(영문) 서울고등법원 2019.12.6. 선고 2019누50382 판결

1. Upon receipt of a claim changed in exchange from the trial before remanding, the Defendant’s disposition of restitution of KRW 126,356,839 against the Plaintiff on September 20, 2016 shall be revoked.

2. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The purport of the claim in the first instance

The Defendant’s disposition of restricting participation in national research and development projects for three years against the Plaintiff on March 15, 2016 and disposition of recovering government contributions KRW 126,356,839 shall be revoked.

Purport of appeal

The judgment of the first instance shall be revoked.

The above disposition to state the purport of the claim shall be revoked.

The purport of the claim of the trial

The Defendant’s disposition of restitution of KRW 126,356,839 against the Plaintiff on September 20, 2016 shall be revoked.

【Plaintiff changed the claim in the trial before remand as above.】

Reasons

1. Facts of recognition;

The following facts are either in dispute between the parties or in accordance with Gap evidence 1 to 6 (including each number; hereinafter the same shall apply), Eul evidence 2, and the whole purport of the pleadings.

[1]

The Research Foundation of Korea (hereinafter referred to as the "Research Foundation of Korea") is a specialized institution under the Framework Act on Science and Technology, which vicariously performs the duties of planning, management, evaluation, utilization, etc. of national research and development projects.

○ The Plaintiff is a corporation established by A University based on the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act.

Around April 1, 2010, the Research Foundation of the Republic of Korea entered into a standard agreement on research and development tasks with the Plaintiff and the “C Project (the title: D and research period: from April 1, 2010 to February 28, 2019; hereinafter referred to as “the instant research task”) and renewed the said agreement annually by March 2015. The Plaintiff participated in the instant research task as a managing research institute, and the Plaintiff participated in the instant research task as a joint Plaintiff B (hereinafter referred to as “B”) of the first instance court, a professor of A University, in the instant research task.

○ The Plaintiff received a total of KRW 3,390,000,000 from April 1, 2010 to February 2, 2016 under the said Convention.

[2]

On April 20, 2015, the National Research Foundation of Korea notified the Plaintiff of the "detailed on-site inspection of the execution of research expenses" in 2015, and accordingly, inspected the Plaintiff from April 22, 2015 to April 24, 2015.

As a result of the above inspection, the Korean Research Foundation notified A.I. on June 9, 2015 of the results of the precise settlement related to the adequacy of the implementation of the research project in this case.

○ 위 통보 내용은, ▲ B 교수의 연구실에서 행정직원이 학생연구원에게 지급하는 인건 비(이하 '학생인건비'라 한다) 68,697,065원을 공동관리한 사실이 인정되고, ▲ 타 기관 소속 참여연구원인 F대학교 약학과 G 교수는 B의 배우자로서 과제기여도를 인정할 수 없으므로 전문가 검토가 필요하고(G에 대해 집행한 직접비 및 연구수당 합계 44,402,807 원), ▲ 원고에게 제출한 거래명세서 내역 중 2011년, 2013년, 2014년에 집행한 연구장비·재료비 12건 합계 13,140,300원의 금액이 실제 구입내역과 불일치하고, 그 중 연구재료비로 허위 구매한 프린터는 G에게 전달되었다는 것이었다.

On March 15, 2016, the National Research Foundation of Korea notified A University and B of the result of deliberation on sanctions approved by the defendant (hereinafter referred to as the "Notice on March 15, 2016"). The above notification was used for other than the purpose of research funds (joint management of students' personnel expenses, joint management of students' personnel expenses, and purchase of research equipment and materials, etc.).

○ On May 27, 2016, the Defendant issued a disposition of restriction on participation in national research and development projects for three years pursuant to Article 11-2(1)5 of the Framework Act on Science and Technology and Article 27 of the Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 27369, Jul. 22, 2016). Meanwhile, on the same day, the Defendant recovered government contributions from A University KRW 126,356,839 (including surcharges 116,67) (hereinafter referred to as “disposition”).

○ 2016. 5. 27.자 처분의 금액 126,356,839원(제재부가금 116,667원 포함)은 제재부가 금 116,667원을 제외하면 126,240,172원인데, 이는 위에서 본 바와 같이 ▲ 공동관리한 학생인건비 68,697,065원, ▲ 과제기여도가 없는 G에 대해 집행한 직접비 및 연구수당 44,402,807원, ▲ 신고내역과 불일치하게 구입한 연구장비 · 재료비 13,140,300원을 합한 126,240,172원(= 68,697,065원 + 44,402,807원 + 13,140,300원)이다.

