRW 1.9 million to KRW 9 million to the doctoral degree course).

2) Management background, use, etc. of common expenses

A) Students researchers sent most part of a day to the laboratories for academic studies and research, and thus, they need common expenses, such as purchase of raw water, maintenance of water purifiers, and purchase of simple meals.

B) Students Research Institute received research scholarships in accordance with the aforementioned criteria from the past (pre before 2008 according to the witness’s testimony) and deposited money in excess of the standards into the joint management account and used it as joint expenses. Students Research Institute, since 2010, had employees employed in laboratories manage joint expenses.

C) In addition to the laboratory operating expenses, the student research institute used the joint expenses as well as the purchase of airline tickets to participate in the international academic conference, local accommodation expenses, travel expenses, etc. In addition, when the research scholarship is paid at least two to three months from the Defendant, the research scholarship was used to pay the student research scholarship amount to the student research institute at the joint expenses.

D) Although Plaintiff B was required to receive a report on the balance of the common expenses from the administrative staff, the method of managing the common expenses did not direct or directly manage it. The student research institute did not express a complaint in relation to the operation and management of the common expenses.

3) The nature and place of use of the instant amount

A) The instant amount was returned to the joint management account if the student research institute received money from the student research institute in accordance with the payment standards from the labor cost pool (integrated management by the Plaintiff’s joint management organization) or joint management account. If the Plaintiff’s Industry-Academic Cooperation Agency received research scholarships from the project participating in the project and received money above the payment standards, the difference was returned to the joint management account.

B) Of the instant amount, 12,619,000 won was returned to the FFF personnel expenses, and the remainder was used as laboratory operating expenses (water, raw water, book purchase, etc.) and student researchers’ expenses.

[Reasons for Recognition] Facts without dispute, Gap 7, 8, 12 through 14, Eul 12, Eul 12, the witness's testimony and the purport of the whole pleadings

B. Determination

1) The fact that the Plaintiff and B set a certain payment standard and made the student research scholarship paid to the student research institute in compliance with the said standard and that the student research institute deposited and managed the money received in a joint management account in excess of the said standard and used them as laboratory operating expenses, personnel expenses, and expenses for participating in international academic conferences as seen earlier. According to the overall purport of the evidence and arguments, under the instant agreement, the Plaintiff A University Industry-Academic Cooperation Foundation stipulates that the project expenses shall be faithfully managed in accordance with the “Guideline” and the “Guideline” set by the Defendant, and the said directives and guidelines prohibit the act of managing the passbooks or seals of the individual or recovering a certain amount of money while allowing the student research scholarship to be paid directly to the student research institute.

2) However, in light of the aforementioned facts as seen earlier: (a) the purpose of the instant project, the purpose of prohibiting joint management or recovery of research scholarships, the purpose of prohibiting joint management or recovery of research scholarships, and the motive, circumstance, and place of joint use of expenses, etc., which can be known by the witness 1’s testimony and the purport of the entire pleadings, it is difficult to see that Plaintiff B used the project cost for any purpose other than its original purpose. Accordingly, the instant disposition was unlawful on the premise that the project cost was used for any purpose other than its original purpose.

A) The instant project is an academic support project under the Sciences Promotion Act. The purpose of the Sciences Promotion Act is to support and manage various activities related to science, to encourage the balanced development of studies, and to contribute to the creation of new knowledge (Article 1 of the Sciences Promotion Act). C project and D project’s purpose is to support graduate students and students in master and doctoral degree courses and to promote research in the core field of national development in the future and to train future generations after learning. The purpose of the project is to promote research and train students in the future. As can be seen, the project in this case is to contribute to the development of future national industry and the balanced development of the academic field by providing human resources, such as graduate students in graduate school courses in the field of study (science) rather than to achieve a certain project goal (or performance). In this case, students in the Plaintiff B research institute received money in excess of a certain amount on the grounds of stable life, necessity of common expenses, and relationship between students, and to jointly manage the money, and to use the money for the purpose of the project in this case, such as labor cost, operating expenses, and participation in the research conference.

B) The main purpose of which the joint management or collection of research scholarships is to prevent the embezzling or misappropriation of the joint management of research scholarships by a professor, who is a researcher. However, there is no circumstance to deem that Plaintiff B embezzled or misappropriated the research scholarships in this case, and as seen earlier, the instant amount was used as personnel expenses, laboratory operating expenses, etc., and thus, it can be deemed that it was used for the student researcher who is originally subject to payment.

C) The laboratory operating expenses are required for the students who send most of the time to the laboratory and live together. The payment of personnel expenses is to prevent students’ researchers from experiencing difficulties in their lives by receiving stable personnel expenses. Since the participation expenses for international academic conferences and their travel expenses are difficult to be borne by the students, students need to gather the expenses in advance. As such, in the research institute affiliated with the Plaintiff B, there was a reasonable need for collecting and using common expenses.

D) Students Research Institute voluntarily decided to use money exceeding a certain standard amount for joint management due to the foregoing needs. According to the witness I’s testimony, most of the student researchers are in a pre-service and post-service relationship, and have engaged in studies and research at the latest time, and there is a difference in research scholarships received depending on whether they participate in the project is contrary to equity.

E) There may be room to view that the student research institute’s receipt of a scholarship exceeding a certain standard amount is in violation of the agreement, etc. of the instant project agreement, etc. on the basis of the instant disposition (Article 19(2)1 of the Sciences Promotion Act and Article 20 subparag. 3 of the Enforcement Decree of the same Act) that “where the grounds for the instant disposition (Article 19(2)1 of the same Act and Article 20 subparag. 1 of the Enforcement Decree of the same Act are used for purposes other than the original purpose

F) The research scholarship was not paid to the student research institute’s account via Plaintiff B, but was directly transferred from Plaintiff A University Industry-Academic Cooperation Foundation to the student research institute’s account, and the student research scholarship received from the student research institute was deposited into the joint account. Therefore, the student research institute’s consumption of the research scholarship received at its own will may be deemed as having been made.

5. Conclusion

The plaintiff A University's industry-academic cooperation foundation's lawsuit is unlawful and dismissed, and the plaintiff B's claim is reasonable, and it is so decided as per Disposition.

The presiding judge, the Korean Judge;

Judges Kim Gin-han

Judges Lee Jae-he

A person shall be appointed.

A person shall be appointed.