2018Nu6504 Action for revocation of restrictions on participation, etc.

A

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

Attorney Yellow-Un et al.

1. The Minister of Education;

Law Firm Loplus et al., Counsel for the defendant-appellant

Attorney Park Dong-sik, Attorneys Park Dong-sik, Attorneys Lee In-bok and Lee In-bok

2. The Minister of Science and ICT;

Litigation performers shall be commercialized;

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

Attorney Park Jong-hoon, Justice Park Jong-hoon, and Justice Nam-chul

Seoul Administrative Court Decision 2018Guhap51652 decided August 31, 2018

May 30, 2019

July 18, 2019

1. The part of the judgment of the court of first instance against the plaintiff, which orders revocation below, shall be revoked.

A. The Minister of Education’s disposition of KRW 4,741,760, taken against the Plaintiff on January 5, 2018, for three years of restriction on participation and recovery to the Industry-Academic Cooperation Force of the two universities and the Plaintiff; and

B. On October 27, 2017, the Minister of Science and ICT revoked the Plaintiff’s disposition of KRW 3,69,720, which was taken against the Plaintiff in three years of restriction on participation and the Industry-Academic Cooperation Foundation for B University.

2. The plaintiff's remaining appeals against the defendant Minister of Education are all dismissed.

3. 60% of the total litigation costs between the Plaintiff and the Defendant shall be borne by the Plaintiff, and 40% shall be borne by the said Defendant, and the said Defendant shall bear the total litigation costs between the Plaintiff and the Defendant.

The judgment of the first instance court shall be revoked. The judgment of the first instance court shall be revoked. Section 1-A. B. and the defendant Minister of Education, Nov. 28, 2017

the disposition of KRW 9630,00,000 to the High Court for three years of restriction on participation and the Industry-Academic Cooperation Foundation for B university

Two revocations (to arrange the purport of the plaintiff's claim as above).

1. Details of the disposition;

A. The Defendant Minister of Education shall delegate the science support project to the Korea Research Foundation pursuant to Article 5 of the Science Promotion Act. The Defendants shall delegate the national research and development project in the fields assigned pursuant to Article 11 of the Framework Act on Science and Technology to the Korea Research Foundation (hereinafter referred to as the “Korea Research Foundation”).

(b) Conclusion of agreements with the National Research Foundation of Korea;

1) (1) Upon delegation by the Minister of Education, the Research Foundation of the Republic of Korea entered into an agreement with the Korea Research Foundation (hereinafter referred to as the “Korea Research Foundation”) as the BK21 Plus Project (U.S. Foundation) and the total project period: from September 1, 2013 to August 31, 2020. Upon delegation by the Minister of Education, the Research Foundation of the Republic of Korea (hereinafter referred to as the “First Project”) entered into an agreement with the B University and the Industry-Academic Cooperation Foundation of the Republic of Korea: The Research Foundation of the Republic of Korea (hereinafter referred to as the “Korea Research Foundation”) entered into an agreement with the Korea Research Foundation of the Republic of Korea: (i) the basic research project; (ii) the name of the project; (iii) the minority control of the de facto gratium of the non-specific nature whose framework was increased; and (iv) the research and development project of the Republic of Korea entrusted by the Minister of Science and ICT to the 20th anniversary of August 31, 2013.

3) The Plaintiff is a researcher of the first project (head of the project) and a person in charge of the second and third projects. The Plaintiff is a person in charge of the second and third projects.

1) 원고 연구실 소속 대학원생 C의 제보로 '원고가 지원받은 연구비 중 대학 원생들의 인건비를 가로챘다'는 등의 언론기사가 2014년 7월경 보도되었다.

2) As a result of comparison with the Plaintiff’s five books of study instruction students from July 2014 to August 2014 and the Plaintiff’s statement, the research scholarship and personnel expenses were withdrawn and executed on August 21, 2014.

<진상조사위원회 결과보고서(갑 제5호증) > (단위: 원) 그중 연구실 운영비 4,290,000원은, C의 계좌 입출금내역에서 ① 연구실 운영비로 지출된 것으로 확인된 2,560,000원과 ◐ 인출 용도가 불명확한 1,730,000원의 합계 4,290,000원(= 2,560,000원 + 1,730,000원)이 ① 원고가 제출한 증빙자료에 의하여 연구실 경비로 사용한 것으로 확인된 3,243,500원과 ④ 현재 연구실 운영비로 남아 있는 잔액 800,000원의 합계 4,043,500원(= 3,243,500원 + 800,000원)과 큰 차이가 없다는 점에 근거하여 산정된 금액이다.

3) On September 4, 2014, the Investigation Committee on the Truth of B University submitted a final investigation upon the request for an additional investigation by the Korea Research Foundation. The Investigation Committee on the Truth of B University confirmed the amount of KRW 1,200,00 returned by K of graduate students based on the previous investigation conducted on August 21, 2014, and confirmed that KRW 18,071,00, out of the research scholarships and personnel expenses received by graduate students from January 2013 to June 2014 as indicated in the following table, was repaid as joint research expenses (hereinafter “instant joint expenses”).

As a result of the fact-finding committee's investigation (A evidence 6-1) 1 : 3,243,500 won explained by the plaintiff + 246,500 won without verification + F 3,630,000 won + 2,430,000 won in laboratories + 2,000 won in laboratories + 30,000 won in laboratories + 80,000 won in K 1,200,000 + 1,60,000 won in research projects + 30,000 won in 2,96,000 won in 2,00 won in 2,00 won in 2,00 won in 36,00 won in 2,00 won in 2,00 won in 36,00 or less in 30,00 won in 2,00 won in 1,60 won in 30,000 won in 20,6130 or more in 4,

D. On March 3, 2015, the Korea Research Foundation imposed a disposition of KRW 3 years of restriction on participation in national research and development projects related to the project on March 1, 2015, and KRW 9.630,000 on March 25, 2015, imposed a disposition of KRW 3 years of restriction on participation in national research and development projects related to the third project, and KRW 3 years of recovery 3,69,720, and on October 22, 2015, imposed a disposition of KRW 3 years of restriction on participation in national research and development projects related to the second project.

