2017Nu7406 Action for revocation of restrictions on participation in research, etc.

A

Law Firm Bululul, Counsel for the plaintiff-appellant

[Defendant-Appellant]

The Minister of Science and ICT

Law Firm Gangnam (LLC) et al.

Attorney Seo-dilution

Stand-type of a litigation performer;

Seoul Administrative Court Decision 2017Guhap60956 decided September 29, 2017

March 2, 2018

April 13, 2018

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Claim: On-To-To-prop antenna clustered on March 15, 2017 by the Defendant to the Plaintiff on March 15, 2017

5 years of restrictions on participation in national research and development projects conducted for projects for supporting persons with heavy-scale researchers for vehicles;

such disposition shall be revoked.

The purport of appeal: Revocation of the judgment of the first instance. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasoning for this Court’s explanation concerning this case is as follows, except for the parts amended or deleted as follows and the parts added by this Court’s decision under Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act. Thus, this Court’s reasoning is cited as it is in accordance with Article 8(2) of the Administrative Litigation

(Revision 8 d) The part of the judgment of the first instance shall be amended as follows:

D) The period of the instant disposition of restriction on participation appears to include the entire period of restriction on participation in each of the instant tasks, including the period of restriction on participation in the instant tasks 1 and 2 pursuant to Article 27(3) of the instant provision, but to be calculated as five years within the upper limit by applying Article 27(2) mutatis mutandis. Such calculation method is unreasonable as it does not distinguish the subject of disposition from each other and does not compute the period by each disposition. The Defendant shall calculate the period of restriction pursuant to Article 27(1)5 of the instant provision only for the instant tasks 3 tasks managed by the Defendant. In addition, the Plaintiff’s ratio of use for the instant tasks 3 tasks is 21.1% for the first year, 21.3% for the second year, 13.3% for the second year, and 15.1% for the third year, and thus, the instant disposition of restriction on participation only constitutes the period of restriction on research participation within the highest period of one year.

【The deleted portion】 The 8-21 line (e) part in the judgment of the first instance shall be deleted.

2. The further determination of this Court

A. Determination as to whether the act of joint management of personnel expenses of the Institute constitutes the use of research and development expenses for any purpose other than the original purpose

According to the evidence submitted, the Plaintiff, as a research manager of the instant task 3, managed part of the personnel expenses paid to the students’ researchers participating in the instant task 3 through the rap and general affairs, etc. under his command and supervision, and executed them as joint laboratory expenses, etc. The Plaintiff’s assertion, even if the Plaintiff paid to the said students’ researchers monthly personnel expenses paid to the said researchers with other money each month before the payment of the personnel expenses for the instant task 3, and paid the full amount of the personnel expenses paid to the relevant students by the method of settling the labor expenses paid in advance or managing part of the expenses paid to the said researchers each month before the payment of the personnel expenses for the instant task 1-2(1)5 of the former Framework Act on Science and Technology, the execution of such method constitutes a temporary diversion of research and development expenses for any other purpose, and in itself, it constitutes grounds for restriction on participation under Article 11-2(5) [Attachment 2] of the former Framework Act on Science and Technology regardless of whether the said act constitutes grounds for restriction on participation under Article 12(5) [Attachment 2]

B. Determination as to the assertion that the ground provision is invalid

1) The plaintiff's assertion

Article 12(5) [Attachment 2] and Article 12(2) of the former Framework Act on Science and Technology, which served as the basis for the disposition of the disposition of the restriction on participation, are null and void in excess of the scope of delegation. In other words, Article 11-2(9) of the former Framework Act on Science and Technology delegates only the specific criteria for “the basis for the restriction on participation” and “repared amount of project costs” to the Presidential Decree. However, Article 12(5) [Attachment 2] and Article 12(2) of the former Framework Act on Science and Technology newly established or expanded the grounds for restriction on participation without the basis of delegation. Article 12(5) [Attachment 2] and (2) of the former Framework Act on Science and Technology, which are the grounds for the restriction on participation under Article 11-2(1)5 of the former Framework Act on Science and Technology, newly established or expanded without the basis of delegation.

