2018Nu3232 Revocation of a disposition to recover research funds, etc.

A

Law Firm Jeonsese, Attorney Jeon Soo-soo

Attorney Kim Jong-type

The Minister of Science and ICT

Law Firm Doodo, Counsel for the defendant-appellant

Attorney Kim Il-young

Litigation performers shall be commercialized;

Seoul Administrative Court Decision 2017Guhap3373 decided December 21, 2017

August 17, 2018

October 19, 2018

1. The part against the defendant among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

2. The plaintiff's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

Defendant, on March 15, 2017, KRW 318,560,240 (No. 318,560)

Re-paid 4,734,160 won (including re-paid 4,734,160) and 5 years against the Plaintiff on March 22, 2017

A disposition to restrict participation in research and development projects shall be revoked.

2. Purport of appeal

[2] Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant industrialized B University on March 15, 2017

318,560,240 won (including surcharge 4,734,160 won) shall be recovered to the head of the school cooperation group.

Sector shall be revoked.

[Defendant] Paragraph (1) of this Article

1. Details of the disposition;

A. The Plaintiff, as a professor of the Dental College, participated in a research and development project (hereinafter “the instant research and development project”) that was entered into with the Korea Research Foundation (hereinafter “Korea Research Foundation”) that was delegated by the Ministry of Education, Science and Technology to carry out a research and development project (hereinafter “the instant research and development project”) as indicated in the following table with the Minister of Education, Science and Technology (the amendment of the Government Organization Act, the Ministry of Education, Science and Technology changed to the Ministry of Education and the Ministry of Science and Technology on March 23, 2013, and the Ministry of Science and ICT changed to the Ministry of Science and ICT on July 26, 2017.

[The current status of the plaintiff's participation task and the amount of recovery disposition] * If the amount used for any other purpose than research is less than 100 million won, 20% penalty charges shall be imposed (applicable to the task under the Convention after November 29, 2014).

B. The Korean Research Foundation conducted a specific audit on the execution of research expenses for the instant research and development projects in 2016, and determined that the Plaintiff, the supervising researcher, was using the personnel expenses to be paid to the student researchers who participated in the instant research and development projects by means of joint management. On November 15, 2016, based on the above specific audit result, the Defendant issued a new account for the supply of personnel expenses to the student researchers who participated in the instant research and development projects, and directly manage the Plaintiff’s account by requiring the Plaintiff to submit the passbook, password, and check card to himself/herself, and unfairly executed it for the purpose of redistribution of personnel expenses and payment of donations at universities. Accordingly, pursuant to Article 11-2 of the Framework Act on Science and Technology and Article 45 of the Regulations on the Management of Research and Development Projects in the Science and Technology under the jurisdiction of the Ministry of Science and Technology and Article 346,18,640 won in total, as stated in the above list, and notified the Plaintiff of the amount of the project expenses in advance restitution of KRW 34145,437.

C. On the other hand, the Plaintiff filed an objection on the ground that it is inappropriate to regard the portion of the amount under joint management as being used for the purpose other than the purpose of research, since the Plaintiff did not jointly manage personnel expenses of K Students 27,628,40 won out of the above 341,454,480 won, the total amount of the amount under joint management was KRW 318,826,080, and most of the amount under joint management was used as student personnel expenses, and it was inevitable to use it for the purpose other than the purpose of research, and thus, it was inappropriate to regard it as being used for the purpose other than the purpose. The Defendant did not jointly manage personnel expenses of KRW 27,628,40,240 on March 15, 2017; however, the Plaintiff’s restriction on participation was imposed for 318,560,240 won (i.e.,, the amount under joint management 313,826,080 won + the amount under sanctions 4,160 won (hereinafter referred to “the instant disposition”).

D. On March 17, 2017, the president of the Industry-Academic Cooperation Foundation of the B University deposited the amount of KRW 318,560,240 to the deposit account of the research foundation of the Korea Research Foundation until March 31, 2017 and then asked the Plaintiff to reply to the result.

