2017Guhap 71499 Action Demanding revocation of Disposition of National Research and Development Project Sanctions

A

Law Firm Bululul, Counsel for the plaintiff-appellant

Attorney Lee Jae-soo, Counsel for the plaintiff

The Minister of Science and ICT

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

Attorney Park Jong-hoon, Counsel for the plaintiff-appellant

Stand-type of a litigation performer;

April 27, 2018

June 8, 2018

1. The Defendant’s disposition of restricting participation in national research and development projects for three years imposed on the Plaintiff on July 3, 2017 and disposition of recovering KRW 144,761,47 as research funds to A University Industry-Academic Cooperation Foundation shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. Progress of litigation related to the previous disposition

1) The Plaintiff is a professor of A university public college science and technology. The Korea Research Foundation (hereinafter “Korea Research Foundation”) is a juristic person established pursuant to the Korea Research Foundation Act. The president of the Ministry of Science, ICT and Future Planning (the Ministry of Science, ICT and Future Planning was reorganized into the Ministry of Science, ICT and Future Planning on July 26, 2017; hereinafter referred to as “Defendant” in both future creation and faculty, and Defendant) designated as a specialized institution for national research and development projects for science and technology under the jurisdiction of the Ministry of Science and ICT and Article 11(4) of the Framework Act on Science and Technology and Article 10(1) of the former Regulations on the Management of Research and Development Projects in Science and Technology under the jurisdiction of the Ministry of Science and ICT (amended by Ordinance of the Ministry of Science and ICT No. 3, Aug. 24, 2017; hereinafter referred to as the “former

2) From May 1, 2009 to February 28, 2014, the Korean Research Foundation entered into a standard agreement on research and development tasks on RNA interference nanotechnology (hereinafter “the research and development of this case”) with A University Industry-Academic Cooperation Foundation, setting the total research and development period from May 1, 2009 to February 28, 2014, respectively as the Plaintiff.

3) An industry-academic cooperation foundation for Auniversity received a total of KRW 1,165,200,000 in accordance with the Convention on the Standards for Research and Development tasks.

4) The research and development performance evaluation team called for the final evaluation of the research and development outcomes of the instant case determined the research and development outcomes of the instant case as Grade D on the following grounds.

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5) On March 13, 2015, the Korean Research Foundation notified the president of A.I.D. that the Plaintiff will limit the Plaintiff’s participation in the Plaintiff’s national research and development project for the next three years and recover KRW 144,761,477 from the Plaintiff (hereinafter “instant previous disposition”).

6) On March 18, 2015, the Plaintiff filed an objection to the previous disposition with the National Research Foundation of Korea, but the National Research Foundation of Korea dismissed it on May 26, 2015.

7) The Plaintiff filed a lawsuit seeking confirmation of invalidity of the previous disposition of this case with Daejeon District Court 2015Guhap103684, and the said court rendered a judgment to confirm that the previous disposition of this case is null and void on August 18, 2016, on the ground that “Korea Research Foundation does not have the authority to impose the Plaintiff a disposition of restricting participation in the establishment of national research teams and of recovering research funds.” The Research Foundation of Korea appealed with Daejeon High Court 2016Nu12231, but the said court dismissed the appeal by the Research Foundation of Korea on November 17, 2016. The said judgment became final and conclusive around that time.

B. On April 18, 2017, the sanctions evaluation group held on the instant disposition 1) decided to approve the re-disposition of the same content as the instant previous disposition, and the sanctions evaluation group held on June 16, 2017 also decided to approve the re-disposition of the same content as the instant previous disposition on the ground that “the final evaluation should be determined based on the outcome derived within the research period.”

2) On July 3, 2017, the Defendant issued a three-year restriction on participation in national research and development projects pursuant to Article 11-2(1)1 of the Framework Act on Science and Technology and Article 27 of the Regulations on the Management, etc. of National Research and Development Projects (hereinafter “Rules on the Management of National Research and Development Projects”) on the ground that “the result of the instant research and development project was extremely poor and the result of the instant research and development was determined as a failed project as a result of the Defendant’s evaluation conducted by the Defendant.” The Defendant issued a disposition to recover KRW 144,761,47 of research funds to A University Industry Cooperation Foundation (hereinafter “the instant disposition to recover research funds,” and “each of the instant dispositions”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 17, Eul evidence Nos. 3, 8 through 15, and 19 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the defendant's defense prior to the merits

A. Summary of the defense prior to the merits

A litigation seeking revocation under the Administrative Litigation Act may be instituted by a person having a legal interest to seek revocation of the relevant disposition. The instant disposition for restitution of research funds was conducted with the industry-academic cooperation foundation of A University, other than the Plaintiff. The Plaintiff, other than the other party to the disposition, cannot be deemed to have a legal interest to seek revocation of the said disposition. Therefore, the part seeking revocation of the said disposition

B. Determination

Article 11 (2) 2 and 3 of the Framework Act on Science and Technology stipulates that "The Government shall strengthen support to enhance research and development capacity by creating the highest research environment for research institutes and researchers when promoting national research and development projects, and shall consider the autonomy of research institutes and researchers as the top priority in preparing systems and regulations related to national research and development projects."