2) On March 31, 2016, the Plaintiff filed an administrative litigation seeking revocation of each of the above dispositions. On March 31, 2016, the Korean Research Foundation rendered a judgment revoking each of the above dispositions on the grounds that there is no legal authority to take the above dispositions ( Daejeon District Court Decision 2015Guhap102339, hereinafter referred to as "prior disposition"). The judgment became final and conclusive on December 9, 2016.

E. The Defendants’ disposition 1) on November 28, 2017, on the ground that the Defendant jointly managed 9630,000 won of research scholarships paid to graduate students in relation to the 1 project and used them for purposes other than for the purpose, such as intentionally unlawful execution of the project cost, etc., the Defendant imposed a disposition of KRW 3 years of restriction on participation (excluding selection of persons eligible for scientific support) and KRW 9630,000 upon B University Industry-Academic Cooperation Foundation (hereinafter “disposition related to 1”).

2) On January 5, 2018, the Defendant Minister of Education jointly managed the personnel expenses of KRW 4,741,760 paid to the students participating in the research and development regarding the second project and used them for any purpose other than the purpose of use, such as “use of research and development expenses” (hereinafter “disposition related to the second project”). The Defendant Minister of Science and ICT issued a disposition of KRW 3,69,720 against the Plaintiff on October 27, 2017, on the ground that the expenses of KRW 3,69,720 paid to the students participating in the research and development regarding the third project were jointly managed and used for any purpose other than the purpose of use (hereinafter “disposition related to the third project”). The Defendant Minister issued a disposition of KRW 3,69,720 against the Plaintiff on October 27, 2017, on the ground that the research and development expenses were jointly managed by the researchers participating in the research and development project (hereinafter “each disposition related to the third project”).

[Reasons for Recognition] Facts without dispute, Gap's 1 through 3, 5 through 7, 12 through 16, 20 through 23, Eul's 1 and 5 evidence (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

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

(a) Procedural illegality (commonity);

1) Summary of the Plaintiff’s assertion

After the revocation of the disposition of the Korea Research Foundation, the Defendants’ respective dispositions of this case must undergo the procedures of investigation, etc. on the grounds for the disposition. However, the Defendants changed only the disposal authority to the Defendants without going through any procedures for the disposition. Each of the dispositions of this case is unlawful without going through legitimate procedures.

2) Determination

The purpose of the preceding case ruling that revoked the disposition of the Korean Research Foundation is that the Korean Research Foundation has no authority to make a disposition for participation and recovery.

Meanwhile, Article 19(2)1 of the Sciences Promotion Act provides that "the Minister of Education may suspend the payment of project costs or recover all or part of the project costs already paid if the researchers, universities, etc. subsidized project costs use them for any purpose other than the original purpose," and Article 20(1) of the same Act provides that "the Minister of Education may restrict the participation of national research and development projects within the scope of five years where the researchers, universities, etc. suspended or paid project costs are fully or partially recovered as they fall under any of the subparagraphs of Article 19(2)." Article 11-2(1) of the former Framework Act on Science and Technology (amended by Act No. 12869, Dec. 30, 2014; hereinafter referred to as the "former Framework Act on Science and Technology") provides that "the head of a central administrative agency may limit the participation of national research and development projects within the scope of five years, and may recover all or part of the project expenses already contributed or subsidized, as prescribed by Presidential Decree."

According to the above legal provisions, where researchers, universities, etc., who received subsidies for project costs (research and development costs) use project costs (research and development costs) for any purpose other than the original purpose, the Defendants may choose persons eligible for academic support (limited to participation) and take measures to recover the project costs. Accordingly, the Defendants may confirm the facts based on the data investigated by the National Research Foundation of Korea in accordance with the purport of the judgment in the preceding case, the evidence presented during the preceding case, etc., and then take each of the dispositions in this case accordingly. Furthermore, according to the evidence evidence Nos. 21 through 23, the Defendants notified the Plaintiff and the president of the Industry-Academic Cooperation Foundation prior to each of the dispositions in this case, and the Plaintiff presented their opinions thereon.

In light of such circumstances, the Defendants may be deemed to have taken each of the instant dispositions through the investigation and disposition necessary for the grounds for disposition. The Plaintiff’s assertion on this part is without merit.

B. Whether there is substantive illegality

(i)in the case of a primary project:

A) Summary of the Plaintiff’s assertion

(1) Non-existence of grounds for disposition

(A) Non-use of the project cost for any other purpose

Considering the developments leading up to the creation of common expenses and the actual purpose of use, the common expenses related to the first project cannot be deemed to have been used for a purpose other than the original purpose. Nevertheless, the Defendant deemed that it was a “use for a purpose other than the original purpose” solely on the ground that graduate students have returned research scholarships received from the first project. The instant disposition related to the first project is unlawful because there is no reason for the disposition.

① Of the common expenses related to the 1st project, 1.2 million won among the 1st project is the grant of research scholarships received by K from the 1st project. This is nothing more than the disposal of the property according to K’s own will, and therefore, it is irrelevant to the ‘use for other purposes' of the project cost at issue in this case.