[3]

On June 10, 2016, the Plaintiff and B filed the instant lawsuit against the Defendant and the Korean Research Foundation, and sought revocation of the notification on March 15, 2016.

The plaintiff and B stated in the complaint of this case that " it is unclear whether the Korean Research Foundation has been entrusted with the authority of the disposition by the defendant," so the defendants would clearly explain the subject of the disposition and the counterpart of the disposition through the withdrawal of the lawsuit."

In the response submitted to the court of first instance, the defendant and the Korean Research Foundation stated that the notification of March 15, 2016 was made by the defendant to the court of first instance that the defendant imposed the restriction on participation in national research and development projects against B, and that the defendant imposed the return of the government contributions of KRW 126,356,839 (including the surcharge of KRW 116,67) against the plaintiff.

○ Meanwhile, the Defendant issued a prior notice of re-disposition to the Plaintiff, revoking the disposition on August 31, 2016 pending the court of first instance, on the ground that the Defendant’s disposition on restitution of KRW 126,356,839 (including KRW 116,67) granted to A University was erroneous.

○ As above, the Defendant made a prior notice of re-disposition and stated the relevant regulations, and stated Article 21 of the Administrative Procedures Act and Article 25 of the same Act regarding the correction of the disposition.

○ On September 20, 2016, the Defendant continued in the first instance trial, rendered a disposition to recover government contributions of KRW 126,356,839 (including KRW 116,667) (hereinafter referred to as “instant disposition”).

The plaintiff and B withdrawn the lawsuit against the Korean Research Foundation on February 29, 2017 while the first trial was in progress.

○ Decision of the first instance court sentenced on November 17, 2017, the notification of March 15, 2016 was based on B’s disposition on restriction on participation in national research and development projects and disposition on recovery of government contributions, and is not a disposition against the Plaintiff, and thus, the Plaintiff filed a lawsuit, based on its judgment that the Plaintiff’s claim for revocation of notification made on March 15, 2016 was unlawful.

○ Plaintiff lodged an appeal against the judgment of the first instance court, and the Defendant, on May 9, 2018, filed the following defenses with the legal brief on May 15, 2018 before remanding. In other words, the notification as of March 15, 2016 is not a notification, but a notification as of March 15, 2016, and the notification as of May 27, 201 is external disposition. The government-invested contributions restitution disposition among the dispositions is erroneous as it was the other party to the disposition. The government-invested contributions restitution disposition was cancelled on August 31, 2016 and rendered the restitution disposition against the same content as of September 20, 2016. Thus, the Plaintiff’s lawsuit seeking revocation of the notification as of March 15, 2016 was unlawful.

○ Accordingly, the Plaintiff changed its claim on May 21, 2018 from the trial prior to remand to exchange as seeking revocation of the instant restitution disposition.

In regard to the above change of the exchange of claims, the defendant set up a defense of this safety that the period of filing the lawsuit is unlawful.

○ The judgment of the first instance court prior to remand rejected the Plaintiff’s lawsuit identical thereto on the ground that the exchange change of the above claim was unlawful because it failed to comply with the filing period.

2. Defenses to present the safety;

According to the above, in the trial prior to remand, the Defendant asserted that the Plaintiff’s seeking revocation of the notification made by March 15, 2016 is unlawful. Accordingly, the Plaintiff exchanged the Plaintiff’s claim seeking revocation of the restitution disposition of this case. Accordingly, the Defendant’s claim for revocation of the restitution disposition of this case was modified to exchange it. Accordingly, the Defendant’s claim for revocation of the restitution disposition of this case was unlawful as it exceeds the filing period, and the judgment prior to remand dismissed the Plaintiff’s claim for alteration of exchange as above on the ground that the period of filing the

However, even if the Plaintiff changed the claim in exchange for another party before remanding as above, it is determined that whether the period of filing the changed lawsuit should be observed separately, and pursuant to Article 8(2) of the Administrative Litigation Act and Article 436(2) of the Civil Procedure Act, the judgment after remanding shall be bound by the court of appeal in fact and by law.

Therefore, it cannot be deemed unlawful because the Plaintiff changed the claim to seek the cancellation of the restitution disposition of this case in the trial before the remanding as above to the extent that the period of filing a lawsuit is excessive. Therefore, the Defendant’s defense of principal safety is without merit.