In addition to the contents and legislative intent of the Framework Act on Science and Technology, ① the State contributes research funds to an industry-academic cooperation foundation, which is the main research institute for national research and development projects, in view of the interpretation of the Framework Act on Science and Technology, it appears that the purpose is not only to foster an industry-academic cooperation foundation, but also to strengthen the research human resources belonging to the industry-academic cooperation foundation. ② Basically, the support for research funds for national research and development projects is conducted for research and development of research teams belonging to the industry-academic cooperation foundation, not the industry-academic cooperation foundation itself. ③ An industry-academic cooperation foundation is merely an external entity of management and implementation, and substantial interest can be deemed to belong to the research team, which is the main entity of the relevant research and development project. ④ The collection of research funds under the Framework Act on Science and Technology falls under an administrative disposition with superior status of an administrative agency, and thus, a researcher, etc. whose legal status is affected by it appears that there is no individual, specific, and specific interest in the collection of research funds for national research and development projects.

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

A. The plaintiff's assertion

The issue of whether the research and development outcomes of this case are extremely poor should be determined based on the circumstances that occurred until the time of each of the dispositions in this case. Nevertheless, the Defendant determined the research and development outcomes of this case without reviewing the situation that occurred after the expiration of the research and development period. Moreover, even though the Plaintiff had made outstanding research and development of this case, such as publishing a large number of thesiss to the author with the highest 10% or more, the Defendant determined that the research and development outcomes of this case was extremely poor on a arbitrary basis. Accordingly, each of the dispositions in this case

(b) Relevant statutes;

Attached Form 1 shall be as stated in the relevant statutes, etc.

C. Whether the discretion is deviates or abused

1) Facts of recognition

A) The objective, content, and expected effect of the instant research and development indicated in the research plan submitted by the Plaintiff to the Defendant are as follows.

B) The research findings and utilization plans stated in the final report submitted by the Plaintiff are as follows.

C) The research plan and interim report submitted by the Plaintiff to the Defendant contain the content that the Plaintiff will publish, apply for, and register a foreign thesis (SCI author (hereinafter omitted) and a patent of 11 domestic and foreign patents for the total research period.

D) However, until February 28, 2014, the date on which the research and development period ends, the Plaintiff published and registered 4 copies of an overseas thesis (attached Table 2 List 1 Nos. 1, 5 through 7) and 2 domestic and overseas patents (attached Table 2 List 3, 5). The Plaintiff published, applied for, and registered 3 copies of an overseas thesis (attached Table 2 List 1 Nos. 2 and 4) and 5 domestic and overseas patents (attached Table 2 List 1, 2, 4, 6, 7) only after February 28, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 6 through 12, 13, 16, 20, 21 evidence, Eul evidence 5 through 7, the plaintiff's personal examination result, the purport of the whole pleadings

2) Relevant legal principles

If an administrative agency made a judgment as an expert on highly specialized and technical matters as prescribed by the relevant statutes, such judgment should be respected. Since the indefinite concept of ‘unafford' as the result of research and development stipulated in Article 11-2(1)1 of the Framework Act on Science and Technology requires a high level of professional and technical judgment, the Defendant’s determination based on the results of research and development conducted by the sanctions evaluation board organized under Article 27(6) of the former Regulations on Management of National Development Projects and Article 45(6) of the former Regulations on Management of the Ministry of Science, ICT and Future Planning should be respected.

However, in a case where there is a serious error in fact-finding, which forms the basis for the determination of the research and development outcomes, or where there is a special circumstance that the determination of the research and development outcomes deviates from or abused discretion, such a determination of the research and development outcomes should be revoked in an unlawful manner, as in the case where there is no specific circumstance to be considered objectively unreasonable under the social norms or in making

3) Determination

1) The determination of the discretion to exercise the discretion ought to be made by comprehensively taking into account all the specific circumstances revealed by the time of the disposition. As such, the determination of the discretion should also be made by comprehensively taking into account all the specific circumstances revealed by the time of the disposition. Therefore, if the Defendant did not consider specific circumstances that should be taken into account by the time of the disposition and did not determine the result of the research and development without considering such specific circumstances, the disposition based on the said determination ought to be revoked as a deviation or abuse of discretion due to the non-exercise of discretion

