[1] Whether the Korea Evaluation Institute of Industrial Technology delegated with authority by the Minister of Trade, Industry and Energy, such as the recovery of contributions, gives discretion to the recovery and the amount to be recovered in cases where there are grounds for recovery under Article 11-2 (1) 5 of the Industrial Technology Innovation Promotion Act (affirmative), and the limitation of the exercise of discretion

[2] In a case where the competent administrative agency determines whether to recover contributions under Article 11-2 (1) 5 of the Industrial Technology Innovation Promotion Act and the amount to be recovered, and where the collection of contributions is deemed unlawful due to deviation from and abuse of discretion, whether the court may revoke only the portion exceeding the reasonable part (negative)

[1] Article 11-2 (1) 5 of the Industrial Technology Innovation Promotion Act; Article 27 of the Administrative Litigation Act / [2] Article 11-2 (1) 5 of the Industrial Technology Innovation Promotion Act; Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 2015Du36256 Decided May 28, 2015 (Gong2015Ha, 883) / [2] Supreme Court Decision 2007Du18062 Decided June 23, 2009 (Gong2009Ha, 1224) Supreme Court Decision 2010Du7031 Decided July 15, 2010 (Gong2010Ha, 1594)

High Zinum Co., Ltd. (Law Firm Zinium et al., Counsel for the defendant-appellant)

Korea Evaluation Institute of Industrial Technology (Law Firm Mapyeong, Attorneys Song Han-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Nu3334 decided September 15, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to whether the discretionary authority of the instant disposition is deviates or abused (ground of appeal No. 1)

Article 11-2 (1) 5 of the Industrial Technology Innovation Promotion Act provides that, if an institution, organization, company, etc. participating in a project for industrial technology development uses government contributions for any purpose other than research purpose, all or part of the project funds already contributed by the Minister of Trade, Industry and Energy may be recovered (hereinafter “instant provision”). In light of the content and purport of the instant provision, the Minister of Trade, Industry and Energy grants discretion to determine the amount to be recovered and the amount to be recovered if there are grounds for recovery, etc. to the Defendant delegated with authority by the Minister of Trade, Industry and Energy, such as restitution, etc., if there are grounds for such recovery to the Defendant. However, if there are grounds, such as misconception of the fact in exercising such discretion or contrary to the principle of proportionality and equality, it is illegal as a deviation or abuse of discretionary power (see, e.g., Supreme Court Decision 2015Du

According to the reasoning of the judgment of the court below, the court below, citing the reasoning of the judgment of the court of first instance, acknowledged the following facts: (a) the defendant embezzled KRW 286,013,339, out of KRW 1,108,654,00, the plaintiff used it for any purpose other than for performing the project under the Convention; and (b) the above government contributions less KRW 49,141,555, settlement amount 2,072,938, and royalties paid by the plaintiff, less KRW 133,038,48,480, and the remainder of KRW 924,40,40,01,027; and (c) in light of the fact that the representative director of the plaintiff embezzled part of the contributions for private use, not for embezzlement of part of the contributions to repair the plaintiff's production facilities, etc., the court below held that the disposition of this case's embezzlement was merely an abuse of discretionary power due to the plaintiff's considerable deviation from the project of this case.

In light of the above legal principles and records, although the judgment of the court below was somewhat inappropriate in its reasoning, the conclusion that the disposition of this case was unlawful as a deviation or abuse of discretionary power is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules,

2. Regarding the scope of revocation of disposition due to deviation from and abuse of discretionary power (ground of appeal No. 2)

In a case where a ground for recovery of contributions exists under the instant provision, whether to determine the recovery of contributions and the amount to be recovered belongs to the discretion of the competent administrative agency. Thus, in a case where the competent administrative agency recognizes that the disposition of recovery of contributions is unlawful as it deviatess from and abused discretion, the court can only determine whether to deviate from and abused discretion, but it can not determine the degree within the scope of discretion, and thus, the entire disposition of recovery of contributions cannot be revoked, and the court cannot only cancel the portion exceeding the reasonable portion (see, e.g., Supreme Court Decisions 2007Du18062, Jun. 23, 2009; 2010Du7031, Jul. 15, 2010).

According to the reasoning of the judgment below, the court below revoked only the portion exceeding KRW 286,013,339, out of the instant disposition ordering the redemption of KRW 924,401,027, on the ground that it is appropriate to order the recovery of KRW 286,01,00,000, which was paid by the Plaintiff, for the purpose unrelated to the implementation of the project.

In light of the aforementioned legal principles, the lower court erred by misapprehending the legal doctrine on the revocation of revocation of restitution, thereby adversely affecting the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)