2) Determination

In examining the form and text of the provision, Article 12(5) [Attachment 2] and Article 11-2(9) of the former Framework Act on Science and Technology, which is non-identical and 2 of the same Act, is not prescribed upon delegation under Article 12(5) [Attachment 2] and Article 12(2) of the same Act. Therefore, the restriction on participation in national research and development projects cannot be imposed on the sole basis of Article 12(5) [Attachment 2] and Article 12(5) [Attachment 2] of the same Act. However, where a joint management of students' labor expenses paid by a person in charge of research and development falls under the exclusive act of research and development, etc., such an act

Ultimately, in interpreting Article 12(5) [Attachment 2] and Article 12(5) [Attachment 2] of the instant provision as above, the above provision cannot be deemed as either an example of “where research and development costs are used for any purpose other than the original purpose,” which is the grounds for restriction on participation under Article 11-2(1)5 of the former Framework Act on Science and Technology, which is the mother corporation, beyond the scope of the concept prescribed by the mother Act, or an unreasonable analogy of it. Determination

1) The defendant's assertion

Research and development expenses paid pursuant to the former Framework Act on Science and Technology are annually disbursed, and Article 27(1)5 of the instant provision also stipulates that "the usage ratio of research funds for purposes other than those for which the period of restriction on participation is the basis for research and development expenses for the pertinent year shall be calculated based on research and development expenses for the pertinent year. The Plaintiff received research and development expenses for the instant three tasks through three years and the usage ratio of each annual research funds for the purposes other than those for the following year is 21.1% for the first year, 21.1% for the second year, 13.3% for the second year, and 15.1% for the third year, the restriction on participation for the first year, less than four years for the second year, less than three years for the second year, and less than three years for the third year. Ultimately, the Defendant is justified in the instant disposition within the scope of five years pursuant to Article 27(2) of the instant provision.

2) Determination

Article 11-2 (1) of the Framework Act on Science and Technology provides for subparagraphs 1 through 8 on the grounds of restrictions on participation in national research and development projects under Article 11-2 (1), and among them, subparagraph 5 provides that "where research and development costs are used for any purpose other than the original purpose" shall be specified, and Article 11-2 (9) of

Pursuant to Article 27(1) of the instant provision, “The period of restrictions on participation by private cause under Article 11-2(1) of the Act shall be as follows,” and “where research and development costs are used for any purpose other than the original purpose,” the period of restrictions on participation by private cause under each subparagraph of Article 11-2(1) of the former Framework Act on Science and Technology is determined differently according to the ratio of the amount used for any purpose other than the original purpose under subparagraph 5 to the research and development costs for the pertinent year

Meanwhile, Article 27(1)5 of the instant provision was amended by Presidential Decree No. 23788 on May 14, 2012 as above. Prior to that amendment, the period of restriction on participation was set from two to five years depending on the specific method using research and development funds, such as embezzlement, deception, useful cases (a) where research and development funds are embezzled, wrongfully executed, or temporarily diverted (c) where research and development funds are temporarily diverted (c).

With regard to the instant tasks 1 and 2, the Minister of Education: (a) deemed that the Plaintiff’s use of research and development costs for any purpose other than the original purpose while imposing restrictions on participation in national research and development projects against the Plaintiff as “where the Plaintiff used the research and development costs”; and (b) deemed that both causes for the restriction on participation in national research and development projects have occurred for each task; and (c) did not constitute grounds for the restriction on participation in national research and development projects for each task continuously; and (d) deemed that there were grounds for the restriction

In full view of the contents of the former Framework Act on Science and Technology, the amendment history of the provisions of this case, and the method applied by the Minister of Education to Article 27 (1) 5 of the instant provision, etc., it is reasonable to interpret that the act of using research and development funds for purposes other than those of the former Framework Act on Science and Technology falls under one of the causes of restriction on participation falling under Article 11-2 (1) 5 of the former Framework Act on Science and Technology as a whole if the total amount of research and development funds was determined for a single task that continues for several years, and if such task continues for several years, the period of restriction on participation is determined according to the ratio of the amount used for the annual research and development funds to the amount used for the purpose other than that of the research and development funds, not a separate reason for restriction on participation. The Defendant’s assertion that the period of restriction on participation may be added to five or more years is not acceptable, since Article 27 (2) 5 of the instant provision provides that the period of restriction on participation may be added to the two or more years.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed in entirety.

Judges of the presiding judge, Yang Sung-ju

Judges Kim Gin-han

Judges Mok-si