[Ground of recognition] without any dispute, Gap's 1 through 5, Eul's 5 and 7, and all pleadings; 2. Judgment as to the main defense

This Court's reasoning is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this Court's reasoning is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

3. Determination on the legality of the disposition

A. Summary of the plaintiff's assertion

1) The Defendant issued each of the instant dispositions to the Plaintiff on the ground that “the Plaintiff had the Plaintiff newly opened an exclusive account for the supply of and demand for personnel expenses to the student researchers who participated in the instant research and development project, and had the head of Tong, password, and physical card submitted to him/her to him/her, and managed the instant disposition on the ground that it was unjustly executed personnel expenses of KRW 313,826,080 for the purpose of redistribution of personnel expenses and payment of university donations.” Of the student researchers who participated in the instant research and development project, the Plaintiff did not have any management of the research institute C, D, and E’s physical card among the student researchers who participated in the instant research and development project, and granted a certain percentage of personnel expenses to the Plaintiff at the Plaintiff’s request. Accordingly, the amount actually used as the personnel expenses of the said three student researchers (15,690,000 won) out of the personnel expenses paid to the said three student researchers.

2) In the relevant statutes, there is no provision stipulating that the joint management of research funds itself shall be deemed to be used for any purpose other than its original purpose (Article 12(5) [Attachment 2] of the Regulations on the Management of National Research and Development Projects that Article 12(2) of the Regulations on the Management of National Research and Development shall not be jointly managed by a person in charge of research on personnel expenses paid to a student researcher of a university is a provision prohibiting joint management of research funds, and the joint management of research funds shall not be defined as being used for any purpose other than its original purpose under Article 11-2(1)5 of the Framework Act on Science and Technology). Thus,

3) The Plaintiff’s joint management of some of the research expenses was actually paid to the students’ researchers as personnel expenses to assist the students’ stable livelihood, or used them for research-related expenses. The Plaintiff completed the instant research and development projects in good faith, and he has accumulated a considerable amount of research-related expenses in the field of dental medicine. Nevertheless, each of the instant dispositions, which ordered the Plaintiff to recover the total amount of joint management expenses and the Plaintiff not to participate in national research and development projects for five years, violates the principle of proportionality. The Defendant issued a disposition to recover the research expenses only for the remainder of the research expenses under joint management in cases similar to the instant case, excluding the amount actually spent for the students’ personnel expenses, etc., and thus, the instant disposition is also in violation of the principle of equity. Accordingly, each of the instant dispositions is unlawful.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) Determination on the first argument

A) In administrative litigation, the principle of pleading is also applicable in principle, and the rules of law concerning confession under Article 261 of the Civil Procedure Act are applicable in accordance with Article 8(2) of the Administrative Litigation Act (see, e.g., Supreme Court Decision 91Nu13229, Aug. 14, 1992). A confession in court is a statement of facts unfavorable to himself/herself, consistent with the other party’s allegations made on the date for pleading or the date for preparatory pleading, and once a confession in court is duly cancelled, the court is bound by the evidence unless it is lawfully cancelled. Thus, the court cannot recognize the facts inconsistent with the confession in relation to the facts that have not been disputed between the parties (see, e.g., Supreme Court Decision 87Meu804, Oct. 24, 1988). The party whose confession has been cancelled shall prove not only that the confession would be caused by mistake, but also that the confession was contrary to the truth (see, e., Supreme Court Decision 2013Da1384, Jun. 23138, 20194).

B) After mentioning the fact that each of the dispositions of this case was taken through prior dispositions and the Plaintiff’s objection as recognized in the grounds for filing the complaint of the first instance court, the Plaintiff stated that “the Plaintiff jointly managed KRW 313,826,080,00, excluding the recovered amount of KRW 318,560,240,000, the additional monetary sanctions of KRW 4,734,160, and the additional monetary sanctions of KRW 313,826,080: Provided, That it is clear in the record that the Plaintiff actually paid it to the participating researchers’ personnel expenses and used it for its original purpose.” On August 24, 2017, the Plaintiff made a judicial confession by stating the above complaint at the date for filing the first instance suit of the first instance court on August 3, 2018.

