2018Du58431 Revocation of disposition, etc. of restriction on participation in national research and development projects

A University Industry Cooperation Foundation

Seoul Special Metropolitan City Gwanak-ro 1 (Selime-dong)

Representative B

Law Firm LLC (LLC), Attorneys Kim Un-soo, Kim Sung-hoon, and Excursion Ship-Jin, Counsel for the defendant-appellant

The Minister of Science and ICT

Law Firm Doodo, Attorney Kim Jong-soo, Counsel for the plaintiff-appellant

Seoul High Court Decision 2017Nu86875 Decided August 29, 2018

July 4, 2019

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. A. A. Under the Administrative Litigation Act, a revocation suit shall be instituted within 90 days from the date on which the disposition, etc. is known, and one year after the date of the disposition, etc. (Article 20(1) and (2) of the Administrative Litigation Act). In addition, when the previous lawsuit is withdrawn and the new lawsuit is changed to have been instituted, compliance with the period for filing a lawsuit against a new lawsuit shall, in principle, be based on the time the lawsuit is changed (see, e.g., Supreme Court Decision 2004Du7023, Nov. 25, 2004).

However, while filing a lawsuit seeking revocation of the preceding disposition is legally filed within the filing period and continuing to be filed, the administrative agency’s revocation of the preceding disposition ex officio and makes a subsequent disposition with the same content identical thereto despite some errors in the language and text of the preceding disposition, and thus, where the grounds for illegality alleged to exist between the preceding disposition and the subsequent disposition are closely related and where the grounds for illegality exist, as well as the subsequent disposition, it is not necessary to separately consider whether the period for filing a lawsuit seeking revocation of the subsequent disposition is complied with (see, e.g., Supreme Court Decision 2010Du7796, Nov. 29, 2012).

B. Meanwhile, Article 25(1) of the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act (hereinafter referred to as the "Industrial Education Enhancement Act") provides that universities may have an organization in charge of affairs concerning industry-academia-research cooperation in accordance with school regulations, and Article 28(3) provides that the head of the industry-academic cooperation foundation represents the industry-academic cooperation foundation, supervises its affairs under the direction and supervision of the head of the relevant university, and the main sentence of Article 25(4) provides that the head of the relevant university is appointed or dismissed by the head of the relevant university.

2. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

A. A. AD Foundation (hereinafter referred to as the “D Foundation”) established a foundation based on Industry-Academic Cooperation Act on the ground that an addressee is the president of the AA University ( through the president of the A.I.D.). Around April 2015, the D Foundation notified each of the results of an on-site inspection of the detailed settlement of accounts for the execution of research expenses in relation to the instant research task, and the results of the examination of evidence around August 2015. Meanwhile, the Plaintiff was a corporation established by A.A., a national university (hereinafter referred to as the “A.”) based on Industry-Academic Cooperation Act, and the said on-site inspection was conducted for the Plaintiff.

B. On March 15, 2016, the D Foundation notified each of the results of the review by the sanctions evaluation group approved by the defendant to the Joint Plaintiffs C (hereinafter referred to as “C”) and A University (hereinafter referred to as “the results of sanctions”). Each of the above notifications is indicated as follows: “the Minister of Science, ICT and Future Planning”; “the Minister for the Ministry of Science, ICT and Future Planning”; “the Minister for the Ministry for the Ministry for the Ministry for the Ministry of Science, ICT and Future Planning” (hereinafter “A University”); “the restriction on participation in national research and development projects”; “the total amount of KRW 126,356,839; KRW 116,667.” On May 27, 2016, the Defendant issued a three-year restriction on participation in national research and development projects to C; and on the same date, notified each of the instant dispositions to recover the amount of KRW 126,240,172 (hereinafter referred to as “the two separate dispositions”).

D. On June 10, 2016, the Plaintiff and C filed a lawsuit against the Defendant and D Foundation seeking the revocation of notification of the result of the disciplinary measure taken on March 15, 2016, which was within 90 days from the date of receiving the notice of each of the instant dispositions, and it is unclear in the complaint that “D Foundation has been delegated the authority of disposition from the Defendant.” As such, in the event the Defendants clearly explained the subject of the disposition and the counterpart of the disposition, they expressed their intent to adjust the claim through the withdrawal of the lawsuit, etc.

