2016Guhap7875 Action, such as revocation of restriction on participation

1. An industry-academic cooperation foundation of the Seoul National University;

Seoul Special Metropolitan City Gwanak-ro 1 (Newdong, Seoul University)

The Executive Director A

2. B

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

Ministry of Science and ICT 1)

Law Firm Lee & Lee, Counsel for the plaintiff-appellant

[Defendant-Appellee]

July 13, 2017

August 10, 2017

1. The part of the Plaintiff B’s claim for revocation of the disposition of restitution of research funds shall be dismissed.

2. The Defendant’s disposition of restricting participation against Plaintiff B on August 8, 2016 and disposition of recovering research funds against Plaintiff B on September 20, 2016, respectively.

3. The costs of lawsuit shall be borne by the defendant.

Cheong-gu Office

Order 2 and the Defendant’s disposition of recovering research funds against Plaintiff B on September 20, 2016 shall be revoked.

1. Details of the disposition;

A. The Defendant: the Plaintiff 2 and the 20 Cooperation Agency (hereinafter referred to as the “Plaintiff 2”); the Plaintiff 2 and the 20 Cooperation Agency selected the Plaintiff as the head of the research institute or the participating researcher, and entered into a separate agreement between the Plaintiff 2 and the 30 Research and Development Institute (hereinafter referred to as the “Plaintiff 2”) on the following: (a) the Defendant paid the Plaintiff 2 research and Development Fund (hereinafter referred to as “the key source development task of the main fuel cell”) pursuant to the above agreement; and (b) the Plaintiff 2 and the 30 Research and Development Institute (hereinafter referred to as the “Plaintiff 2”); and (c) the Plaintiff 1 and the 30 Research and Development Institute (hereinafter referred to as the “Plaintiff 2”)’s private research and Development Project under the name of the Plaintiff 5 and the Plaintiff 2’s private research and Development Institute; and (d) the Plaintiff 1 and the Plaintiff 2’s private research and Development Institute’s private research and Development Institute (hereinafter referred to as the “Plaintiff 1 and the Plaintiff 2”).

E. On August 8, 2016, the Defendant issued a five-year disposition of restriction on participation in national research and development projects (hereinafter “instant disposition of restriction on participation”) on the ground that Plaintiff B, as the result of the above audit, jointly managed personnel expenses paid to the student researcher for each of the instant tasks and used them for any purpose other than the original purpose. “The Plaintiff, as a person in charge of research, managed personnel expenses paid to the student researcher for the instant tasks 2 and 3 and used them for any purpose other than the original purpose.” On September 20, 2016, the Defendant revoked the disposition of recovery of research expenses made against Plaintiff B ex officio, and on September 20, 2016, on the ground that Plaintiff B used the research expenses paid to the student researcher for each of the instant tasks as the result of the instant audit and inspection to recover the research expenses for any purpose other than the original purpose, the instant task was recovered to Plaintiff B’s KRW 74,49,147,284,279,47, and the instant task was recovered to the instant task.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, 6 (if there are additional numbers, including branch numbers; hereinafter the same shall apply), Eul evidence 1 to 4, the purport of the whole pleadings

2. We examine the legitimacy of the part of the Plaintiff B’s lawsuit seeking revocation of the disposition of restitution of research funds ex officio.

According to the above facts of recognition, on August 8, 2016, the Defendant issued a disposition to recover research funds and restrict participation with Plaintiff B on August 31, 2016, and subsequently revoked the aforementioned disposition to recover research funds conducted with Plaintiff B on August 31, 2016, and issued the instant disposition to Plaintiff Cooperation Agency on September 20, 2016. The part seeking revocation of the disposition to recover research funds among Plaintiff B’s lawsuit is unlawful since it seeks revocation of the disposition that had already been revoked and does not exist.

3. Whether the recovery of this case and the disposition of restriction on participation are legitimate

A. Relevant statutes

The entries in the attached statutes are as follows.