② Of the common expenses related to the first project, 8.43 million won is part of the research scholarships that a graduate student C, D, Ash, H, etc. received from the first project, and was not registered as a graduate student E and a participant in the first project but paid to a preliminary graduate student G and F for a master’s degree course tuition. This is based on the voluntary will of the graduate student, and is used as a research scholarship for the original purpose in line with the purpose and purpose of the first project, and thus does not constitute “use for any other purpose.”

(B) Even if the common expenses related to the first project constitute “use for purposes other than the project cost” rather than the selection restriction disposition, the Defendant’s Minister of Education may only exclude the Plaintiff from the selection of a person eligible for science support pursuant to Article 20(1) of the Promotion of Sciences Act, and may not impose an active restriction on participation. Furthermore, the Defendant’s Minister of Education did not specify the period of restriction on participation.

(2) A deviation from or abuse of discretionary power

(A) The use of the common expenses related to the first project falls under the case where the project cost is temporarily used for any other purpose, and the selection period of a person eligible for science support who can be disposed of by the Defendant Minister to the Plaintiff is up to two years. However, the Defendant Minister of Education applied the exclusion period of three years by deeming that the use of the common expenses related to the first project falls under the case where the use of the project cost prescribed in subparagraph (b) of Article 20 of the Enforcement Decree of the Sciences Promotion Act is a case where the project cost is intentionally wrongfully executed.

In light of the fact that the creation of common expenses related to the 1st project in Korea is gathered by graduate students at a mutual aid level, and most (8.43 million won) are subsidized by the students with a master's degree course and is not contrary to the purport of the prohibition of joint management of research scholarships, and the remainder (1.2 million won) is stored in a laboratory, and there is no personal acquisition by the Plaintiff, etc., it is likely to be subject to criticism. Nevertheless, the Defendant Minister of Education issued a disposition to recover the full amount of KRW 9.63 million related to the 1 project and imposed a restriction of participation for a maximum of three years which may be imposed in case of an intentional fraudulent execution of project costs is unlawful in violation of the principle of proportionality.

B) Whether the project cost falls under the use for purposes other than the original purpose

(1) Relevant legal principles

As seen earlier, Article 19(2)1 of the Sciences Promotion Act provides that "the Minister of Education may suspend the payment of project expenses or recover all or part of the project expenses already paid if the researchers, universities, etc. subsidized project expenses use them for any purpose other than the original purpose," and Article 20(1) of the same Act provides that "the Minister of Education shall exclude them from the selection of persons eligible for science support pursuant to Article 6(1) within the scope of not less than one year but not more than five years, as prescribed by Presidential Decree, where the whole or part of the project expenses suspended or paid by researchers, universities, etc. fall under any of the subparagraphs of Article 19(2)."

Furthermore, Article 28 (1) 1 of the Directive on the Management and Operation of Bas 21 (amended by Ministry of Education Directive No. 30 on February 6, 2014) provides that "graduate school students' research scholarships" shall be included in the expenditure item of project expenses. Meanwhile, Article 25 (1) of the above Directive provides that at least 600,000 won shall be paid to each graduate school student who is registered as full-time student from among the students who are directed by professors participating in BK 21 p.m., and Article 25 (4) of the above Directive provides that at least 10,000 won shall be paid to each graduate school student as research scholarships for the purpose of efficient implementation of projects pursuant to the Science Promotion Act, or that at least 20,000 won shall be paid to each graduate school student for the purpose of collecting 10,000 or more research scholarships from such graduate school student under joint management and operation guidelines (which is enacted on February 13, 2014).

(2) As to KRW 1.2 million returned from K

① According to the aforementioned evidence, evidence No. 9, evidence No. 18, 19, 25, 33 and 34, evidence No. 36-5, and evidence No. 2, the following facts may be acknowledged.

Y K received a master’s degree course (support) registered as a graduate school student in the first project in which the Plaintiff participates as the head of the project team from September 2013 to February 2014, and a first project research scholarship in the aggregate of 1.2 million won in January 2014 and February 600, as the first project research scholarship.The decoration remitted 1.2 million won to C’s account, and C kept it in the public library that has been managed as a joint research expense.

Q C appeared as a witness at the court of first instance of the preceding case on March 17, 2016, and stated to the effect that "K was awarded a two-month scholarship according to the direction of the Plaintiff, and the return of the said scholarship was in accordance with the direction of the Plaintiff."

② Examining the above facts in light of the legal principles as seen earlier, it can be seen that KRW 1.2 million out of the common expenses related to the first project was paid to K with research scholarships, which was recovered, and was created as joint laboratory expenses. This is the research paper of the first project that should be reverted to the graduate students was “use for purposes other than the original purpose.”

(3) As to KRW 8.430,000 subsidized with tuition

① According to the aforementioned evidence, Gap's evidence No. 27, Eul evidence No. 36 Eul, Eul's evidence No. 1 and the purport of the evidence No. 6, the following facts were acknowledged. Eul, Eul, Eul's 1 and Eul's 2 were transferred to the 3-month graduate school's 2-month graduate school student's 2-month graduate school student's 1 and 3-month graduate school student's 2-month student's 3-month student's 16-month student's 3-month student's 2-month student's 2-month student's 106-month student's 2-month student's 106-month student's 3-month student's 2-month student's 1 and 4-month student's 3-month student's 2-month student's 106-month student's 2-month student's 106-month student's 3-month student's 18-6-month student.

E. On August 1, 2014, the Plaintiff appeared at the fourth Fact-finding Committee of B University, and stated that “A student researcher was entitled to research scholarships and confirmed that some of the students provided a graduate school registration fee to another student.”

② According to the above facts, C, D, Ash, H, etc. selected as a graduate school student participating in the first project as the subject of research scholarships, were to collect some of the amount paid as a research scholarship for the first project under the direction or approval of the Plaintiff, and to support G (2.43 million won + D (A.2 million won + KRW 4 million + H 2.430,00 won + KRW 2.4 million)] to G (2.430,000 won), F (3.63 million won), and E (2.370,000 won) master’s degree course.

