2015Gu Partnership 10239 Revocation of Disposition, etc. of Restriction on Participation

A

The National Research Foundation of Korea

March 17, 2016

March 31, 2016

1. The Defendant’s disposition of restricting participation in national research and development projects for three years (from February 24, 2015 to February 23, 2018) against the Plaintiff on March 3, 2015 is revoked.

2. The Defendant’s disposition of restricting participation in national research and development projects and disposition of recovering unfair execution research funds for three years (from March 10, 2015 to March 9, 2018) against the Plaintiff on March 25, 2015, respectively, shall be revoked.

3. On October 22, 2015, the Defendant’s disposition of restricting participation in national research and development projects for three years (from February 24, 2015 to February 23, 2018) against the Plaintiff and disposition of requesting the return of the amount of unfair execution of research expenses is revoked.

4. The costs of the lawsuit are assessed against the defendant.

5. The disposition taken by the Defendant against the Plaintiff on March 3, 2015, March 25, 2015, March 2015, 2015, 2015, and October 22, 201, the disposition taken against the Plaintiff on the restriction on participation in each national research and development project and the disposition taken to recover research costs shall cease

The same shall apply to the order.

1. Details of the disposition;

(a) The Plaintiff as a professor and new materials engineering of the B University: The name of the Plaintiff (type): A project (type of talented human resources development in the future), the name of the project team: the group of semiconductor materials research projects, the total project period: September 1, 2013; the project cost: 21,800,000 (annual) project cost: the name of the research and development project "the head of the team" (hereinafter referred to as the "C project of this case"): the core individual research, research and development cost: 9,00,000 won for each year of research and development costs, the total research period from May 1, 2012 to April 30, 2015, and the person who is the research manager of the Convention (hereinafter referred to as the "Research and Development Convention of this case") shall be the person in charge of research and development of the C project of this case and the Defendant shall be the person in charge of research and development of the C project of this case.

B. On July 2014, the Plaintiff reported that the research scholarship was illegally collected from a graduate school student in relation to the national research and development project, the Defendant and B University established a fact-finding committee to grasp the truth. On August 21, 2014, the fact-finding committee directly conducted an investigation into the bank account of the informant in relation to the amount executed as a research scholarship 1,730,00 won, and the informant is not clear of memory, and A professor stated that it was used as a "private work," and that it was used as a laboratory expense. 2) In addition to the above amount, it is confirmed that the details of the research scholarship were 00,000,000 won and the total amount of the research scholarship were 10,000,000 won and 20,000,000 won and 30,000,000,000 won and 30,000,000,000 won and 4,000,00,000 won and 2,00.

D. On November 27, 2014, the Defendant notified the president of B University as the recipient of the results of the investigation into the unfair execution of the project costs of B University on November 27, 2014, by e-mail, the Defendant notified the president of B University to return KRW 8,441,480 for common expenses and other improper execution amount of KRW 384,200 for which the financial resources identified in the results of the additional investigation into the joint expense of the research team of B University and the interview with the participating researcher are unclear, and again notified the Plaintiff by December 15, 2014. The staff at B University notified the Plaintiff of this fact by e-mail. Accordingly, the Plaintiff returned the total amount requested for return to KRW 8,825,680 for the Plaintiff. Accordingly, the Plaintiff considered that there was no legal obligation to comply with the Defendant’s request for return, but expressed that the Plaintiff requested the return of the amount to the Defendant and the Defendant’s school, and the relationship between the Defendant and the school.”

F. On March 3, 2015, the Defendant sent the e-mail of the title “information on the results of sanctions following the unfair enforcement of the CC project costs” to the president of B University, and made a disposition to restrict the Plaintiff from participating in the national research and development project for three years on the grounds of unfair enforcement, such as joint management of project costs (student scholarship) and joint management (hereinafter “instant restriction on participation”). The details are as follows.