B. Of the instant redemption disposition, Article 11(3) of the Framework Act on Science and Technology provides that “The Government shall determine necessary matters concerning the planning, management, evaluation, utilization, etc. of national research and development projects” and Article 11(5) of the same Act provides that “the planning, etc. of national research and development projects under paragraph (3) shall be prescribed by Presidential Decree for the smooth promotion of national research and development projects.” Article 12(5) of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 22721, Mar. 28, 2011) provides that “The items of research and development projects paid by the head of a central administrative agency shall be comprised of personnel expenses, direct expenses, entrusted research and development expenses, and indirect expenses, and each item of research and development expenses shall be included in the standards for appropriation for each item of research and development expenses.” Article 11(3) of the same Act provides that “The person in charge of research and development projects shall not be jointly managed among external personnel expenses.”

2) Among the instant disposition of restitution of research expenses, the grounds for disposition on the part related to the instant task 1 are as follows: “Plaintiff B, like the audit result, managed personnel expenses for the instant task 1 and used the research expenses for purposes other than the original purpose.”

However, as seen earlier, Plaintiff B is merely a person in charge of the instant task 1, but merely a participating researcher, and even if Plaintiff B jointly managed personnel expenses paid to the student researcher with respect to the instant task 1, it cannot be deemed that the research expenses paid to the student researcher were jointly managed by the person in charge of the instant task, and it does not constitute a case where the research expenses are used for any purpose other than the original purpose, in violation of Article 2 and paragraph (3) of the aforementioned [Attachment 2]. Of the instant redemption disposition, the part related to the instant task 1 related to the instant disposition in itself is illegal (hereinafter “the recovery of the instant disposition in question”), excluding the portion related to the instant task 1, and as well as the restriction on participation.”

C. Whether each of the dispositions of this case is legitimate

1) Summary of the plaintiffs' assertion

A) Non-existence of the grounds for disposition

The Plaintiffs paid personnel expenses out of the research expenses to the student researchers in a normal manner, and it is limited to the voluntary joint management of part of the personnel expenses paid by the student researchers, and the Plaintiff Sung-young did not participate in the joint management of the personnel expenses of the student researchers. Therefore, each of the instant dispositions was unlawful since there was no ground for disposition

B) A deviation or abuse of discretionary authority

Even if the grounds for each of the dispositions of this case are recognized, it is serious that the disposition of this case is infringed by each of the dispositions of this case, such as deprivation of research opportunity, compared to the public interest to be achieved by each of the dispositions of this case. Thus, each of the dispositions of this case is unlawful as it

2) Determination

A) Relevant provisions

Article 11-2(1) of the former Framework Act on Science and Technology (amended by Act No. 12673, May 28, 2014; hereinafter the same shall apply) provides that “where research and development expenses are used for any purpose other than the original purpose (Article 11-2(1)5), the participation in national research and development projects may be restricted for not more than five years, and all or part of the project expenses already contributed may be recovered.” Article 11-2(5) of the former Framework Act on Science and Technology provides that “The detailed criteria for the period of restriction on participation by reason of restriction on participation under paragraph (1) and the redemption of project expenses shall be prescribed by Presidential Decree.” Article 12(5) [Attachment 2] of the former Act on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 23527, May 14, 2012; hereinafter the same shall apply) and Article 11-2(3) of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 2527) [Attachment 12.)]

B) Whether the grounds for disposition are recognized

(1) Each of the following facts may be acknowledged either as a dispute between the parties, or as a whole by adding the whole purport of the pleadings to the entries in Gap evidence 6, Eul evidence 4.

(A) Plaintiff B established a center for the industrialization of core materials of the instant cell cell (hereinafter referred to as “instant center”), and C worked as an employee of the instant center.

(B) On December 209, the students of the Plaintiff B Research Institute (hereinafter referred to as the “Research Institute of this case”) indicated the separate account of this case opened in their own name and the “mining electricity”, and C kept the seals affixed to each of the separate accounts of this case from December 14, 2009, and transferred money deposited in each of the separate accounts of this case from December 14, 2009 to the deposit account opened in the name of C (hereinafter referred to as the “joint account of research center”).