Examining these facts and circumstances in light of the legal principles as seen earlier, research scholarships received from C, D, Ash, H, etc. are individually paid to the above graduate students who were registered as the students of the university participating in the first project and were selected as the recipients of research scholarships. Therefore, the above research scholarships should be finally reverted to the relevant graduate students, and the collection of such scholarships is strictly prohibited. Nevertheless, as part of the research scholarships were recovered under the Plaintiff’s instruction or approval and were used as the enrollment fees for other students, this would be in violation of the law that strictly prohibits the withdrawal of the research scholarships. Accordingly, the research scholarships, which were recovered under the pretext of supporting other students’ enrollment fees, constitute a case where the research scholarships were used for any purpose other than “purpose.”

(4) The theory of lawsuit

Since the joint expenses related to the business of 1.2 million won returned from K as well as 8.43 million won paid for the purpose of supporting registration fees all constitute the use of research scholarships for the business of 1,000 won, there are grounds for the disposition related to the business of 1,00 won. The plaintiff's assertion on this part is without merit.

C) Whether it is possible to impose restrictions on participation, not an exclusion from selection

① Article 20 subparag. 3 of the Enforcement Decree of the Sciences Promotion Act provides for the exclusion period for the selection of a person eligible for scientific assistance in cases where the project cost is used for any purpose other than the original purpose under Article 20(1) of the Sciences Promotion Act. Article 20 subparag. 3 of the Enforcement Decree of the same Act provides for the exclusion period for the selection of a person eligible for academic assistance in cases where the project cost is embezzled, stolen, or useful: from three years to not more than five years [a], and where the project cost is intentionally fraudulently executed: [b] from two years to not more than three years [a], and where the project cost is temporarily used for any purpose other than another purpose:

② According to the evidence Nos. 21-1 and 2-2, even though it is recognized that the defendant Minister of Education stated that the disposition regarding the first project is "restriction on the participation (excluding the selection of a person eligible for scientific support)", it does not mean that the restriction on participation and the designation of a person eligible for academic support are different from each other. Even if it is a different disposition, the defendant's Minister of Education issued a disposition "other than the designation of a person eligible for academic support" under Article 20 (1) of the Sciences Promotion Act. Furthermore, since the defendant's education specified the period of restriction on participation in the first project as "three years", the plaintiff

③ According to the evidence evidence evidence evidence No. 17, the plaintiff was investigated on the charge of embezzlement of student personnel expenses in relation to the instant common expenses, but the Incheon District Prosecutors' Office held a non-prosecution disposition (Evidence of Evidence) on the ground that the instant common expenses were voluntarily collected by graduate school students and embezzled by the plaintiff on January 18, 2016." However, in light of the facts acknowledged earlier, even if the plaintiff did not have the intent to illegally obtain the common expenses related to the first project, it is not different from the fact that the research scholarship was collected by graduate students under the plaintiff's instruction or approval, and in this respect, it is not changed that the research scholarship was jointly managed contrary to the provisions of the law.

④ Ultimately, the Plaintiff’s assertion on this part is without merit.

D) Whether the discretion is deviates or abused or not

(1) Relevant legal principles

In light of the above provisions of Articles 19(2)1 and 20(1) of the Sciences Promotion Act and Article 20 subparag. 3(b) of the Enforcement Decree of the same Act, where the Defendant Minister grants discretion to recover project costs and to determine the amount thereof, but where the Minister of Education decides to recover project costs according to the aforementioned discretion, he/she must be subject to a disposition of restriction on participation. However, if there are grounds such as misunderstanding of facts when exercising such discretion, proportionality, or violation of the principle of equality, etc., it is illegal as a deviation or abuse of discretionary authority. Whether a disciplinary administrative disposition deviates or abused from the scope of discretionary authority should be determined by comparing and comparing the content of the offense as the grounds for the disposition, the degree of violation, the necessity of the public interest to be achieved by the relevant disposition, the disadvantage suffered by an individual, and the degree of the infringement of public interest and the disadvantage suffered by an individual due to such disposition (see, e.g., Supreme Court Decision 98Du1794, Apr. 7, 2000).

(2) Determination on the instant case

In full view of the facts acknowledged earlier and the purport of the entire arguments as seen earlier, even if considering the circumstances alleged by the Plaintiff, it does not seem that the Plaintiff suffered a significant disadvantage compared to the public interest to be achieved by the disposition related to the first project. Therefore, it cannot be deemed that the first project-related disposition was a deviation or abuse of discretionary authority.

The plaintiff's assertion on this part is without merit.

① The Plaintiff’s recovery of research scholarships individually paid to the relevant graduate students and raising them as joint laboratory expenses or providing them with the enrollment fees for other students constitutes “a case where the Plaintiff intentionally or unlawfully executed the project expenses stipulated in Article 20 subparag. 3(b) of the Enforcement Decree of the Sciences Promotion Act by using the research scholarships which should be ultimately reverted to the relevant graduate student for any purpose other than the original purpose.” Unless there is any evidence to prove that the said amount was re-paid to the relevant graduate student, it cannot be deemed that it was limited to the temporary diversion of the project expenses stipulated in subparag. 3(c) of the same Article.

(2) The 1st project cost is paid to support the academic and research activities related to the BK21 Plus Business, and there is a high public interest to ensure that the research scholarships are appropriately disbursed in accordance with the payment purpose and use. In particular, using research scholarships for graduate students for any other purpose is likely to collapse the economic foundation of graduate students, undermine their desire for research, and lead to the failure of the project, so it is highly necessary to prohibit them.