In relation to the case of unfair execution of project costs incurred by the E-university C project team, the results of sanctions on the head of the relevant project team shall be notified as follows to refer to the related work.The reason for sanctions is as follows: Matters of unfair enforcement sanctions such as joint management of project costs (student research scholarships) - Three years (the period of restrictions on participation: 15.2.24 - 18.23 ) of restrictions on participation in national research and development projects - the period of restrictions on unfair enforcement m- refund of project costs (the period of restrictions on participation) - Article 45 (Criteria of Restriction on Participation and Refund of Project Costs) of the Regulations on the Handling of Research and Development Projects under the jurisdiction of the Ministry of Education for the Framework of Education - Article 20 (Exclusion of Persons Eligible for Academic Support from Selection of Persons Eligible for Research Support) of the Sciences Promotion Act and Article 20 (Exclusion of Persons Eligible for Selection of Persons Eligible for Academic Support) of the Enforcement Decree.

G. On March 25, 2015, the Defendant sent an e-mail to the addressee as the president of B University, which is the result of a disciplinary measure following the enforcement of the measure of unfair performance of research expenses, and the content that restricts the Plaintiff’s participation in national research development projects for three years on the ground of unfair enforcement of student personnel expenses (i.e., recovery and joint management), and issued a disposition that collects KRW 3,69,720 for research expenses (hereinafter referred to as “instant disposition of restriction on participation and recovery”), and the details thereof are as follows.

The results of approval of sanctions for the execution of research funds by a person in charge of research and development projects (including refund of research funds) in the process of performing support projects for middle-standing researchers shall be notified as follows: (a) the target subjects and subjects, and the person in charge of research and development (B) the person in charge of research and development (B) shall be subject to the notification as follows, and the results of approval of sanctions for the execution of research funds (B) the person in charge of research and development projects (B). The details of sanctions (B) the person in charge of research and development projects shall be three years (3.10 to 9 March 2015) the restriction on participation in national research and development projects (2) the restriction on participation in national research and development projects (2) the restriction on participation in research and development projects (3,69,720 won (including refund interest) and (3) the suspension of research and development projects under the provisions related to the termination of the Convention (C) the restriction on participation in research and development projects under the jurisdiction of the Ministry of Science, ICT and Future Planning (ICT) and Future Planning).

H. Since October 22, 2015, the Defendant sent the e-mail of the title "measures to impose sanctions against the use of research funds for purposes other than research funds and to recover research funds" to the president of B University, the Defendant restricted the Plaintiff to participate in national research and development projects for three years, and imposed a disposition to recover the amount of KRW 4,741,760 illegally executed research funds (hereinafter collectively referred to as "the aggregate of the measures to restrict participation and recover the foregoing measures to restrict participation") and the details thereof are as follows.

2. Notify the relevant researcher of the details of sanctions approved by the Government regarding the use of research funds by researchers belonging to the institution for research, and of the recovery of research funds, as follows:

In order to prevent the same case from occurring in the future, the State will take full charge of research management.A. The details of sanctions are to request the return of the amount of unfair enforcement of the restrictions on participation in national research and development projects.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, 6, 12, 13, 16, Eul evidence Nos. 2 and 3, the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Form.

3. Determination as to the defendant's defense prior to the merits

As to the part of the lawsuit of this case seeking revocation of the notification of the withdrawal of research funds, the Defendant asserts that since the notification of the withdrawal of research funds was made to the Plaintiff, the main institution in charge, and it was not made to the Plaintiff, the Plaintiff, who is not the other party to the disposition, should be dismissed this part of the lawsuit since there is no legal interest

A. Article 11(2) of the Framework Act on Science and Technology that regulates the integration of various matters concerning the operation and management of national research and development projects, such as the instant project, provides that “The Government shall carry out national research and development projects according to the following,” and each of its subparagraphs requires the strengthening of support to enhance the research and development capacity by creating the best research environment for research institutes and researchers (Article 11(2) (Article 2). If the Government prepares any systems or regulations related to national research and development projects, the Government should consider the autonomy of research institutes and researchers as the top priority (Article