3. Summary of the plaintiff's assertion

이 사건 환수처분은 ▲ 공동관리한 학생인건비 68,697,065원, ▲ 과제기여도가 없는 G에 대해 집행한 직접비 및 연구수당 44,402,807원, ▲ 신고내역과 불일치하게 구입한 연구장비·재료비 13,140,300원을 합한 126,240,172원을 환수하는 처분인데, 그 각 처분사유가 인정될 수 없어 위법하고, 가사 처분사유가 인정된다고 하더라도 재량권 일탈·남용으로 위법하다.

4. Grounds for disposition.

(a) Joint management of 68,697,065 won for students' personnel expenses;

1) The plaintiff's assertion

The amount of money under joint management in relation to the instant research task is not a "student's personnel expenses," but a "research allowance," unlike the student personnel expenses, the research allowance is not prohibited, and even if B jointly manages the personnel expenses of the researchers belonging to it, it cannot be said that it was used for any purpose other than the purpose of the research and development expenses, and B did not instruct such joint management or participate in such management. Therefore, the reason for the disposition that the joint management of 68,697,065 won is not recognized.

(ii) the facts of recognition

The following facts are not disputed between the parties, or acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence 3 and Eul evidence 1.

○ The Minister of Education delegated the Korea Research Foundation pursuant to the Sciences Promotion Act to promote academic support projects. The Minister of Education selected A University as a person eligible for academic support and entered into an agreement with A University president and H projects (the project period: from February 28, 2012 to February 2013), "I projects (the project period: between September 1, 2013 and August 31, 2020)," and "J projects (the project period: the project period: the project period from December 1, 2008 to August 31, 2013).

○ The Plaintiff received project costs from the Minister of Education, and managed them, and B participated as a researcher of the instant related project.

○ The Research Foundation of the Republic of Korea confirmed that the instant research task and the instant related project were combined to conduct a close onsite inspection of B, and that graduate students affiliated with B were returned some of the personnel expenses and research allowances paid to their personal accounts from May 201 to April 2015 to the joint management account (the account of the administrative staff) and deposited KRW 140,673,491.

○ The Korean Research Foundation calculated the amount of joint management by each project based on the detailed details of the joint management account, and calculated the amount of joint management by each project in proportion to the labor cost paid in cases where the relevant project cannot be specified. As a result, 16,05,230,048 won in H project, as stated in attached Form 2, and 16,05,232 won in the I project, 43,691,146 won in the J project, and 68,697,065 won in the research project of this case, respectively, were calculated as joint management.

(iii) student personnel expenses, research allowances;

(1) Article 11-2(1)5 of the Framework Act on Science and Technology (amended by Act No. 12673, May 28, 2014; hereinafter the same) provides that where an institution participating in a national research and development project, a person in charge of research and development project, etc. uses research and development funds for any purpose other than the intended purpose, the head of a central administrative agency may restrict the participation in the relevant national research and development project within the scope of five years, and may recover all or part of the project funds already contributed. Paragraph (5) provides that matters necessary for the detailed criteria for the period of

Accordingly, Article 12 (1) of the Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 23788, May 14, 2012; hereinafter referred to as the "Regulations") provides that the head of a central administrative agency may contribute all or part of research and development expenses, and Article 12 (5) provides that the items of research and development expenses paid by the head of a Gangwon administrative agency shall be composed of personnel expenses, direct expenses, entrusted research and development expenses, and indirect expenses, and the standards for appropriation for each item shall be as specified in attached Table 2, and attached Table 2 provides that "internal personnel expenses, external personnel expenses, etc." shall be included in the items of personnel expenses, and "research allowances shall not be jointly managed by a person in charge of research" among outside personnel expenses under paragraph (3) of this Article.

(2) The purport of the instant provision prohibiting the joint management of student personnel expenses lies in preventing a professor, who is a responsible researcher, from breaking the economic foundation of the student research institute and undermining the desire for research because he/she did not use the personnel expenses to be paid to the student research institute for other purposes by jointly managing the personnel expenses in a superior position.

B, a person in charge of research in charge of the instant research task, is responsible for managing the personnel expenses out of the research and development expenses paid by the Defendant to the student researchers who directly participate in the instant research task. As such, the said personnel expenses are not directly attributed to the student researchers, but are used for the purpose of using the research and development expenses out of the research expenses.

In addition, the joint management of personnel expenses shall be deemed to constitute an act prohibited by the provision of this case, regardless of whether the money under the joint management was paid to the student researcher after the fact or as a result, the joint management itself constitutes an use contrary to the purpose of use.

