(영문) 서울행정법원 2011.8.18.선고 2010구합39656 판결

2. The Defendant’s disposition of restitution against the Plaintiff on September 15, 2010 is revoked. 3. The costs of appeal are assessed against the Defendant.

Purport of claim

On September 15, 2010, the Defendant confirmed that the restitution disposition against the Plaintiff on September 15, 2010 is null and void, and the judgment in preliminary case is the same as the Disposition No. 2.

Reasons

1. Details of the disposition;

A. On April 18, 2007, the Defendant paid the Korea Environmental Industry and Technology Institute [the former Environmental Technology Development and Support Act (amended by Act No. 8957, Mar. 21, 2008; hereinafter the same shall apply] Article 5-2 of the former Development of and Support for Environmental Technology Act (amended by Act No. 8957, Mar. 21, 2008; hereinafter the same shall apply], which was amended by Act No. 9335, Jan. 7, 2009; hereinafter the Korea Environmental Industry and Technology Institute has comprehensively succeeded to the rights and obligations of the Korea Environmental Technology Institute; hereinafter the same shall apply] with the Korea Environmental Technology Institute, the Defendant’s total research and development expenses of KRW 45.78,6 million for the research projects of KRW 174,200,000 for the Korea Environmental Technology Institute, which are the basis provisions for the establishment of the Korea Environmental Technology Institute, and the Gu Environmental Technology Institute’s research and development Business Directive (amended by the Ministry of Environment No. 2717.27.7.25.

B. On April 18, 2007, the Technology Institute entered into an agreement on environmental technology development projects with the Plaintiff (hereinafter referred to as the “instant agreement”) based on the said agreement, and its main contents are as follows.

(1) Outline of environmental technology development projects.

○ Project Name; B Development Project

-Name of research and development task; C (hereinafter referred to as "the research task in this case"); representative director D of the Plaintiff

○ Representative of the participant enterprise; Representative Director D of the Plaintiff

○ Project period: The total research and development expenses from April 1, 2007 to March 31, 2009; 968 million won (i.e., government contributions KRW 680 million + the total amount of KRW 288 million of private contributions) during the research and development period: From April 1, 2007 to March 31, 2009.

② The Institute of Technology shall grant the Plaintiff KRW 340 million each of the government contributions during the first research and development period (from April 1, 2007 to March 31, 2008) and the second research and development period (from April 1, 2008 to March 31, 2009).

(3) If a cause for the cancellation of an agreement arises as prescribed by the operating rules, etc. of this case, the Technology Institute may cancel this agreement. If the agreement is cancelled, the Plaintiff shall promptly return the balance of government contributions issued for the relevant development project to the Technology Institute, and the Technology Institute may recover the amount equivalent to the share of government contributions issued for the relevant development project or tangible products such as research equipment and materials, etc., as prescribed by the operating regulations of this case

4. The provisions contained in operational regulations, etc. shall also be deemed to be the content of this Convention. If the plaintiff violates the provisions of this Convention and related provisions, the defendant may have the KAC take necessary disciplinary measures within the extent permitted by relevant provisions to the plaintiff.

C. On September 15, 2010, based on Article 5 of the Development of Environmental Technology Act and Article 15 of the Enforcement Decree of the same Act, the Defendant notified the Plaintiff of restitution of KRW 332,016,99 out of the research and development expenses received from the Technology Institute (hereinafter “instant disposition”).

[Ground of recognition] The non-contentious facts, Gap evidence 2-1, Gap evidence 19, the whole pleadings, and the purport of the whole pleadings

A. The defendant's assertion

The Defendant merely notifies the Plaintiff on September 15, 2010 as the actual party to the instant agreement, and merely notifies the Plaintiff of the withdrawal of part of the government contributions paid to the Plaintiff by the Institute of Technology to the Plaintiff, and cannot be deemed an administrative disposition, which is a unilateral exercise of governmental authority, as a law enforcement on specific facts that turn on a notice of restitution. Therefore, the instant lawsuit is unlawful.

B. Determination

(1) A disposition subject to an administrative litigation means the exercise or refusal of public power as an enforcement of law with respect to a specific fact by an administrative agency, and other similar administrative actions (Article 2(1)1 of the Administrative Litigation Act), which directly affects the rights and obligations of citizens (Article 2(1)1 of the Administrative Litigation Act).