E. The Defendant and D Foundation referred the notification of the result of sanctions in the reply as the instant disposition, and the notification of the result of sanctions was sent to C as a disposition of restriction on participation in national research and development projects imposed by the Defendant against C and a disposition of recovery of project costs imposed by the Plaintiff.

F. On August 31, 2016, the Defendant revoked ex officio and notified the other party to the prior disposition as president of A University, on the ground that the prior disposition was in writing, and stated in relevant regulations Article 21 of the Administrative Procedures Act and Article 25 of the Administrative Procedures Act regarding the correction of the disposition. On September 20, 2016, the Defendant recovered the project cost equivalent to the prior disposition to the Plaintiff (hereinafter “the subsequent disposition”).

G. On November 17, 2017, the first instance court rejected the Plaintiff’s lawsuit seeking revocation of the notification as a result of a disciplinary measure, which determined that notification was a restriction on participation in C and a disposition for recovery of project costs.

H. The Defendant’s notification of the result of the re-disposition is not a notification of the disposition, but a prior notification of the disposition, and each of the dispositions of this case constitutes an external disposition.

In addition, since the previous disposition was revoked ex officio against the plaintiff and the subsequent disposition was made, among the lawsuits in this case, the plaintiff's request for revocation of the notification of the result of the disciplinary measure should be dismissed.

I. Accordingly, on May 21, 2018, the Plaintiff sought revocation of the instant subsequent disposition, and submitted an application for modification of the purport of the claim and the grounds for the subsequent disposition.

3. Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that, even if the Plaintiff changed the purport of the claim to seek revocation of the subsequent disposition of this case, it is not necessary to separately consider whether the period for filing the changed lawsuit is complied with.

The reasons are as follows.

A. An industry-academic cooperation foundation is a subordinate organization and a special corporation under the direction and supervision of a university, and is in charge of affairs related to industry-academia-research cooperation. In light of the legal nature of such industry-academic cooperation foundation, in light of the content of each disposition of this case, the process of the disposition of this case, the progress of litigation, etc., the Defendant appears to have expressed that the Plaintiff, other than Auniversity, was the party to the disposition, at the time of the prior disposition, and the portion in which the “President of Auniversity” was stated in the recipient column of the prior disposition constitutes clerical error

B. While the Plaintiff filed the instant lawsuit that specified the notice of the result of the disciplinary measure as the subject of the lawsuit, the purport of the lawsuit is to request the revocation of the disposition to recover project costs related to the use of research funds for purposes other than those of C, and the purport of the lawsuit clearly stated that the purport of the claim is to be stated provisionally until the subject of the disposition subject to the lawsuit and the counter-party of the disposition are confirmed, the Plaintiff was entitled to seek the revocation of the prior disposition by correcting the purport of the claim by revoking the prior disposition. As long as the Defendant revoked ex officio the prior disposition and re-dispositions the subsequent disposition after the revocation, the Plaintiff is in principle entitled to dispute.

However, the addressee’s clerical error in the preceding disposition is a matter that can be corrected by correcting the disposition under Article 25 of the Administrative Procedures Act. Thus, the latter disposition in this case is formally separate disposition, but in substance, it is identical to the preceding disposition, and the ground for illegality alleged to exist in the preceding disposition also exists.

D. In the reply, the Defendant issued an erroneous statement that the notice of the result of the instant sanctions referred to as “the recovery disposition against the Plaintiff” against the Plaintiff, and the Plaintiff maintained notification of the result of the relevant sanctions according to the Defendant’s explanation. Therefore, even if the Defendant revoked ex officio and the instant subsequent disposition was conducted during the proceeding of the first instance trial, it is difficult to determine the revocation of the previous disposition, which was not subject to the Plaintiff’s litigation, by changing the subject of the instant subsequent disposition, after the revocation of the instant subsequent disposition. Since the Plaintiff submitted an application for modification of the purport and cause of the instant subsequent disposition on May 21, 2018, the Plaintiff filed a lawsuit for the alteration of the purport and cause of the instant subsequent disposition, which was relatively prompt and rapid after the Defendant raised the main defense against the Defendant, it is also contrary to equity.

4. Nevertheless, the lower court determined that the Plaintiff’s lawsuit exchangedly changed at the lower court solely based on its stated reasoning was unlawful. In so determining, the lower court erred by misapprehending the legal doctrine on the period of filing a lawsuit, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of

5. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of 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 Park Sang-ok

Justices Ansan-chul

Justices Noh Jeong-hee

Justices Kim Jong-hwan