(3) The disposition related to the first project is a sanction for collecting research scholarships individually paid to graduate students to use them for any purpose other than the purpose of using them as tuition for other students or creating joint laboratory expenses. The fourth Plaintiff is a person in charge of the first project and is responsible for managing and supervising graduate students selected as a graduate student of the first project who participated in the first project to fully receive research scholarships. Nevertheless, the Plaintiff cannot be said to be less likely to be subject to criticism due to its responsibility, as it instructs the relevant graduate student to return the research scholarships and designates the purpose of the use.

⑤ The redemption disposition related to the first project is related to the amount confirmed as being used for purposes other than the purpose out of the research scholarships paid as the first project cost, and the disadvantages the Plaintiff may not be deemed to exceed the minimum necessary level to achieve the above public interest purpose. The Plaintiff asserts that it is unfair to recover the amount of the joint expenses related to the first project since most of the joint expenses were used as the actual purpose, such as the payment of enrollment fees to the students who actually participated in the first project task. However, insofar as it is recognized that the research scholarships individually paid to the graduate students were recovered under the Plaintiff’s instruction or approval and were paid as enrollment fees for other students, it is reasonable to deem that such research scholarships cannot be deemed as voluntary collection by the graduate students and constitute use for purposes other than the original purpose.

6) Since the recovery disposition related to the first project is deemed legitimate within the scope of discretion and thus, the Defendant Minister of Education shall impose the restriction on the Plaintiff’s participation pursuant to Article 20(1) of the Sciences Promotion Act. The restriction on the participation in the first project is conducted within the scope of Article 20(1) of the Sciences Promotion Act and Article 20 subparag. 3(b) of the Enforcement Decree of the same Act, which is limited to the restriction on the participation in the academic support project conducted by the Ministry of Education in accordance with the Science Promotion Act, and it is not limited to the restriction on the participation in the research project conducted by the Ministry of Education by other central administrative agencies, public institutions, and enterprises other than the Ministry of Education, the restriction on the participation

E) Sub-decisions

Dispositions related to the first project by the Minister of Education are justifiable.

2) As to the 2 and 3 businesses

A) Summary of the Plaintiff’s assertion

(1) The illegality in calculating common expenses related to the business 2 and 3

(A) Of the common expenses of KRW 8,441,00 for projects 2 and 3, 1730,000 for the joint expenses of KRW 8,441,00 is not returned as laboratory operating expenses. Nevertheless, the Defendants included the said money in the amount of joint expenses related to projects 2 and 3, based solely on C’s statement and account deposit and withdrawal.

(B) KRW 1,195,00 among the common expenses related to the second business was not registered as a participant, but was paid as personnel expenses to G and F who actually conducted research on the second business. This constitutes “other use” because it was used as personnel expenses for the original purpose of research and development expenses for the second business.

subsection (b) of this section.

(C) KRW 8,441,00 includes personnel expenses for tasks under the supervision of the Ministry of Knowledge Economy and the Ministry of Trade, Industry and Energy, etc., as well as tasks ordered by the Defendants. Furthermore, there is no ground to specify the amount of common expenses returned for 8,441,00 won by business 2 and 3. Nevertheless, the Defendants issued a disposition related to 2,30 businesses on the basis of arbitrarily divided 8,441,00 won in calculating common expenses related to 2,30 businesses by the Korea Research Foundation. The dispositions related to 2,30 businesses are unlawful without any ground for calculating common expenses for each business, which serves as the basis for such dispositions.

(2) Illegality during the participation restriction period

The Defendants: (a) did not specify the period of restriction on participation in their respective three-year periods of restriction on participation in their respective three-year periods of restriction on participation in their respective projects; (b) accordingly, the period of restriction on participation in their actual application to the Plaintiff was extended to three years and two months; and (c) this contradicts the purport of the statutes

(3) Violation of double restitution disposition

Joint expenses related to projects 2 and 3 have already been refunded. Each of the dispositions related to projects 2 and 3 is illegal as double restitution disposition for which recovery has already been completed.

(4) A deviation from or abuse of discretionary power

(A) Of the common expenses related to the second project, KRW 1,195,00, the amount of KRW 1,195,00 was paid to the students who actually participated in the research as above as personnel expenses. The remaining money was used as indirect expenses necessary for research and development, and the Plaintiff does not have personally useful, stolen, or fraudulently acquired it. Considering that it is "the use of research and development expenses for any purpose other than the original purpose", this constitutes "the use of research and development expenses" under Article 27 (1) 5 (c) of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 23788, May 14, 2012) and thus, the period of restriction on participation that the Minister of Education may dispose of the Plaintiff is up to two years. However, the Minister of Education calculated the period of restriction on participation by deeming that the use of the common expenses related to the second project falls under the category of "Embezzlement, defraud, or useful research expenses prescribed under subparagraph (a) of the same subparagraph.

B) Whether the calculation of common expenses is illegal

(1) Whether KRW 1.73 million deposited from the C account on May 2013 was returned as laboratory operating expenses (negative)

In light of the following circumstances, evidence as mentioned above, evidence Nos. 5, 6, 31, 32, and 34 and the overall purport of the pleadings, it is insufficient to recognize that the evidence submitted by the Defendants alone is insufficient to recognize that KRW 1730,000,000, which is unclear in the use withdrawn from C’s account, has been returned to the laboratory operating expenses, and there is no other evidence to prove otherwise. The Plaintiff’s assertion on this issue

① From the account of C, the sum of KRW 1430,000,000 and KRW 1730,000,000 was withdrawn on May 2, 2013 and May 31, 2013.

