2017du61836 Return of contributions and revocation of restrictions on participation.

1.A University Industry-Academic Cooperation Foundation

2. B

[Defendant-Appellee] Defendant 1 et al., Counsel for defendant-appellee

The President of the Korea Evaluation and Management Agency of Industrial Technology

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Lee Young-young, Counsel for the plaintiff-appellant

Seoul High Court Decision 2017-34218 Decided August 18, 2017

January 9, 2020

Plaintiff B’s appeal is dismissed.

The appeal by Plaintiff A University and Industry Cooperation Agency and the defendant's appeal are all dismissed. The cost of the appeal shall be borne by each party.

The grounds for appeal are determined.

1. Determination ex officio as to Plaintiff B’s appeal

An appeal is seeking revocation or alteration of a judgment disadvantageous to himself/herself in favor of himself/herself. As such, the appeal filed against the original judgment in favor of him/her cannot be permitted as there is no benefit of filing an appeal. Whether an appellant is disadvantageous to him/her should, in principle, be determined on the basis of the text of the judgment, and if he/she won the appeal after accepting the appellant's assertion, there is no benefit of appeal even if there is a dissatisfaction for the reason of the judgment (see, e.g., Supreme Court Decision 20092355, Jun. 3

Plaintiff B won all the claim seeking revocation of each of the instant dispositions of restriction on participation in the lower court, but only filed an appeal on the ground that each of the instant dispositions against Plaintiff A University Industry Cooperation Foundation (hereinafter referred to as “Plaintiff Cooperation Agency”) was unlawful. Accordingly, Plaintiff B’s appeal against Plaintiff B did not have any interest in appeal.

2. Judgment on the grounds of appeal by the Plaintiff Cooperation Agency

A. The grounds of appeal on the first and second parts of the grounds of appeal are not that the student research institute voluntarily created and managed the joint management fund, but that the use of the joint management fund managed by the Plaintiff B through E as laboratory operating expenses, etc. constitutes a case where the contribution is used for any purpose other than research purpose.

A legal ground of appeal is not a ground of appeal, because the purport of pointing out grounds for death and fact finding is merely a ground of appeal.

B. Ground of appeal Nos. 3 and 4

Article 11-2(1)5 of the former Industrial Technology Innovation Promotion Act (amended by Act No. 14592, Mar. 14, 2017; hereinafter referred to as the "Promotion Act") provides that where the government contributions such as institutions, organizations, and enterprises participating in a project for the development of industrial technology are used for any purpose other than research and development costs, the Minister of Trade, Industry and Energy may recover all or part of the project funds already contributed to him/her.

In light of the contents and purport of the foregoing provision, discretion is given as to whether the Defendant, who was delegated by the Minister of Trade, Industry and Energy with the authority to recover, etc., is to determine the amount of recovery and the amount of recovery in cases where there exist grounds for such discretion. However, if there exist grounds, such as misunderstanding of facts in exercising such discretion or violating the principle of proportionality, such discretion is illegal as a deviation or abuse of discretion (see Supreme Court Decision 2015Du53657, Mar. 24, 2016).

The lower court determined that each of the instant restitution dispositions was an appropriate means to achieve a significant public interest purpose that would be appropriately disbursed in accordance with the purpose and purpose of the payment of contributions, and that the disadvantages incurred thereby by the Plaintiff Cooperation Agency are at least necessary, and that it did not constitute deviation from and abuse of discretionary power in each of the instant restitution dispositions.

Examining the reasoning of the original judgment in light of the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on deviation and abuse of discretionary power, as otherwise alleged in the grounds of appeal.

3. Judgment on the grounds of appeal by the defendant

According to the reasoning of the judgment of the original court, the court below determined that each of the dispositions of this case's restriction on participation is an unlawful disposition that deviates from or abused discretion in violation of the principle of proportionality, since the disposition of this case's restriction on participation is only a disadvantage suffered by Plaintiff B compared to the public interest to be achieved thereby.

Examining the reasoning of the original judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on deviation and abuse of discretion, etc., as alleged in the grounds of appeal.

4. Conclusion

Therefore, the appeal by the plaintiff B is dismissed, and all appeals by the plaintiff Cooperation Agency and the defendant are dismissed, and the costs of the appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ansan-chul

Justices Park Sang-ok

Justices Noh Jeong-hee

Chief Justice Kim Jong-hwan