On the other hand, ‘research allowances' unlike ‘external personnel expenses', which have the nature of fixed benefits for researchers participating in the relevant research and development project, are a tax item of direct expenses, and has the character of as incentives for the payment of compensation and incentives to the person in charge of research and development and participating researchers related to the implementation of the relevant research and development project. The instant provision explicitly separates the items of research and development expenses into personnel expenses, direct expenses, entrusted research and development expenses, and indirect expenses, and prohibits joint management only outside personnel expenses. In light of the contents of the instant provision and the nature of the research allowances, research allowances cannot be deemed to be prohibited as they are distinct from personnel

4) Grounds for disposition

(1) In full view of the facts acknowledged earlier and the purport of the entire pleadings, the following are revealed with respect to the above grounds for disposition.

The above disposition reason is based on the evidence No. 1 (the student personnel expenses distribution data for each business). The defendant asserted that Eul was prepared by the plaintiff, that Eul was denied the plaintiff's preparation, and that Eul was not sufficient to recognize that the plaintiff prepared Eul evidence No. 1. Thus, it is difficult to believe that Eul evidence No. 1 is not clear about the preparation subject and preparation process.

In addition, the study allowances were returned to the joint management account in the detail of the evidence No. 1, which is described as the "return of human resource" among the details of the evidence No. 1, and the number of money is stated as the return of personnel expenses for the relevant project, which is not the research project of this case, according to the detailed contents, in the evidence No. 1, the part of which is the amount is calculated as the return of personnel expenses

In addition, the amount of money deposited as of April 29, 2012, April 30, 2012, April 21, 2012, and May 21, 201, each of the amount of money deposited as of May 21, 201, and KRW 2,60,000,000, as of May 21, 201, the amount of money deposited as of April 29, 201 in the evidence No. 1, however, in the evidence No.

In addition, there is no detailed description that could specify the amount of personnel expenses of the instant research task as being returned, and in light of the detailed description and amount of money, most of the instant research task appears to have been returned to the personnel expenses of the instant research project without a clear ground, it was calculated as the return of personnel expenses of the instant research task without a clear ground.

(2) In light of the aforementioned circumstances, it is difficult to recognize the grounds for the instant disposition that the Plaintiff jointly managed the student personnel expenses of KRW 68,697,065 by itself with the statement of the evidence No. 1 attached thereto, and there is no other evidence to acknowledge it. Therefore, the instant restitution disposition is unlawful in relation to

5) Grounds for additional disposition

(1) The defendant asserts that, in violation of the joint management provisions, the plaintiff and B paid research allowances to student researchers without evaluating contribution or settling accounts with the receipt for payment of tuition fees, the plaintiff and B used them for purposes other than the purpose of joint management, and they do not actually have been used as compensation and bounty for the student researchers. Thus, they should be deemed to have been used for purposes other than

(2) The Defendant’s above assertion can be deemed to add a new reason to the existing reason for the joint management of 68,697,065 won of the student labor cost.

However, claiming that a student researcher was paid research allowances without adjusting the degree of contribution or the amount of tuition fees, the reason, contents, and purport of the previous disposition that the student personnel expenses were jointly managed are different, and according to the non-high Ordinance of the instant provision [Attachment 2], it is difficult to recognize the identity in light of the social factual basis, and it is difficult to recognize the same. Thus, the above disposition reason is not allowed.

(3) Even if the above disposition grounds are allowed, the following are examined in light of the following: Gap evidence Nos. 3 through 7, 12, 18, 20 through 35, 37, 38, Eul evidence Nos. 1, 4, 12, 18, and 19, and evidence Nos. 1, 12, 18, and 19, witness Q of the first instance trial.

- Students Research Institute sent most of a day to the research institute for study and research, so it is necessary to pay common expenses, such as purchase of raw water, maintenance of water purifiers, and purchase of simple meals. Students Research Institute seems to have used common expenses for the purchase of airline tickets to participate in the international academic conference, local accommodation expenses, travel expenses, etc. in addition to laboratory operation expenses.

- At the time of the payment of research allowances, it seems that the contribution evaluation for each researcher was made, and B determined a certain standard of payment and made student researchers pay research scholarships to the student researchers in compliance with such standard. The student researchers deposited and managed the money received in excess of such standard into the joint management account managed by the administrative staff. However, there is no evidence to prove that B directly instructed or participated in the joint management of research allowances to the student researchers.

- Research scholarships were not paid through B to the account of the student researchers, but were directly transferred from the Plaintiff to the account of the student researchers, and the student researchers deposited the research scholarships received by the student researchers into the joint management account, so it is difficult to eliminate the possibility of using the research allowances received by the student researchers at their own will after raising them to the joint management account.

