2016Nu7064 Disposition of restriction on participation and revocation of disposition of returning project costs;

A

Minister of Oceans and Fisheries

Seoul Administrative Court Decision 2016Guhap52200 decided September 29, 2016

May 19, 2017

June 2, 2017

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Purport of claim

The Defendant’s disposition of restricting participation in the Plaintiff as of December 23, 2015 is revoked in both six months (from December 23, 2015 to June 22, 2016) and 10,621,000 project expenses.

Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasons for the entry in this case are as follows, and the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance, except for adding the judgment of this court. Thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. The part to be mard;

(a) The purport of repair;

B. As stated in the foregoing paragraph, the grounds for the instant disposition include “Article 11-2(1)7 of the former Framework Act on Science and Technology (where research and development is performed by fraudulent or other illegal means)” and “Article 11-2(1)8 of the former Framework Act on Science and Technology (where research and development is performed by other improper means)” as well as “Article 11-2(1)5 of the former Framework Act on Science and Technology (where research and development projects are inappropriate and the agreement is violated, where research and development expenses are used for any purpose other than the original purpose).” As such, the grounds for the first instance judgment, which is contrary to the foregoing, are dismissed, and there are no grounds for the disposition under Article 11-2(1)5 of the former Framework Act on Science and Technology (where research and development expenses are used for any purpose other than

B. From 11th to 12th of the 11th of the judgment of the court of first instance, the grounds for the instant disposition are as follows. (1) The grounds for the instant disposition

The following facts are acknowledged according to the contents of Gap evidence 9, 10, Gap evidence 16-2, Eul evidence 16-1, and the purport of the whole pleadings.

A) The instant disposition document (No. 1) states as the basis for the instant disposition, “Article 11-2 of the former Framework Act on Science and Technology and Article 61 of the instant provision,” as the grounds for the instant disposition.

B) The “written request for disposition as a result of the civil petition audit of the Ministry of Oceans and Fisheries (Evidence A No. 16-2) that served as the basis of the instant disposition” states that “The person responsible for research and development projects (four persons) who performed a false research and development project by arbitrarily performing the role as a person in charge of research without permission for change of the person in charge of research and development projects shall be subject to restrictions on participation, and documents shall be drawn up and paid (17,021,000 won: Plaintiff 10,621,000 won, H6,400,000 won) as if he/she knew that he/she did not perform the role as a person in charge of research and development,” is written as follows.

C) Even in the column of the result of the civil petition investigation conducted by the Ministry of Oceans and Fisheries (Evidence A 9) “A” that the Korea Institute sent to the Plaintiff, stating that “The researcher is responsible for a certain portion in light of Article 61(1)8 of the Rules of this case” is “A” and “The Korea Institute arbitrarily changes the person in charge of research without the approval of the competent authority, despite the fact that the researcher was excluded from the task due to a personnel order,” and written that “the Plaintiff is responsible for a certain portion in light of Article 61(1)8 of the Rules of this case.”

In light of the above facts of recognition, the Ministry of Oceans and Fisheries has the basic factual basis that "the violation of the Convention due to the voluntary change of the researcher and the illegal receipt or use of research and development expenses."

Based on this, it is reasonable to view that the instant disposition was taken. As such, Article 11-2(1) of the former Framework Act on Science stated in the instant disposition includes both Subparagraph 5 (where research and development expenses are used for any purpose other than the original purpose), Subparagraph 7 (where research and development expenses are used by fraud or other improper means), and Subparagraph 8 (where it is inappropriate to conduct national research and development projects by other improper means, and where the agreement is violated) of the same paragraph." The phrase “A evidence No. 17, 19" stated in Part 9 of the judgment of the first instance court No. 12 of the judgment No. 12 of the first instance court No. 15, 17, 19, and 26 "No. 13 of the first instance judgment No. 12 of the first instance judgment," and the Plaintiff’s request for the payment of research funds from April 6, 2015 to use them for any purpose other than the original purpose, the Plaintiff cannot be deemed the head of the instant research group No. 14 of the second 5th 15th m.

H) Since a person in charge of research and development who was the Plaintiff’s position is responsible for and responsible for the overall management of research and development projects, his contribution to research and development projects or the distribution rate of research allowances is higher than other researchers, and the Plaintiff still holds the status of a person in charge of research in accordance with the Convention even after January 14, 2015, which was released from internal appointment, and thus, he/she was legally responsible. Furthermore, even if the Plaintiff was unable to engage in research activities directly due to the cancellation of appointment, he/she still has the responsibility to appropriately allocate research allowances in consideration of the researcher’s research performance activities, research and development performance, etc., and continued to perform such tasks as approval of the actual business trip, approval of the project cost, research report, and the allocation of incentives.

(i) In determining the distribution rate of research allowances to the Plaintiff, even if the Plaintiff should consider the exclusion from the research affairs as above after January 14, 2015, according to the facts acknowledged earlier, this is not due to the Plaintiff’s fault, but due to the D Technology Institute’s inappropriate handling of the change of a person in charge of research in violation of the B business agreement. Therefore, such circumstances should also be considered together.