For this, the Defendant asserts that the determination of the result of research and development ought to be made by taking into account only the situation that was deferred by the end of the research and development period, rather than the disposal period, and that the situation that was present after the completion of the research and development period should not be considered in making the determination of the result of research and development. In order to see it as alleged by the Defendant, there is a special need for such statutory basis or for such interpretation. However, Articles 15 and 16 of the National Research and Development Project Management Regulations, which provide for a series of procedures for the report, evaluation, and follow-up measures of the research and development outcomes, are not a provision compelling the Defendant to make the determination of the result of research and development by taking into account only the situation that was present until the

Inasmuch as there is no need to accept the Defendant’s above assertion, considering the following: (a) the Defendant’s assertion that the publication of a thesis or patent application is not made within a prompt date due to the lack of verification, and the personal information with global authority, such as obscise or dure, requires considerable time for the examination of the thesis; (b) the need to determine the outcome of research and development by considering all the circumstances existing until the time of the disposition, rather than the end of the research and development period, is greater.

Nevertheless, the Defendant asserted that it should make a decision on the research and development result by taking into account only the present circumstances by the end of the research and development period, and made a decision that the research and development result of the instant case is extremely poor without properly reviewing and reviewing the attached Table 2 List Nos. 1 to 2 through 4 overseas research papers, Nos. 1, 2, 4, 6, 7 domestic and foreign patents located after the end of the research and development period, and thus, each of the instant dispositions based on the said judgment should be revoked by denying and abusing discretion due to the non-exercise of discretion.

2) Determination of objectively unreasonable discretion under social norms

A) As long as each of the dispositions of this case must be revoked as a deviation or abuse of discretionary power due to a non-exercise of discretionary power, it is necessary to examine whether the Defendant’s discretionary decision is objectively unreasonable under social norms. However, the Defendant’s discretionary decision is objectively unreasonable under social norms in preparation for a case where the Defendant subsequently reviewed a foreign thesis Nos. 1 to 4, 2 to 2, 4, 6, and 7 of the attached Table Nos. 2, 1 to 2, 2, 4, 6, and 7, and then further examined whether the Defendant’s discretionary decision that the research and development outcome of this case is extremely poor in preparation for a case where

B) Article 11-2 (1) 1 of the Framework Act on Science and Technology does not stipulate the requirements for disposal as "unsatisfy due to poor outcomes of research and development." Thus, in determining the outcomes of research and development, the Defendant shall not simply determine whether the outcomes of the research and development in question failed to achieve the final research objective, but shall not simply determine whether the outcomes of the research and development in question failed to achieve the final research objective. In addition, if the outcomes of the research and development in question failed to achieve the original research objective, some research goals have been achieved, and some research goals have been achieved, it shall be determined whether the research outcomes in question are somewhat poor or extremely poor, by comprehensively taking into account the following: (a) whether the research outcomes in question failed to achieve the research objective

First of all, the Plaintiff’s quantitative aspect is examined. The Plaintiff did not achieve the publication, application, and registration of 14 overseas, the quantitative objective of which is the pre-research plan and interim report, and 11 patents domestically and overseas. However, at the time of each disposition of this case, the Plaintiff completed the publication, application, and registration of 7 overseas and 7 patents domestically and overseas. In particular, the number 1, 2, 5, and 6 of [Attachment 2] Nos. 1, 1, 2, 5, and 6 of [Attachment 2] were published in a personal journal of at least 10%. This is the outcome of the Plaintiff’s research and development performance and evaluation team up to the top 1,00 won of the research cost of 1,00 won, which is the basis for quantitative evaluation. Accordingly, from a quantitative perspective, it cannot be said that the research and development outcome of this case is extremely poor.

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C) Ultimately, since the Defendant’s discretionary judgment that deemed that the research and development outcome of this case is extremely poor is objectively unreasonable in terms of social norms, the Defendant’s discretionary judgment is unlawful. Therefore, each of the dispositions of this case based on the aforementioned judgment should be revoked as it is illegal as a deviation or abuse of discretionary power.

D. Sub-committee

Therefore, each of the dispositions of this case should be revoked in an unlawful manner due to deviation from and abuse of discretionary power.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judgment of the presiding judge;

Judges Slocks

Judges Kang Jae-sung

1) A law that the research team leader states that there is a legal interest in dispute over the validity of the notice of termination of the project agreement in Korea (BK) 21.

Seoul High Court Decision 2012Du28704 decided Dec. 11, 2014

2) Attached 2 List Nos. 1, 2, 5, and 6 are published in the personal register above 10 per cent of the upper 10 per cent (the entry and source of evidence No. 13)

see the result of the personal identification.