B. In addition, Article 7 of the Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 26500, Aug. 24, 2015) that regulates detailed matters concerning the implementation of national research and development projects according to the delegation of the Framework Act on Science and Technology provides that a research institute subject to research and development funds shall be selected after undergoing an examination of research and development tasks requested by a researcher who belongs to a research institute, such as a university or college. Article 9 provides that a research institute subject to research and development funds shall be subsidized by entering into a project agreement with the head of a central administrative agency or the head of a research institute entrusted with duties by him/her; Article 12 provides that research and development funds contributed by the head of a central administrative agency shall be paid to the head of a research institute to manage and execute them; Article 11 provides that the head of a central administrative agency may cancel an agreement as prescribed by the agreement where it is difficult to continue research and development due to a serious violation of a research institute or a participating enterprise's major violation (Article 2).

C. In addition to the legislative intent and contents of the Framework Act on Science and Technology, it seems that the State contributes research and development expenses to universities which are the main research institute of the C project under the interpretation of the Science and Technology Promotion Act and the Framework Act on Science and Technology: (1) it appears that the purpose is not only to foster the ‘research-oriented university', but also to strengthen the capacity of research personnel belonging to the university; (2) it is basically related to the research and development task applied for by a specific research unit belonging to the university (hereinafter "research team"); (3) it is not based on the affiliated university; (4) the university is an external main entity of the management and enforcement of the research and development project; (4) substantial interest due to the agreement belongs to the research team, the main entity of the relevant research and development project; and (4) it constitutes an administrative disposition, such as the recovery of research and development expenses under the Framework Act on Science and Technology and the restriction on participation in the national research and development project; and (5) it appears that the research team leader, etc. affected by its legal status, at least, has no specific legal interest in the research and development project.

4. The plaintiff's assertion

A. The Framework Act on Science and Technology, the Promotion of Sciences Act, and the Enforcement Decree of the same Act, which are the basis laws and regulations on each of the dispositions of restriction on participation, do not have any provision that can delegate the authority to take sanctions such as the disposition of restriction on participation in national research and development projects and the disposition of recovery thereof to the Defendant National Research Foundation. Therefore, the sanctions against the “C projects” should be imposed by the head of the competent central administrative agency, not the Defendant,

B. In the instant disposition of restriction on participation, even though the written disposition under the Administrative Procedures Act should be served on the other party to the disposition, the Defendant merely notified the Plaintiff’s head, not the Plaintiff, as the recipient, of the disposition of restriction on participation, by e-mail, and thus, the Plaintiff was not directly notified of each disposition of restriction on participation

C. Although the “C Project” is listed in the NTIS, it is unclear whether it constitutes a national research and development project subject to the Framework Act on Science and Technology and the regulations on the management, etc. of national research and development projects, since the notice of research tasks and the task agreement do

D. Although Article 45(8) of the "Regulations on the Management of Research and Development Projects in the Private Sector under the jurisdiction of the Ministry of Education", which is the basis for each disposition of restrictions on participation, provides that the defendant should notify the fact of the decision of restrictions on participation and the recovery of project costs together, the defendant only first did not notify the recovery of the amount of unfair execution, but did not notify the fact that the decision of restrictions on participation has already been made, and there is a problem that the disposition becomes effective before the plaintiff, who is the other party to the disposition, becomes aware of the contents

E. The Defendant’s disposition of restriction on participation in each of the instant project costs (student research scholarships) is unlawful as a deviation from and abuse of discretion, even if there is no ground for the Defendant’s improper execution of joint management or the improper execution of student personnel expenses.