(C) Students, registered as researchers of the instant research task, were transferred from the Plaintiff Cooperation Agency for personnel expenses paid for their research tasks to their own deposit accounts. Among them, the amount of personnel expenses for the students determined in the instant research task (in the instant research task, the amount of tuition fees and monthly salary of KRW 400,000,000,000,000,000 per semester, and monthly salary of KRW 700,000,000,000,000,000 per semester from the 3rd year of doctorate course) was transferred to each of the instant separate accounts. The students of the instant research task were not paid from December 2, 2009 to 30,000,000,0000,000 or 1,960,037,630,021,000,000 or 200,000,000,000 or 37,000,000,00,00.

(E) In the instant case, D, a researcher affiliated with the instant laboratory, was present as a witness in the Seoul Administrative Court case No. 2016Guhap72471, and was engaged in research on joint management of the students' personnel expenses of the instant laboratory, not in the research by distinguishing the students participating in the instant research institute from each project, but in the cooperation of the research institute affiliated with the research institute. The Plaintiff Sung Young-young was participating in the instant research institute and received personnel expenses and registration fees from the students participating in the instant research institute before participating in the project, and the students affiliated with the instant research institute agreed to the payment of personnel expenses and registration fees. The students affiliated with the instant research institute did not use the money transferred to the instant separate account for operating expenses of the research institute. However, if the student research institute uses the laboratory equipment and fails to take place as a result of the failure, it was smaller to use it as repair expenses. The Plaintiff B and the research institute affiliated with the instant research institute made a statement to the effect that it was raised by the Plaintiff.

(2) The following circumstances revealed through the above recognition: ① A person who directly managed personnel expenses remitted to each of the separate accounts of the instant research institute is not the student but the employee of the instant center established by the Plaintiff B; ② as such, C not only more than 1,037,630,021 won of personnel expenses remitted from the students belonging to the instant research institute, but also not more than 32,730,560 out of them were stored in each of the separate accounts or joint accounts in the instant research institute, and it is difficult to view that Plaintiff B was unaware of them; ③ Plaintiff B was about the usage or balance of personnel expenses under joint management by the instant research institute; ④ it is reasonable to view Plaintiff B, upon the recommendation of the students belonging to the instant research institute, directly determined the increase in personnel expenses to be paid to the student research institute upon the recommendation of the students belonging to the instant research institute; and ③ the joint management of the instant research institute and the instant project under joint management of the instant research institute, by taking account of the following circumstances:

(3) Therefore, since Plaintiff B, as a person in charge of research on the instant task 2 and 3, as a person in charge of research on the instant task, jointly manages the personnel expenses to be paid to the student researcher and uses the research expenses for purposes other than the original purpose, the grounds for each disposition of this case can be recognized. The Plaintiff

C) Whether the discretion is deviates or abused or not

(1) Relevant legal principles

Article 11-2(1) of the former Framework Act on Science and Technology provides that “where research and development costs are used for any purpose other than the original purpose (Article 11-2(1)5), a person in charge of national research and development projects, a research institute participating in a national research and development project, may be restricted from participating in the national research and development project within five years, and may recover all or part of the project costs already contributed.” In light of the content and purport of the aforementioned provision, the Defendant is granted discretion on whether or not the aforementioned grounds exist, the period, whether research expenses are recovered, and the amount thereof. However, if there are grounds such as misconceptions of the fact in exercising the discretion or violating the principle of proportionality and equality, such discretion shall be deemed to be an deviation or abuse of discretionary authority (see, e.g., Supreme Court Decision 2015Du3625

(2) Specific determination

(A) The instant disposition conforms to the criteria for the disposition of restriction on participation and the disposition of recovery of research funds prescribed in Article 27(1) and (9) of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 23527, May 14, 2012) and Article 27(1) and (9) of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 24764, Sept. 26, 2013).

