(영문) 서울행정법원 2017.9.29. 선고 2017구합53569 판결

In the first place, on November 7, 2016, the Defendant confirmed that the five-year restriction on research participation in C&D development and the redemption of KRW 40,410,222 on the research project conducted by the president of B/U is invalid. In the second place, each of the above dispositions shall be revoked.

Reasons

1. Details of the disposition;

A. The Minister of Education, Science and Technology, a foundation incorporated under the Framework Act on Science and Technology (hereinafter referred to as the “Korea Research Foundation”), entrusted the duties of national research and development projects to the Korea Research Foundation (hereinafter referred to as the “Korea Research Foundation”), and the B University Industry-Academic Cooperation Foundation established a standard agreement on research and development projects with each Korean Research Foundation and performed research and development tasks (the Ministry of Education changed the Ministry of Education to the Ministry of Science, ICT and Future Planning on March 23, 2013 due to the revision of the Government Organization Act, and the duties of national research and development tasks related to this case were transferred to

【Plaintiff’s Participation in Research Foundation of Korea】

(unit:,000 won)

A person shall be appointed.

B. The Plaintiff, as a professor of the Convergence Electronic Engineering Department at B University University, participated in the management research of the first and second tasks in the instant case.

C. The Audit Office of the Korea Research Foundation conducted a specific audit on June 2016, and the result of the audit conducted by the Plaintiff from February 2, 2011 to November 2015, the Plaintiff was found to have been reported on the details of joint management of the personnel expenses each month by having the head of the research institute and the general manager of the research institute jointly manage part of the personnel expenses (157,981,90 won out of the total amount of KRW 435,030,970) paid to the graduate students participating in the performance of the task in the instant case as the manager of the research institute.

D. The Korean Research Foundation held a meeting of the Sanctions Evaluation Board on September 29, 2016 and deliberated on sanctions against the Plaintiff. On October 31, 2016, upon receipt of notification of approval from the Defendant on the result of the deliberation by the said Sanctions Evaluation Board, the president of B University as the addressee on November 7, 2016 and notified the following (hereinafter referred to as “instant notification”).

1. The Ministry of Education's Promotion and 5601 (Notice of Approval of Results of Review by the Sanctions Review Committee, Oct. 31, 2016) 2. In relation to the above subparagraph 2. If there is an objection to notification of the disposition according to approval of the Ministry of Education as a result of the review by the sanctions review group for the use of research funds conducted by a person in charge of research of the Ministry of Education, the subject of disposition shall be submitted to the public document within a given period. The subject of disposition: the accused or the subject of disposition: the subject of disposition is the subject of disposition. Pursuant to the relevant regulations, the measures for recovery of research funds, the National Research and Development Project participation restriction* related regulations on the restriction on participation in national research and development projects under Article 11-2 of the Framework Act on Science and Technology (Standards for the period of restriction on participation and the recovery of project funds).

D. Submission in accordance with the form attached in the form of electronic document by November 17, 2016, the time limit and method for filing an objection, and by November 17, 2016.

E. On November 23, 2016, the Plaintiff filed an objection against the instant tasks 1 and 2, but the sanctions assessment team dismissed the objection on January 7, 2017.

F. On March 20, 2017, the Defendant notified the Plaintiff of the restriction on participation in national research and development projects for five years, and the recovery of project costs for KRW 40,410,222 to B University Industry Cooperation Foundation, respectively, on the ground that “the Plaintiff jointly managed KRW 40,410,222, which was paid by the graduate students participating in research and development from February 201 to November 2015, as well as joint management of KRW 40,410,222.”

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 4, 5 (including each number, if any), Eul evidence Nos. 1 through 4, and the purport of the whole pleadings

2. The plaintiff's assertion

A. Main assertion

The Defendant recovered project costs through the instant notification, and imposed a restriction on participation in national research and development projects on the Plaintiff. However, the instant tasks are related to future creation and faculty, and the Defendant did not have the right to take such measures, and the Plaintiff does not have the right to take such measures, and the ground for the disposition is not recognized, even if the grounds for the disposition of household affairs are recognized, it constitutes a disposition of deviation from and abuse of discretionary authority, and thus, the Defendant’s recovery disposition and restriction on participation is null and void.

B. Preliminary assertion

Even if there is no obvious defect in the defendant's recovery disposition and the disposition of restriction on participation in domestic affairs, it shall be revoked as the above illegal cause exists.

3. Determination on this safety defense

A. The defendant's assertion

1) Absence of disposition

The instant notification was made prior to the administrative agency’s disposition imposing obligations on the parties or restricting their rights and interests, by notifying the parties of certain contents, and providing them an opportunity to file an objection accordingly, and thus does not constitute an independent disposition.

2) Non-existence of standing to sue in relation to the disposition of redemption of research funds

The defendant's disposition of restitution of research expenses is against the president of the B University Industry Cooperation Foundation, and the plaintiff is not the other party to the disposition, and there is no standing to sue the illegality

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

The issue of whether a certain act of an administrative agency can be the subject of an appeal shall be determined individually, taking into account the content and purport of the relevant Act and subordinate statutes, the content, form, and procedure of the act, the actual relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, and the attitude of the administrative agency and interested parties related to the pertinent act, in mind, in view of the fact that an administrative disposition is an enforcement of law with regard to a specific fact by an administrative title, which directly affects the rights and obligations of the public (see Supreme Court Decision 2009Du23617, 23624, Mar. 10, 201).

Article 11-2 (1) 5 of the former Framework Act on Science and Technology (amended by Act No. 1339, Jun. 22, 2015; hereinafter the same shall apply) provides that the head of a central administrative agency may restrict the participation of a national research and development project under his/her jurisdiction and recover all or part of the project cost already contributed or subsidized, if the institution participating in the national research and development project, a person in charge of research, etc. uses the research and development project for any purpose other than the intended purpose

Article 27 of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 26500, Aug. 24, 2015; hereinafter referred to as the "Regulations") provides that the head of a central administrative agency shall organize and operate a sanctions evaluation team to deliberate on matters concerning the period of restriction on participation and the redemption of project costs under Article 11-2 (1) of the Act, and that the head of a central administrative agency may operate a sanctions system against the outcome of deliberation under paragraph (5). In light of the above Framework Act on Science and Technology and the contents and structure of the provisions of this case, an objection prescribed in the provisions of this case is not subject to "the head of a central administrative agency (or a specialized agency)" or "the result of deliberation by the evaluation team of sanctions", and thus, it constitutes a procedure that provides for relief for the plaintiff with an opportunity to raise an objection, which is not subject to the prior notification of the results of deliberation by the evaluation team, and thus, it does not constitute an unlawful objection against the plaintiff.

4. Conclusion

Therefore, since all of the plaintiff's lawsuit is illegal, it is decided to dismiss it. It is so decided as per Disposition.