According to the revised "Standards for Calculation of Research Expenses for Industry-Academic Cooperation at AA University" as of September 13, 2017, the "amount of joint management" should be added to one type of illegal execution of national research and development projects in cases where the researcher collected and managed the research allowances. However, in principle, the sanctions should be based on the regulations at the time of the act, and the amended provisions after the act cannot be applied. As such, it cannot be deemed that the above provision added by the amendment of September 13, 2017, collects research allowances into the joint management account prior to the above amendment, on the basis of the above provision added by the amendment of September 13,

(4) In light of the above circumstances, even if it is recognized that student researchers deposited part of the research allowances into the joint management account, it is difficult to conclude that B used it for purposes other than those of the joint management account. Therefore, the Defendant’s additional grounds for disposition cannot be recognized.

(b) enforcement of direct costs and research allowances of KRW 44,402,807 for G without any challenge;

1) The plaintiff's assertion

The research objective of the instant research task is to develop the optimal design theory of the Nano K Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky KyK, on the premise that B is likely to affect the accuracy of the optimal design theory of the Nano Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky KyK, after being provided with the Nano Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky KyK's research participation plan for the instant research task, which is relevant between G research and the instant research task. Accordingly, it is not recognized that there is no intention to directly pay research allowances, 402, and 807 won for Gy Ky Ky Ky Ky Ky Ky KyK's best design theory, on the premise that the best design theory of the Nano Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky Ky KyK.

(ii) the facts of recognition

The following facts are not disputed between the parties, or acknowledged by Gap's evidence Nos. 9 through 11, 36, 37, and Eul's evidence No. 14, and witness W of the first instance trial and U's testimony as a whole.

The optimal design refers to "to apply the most appropriate performance data processing method when designing regardless of the design", and the optimal design theory refers to finding out the most appropriate design method as above. The best design method of Abiomeral design is one of the various best design methods, and the optimal design theory mainly consists of Nano [1Nom (nm) = 100 billion x 1m)] a series of series of series which is far more larger than usmane.

The research plan of May 14, 2015 on the instant research task includes that the purpose of the development of the best character design method of the Z in the convergence of the two combined design and interpretation through the convergence of the consecutive body-Nanobys, and the research content also includes the development of the best design method of the convergence in consideration of the continuous shape of the Switzerland and the Nanoby.

○○ The second agreement on the instant research task is in front of the second agreement, and around July 201, submitted a “C Project (K) annual performance plan to the Defendant.” From the year 2011, the two years period of the instant research task, the plan includes the research objective of “intending this theory and experimental-based research group for domestic and foreign researchers,” which includes the interpretation of this theory and experimental-based research group, the two years period of which is the second year of the instant research task, and that “in order to perform the interpretation of this theory and experimental-based research group for the best character design of the Abiomere, the research objective is to participate in G as the researcher.

○ G is conducting research as a person in charge of research of “M,” which is a "L business," from September 1, 2012, and has been successful in the composition of gold and Nano-in.

Since 2012, there are 25 copies of SCI Grade B, G, and student research institutes, among them, N was published as a doctoral degree thesis of the student research institute 0, and P was published as a doctoral degree thesis of Q Q.

○ G, together with B and other researchers, published a thesis on the nanotechnology related to the instant research task in March 2012, which was held in the U.S. sandy and in the open Yago. In addition, G published the results of joint research related to the instant research task in Zago, AA, etc. for two years from 2012 to 2013.

○ The Korean Research Foundation shall organize a Review Committee as two engineering experts and three pharmaceutical experts on May 14, 2015, and shall examine whether the participation of G in the instant research task is appropriate by drawing comprehensive opinions, including research plans, research reports, and explanatory materials submitted by B. The summary of the results of the review is as follows.

A person shall be appointed.

O 'R' was published in S academic journal on September 6, 2016, which is a co-author, and the paper contains photographs (HR-ETM) taken by G by combining gold workers.

○ University Professor, a member of the said Review Committee, testified to the effect that G is difficult to understand how to use it in the field of “the research conducted by Nano and Nano-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-no-

○ In the same purport, VA professor W, a member of the said Review Committee, is all connected to the same purport. The results of the G’s research may have been used without using the calculation process of B, but may have been referred to. G’s research cannot be seen as having contributed to the research of A University, Industry-Academic Cooperation Foundation and B.