② As to the above purpose of KRW 1730,00 won, the Medical Examination Committee of B University included KRW 4.29 million, plus KRW 2.560,00,00,00 which was confirmed to have been disbursed as laboratory operating expenses, out of the amount withdrawn from the account of the Plaintiff (i.e., KRW 1.730,000 + KRW 2.560,00) (i.e., KRW 3,243,50,00 which was confirmed to have been used as laboratory expenses according to evidentiary documents submitted by the Plaintiff, and ④ KRW 4,043,50,000 in total (= KRW 3,243,50,000 + KRW 80,000), based on the fact that there is no big difference between the remaining amount as laboratory operating expenses and KRW 1730,000,000,000 as a laboratory operating expenses, the amount should not be included in the amount of KRW 371,000,00.

③ At the time of the investigation by the Presidential Committee on the Truth of B University, C stated that “it was delivered to the Plaintiff, although it is unclear about the duration of the examination.” Unlike other laboratory operating expenses, C directly delivers the said money to the Plaintiff. It is not easy to understand that even if the amount is not so much, it is difficult to properly memory as to whether it was actually delivered.

④ If the above money is excluded from the source of funds for operating expenses of a laboratory, it is insufficient to cover KRW 4,043,500 that the money withdrawn from the C’s account as operating expenses of a laboratory is merely 2,560,000 and used as operating expenses of a laboratory. As such, it is unlikely that KRW 1730,000 has been returned as operating expenses of a laboratory.

However, the Plaintiff asserts to the effect that the remaining balance of 80,000 won as the current laboratory operating expenses is not included in the common expenses of this case as the remainder remaining after the Plaintiff used the personal contributions to the Plaintiff. In other words, ① at the time of 2007, graduate school students I provided 3,00,000 won a monthly rent of 3,00,000 won as private expenses. I completed the doctor’s degree course in 2010, and returned 3,000,000 won to D to use 2,50,000 won as laboratory expenses. ① out of the above money in 2011, C received a full scholarship in 2013, and C returned 2,50,000 won as C was to use 8,000,000 won for the purpose of using 8,000,0000 won as travel expenses with a high visit visit after a graduate school.

In line with the Plaintiff’s argument, Gap evidence Nos. 31 through 33, and according to the evidence No. 15-3, C also appears at the fact-finding committee of the Eul University on July 25, 2014 to provide a scholarship for 201 and partly support the Plaintiff’s assertion. Thus, it cannot be ruled out that the source of KRW 800,000, which was kept in cash in the Plaintiff’s research institute, is an individual donation that the Plaintiff claims, not the research and development expenses for 20,000, not the research and development expenses for 3,243,50,00, which was confirmed by the evidence submitted by the Plaintiff, to prove that the operating expenses of the office created by C were KRW 429,00,00,000, which was presented to the fact-finding committee equipped with the evidence that the Plaintiff was not embezzled, and thus, it is not possible to use money other than the office’s operating expenses.

⑤ The total amount of personnel expenses paid by C from January 2013 to May of the same year is KRW 8,278,960; C, from January 2013 to April 2014, which included the pertinent period after the Truth Investigation Committee of B, stated that the amount of wages received as an individual share of at least KRW 1,00,00 per month. However, as a result of the Investigation Committee on the Truth of B, if the amount of wages paid by C is included not only in KRW 2,560,00,00 for the amount returned as operating expenses from January 2013 to May of the same year, but also in the amount of KRW 1,730,00,00 for the amount of wages paid by C during the pertinent period, which is less than KRW 8,278,960 (2,50,000 + KRW 1,730,00 per month, in excess of KRW 5,00).

(2) Whether the payment of 1,195,00 won for G and F constitutes a use of research and development expenses for any purpose other than its original purpose (affirmative)

① Relevant legal principles

As seen earlier, Article 11-2(1) of the former Framework Act on Science and Technology provides, “The head of a central administrative agency may restrict the participation in national research and development projects within the scope of five years, and recover all or part of the project funds already contributed or subsidized, if the institution involved in the national research and development projects under his/her jurisdiction, the research officer, etc.

Article 12(5) [Attachment 2] Article 12(5) of the former Regulations on the Management, etc. of National Research and Development Projects under the foregoing Act (amended by Presidential Decree No. 25544, Aug. 12, 2014; hereinafter referred to as “Rules on the Management, etc. of National Research and Development Projects”) provides that “A student personnel fee that is paid to a student research institute shall not be jointly managed by a person in charge of research.” The reason why the above provision strictly prohibits joint management, which is a student, is that the researcher, shall jointly manage the student personnel expenses. The reason why the above provision is to strictly prohibit joint management is that the abolition that appropriates or uses the student personnel expenses under the name of the researcher is serious, and to ensure transparency in the execution of the student personnel expenses and to protect the rights of the student research institute by preventing such problems in advance. In light of the contents and purport of the above provision, joint management of the student personnel

Meanwhile, Article 6 of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Ordinance of the Ministry of Science, ICT and Future Planning No. 38, Jan. 21, 2015) delegated the form of a research and development plan prepared by a person who conducts or intends to participate in a national research and development project as the Minister of Science, ICT and Future Planning when applying for a research and development task. According to the research and development plan under [Attachment 2] of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Ordinance of the Ministry of Science, ICT and Future Planning No. 38, Jan. 21, 2015), the details of the required research and development expenses by item are required to include monthly salary, total monthly input, and total monthly total inputs by degree course (a bachelor’s degree, master’s degree, doctor’s degree, and doctor’s degree) in the part of the required research and development expenses by a faculty student. Moreover, the payment of personnel expenses, if a faculty student participates in a research project, should be reported through legitimate procedures for personnel expenses.

A. It is reasonable to view that the additionally appropriated personnel expenses in the process are likely to be embezzled and misappropriated, and that it is not allowed because it is contrary to the purpose of the prohibition of joint management.