(j) According to the “Research Allowance Payment Guidelines” of the D Technology Institute, “Research Allowances shall be paid differentiated by evaluating the participation rate and degree of contribution of each person eligible for payment taking into account the research performance activities, research and development performance, etc. of the participating research institute (Article 5(1)). If the research period is at least seven months, research allowances shall be paid from the date when five months elapse after the commencement of the research task, and at least one half of the research allowances shall be paid for the relevant month during which the task is completed (Article 6 Subparag. 2).” Thus, it is reasonable to conclude that the research allowances paid in the last month include the research allowances paid in 55,821,00 won for the research project (Article 6.1). Considering that the research allowances paid in the last month include three times of the research allowances paid in 200,000 won for the research project, the amount paid in 27,000,000 won for the research project is the highest among the research allowances paid in 30,015.

3. Additional determination by this Court

A. Summary of the defendant's assertion

The defendant asserts that "the plaintiff did not comply with the Korea Technology Institute's order to return to work on July 3, 2015, at the level of emotional counter-instition on the previous personnel order, there are grounds for disposition under Article 11-2 (1) 8 of the former Framework Act on Science and Technology."

B. Determination

Comprehensively taking account of the following circumstances revealed through the facts and evidence cited earlier, it is difficult to view that the Plaintiff’s failure to comply with the Korea Technology Institute’s order to return to work on July 3, 2015 falls under “cases where it is inappropriate to conduct a national research and development project under Article 11-2(1)8 of the former Framework Act on Science and Technology,” and the Defendant’s above assertion is without merit.

1) Although the Institute has replaced a person in charge of research to G, it unilaterally dismissed the Plaintiff from the position of a person in charge of research in the position of a project leader without undergoing lawful procedures for the change, and thereafter, the Plaintiff was unable to perform a practical role as a person in charge of research. The Plaintiff raised several problems with regard to the above situation at issue with C Promotion Institute and D Technology Institute several times, but D Technology Institute did not have any explanation for the Plaintiff’s acceptance of the above problem proposal. Rather, when it notifies C Promotion Institute that it would withdraw the return of the Plaintiff to the person in charge of research, it was notified that it taken such measures to the C Promotion Institute, while it did not return the Plaintiff to the person in charge of research, it was internally sealed the Plaintiff’s seal on the “the annual (stage) performance plan for the sixth projects in the year 2015,” without the Plaintiff’s permission.

2) The Plaintiff did not unilaterally comply with the personnel return order, but expressed in detail the reasons for refusing to comply with the personnel return order on July 7, 2015, immediately after the personnel return order. As seen earlier, the Plaintiff’s cancellation from appointment as the head of the B business group despite the Plaintiff’s several problems raised over several times.

From January 14, 2015, until July 3, 2015, when the personnel return order was issued, the problem of the senior research manager was not appropriately resolved. ② Whether the continued position of the Do Technology Institute was withdrawn at the time when the personnel return order was issued, and ③ even though the Plaintiff expressed several times that the status of the senior research manager cannot be maintained in the 6 B project, the Do Technology Institute concluded the 6 B project agreement with the CEA, which unilaterally made the senior research manager as the Plaintiff. In light of the fact that it was possible for the Plaintiff to think that accepting the above order of personnel return would ex post justify the existing illegality or directly participate in the concealment of such illegality, the Plaintiff could not be deemed as having complied with the personnel return order. It is recognized that there was a circumstance that the Plaintiff could not be said that the Plaintiff failed to comply with the personnel return order, such as the Defendant’s assertion that the former personnel return order was made merely against the personnel inspector.

3) Therefore, it is difficult to deem that the Plaintiff violated the provisions of the above Convention merely with the fact that the Plaintiff, without the Plaintiff’s consent, did not comply with the agreement concluded with the supervising research officer and the order to return personnel accordingly.

4. Conclusion

Thus, the plaintiff's claim is justified. The judgment of the court of first instance which accepted the plaintiff's claim is just, and the defendant's appeal is dismissed as it is without merit, and the costs of appeal are borne by the losing defendant.

The presiding judge, the full-time judge

Judges Singing on Board

For the purpose of judge sex impulse

1) The Defendant asserts that the last 4-time research allowances for the instant project filed on April 6, 2015 are research allowances for research activities after 2015, 1, and 1. However, in light of the foregoing research allowances payment guidelines, etc., the Defendant’s above assertion is difficult to accept.

2) The Plaintiff was aware of the reasons for the refusal in detail that “DAC should be G since 2014, and the 6th B B Convention should also be a person in charge of the research in charge of G, and the Plaintiff was also aware of such reasons. However, DAC concluded the 6th B Project Agreement with the Plaintiff as a person in charge of the research in charge of the research in charge, instead of the Plaintiff, and entered into the inspection by the Ministry of Oceans and Fisheries.”