(B) However, considering the following circumstances revealed through the facts acknowledged earlier in light of the aforementioned legal principles, since the disposition of this case is more unfavorable than the public interest to be achieved, and thus, it is reasonable to deem that each of the dispositions of this case was a deviation or abuse of discretionary power against the principle of proportionality.

(1) Research and development expenses paid to a managing research institute pursuant to Article 12 of the Regulations on the Management, etc. of National Research and Development Projects are paid to support national research and development projects to promote the development of the national economy, enhance the quality of life of the people, contribute to the development of human society, and contribute to the development of human society, and are highly public interest to ensure that they are appropriately disbursed according to the payment purpose and usage thereof. However, on the other hand, the disposition on restriction on participation and the disposition on redemption of research expenses under Article 11-2 (1) of the former Framework Act on Science and Technology excludes a managing research institute or a person in charge of research from national research and development projects for a certain period of time, and redeems research expenses used for such research, and thus it is likely to hinder the ultimate objective of the Framework Act on Science and Technology that aims to enhance national competitiveness through scientific and technological innovation

② The purpose of prohibiting joint management of students’ personnel expenses lies in preventing the payment of personnel expenses that a professor, who is a responsible researcher, jointly manages and diverts them for other purposes, from breaking the minimum economic foundation for the student research institute and undermining the desire for research. The most of the money that the Plaintiff B under joint management of this case was used for the research students, such as the salary of the students belonging to the research institute of this case, tuition fees for graduate schools, meal expenses, etc., and the Plaintiff B did not seem to have provided personal benefits through joint management of this case, such as embezzlement or misappropriation of the student personnel expenses.

Plaintiff B returned all the money that the instant joint management was made after the instant audit to the students, and the instant research institute appears to have no longer joint management of the student personnel expenses. Considering the above circumstances, it is difficult to view that Plaintiff B’s joint management of the instant case is against the purport of prohibiting joint management of the student personnel expenses, and thus, it is highly likely to criticism.

③ According to Article 23(4) of the Seoul Central Government Research Expense Management Guidelines, where the Plaintiff Cooperation Agency refunds research funds to the Defendant in accordance with the remaining restitution disposition of the instant case, the Plaintiff B pays the amount equivalent to the aforementioned research funds to the Plaintiff Cooperation Agency as a person in charge of research on the instant task 2 and 3. As such, the remaining restitution disposition of the instant case does not in fact coincide with the Plaintiff B.

| 원고 B이 이 사건 연구실의 프로젝트에 관여하기 전부터 이 사건 연구실에서는 형식적으로 프로젝트에 참여하지 않는 것으로 되어 있는 학생연구원들도 연구에 참여하고 인건비와 등록금을 지급받았고, 이 사건 연구실 소속 학생연구원들은 이에 동의하였던 점, 원고 B이 학생들의 필요에 따라 이 사건 공동관리를 한 돈의 지출을 폭넓게 허용하고 있었던 것으로 보이는 점, 원고 B은 학생연구원들이 인건비 인상을 건의하는 경우 이를 거의 그대로 받아들였던 점 등에 비추어 보면, 원고 B은 기존 관행과 학생연구원들의 의견을 받아들이는 소극적인 태도에서 이 사건 공동관리를 수용하였을 뿐이었던 것으로 보인다.

No. 1) The Board of Audit and Inspection, taking into account these circumstances, did not request the president of the Seoul National University to call attention to Plaintiff B as a result of the instant audit and inspection, and did not demand disciplinary action against Plaintiff B.

3) Sub-decisions

Each disposition of this case is unlawful since it deviates from and abused discretionary power.

4. Conclusion

The plaintiffs' claims are reasonable, and it is so decided as per Disposition.

The presiding judge, the senior judge;

Judges Hong-man

Judges Kim Gin-han

1) Amendment ex officio pursuant to Article 2 of the Addenda of the Government Organization Act ( July 26, 2017).