However, in addition to the Plaintiff’s lack of proof as to the fact that the confession in court was due to mistake, and in light of the following circumstances, the confession in court is against the truth. Therefore, it is reasonable to deem that the Plaintiff jointly managed personnel expenses of KRW 313,826,080 paid to the student researchers participating in the instant research and development project including C, D, and E. Therefore, the Plaintiff’s assertion on a different premise is without merit.

(1) The document of confirmation (No. 9) prepared by the Plaintiff on June 17, 2016, stating that “from 2011 to 2016, some of the students (F, C, D, E, E, E, immigration only, G, H, I, and J) directly managed the passbook, and that “a part of the amount due to be paid to students shall be used for other purposes.”

(2) On November 15, 2016, the Defendant: (a) notified the Plaintiff of the disposition of sanctions against national research and development projects (Evidence (Evidence (Evidence (No. 3) to the Plaintiff; (b) stated that “the researcher, who participated in the research and development, newly opened an account for the supply of and demand for personnel expenses for research and development expenses, shall submit the passbook, password, and physical card to him/her, and shall execute it unfairly for the purpose of redistribution of personnel expenses, payment of university donations, etc.; and (c) stated that the amount used for other purposes is KRW 341,454,480; and (d) submitted to the Defendant on November 25, 2016, the written objection (Evidence No. 5) prepared by the Plaintiff to submit to the Defendant on November 25, 2016, stating that “the amount of the joint management of the student research institute for the Korean Research Project Foundation was 341,454,480 won as the amount used for other purposes.”

(3) On August 9, 2017, with respect to the Plaintiff’s use of research funds for any other purpose, the prosecutor filed a summary order with the Plaintiff by fraud. The indictment (Evidence No. 15) states as follows: “An application for payment of personnel expenses to the Industry-Academic Cooperation Foundation of the Victim B University, even though the researcher received a passbook and a physical card in the name of the same person C, and the Defendant intended to arbitrarily use the research funds paid to the same person, while managing the said funds.”

(4) Each fact-finding confirmation (Evidence A No. 18-1 through 4) written by A, C, D, and E, as shown in the Plaintiff’s assertion, is prepared after the fact-finding period, and it is difficult to believe that it was hot in light of the aforementioned circumstances.

2) Determination on the second argument

A) Article 11-2(1)5 of the Framework Act on Science and Technology provides that the head of a central administrative agency may restrict participation in national research and development projects within the scope of five years if the institution participating in the 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, and may recover all or part of the project funds already contributed or subsidized. Article 12(5) [Attachment 2] [Attachment 2] [Attachment 2] of the Regulations on National Research and Development Projects provides that personnel expenses

B) According to the facts acknowledged earlier, the Plaintiff was responsible for managing the aforementioned research and development expenses paid by the Defendant to the student researchers who participate in the instant research and development project. However, the Plaintiff’s act constitutes grounds under Article 11-2(1)5 of the Framework Act on Science and Technology, regardless of whether Article 12(5) [Attachment 2] of the Framework Act on Science and Technology is non-permanently used for other purposes, and thus, constitutes grounds under Article 11-2(1)5 of the Framework Act on Science and Technology regardless of whether Article 12(2) of the Framework Act on Science and Technology is applicable.

3) Judgment on the third argument

A) Whether a punitive administrative disposition deviatess from or abused the scope of discretion should be determined by comparing and comparing the degree of infringement of public interest and the disadvantage that an individual suffers, by objectively examining the content of the act of violation and its degree of violation, the necessity of public interest to be achieved by the relevant disposition, the disadvantage that the individual would suffer, and all the relevant circumstances (see, e.g., Supreme Court Decisions 98Du11779, Apr. 7, 200; 2004Du3854, Apr. 14, 2006).

B) In full view of the following circumstances that can be recognized by comprehensively taking account of the aforementioned evidence, the respective statements in subparagraphs 1 through 4 and the purport of the entire pleadings, it is difficult to deem that each of the instant dispositions violated the principle of proportionality and abuse of discretion, even if considering the circumstances alleged by the Plaintiff, and thus, the Plaintiff’s allegation in this part is without merit.