② Determination as to the instant case

Examining the following facts and circumstances in light of the aforementioned evidence and evidence evidence No. 30, which can be acknowledged by adding the purport of the entire pleadings, the payment of the total labor cost of KRW 1,195,000 to G students who performed the Plaintiff’s task at the Plaintiff’s research institute and F as labor cost should be deemed joint management by the student research institute prohibited by law.

1,195,00 won is limited to cases where research and development expenses are used for any other purpose. This part of the Plaintiff’s assertion is without merit. G works as a preliminary graduate school student in the Plaintiff’s laboratory from the end of November 2013 to the end of February 2014, and it was paid 7,000 won as personnel expenses for three months each month from C to the end of February 2014. Furthermore, the F appeared to have worked as a preliminary graduate school student status at the Plaintiff’s laboratory’s laboratory’s laboratory’s institute, and the Plaintiff was paid 50,000 won as personnel expenses for two months each month from the end of December 2013 to the end of February 2014. D was paid as a witness at the first instance court on December 10, 2015 for a total of 30,000 won to be paid as additional research personnel expenses for the pertinent laboratory student status.

(3) Whether personnel expenses for the task under the control of the Ministry of Knowledge Economy include KRW 1,548,720 (affirmative) (1) The following facts may be acknowledged according to the evidence and the evidence Nos. 28, 35.

In addition to the project in this case, the Plaintiff also has the authority to conduct an integrated management of the students' personnel expenses in charge of research and development projects (the title: Zn-Mg and Zn-Fre type Al-Mgrown on Sep. 31, 2010; hereinafter referred to as "the task under the supervision of the Ministry of Knowledge Economy"; hereinafter referred to as "the task under the supervision of the Ministry of Trade, Industry and Energy") of the technology development project for venture located (the title: 130 percent of the number for internal pollution characteristics; 150 percent of the number of students; hereinafter the department in charge of the integrated management of the students' personnel expenses in charge of research and development projects (the Ministry of Trade, Industry and Energy shall have the authority to conduct an integrated management of the students' personnel expenses at the Zn-Mg and Zn-Egrhe type, and the department in charge of the integrated management of the students' personnel expenses at the research institute at the research institute at the level of 1,500 or more times.

C. In the case of the Plaintiff’s laboratory, the person in charge of the general laboratory affairs was delegated with the authority to manage the personnel expenses of the Plaintiff, who was in charge of the research, to set and execute the personnel expenses, and from January 2013 to April 2014, C was in charge of the general laboratory affairs. C applied for personnel expenses of the laboratory research institute by using his ID and passwords from the website of the Industry-Academic Cooperation Foundation for B University, and accordingly, the personnel expenses were accordingly remitted to the personal account of each student research institute. D during the period of charge of the general manager, the amount of salaries paid to C is KRW 1 million per month.

However, from January 2013 to May 201 of the same year, C additionally set the amount of KRW 300,000 through KRW 500,000 per month to the personnel expenses to be borne by C himself/herself. C returned the additional personnel expenses paid by such method to the expenses for the laboratory operation.Ma C was present at the court of first instance on March 17, 2016 in the preceding case and stated that it was in accordance with the direction of the Plaintiff to additionally request the said personnel expenses and return them to the expenses for the laboratory operation. The fact-finding Committee at the Mapo National University of the Republic of Korea verified that C returned the amount of KRW 2,560,00 from January 25, 2013 to May of the same year as the expenses for the laboratory operation from January 25, 2013, February 25, 2015, and March 25, 2013 as the personnel expenses for each of the tasks supervised by Ordinance of the Ministry of Knowledge Economy (i.e., KRW 2516,14,2048.

② In full view of the following circumstances revealed in the above facts, the possibility that C’s 2,560,000 won, which was returned from January 2013 to May 201 of the same year, shall not be ruled out that not only the labor cost for the tasks ordered by the Defendants, but also labor cost of 1,548,720 won for the tasks supervised by the Ministry of Knowledge Economy. The Plaintiff’s assertion in this regard is with merit.

It includes KRW 2,560,000, which C returned as laboratory operating expenses from January 2013 to May 201.

Since the industry-academic cooperation foundation of QII implemented the integrated management system of students' personnel expenses at the time, it seems that the industry-academic cooperation foundation of QB has managed not only the personnel expenses for the second and third projects which are national research and development projects but also the personnel expenses for the subjects under the supervision of the Ministry of Knowledge Economy according to the integrated management

C. From January 2013 to May of the same year, C received personnel expenses in addition to the amount of KRW 300,000 to KRW 500,00,000 which it received. However, since C received as personnel expenses for the pertinent period from January 2013 to March of the same year, the amount of KRW 1,548,720 which it received as personnel expenses for the task under the supervision of the Ministry of Knowledge Economy (=516,240 x 3 months) shall be included in the amount of KRW 1,548,720 which it received as personnel expenses for the task under the supervision of the Ministry of Knowledge Economy (=516,240 x 3 months). Since C received as personnel expenses for the pertinent task under the supervision of the Ministry of Knowledge Economy, it cannot be ruled that the above amount of KRW 1,560,00 which was paid as personnel expenses for the task under the supervision of the Ministry of Knowledge Economy was included in the amount of KRW 30,000,00,000.

(4) Whether labor cost of KRW 2,956,00 is included in personnel expenses for the task under the supervision of the Ministry of Trade, Industry and Energy (affirmative) ① The following facts may be acknowledged according to the aforementioned evidence. Around May 2014, contact was made by the department in charge of managing research expenses to have labor cost of KRW 6,00,000,000, and visited the Plaintiff along with F, and to have the Plaintiff paid KRW 6,000,000 to the Plaintiff. Since May 2014 to receive KRW 6,00,000, KRW 1,000 and KRW 5,000 to the account of KRW 5,000 from May 25, 2014, and KRW 205,000,000 to the account of KRW 1,065,000,000 in total, KRW 2,015,000,000 to the account of KRW 25,015,2014.