(2) Articles 5, 9, 14, and 15 of the former Development of Environmental Technology Act provide that when the Defendant carries out environmental technology development projects (in this case, B development projects; hereinafter referred to as “development projects”), the government contributions shall be paid in accordance with the agreement after concluding an agreement with the supervising research institute on the research tasks and the person in charge of the research, the expenses and methods of the development projects, the utilization of the results and methods of the development projects, the collection of royalties, the amendment of the agreement, the termination of the agreement, and the matters related to the implementation of the development projects, and other matters related to the implementation of the development projects. Accordingly, the development projects contributed by the Defendant are in the form of a contract under public law, and the former Development of Environmental Technology Act provides the Technology Institute under the Defendant’s control to facilitate the implementation of the development projects, the support for planning, evaluation, and management of the development projects, the demand survey and technological prediction of the development projects, and the distribution and promotion of the developed environmental technologies (see Article 5-2 of the same Act).

In addition, according to the letter of agreement of this case (Evidence 2-1 of evidence No. 2 of this case), when the plaintiff violates the operating rules of this case, the Fire Institute Chairman may cancel the agreement of this case and request the return of the balance of the government contributions directly (see Articles 7(1) and 12 of the Convention) or the defendant may take necessary disciplinary measures through the Fire Institute Chairman (see Articles 12, 13(3) of the Convention). Article 13 of the Convention only provides that "the Minister of Environment shall either (a) or (b)" and uses any expression that is not in conformity with the fish law, but its meaning is interpreted as "(a) or (b)." Considering that the Fire Institute is a corporation with independent legal capacity, it is difficult to view that the defendant is a party directly or directly to the agreement of this case (see Article 5-2(2) of the former Environmental Technology Development Act) and there is no evidence to prove that there is no reason to acknowledge that the defendant directly demanded the plaintiff to recover government contributions of this case.

(3) Furthermore, in light of the circumstances that the Defendant’s notification of restitution constitutes a sanction against the Plaintiff’s use of government contributions received for any purpose other than the original purpose under Article 5(6) of the former Development of Environmental Technology Act and Article 15(2) of the Enforcement Decree of the same Act, and that if the Plaintiff refuses to comply therewith, it is reasonable to deem that such notification constitutes the exercise of public authority directly affecting the Plaintiff’s rights and obligations.

(4) Therefore, the above notification constitutes a disposition subject to administrative litigation, and the defendant's above assertion is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Since the primary claim is a technology institute as a party to the instant agreement, the Defendant cannot demand the Plaintiff to recover government contributions. However, if the Defendant rendered the instant disposition based on Article 15(2) of the former Enforcement Decree of the Development of Environmental Technology Act, it is null and void as it is based on the provisions of the Enforcement Decree null and void due to the lack of delegation of the former Development of Environmental Technology Act. In addition, even if the above Enforcement Decree provision is lawful, it can only be applied as a ground provision for the recovery of government contributions only when the Defendant directly entered into an agreement with the managing research institute. Accordingly, the instant disposition is not applicable to the case where the Technology Institute entered into an agreement with the managing research institute as in the instant

(2) Preliminary Claim

The instant disposition to pay KRW 332,016,99, which is the full amount of government contributions, even though the amount of the government contributions paid by the Plaintiff from the Technology Institute is only KRW 320,254,000,000.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Judgment on the main claim

(A) As seen earlier, the Defendant is not a party to the instant agreement, but the grounds for the instant disposition are Article 5(6) of the former Development of Environmental Technology Act, Article 15(2) of the Enforcement Decree of the same Act, which is not the instant agreement, and thus, the Plaintiff’s primary claim is without merit. Article 5(6) of the former Development of Environmental Technology Act provides that matters necessary for the payment, use, management, etc. of government contributions shall be prescribed by Presidential Decree. Thus, it is reasonable to deem that the concept of the above “management” includes a refund of the amount of government contributions paid to the main research institute, if any, or if it is used differently from the purpose of use. Therefore, the Plaintiff’s primary claim is without merit

In light of the fact that Article 15(2) of the Enforcement Decree of the Development of Environmental Technology Act does not require the Defendant to be a party to an agreement as a requirement for recovery disposition, and on the other hand, according to the instant agreement, the laws and regulations that the Plaintiff ought to observe include the former Environmental Technology Development Act, the Enforcement Decree of the same Act, and the instant operational regulations (Article 12 of the Convention), it is reasonable to view that the Defendant can recover government contributions based on the above Enforcement Decree even if the Defendant did not directly conclude an agreement with the supervising research institute