3) Grounds for disposition

(1) In full view of the above facts admitted and the purport of the entire pleadings, the following are the grounds for the above disposition.

In the case of B and G, student researchers, who seem to be related to the interpretation of the design sensitiveism for nanotechnology materials, have a number of thesis published in the academic journal. Such joint research content was reflected in the research plan, and the defendant and the Korea Research Foundation have renewed the agreement of this case without any objection.

The main purpose of the review committee’s opinion is that the relevance between B and G research is not known or is low in relation thereto, and that the relevance can not be ruled out entirely.

The research task in this case is "C Project" (K), which is a project to discover researchers with creative ideas or knowledge and to select and support small number of researchers in order to support the world, and to select and support small number of researchers, due to its nature, the research method can be a creative content deviating from the existing main research method. The research task in this case is performed for a long period of about nine years, and the initial plan may be modified depending on the progress of research and development, and the appropriateness of the modification is subject to verification procedures through interim evaluation and renewal of the agreement. Therefore, the determination that any research method has no relevance to the subject of research or the initial plan should be more careful.

The basic ideology of the Framework Act on Science and Technology is to harmonize scientific and technological innovation with the natural environment and social ethical values on the basis of human dignity, to have it become a driving force for the development of economy and society, and to have the autonomy and creativity of the scientists and engineers respected (Article 2). In light of this, sanctions on the contents of research execution should be imposed within the scope specifically provided for in the Framework Act on Science and Technology.

Article 11-2 (1) of the Framework Act on Science and Technology provides for the requirements for restrictions on participation in research and the recovery of project costs, and Article 11-2 (1) of the Framework Act on Science and Technology provides for cases where research and development is determined as failed projects based on evaluation conducted by central administrative agencies due to extremely poor outcomes of research and development under subparagraph 1, subparagraph 7, or where research and development is performed by false or other unlawful means. If the relevant grounds for disposition were not formally determined, such as where research funds are executed for those not designated as participating researchers, or where research funds are disbursed for items that cannot be used as research funds, the circumstances that the research itself is inappropriate, or where there are ethical problems per se for the act of participating researchers to participate in research, are limited to cases where it is done by improper means or where the results are extremely poor, it can be subject to sanctions pursuant to subparagraph 1 or 7 of Article 11-2 (1) of the Framework Act on Science and Technology, and it is deemed that it constitutes use for purposes other than the purpose of use immediately.

(2) In light of the above circumstances, it cannot be readily concluded that there is no degree of challenge in the instant research task, and even if there is little relevance between the instant research task and G research, such circumstance alone cannot be readily concluded that G is an act of use other than the purpose stipulated in Article 11-2 of the Framework Act on Science and Technology. Moreover, since G was designated as a participating researcher of the instant research task and executed research funds with regard to G, the act of executing research funds itself cannot be deemed to be an act of use for the purpose of use. Accordingly, the instant research project is unlawful in relation to the instant disposition

4) Grounds for the additional disposition

(1) The defendant asserts that since the part of the research cost executed against G is irrelevant to the instant research task, it should be viewed as the use of research and development costs for any purpose other than its original purpose.

(2) The Defendant’s above assertion can be deemed as adding a new reason for disposition to the previous reason that the Defendant executed direct costs and research allowances of KRW 44,402,807 for G with no task.

However, the aforementioned additional disposition grounds do not lead to the research contents of G, but the part of the research expenses executed against G is irrelevant to the instant research task. As such, it cannot be said that the grounds for the initial disposition and the basic factual relations are identical, the foregoing disposition grounds for additional disposition are not allowed.

(3) Even if the foregoing disposition grounds are allowed, it is insufficient to recognize that the research funds executed for G are used for any purpose other than its original purpose only with the entries of Gap evidence 3 and the fact-finding results on the Korean Research Foundation prior to remand.

Rather, according to the statements in Gap evidence Nos. 36 and 37, among the expenditure statements written in the fact-finding results with respect to the Korean Research Foundation, G’s U.S. sandy and KRW 1,040,805, and KRW 3,569,700, which appears to have been used for the purchase of airline tickets to participate in the AB Ethy Conference held on March 22, 2012 for the purpose of attending the YI conference and publishing the thesis, and in light of the fact that G was registered in the draft of the article of the AB Ethy Assembly, and the name of G was written in the AB Study Program, unlike the defendant’s assertion, it appears that G was spent for a purpose consistent with the research purpose, and there are many circumstances that G appears to have spent research expenses for a purpose consistent with the research purpose. Accordingly, the defendant’s additional disposition is not acceptable.