Of the money received by such a method, C: (a) around June 2014, and (b) around July 2014, F: (c) around July 2014, and (d) around 956,000 won were delivered to D; and (b) D was kept in cash at the time of the investigation by the 3rd Investigation Committee on the Truth of the Truth of B University; (c) interview with the Korean Research Foundation and the first instance court of the preceding case stated to the effect that “after the end, C and F borrowed money received in installments to handle personnel expenses for the task.” (d) A business for which the period of task ends on August 2014, 2014, among the tasks performed by the Plaintiff, becomes the subject under the control of the Ministry of Trade, Industry and Energy.

② According to the above facts of recognition, KRW 2,956,00 that C and F paid to D is the personnel expenses of a task that C and F received after May 2014.

Furthermore, if the labor cost of the task terminated on May 2014 as stated in D's statement is financed by the financial resources, the corresponding task is the task of the Ministry of Trade, Industry and Energy that ends on August 31, 2014, and therefore, cash 2,956,000 won, which D kept, should not be included in the labor cost of the task and the labor cost of the second project.

Even if the two business personnel expenses are included in the above cash, the labor expenses related to the second business that C and F received after May 2014 are merely KRW 9.56,00,000 that F received on May 25, 2014 and June 25, 2014, which is the aggregate of KRW 9.56,000,000, the remainder of KRW 2 million is still included in the labor expenses for the task in charge of the Ministry of Trade, Industry and Energy and the labor expenses for the second business year in charge of the Ministry of Education. On the other hand, the Defendants are not able to provide any grounds to understand that the cash source in their custody is the labor expenses for the second business. Ultimately, this part of the Plaintiff’s assertion is with merit.

(5) Sub-committee

① As seen earlier, joint expenses for projects Nos. 2 and 3 include 1.73 million won, which is insufficient to recognize that the withdrawal purpose from C’s account is unclear and that it was returned as laboratory operating expenses. Of the joint expenses in this case, C may include part of KRW 1,548,720, which was received as a task under the supervision of the Ministry of Knowledge Economy from January 2013 to March 2013. Meanwhile, the cash amount of KRW 2,956,00, which was kept by D, among the joint expenses in this case, may include all or part of KRW 2,956,00 in cash, which was confirmed as personnel expenses for the task under the supervision of the Ministry of Trade, Industry and Energy unrelated to the 2 and 3 projects. As such, the portion not recognized as the money received as research and development expenses for projects No. 2 and 3 should be excluded from the joint expenses for projects

② However, the Defendants did not specify the amount returned as laboratory operating expenses out of KRW 1,548,720 which C received as personnel expenses for the task under the supervision of the Ministry of Knowledge Economy, and there is no other data to specify the amount.

③ Even if the purpose of withdrawal, which cannot be recognized as the money paid from the instant project, is unclear, the full amount of KRW 1,548,720, and KRW 2,956,00, which includes personnel expenses for the task under the supervision of the Ministry of Knowledge Economy, and personnel expenses for the task of the Ministry of Trade, Industry and Energy, is excluded from the common expenses for the projects 2,956,00,000, excluding the above amount, there is no ground to calculate the remaining amount as the common expenses related to the projects 2,3,00, respectively. Such problem arises from the fact that: (a) the remainder of KRW 8,441,760, and KRW 3,69,720, out of the common expenses of the instant case, other than KRW 9,630,00 returned from the 2,00,000, which were returned from the 3,000,000

As to the amount corresponding to the common expenses related to the 2 and 3 projects, the Defendants confirmed the source of personnel expenses for each project based on the student personnel expenses and the student research team’s statement, etc. based on the results of the additional survey on the details of payment of personnel expenses for each project, the total amount returned from students, the source of account for the relevant project expenses, the usage of returned amount, the details of the tuition funds out of the common expenses, etc. However, the Defendants asserted that the returned amount by each project was confirmed based on the findings of the 2 and 3 university’s fact-finding committee itself, the results of the close settlement of the Korea Research Foundation, and the fact-finding reply by the 2 and 3 university research committee chairperson of this court on the fact-finding of the 2 and 3 university were insufficient to specify the specific amount returned from the research expenses to the research committee’s joint expenses, and there is no other evidence to acknowledge otherwise. If so, the joint expenses related to the 2 and 3 projects include personnel expenses unrelated to the relevant project, and the remaining amount of the joint management cannot be found to be included in the specific amount of the 3 projects.

C) Sub-determination

Among each of the dispositions in this case, the dispositions related to the second business of the defendant Minister of Education and the third business of the director of the Department of Information and Communications of the defendant Science and Technology shall be revoked as it is unlawful.

4. Conclusion

The plaintiff's claim concerning the first project against the defendant with the Minister of Education shall be all dismissed due to the lack of any ground, and all claims concerning the second project against the above defendant and claims against the defendant Minister of Science and ICT shall be accepted due to the ground.

The judgment of the court of first instance is unfair with a partial different conclusion. As such, the plaintiff's appeal is partially accepted.

The part of the judgment of the first instance (the part concerning the claim related to the second project and the part concerning the defendant Minister among the part concerning the defendant Minister of Education) subject to revocation as above shall be revoked, and all of the disposition related to the second project and the third project of the defendant Minister of Education shall be revoked.

Since the remainder of the judgment of the first instance is just in conclusion, the remaining appeal by the Plaintiff against the Defendant’s Minister of Education is dismissed as it is without merit.

The presiding judge, judge and charter

Judges Dok-type

Judge Lee Young-young