(2) Determination on the conjunctive claim

(A) Facts of recognition

The following facts may be acknowledged in full view of each of the statements in Gap evidence 3 through 10, Gap evidence 11-1, 12, 13, 14, Gap evidence 15-1, 2, Gap evidence 16, 17, 18, 23, and 24, and the whole purport of the pleadings:

① From February 25, 2008 to February 29, 2008, the Institute of Technology conducted annual and final evaluations of the instant research task, and notified the Plaintiff that the Plaintiff would suspend the instant research task on the grounds that the Plaintiff failed to prove the production of the first year pilot, and that the research plan for the next year is unclear, and that the Plaintiff would be prohibited from participating in the development project from March 17, 2008 to March 16, 201, and would recover the amount of unfair execution through precise settlement.

② Although the Plaintiff filed an objection, the KAC rejected the Plaintiff’s objection on March 14, 2008 on the ground that the progress of the production of prototypes was verified by photographs and evidentiary materials, but the installation was delayed, and that the annual performance and the subsequent year’s research plan were insufficient and neglected to make a presentation at the time of annual evaluation.

③ On March 17, 2008, the Technology Institute notified the Plaintiff of the performance report on the use of research and development expenses and evidential documents to submit them to E Accounting Corporation, an institution settling accounts, and submitted to the Technology Institute a settlement report on May 15 of the same year after E Accounting Corporation, which received data, settled the actual use of research and development expenses, and submitted a settlement report on the settlement of KRW 320,254. The Technology Institute recovered KRW 320,254 from the Plaintiff on June 18 of the same year according to the settlement report.

④ From March 16, 2009 to February 27, 2009, the Defendant conducted a comprehensive audit of the Technology Institute. As a result, after the suspension of the instant research task, determined that there was an error in recognizing that the full amount of the cost of production of a prototype was appropriately executed even if the person in charge of E-accounting did not visit the Plaintiff’s place of business until the time of visiting the Plaintiff’s place of business to verify the actual usage of research and development costs, and ordered the Technology Institute to recover KRW 34,617,00 from the Plaintiff.

⑤ On June 3, 2009, the Institute of Technology decided the total amount of the production cost of a prototype as an unfair execution amount, and notified the Plaintiff of the total amount of KRW 332,016,99 of the Government contributions in total, out of KRW 346,176,548.

⑤ On June 29, 2010, the Plaintiff filed an administrative appeal against the notice of restitution, and the Prime Minister’s Administrative Appeals Commission revoked the aforementioned notice of restitution on the ground that the Technology Institute did not have the authority to notify restitution. After that, the Defendant rendered the instant disposition against the Plaintiff on September 15, 2010.

The operating rules of this case were prepared to efficiently promote development projects, and mainly consisting of ① the contents and procedures of agency business related to development projects of the Institute of Technology, Defendant’s management, supervision, ③ indirect management, supervision, and grounds for sanctions against Defendant’s research institutes through the Institute of Technology, and ③ indirect management, supervision, and sanctions against the Defendant’s research institutes through the Institute of Technology. Considering that the agreement of this case was concluded between the Defendant’s agency, the Institute of Technology, and the Plaintiff, and included the contents of the instant operating regulations in the agreement, it is reasonable to deem that the Defendant should comply with the procedures of the operating regulations

In light of the above legal principles, the attached Table 3 of Article 40(1) of the Operational Rule of this case provides that government contributions may be recovered for the task suspended as a result of the evaluation of the stage and the annual evaluation. The interpretation of the Operational Rule of this case provides that the main research institute may evaluate the suspension of business, even if the research institute fails to produce research outcomes, and if the research outcomes do not have any specific utility value, the amount to be recovered can be determined through the detailed settlement. However, as seen earlier, although the Plaintiff appears to have paid considerable amount of money for the production cost of the pilot project related to the research task of this case, the Defendant was deemed to have used 32,016,99 won for the entire purpose without conducting the precise settlement solely on the ground that the non-production of research outcomes was used for the purpose other than the original purpose. This is deemed unlawful in violation of the Operational Rule of this case.

3. Conclusion

Therefore, the plaintiff's primary claim of this case is dismissed as it is without merit, and the conjunctive name is justified, and it is decided as per Disposition with the assent of all participating Justices.