(c)purchase equivalent to KRW 13,140,300 for research equipment and material costs, inconsistent with the details of the report;

1) The plaintiff's assertion

All products purchased in B’s laboratories are computers, their subsidiary products, and other electronic devices necessary to carry out the instant research task, and B used research and development costs in line with the purpose of the research project. Even if the details of the goods actually purchased and the details of the transaction statement submitted to the Plaintiff are partly different, the actual purchase details do not constitute a case where research and development costs are used for any purpose other than the purpose of the research and development project. Therefore, it cannot be acknowledged that there was a disposal reason for purchasing research equipment and materials costs in excess of the reported details.

(ii) the facts of recognition

The following facts are not disputed between the parties, or acknowledged by considering the whole purport of the pleadings in Gap evidence 3, Eul evidence 9 and 10, and witness testimony by Q of the first instance court.

○○ National Research and Development Project Management Manual issued by the Research Foundation of Korea around December 2014 provides that “the cost of maintaining office equipment, facilities, and the cost of purchasing office equipment (including PC, printers, and peripheral devices) not reflected in the Gu’s development plan is an unfair execution of research funds.”

O) The 'AA University Research Center' and 'AA University Research Center Research Center' specify that ‘the research equipment equivalent to KRW 10,000,000 not stated in the plan should be executed as expendable material costs without the procedures for approval for modification of the research plan.' In this case, the research equipment must be executed after obtaining approval for modification of the research plan from the industry-academic cooperation foundation (or the research expense support organization) in advance if the equipment is not appropriated.

OB received goods different from the details of transactions submitted to the Plaintiff, as stated in each item of the X Trading Director Co., Ltd. (attached Form 3) regarding the instant research task.

3) Grounds for disposition

According to the above facts, although B should execute research funds as stated in the plaintiff's transaction statement, B reported as if it had been paid material expenses, such as offline mileage, etc., and used them to purchase electronic equipment such as Nowon-west, printer, computer, CPU, monitors, keyboard, RAM, and SDR as stated in attached Form 3 (attached Form 3).

Since the state's subsidization of research and development expenses is not to subsidize the general operation expenses of a laboratory, it is necessary to promote appropriate budget execution in accordance with the purpose of the state's subsidization of research and development expenses by preventing research and development expenses paid by the state from being diverted for the purpose of purchasing general operation expenses or office supplies of laboratories.

In particular, since it is difficult to determine whether criminal-use equipment, such as a printer and a duplicater, has been used to perform a specific task, it is reasonable to see that such act constitutes a case where research equipment and material costs different from the reported content, have been used for any purpose other than the original purpose.

In this context, the "National Research and Development Project Management Manual issued by the Korean Research Foundation on December 2014" provides that "business equipment, maintenance and repair costs of facilities, and purchase costs of equipment for general use, which are not reflected in the "Research and Development Plan" as a case of improper execution of research costs, and the "Research Cost Execution Dod" also stipulates that the case of request for payment as expendable material costs after purchasing research equipment not appropriated in the plan.

Therefore, it is recognized that B purchased goods that are actually purchased in the laboratory regardless of whether they are used in the laboratory, equivalent to KRW 13,140,300 in the research site's non-cost and material cost are inconsistent with the report details.

5. Degradation of discretionary power, abuse and revocation of disposition;

(a) A deviation or abuse of discretionary power;

(1) Examining the facts acknowledged as above and the purport of the entire pleadings in the instant restitution disposition in full view of the fact of deviation and abuse of discretionary power as follows.

A research and development expenses paid to a managing research institute pursuant to Article 12 of the instant provision are paid to support national research and development projects to improve science and technology, enhance national competitiveness, thereby contributing to the development of the national economy, enhance the quality of life of the people, and contribute to the development of the human society. However, the public interest to be appropriately disbursed according to the payment purpose and usage is significant. However, the disposition of restriction on participation and recovery of research funds under Article 11-2 (1) of the Framework Act on Science and Technology is excluded from a national research and development project for a certain period of time, and the managing research institute or a person in charge of research who is capable of performing research from the national research and development project and redeems research funds used for such research. As such, it is likely to undermine the ultimate purpose of the Framework Act on Science and Technology, which aims

In the recovery disposition of this case, the reason for the joint management of the student personnel expenses of 68,697,065 won, and the reason for the disposal of the direct expenses and research allowances of 44,402,807 won for G with no task, are not acknowledged, and only the reason for the disposal of the purchase of the amount equivalent to 13,140,30 won for research equipment and material expenses of 126,240,172 won which is inconsistent with the details of the report is acknowledged. As such, the circumstances that form the basis for the calculation of the recovery amount cannot be maintained.