(1) The research and development expenses paid to a managing research institute pursuant to Article 12 of the Regulations on the Management of National Research and Development Projects are paid to support national research and development projects to promote the development of national economy, enhance the quality of life of the people, and contribute to the development of the human society by innovative science and technology, and strengthening national competitiveness. In addition, the public interest to be appropriately disbursed according to the payment purpose and usage is highly high. Moreover, the use of research and development expenses paid by a managing research and development project for purposes other than those of national research and development projects is highly likely to lead to the insolvency of national research and development projects. In particular, in order to solve the closure of a joint management for students due to the joint management of students, the student personnel expenses under joint management are continuously imposed on the ground that it is a practice, even though it is clearly prohibited by Article 12(5) [Attachment 2] and Article 12(2) of the Regulations on

(2) Each of the instant dispositions is an appropriate means to impose sanctions on the use of the project cost for purposes other than those by joint management of student personnel expenses, and to ensure that the Plaintiff and the same person in charge of research and development performing the future national research and development projects use the project cost for the purposes

(3) The Plaintiff, as a person in charge of the research and development project of this case, was responsible for managing and supervising the student researchers who participated in the instant research and development project, to fully pay personnel expenses, and was responsible for managing and managing the head of the Tong directly. In addition, the Plaintiff cannot be deemed to be less vulnerable to the possibility of criticism arising from its liability. In addition, the Plaintiff jointly managed the total of KRW 341,454,480 for the research period exceeding five years from March 1, 201 to August 31, 2016, which was paid by the student researchers. In light of the period and amount, the Plaintiff’s illegality is significant. (4) The Plaintiff directly managed the personnel expenses account under the joint management. This is more likely to be denied than the case where the Plaintiff is responsible for joint management of personnel expenses by blocking the possibility of controlling the fairness and appropriateness of the execution of personnel expenses.

(5) According to Article 11-2 of the Framework Act on Science and Technology and Article 27(10) [Attachment 5] of the Management Regulations for National Research and Development Projects, where research and development expenses are used for any purpose other than the original purpose, it is possible to collect less than the total amount of contributions for the pertinent year. The instant recovery disposition is to recover only the amount used by the Plaintiff out of the total amount of contributions for the purpose other than the original purpose, and it is difficult to deem that the disadvantage the Plaintiff suffered is beyond

(6) As to the period of the instant disposition of restriction on participation, Article 27(1)5(a) of the former Regulations on the Management of National Research and Development Projects (amended by Presidential Decree No. 23788, May 14, 2012) is applicable, and the period of restriction on participation is three to five years, since the first and second years Convention and the second year Convention were concluded before July 1, 2012. According to the evidence No. 15, the Plaintiff could recognize the fact that the Plaintiff acquired part of the personnel expenses paid under the first and third year Convention and the second year Convention.

Next, Articles 27(1)5 of the former Regulations on the Management of National Research and Development Projects (amended by Presidential Decree No. 26500, Aug. 24, 2015) and Articles 1 and 5 of the Addenda (amended by Presidential Decree No. 26500, Aug. 24, 2015) are applicable. Article 27(1)5 of the Regulations on the Management, etc. of National Research and Development Projects provides that the period of restriction on participation shall be differentiated according to the ratio of the amount used for other purposes to the research and development expenses in the pertinent year after amendment by Presidential Decree No. 2378, May 14, 2012. Since Article 27(1)5 of the Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 23788, May 14, 2012) to the amount used by the Plaintiff for other purposes and the annual period of restriction on participation in research and development projects, the instant period of restriction on participation shall be determined by Presidential Decree No. 2813.

(Unit) Article 27 (1) 5 (d) of the former Management Regulations of National Research and Development Projects (amended by Presidential Decree No. 26500, Aug. 24, 2015) shall apply under Articles 1 and 5 of the Addenda to the Management Regulations of National Research and Development Projects (amended by Presidential Decree No. 26500, Aug. 24, 2015).