5. Determination (whether the Defendant has the authority to impose each disposition of restriction on participation in the instant case);

A. In a case where an administrative agency performs administrative purposes under an administrative contract, the administrative agency may refuse to modify or cancel the terms and conditions of the contract, or seek payment of a certain amount pursuant to the terms and conditions of the contract, even though the administrative agency may refuse to modify or cancel the terms and conditions of the contract or seek payment of a certain amount, the restriction on participation in national research and development projects by other central administrative agencies, etc., which are not parties to the agreement, also brings about restrictions on the Plaintiff’s participation in national research and development projects, and thus constitutes a restrictive disposition infringing upon the Plaintiff’s rights and interests, and thus constitutes an administrative agency’s exercise of public authority against a private person, the law or subordinate statutes should be clearly based on the principle of statutory reservation. Furthermore, the delegation of administrative authority is

B. In accordance with the statements in Gap evidence Nos. 12, 13, and 16, the laws and regulations on the grounds for each of the instant dispositions on restrictions on participation shall be based on Article 11-2 of the Framework Act on Science and Technology, Article 20 of the Sciences Promotion Act, and Article 20 of the Enforcement Decree of the same Act, Article 45 of the Regulations on the Disposal of Research and Development Projects in the Private Sector under the Ministry of Education (hereinafter referred to as the "Regulations on the Management of Educational Research and Development"), Article 27 of the Regulations on the Management, etc. of National Research and Development Projects under the jurisdiction of the Ministry of Science, ICT and Future Planning (hereinafter referred to as the "Regulations on the Disposal of Research and Development") and Article 21 of the Regulations on the Handling of Research and Development Projects in the fields of Science, ICT under the jurisdiction of the Ministry of Science, ICT and Future Planning. Article 11-2 (1) of the Framework Act on Science and Technology provides that the head of central administrative agency may restrict the participation of national research and development projects under his/her jurisdiction.

C. Meanwhile, pursuant to Article 9 of the Ministry of Education Management Regulations (Ordinance No. 96), the Minister of Education: (a) pursuant to Article 10 of the Regulations on the Management of Ministry of Science, ICT and Future Planning (Ordinance No. 164); and (b) pursuant to Article 11(4) of the Framework Act on Science and Technology, the Minister of Science and Technology designated each specialized institution for the research and development projects under his/her jurisdiction; and (c) the head of a central administrative agency is necessary for the efficient implementation of national research and development projects under his/her jurisdiction. If deemed necessary, the head of a central administrative agency may fully or partially subsidize expenses incurred in planning, etc. to a person who performs planning, etc. (hereinafter “specialized institution”); and (d) Article 2 subparag. 6, Article 27(5) and (7) of the Management Regulations refer to an institution established or designated by the head of a central administrative agency to vicariously perform duties, such as planning, management, evaluation, and utilization of national research and development projects.

D. Therefore, in accordance with the Framework Act on Science and Technology and the Management Regulations, the Minister of Education, the head of central administrative agency, and the Minister of Science, ICT and Future Planning’s planning, management, evaluation, utilization, etc. of national research and development projects, may be deemed delegated to Defendant Korea Research Foundation, a specialized institution under the Framework Act on Science and Technology. However, there is no legal basis to deem that the authority of the Minister of Education and the Minister of Science, ICT and Future Planning regarding sanctions, such as restrictions on participation in national research and development projects and the authority of the Minister of Science, ICT and Future Planning, has been delegated to the Defendant, and the legal authority related thereto has been modified. As above, the scope of authority pertaining to planning, management, evaluation, and utilization of national research and development projects delegated to the Defendant cannot be deemed to include sanctions, such as restriction on participation in

E. Furthermore, since administrative agencies have limitations in accordance with the nature and content of administrative affairs, and there are regional limits, administrative dispositions by an unincorporated agency, which go beyond the scope of such authority, are, in principle, deemed null and void due to significant and apparent defects (see, e.g., Supreme Court Decisions 93Nu621, May 27, 1993; 96Nu4374, Jun. 28, 1996; 2002Du10704, Jul. 22, 2004).

As seen earlier, the Framework Act on Science and Technology and the Presidential Decree on the Management Regulations stipulate the authority to take sanctions such as restrictions on participation in national research and development projects as the head of the central administrative agency, and otherwise do not have the authority to delegate the authority to take sanctions to the Defendant, who is the head of the specialized agency, so each disposition of restriction on participation in national research

Although Article 17(2) of the Research and Development Convention (Evidence No. 2) provides that a defendant may take a disciplinary measure, it is clear and void (for example, the cancellation of a contract and the recovery of government contributions as the restoration of the original state), the infringement of an administrative agency may avoid the principle of statutory reservation that it should be conducted only based on the law, and thus, the provision of the Research and Development Convention cannot be deemed the legal basis for each of the dispositions of this case, since the defendant's own decision as a party to the contract does not constitute a legal basis for each of the dispositions of this case.