In fact, the money used for purposes other than those in B was used to purchase equipment, such as Nowon-North Korea, cream, computer CPU, monitors, keyboard, RAM, and SSS. Even if such equipment was not limited to the instant research task, it is recognized that the contribution to the instant research task was made as equipment necessary for laboratory operation, and there seems to be no other personal benefit, such as embezzlement or misappropriation of the relevant amount. Considering these circumstances, it is difficult to deem that the act of use outside the purpose of the Framework Act on Science and Technology prohibiting it is inconsistent with the purport of the Framework Act on Science and Technology, and thus, it is relatively low possibility of criticism.

In the event that the recovery disposition in this case is maintained, it is likely that the purpose of the Framework Act on Science and Technology is to reform science and technology and to strengthen national competitiveness by creating a foundation for the development of science and technology due to the decline in activities related to the relevant field of research, and thus, would be against the purpose of the implementation of the Framework Act on Science and Technology.

(2) In light of the above circumstances, the restitution disposition of this case is partially erroneous for finding facts as to the grounds for the disposition, and the disposition is more unfavorable than the public interest to be achieved by the disposition, and thus, the restitution disposition of this case is eventually unlawful as it is a deviation and abuse of discretionary authority.

B. Cancellation of the instant restitution disposition

(1) Article 11-2(1)5 of the Framework Act on Science and Technology provides that the head of a central administrative agency may recover all or part of the project funds already contributed when using research and development funds for any purpose other than the intended purpose.

In light of the contents and purport of the above provision, whether to determine the amount of the contribution and the amount of the recovery shall belong to the discretion of the competent administrative agency. However, if there are serious errors in fact-finding, which is the basis of the determination in exercising discretion, or if there are grounds such as violating the principle of proportionality and equality or significantly losing validity under the social norms, it shall be deemed unlawful as a deviation or abuse of discretionary authority. In addition, in a case where the competent administrative agency recognizes that the disposition of the recovery of the contribution is unlawful as a deviation or abuse of discretionary authority in determining whether to recover the contribution and the amount of the recovery of the contribution, the court can only determine whether it is deviation or abuse of discretionary authority, and it is not possible to determine which degree within the scope of discretionary authority. Thus, the entire disposition of the recovery of the contribution can only be revoked, and the court may not revoke only the portion exceeding the reasonable portion (see, e.g., Supreme Court Decisions 2007Du18062, Jun. 23, 2009; 2015Du53657).

(2) 이 사건 환수처분의 처분사유는, ▲ 학생인건비 68,697,065원을 공동관리하였다는 처분사유, ▲ 과제기여도가 없는 G에 대해 직접비 및 연구수당 44,402,807원을 집행하였다는 처분사유, - 연구장비 · 재료비 13,140,300원 상당을 신고내역과 불일치하게 구입하였다는 처분사유이다.

However, as seen earlier, the grounds for the disposition of KRW 68,697,065 and the grounds for the disposition of KRW 44,402,800 are not recognized, and only the grounds for the disposition of KRW 13,140,300 are recognized. Since the disposition of this case is illegal as a deviation or abuse of discretionary power, this court cannot determine whether the amount of redemption within the scope of the defendant's discretion is appropriate, and ultimately, the entire restitution disposition of this case shall be revoked.

6. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is reasonable, and it is so decided as per Disposition by admitting the claim.

Judges

The presiding judge, judge and assistant judge

Judge Go-young

Judges Lee Jae-won

Note tin

1) The Ministry of Education, Science and Technology changed to the Ministry of Science, ICT and Future Planning and the Ministry of Science, ICT and Future Planning pursuant to the Government Organization Act amended by Act No. 11690 on March 23, 2013. National research and development tasks related to this case were transferred to the Ministry of Science, ICT and Future Planning. The Ministry of Science, ICT and Future Planning revised the Government Organization Act as amended by Act No. 14839 on July 26, 2017.

2) [Attachment 2] Criteria for counting research and development expenses by item (related to Article XII(5))

Jinay

3. Personnel expenses paid to a student researcher of a university or a specific research institute (limited to the relevant institution) among external personnel expenses shall not be jointly managed by a person in charge of research;

5. Research allowances shall be prepared for each research institute and reasonable standards for the efficiency of research and development, and shall be appropriated and paid in accordance with those standards;