In addition, Article 27 (2) of the Regulations on the Management of National Research and Development Projects provides that "where one research and development task falls under at least two of the matters specified in the subparagraphs of paragraph (1), the period of restriction on participation may be added up to five years." In addition, the plaintiff, from March 1, 2011 to August 31, 2016, shall have the total three tasks during the research period exceeding five years, and the number of students research institutes extending over the eight-year agreement, open a new account for receiving personnel expenses, and shall directly manage the passbook, password, and physical card by requiring them to submit it to himself/herself, and use the large amount of research and development expenses for any purpose other than the original purpose, such as redistribution of personnel expenses, and payment of university donations. In light of the various circumstances revealed in the argument of this case, it is difficult to view that the disadvantages suffered by the plaintiff due to the restriction on participation in the instant case exceed the minimum necessary level to achieve the public interest purpose as seen earlier.

(7) It is difficult to deem that the ultimate objective of the Framework Act on Science and Technology is likely to be impeded by deeming that the Plaintiff excluded the Plaintiff from the national research and development project for a period of five years. Rather, it is reasonable to deem that the restriction on participation in the Plaintiff is an opportunity for other persons in charge of research and development who have lawfully used research and development costs to be selected, thereby eradicating the abolition of joint management of students’ labor cost and preventing the failure of national research and development projects, thereby ultimately achieving the basic

(8) In light of the fact that the instant disposition of restriction on participation is limited to the participation in national research and development projects implemented by the Korea Research Foundation in accordance with the Framework Act on Science and Technology, and it does not restrict participation in research projects implemented by other central administrative agencies, public institutions, companies, etc., it is difficult to deem that the instant disposition of restriction on participation is excessively harsh

C) In light of the aforementioned evidence, Gap evidence No. 16-1 through 4, and the following circumstances acknowledged by the fact-finding inquiry results and the purport of the entire arguments against the research team leading and supporting Korea Research Foundation, it is difficult to deem that the instant recovery disposition violates the principle of equity by excessive comparison with other cases. The Plaintiff’s assertion on this part is without merit.

(1) According to the letter of request for disposition of audit results cited by the Plaintiff (A evidence 16-2), the labor cost ratio provided by the Korean Research Foundation, the Ministry of Trade, Industry and Energy, and the Net City is 24.1% of the total labor cost provided by the Korean Research Foundation, and the recovered amount is 24.1% of the total labor cost. The Defendant, like the instant case, recovered the proportion provided by the Korean Research Foundation out of the total joint management amount, and it is difficult to deem that the Defendant took measures to recover only the remaining amount, excluding the amount actually used as the labor cost, etc. of the students, among the research cost under joint management as alleged by the Plaintiff. This appears to be the same as in the case of a written request for disposition of other audit results (A evidence 16-3 and 4). In the case of a written request for disposition of audit results as stated in the evidence 16-1 of the evidence 16, it is not appropriate to compare the instant case with the instant case.

(2) The leading research team of the Korean Research Foundation sent a reply to the fact-finding of this Court that all the cases of joint management of school personnel expenses, including the amount of joint management, are subject to recovery, and the paid personnel expenses, are subject to recovery.

(3) Unlike other cases, the Plaintiff asserted that the Defendant’s recovery disposition of this case prior to the prosecution’s investigation result was contrary to the principle of equity. However, it is difficult to view that there is illegality to the extent that it is against the principle of equity solely based on the circumstance that the point of time of the disposition differs.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed in its entirety as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the part against the defendant in the judgment of first instance which accepted the defendant's appeal and revoked the part against the defendant in the judgment of first instance, and the plaintiff's claim corresponding to it is dismissed. Further, the plaintiff's appeal

Judges of the presiding judge, Yang Sung-ju

Judges Kim Gin-han

Judges Mok-si

1) Since an agreement entered into by each subject extends over two years, the pertinent research and development costs and the amount used for any purpose other than the original purpose are the year.

The calculation was made separately.