F. Therefore, each of the instant dispositions taken by the Defendant without the disposition authority is unlawful without the need to further examine the remainder of the Plaintiff’s claims.

6. Suspension of validity;

On the other hand, according to the records of this case, each of the dispositions of this case's restriction on participation recognized as an urgent need to prevent damage that may arise to the plaintiff, and there is no other evidence that the suspension of the effect may have a significant impact on public welfare. Thus, each of the dispositions of this case's restriction on participation shall suspend its effect ex officio until

7. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

The presiding judge and the associate judge;

Judges Cho Hon

Judges Kim Gin-han

1) Meanwhile, the term "administrative disposition", which is the object of an appeal litigation, is an act under the public law of an administrative agency, which is the establishment of rights under laws

direct changes in specific rights and obligations of the people, such as ordering the burden of obligations or giving other legal effects.

Act of the other party or other persons concerned such as acts, intermediation, solicitation, de facto notification, etc. inside the administrative authority.

Acts, etc. that do not cause direct legal change in the position may not be subject to an appeal litigation (Supreme Court Decision 2008 April 24, 2008).

Article 11-2 of the Framework Act on Science and Technology, Article 27 of the Regulations on the Management, etc. of National Research and Development Projects, etc.

The Minister of Education or the Minister of Science, ICT and Future Planning (hereinafter referred to as the "Minister of Education, etc.") shall have participated in research and development projects under his/her jurisdiction.

When the development expenses are used for any purpose other than the original use, all or part of the project expenses already contributed may be recovered, and the project expenses may be recovered.

Where the amount to be recovered is notified to the head of the relevant research institute, the Minister of Education, etc. shall deliberate on the matters concerning the redemption of project costs

In order to establish and operate a sanctions evaluation team, and the organization and operation of the sanctions evaluation team to the defendant National Research Foundation of Korea.

The Korean Research Foundation is organized and operated by the sanctions evaluation team, but it is not possible to implement the direct sanctions.

The results of deliberation by the Committee for Evaluation of Measures shall be reported to the Minister and may request him/her to implement sanctions and measures to recover project costs.

Therefore, the defendant's disposition of receiving research funds and requesting research funds to the plaintiff is merely merely a notification within the administrative agency.

It may be problematic whether direct change occurs to the rights and obligations of the plaintiff due to the above disposition of recovery of research funds, etc., but the defendant has central administration.

The defendant is not a disposition of restriction on participation of this case under the name of the Minister of Education, etc. or on behalf of the Minister of Education, etc.

In addition, each of the instant restrictions on participation in national research and development projects under the name of the president of the National Research Foundation.

In particular, the second disposition of the restriction on participation in this case was unfair in specifying the restriction on participation, the recovery of research funds, and the termination of the Convention as the content of the sanctions.

The third disposition of the restriction on participation in this case includes the fact that research costs of 3,69,720 won are subject to recovery, and the restriction on participation in the third disposition of this case is subject to sanctions.

There is a specific amount of notification, such as specifying requests for return of 4,741,760 won for measures and research funds;

In full view of the fact that there is an expression of intent to recover research funds directly, this is merely a government contribution that was paid to the Plaintiff.

(2) a legal act that directly affects the rights and obligations of the people beyond the notice of the concept of recovery in the future or the intermediate disposition inside the administrative agency.

It is reasonable to see that the defendant's disposition constitutes "disposition". The defendant's restriction on participation in national research and development projects and death.

Each disposition of restriction on participation in this case, which is premised on the authority to impose sanctions, such as recovery of operating expenses, etc., shall be taken by a person without the authority to impose

The problem is the problem of the effect of this Act.