(영문) 서울행정법원 2018.3.30.선고 2017구합60093 판결

The Defendant’s disposition of restitution of KRW 70,105,00 as the national research and development project cost imposed on the Plaintiff on March 20, 2017 shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a juristic person established for the purpose of manufacturing and selling the source and parts of sports boats and boats, and the Seoul Olympic Sports Promotion Foundation (hereinafter “Korea Sports Promotion Foundation”) is a specialized institution entrusted by the Defendant with the planning and management of national research and development projects under the jurisdiction of the Ministry of Culture, Sports and Tourism pursuant to the Framework Act on Science and Technology.

B. On September 1, 201, an industry-academic cooperation foundation of B, as the main research institute, entered into an agreement with the Korea Sports Promotion Foundation and the main research institute of B, which was delegated by the Defendant on September 1, 201, with respect to the overall task of B, “C” (hereinafter “the overall task of this case”) with respect to the overall task of B, from September 1, 201 to August 31, 2014, and with respect to the overall task of B (the professor of E-School Sports Industry) with a person in charge of research (the “instant agreement”). The Plaintiff was the main research institute of B, as stipulated in the instant agreement, the Plaintiff was designated as a person in charge of research from September 1, 2011 to August 31, 2014, and was subject to the instant general task of H (hereinafter “the instant general task”).

C. According to Article 3 of the Convention, the Plaintiff received some of the government subsidies from the Defendant from the Defendant, and made contributions to the private sector (cash) as expenses for research and development projects (hereinafter “project expenses”) by voluntarily investing them in the Plaintiff. The Plaintiff should perform the detailed tasks of this case.

D. On March 20, 2017, the Defendant issued an indictment against the Plaintiff (hereinafter “instant disposition”) for the unlawful use of the project cost for the instant detailed tasks as “Article 11-2(1)5 and 7 of the Framework Act on Science and Technology, Article 27 of the Regulations on the Management, etc. of National Research and Development Projects (hereinafter “National Research and Development Project Management Regulations”)” in accordance with the Prosecutor’s Investigation and Indictment (2016 Form 30716). The Defendant issued a disposition for the redemption of project cost of KRW 70,105,00 among government contributions with respect to the instant detailed tasks (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, 11, 12, Eul evidence Nos. 1 to 4, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The Defendant’s prior notice of the instant disposition on October 14, 2016, did not indicate the statutory provisions that became the place of the actual disposition, and accordingly, did not have the opportunity for the Plaintiff to present its opinion. Accordingly, the instant disposition violated the prior notice procedure.

2) The Plaintiff paid a normal labor cost to participating researchers through the labor cost payment account in each name; the Plaintiff did not have a duty to manage and supervise the Plaintiff’s performance of duties; and the instant disposition is unlawful on the ground that it does not fall under “where the Plaintiff uses the project cost for any purpose other than the original purpose,” or “where the Plaintiff conducts research and development by fraud or other improper means,” as it does not fall under “where the Plaintiff uses the project cost for any

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

1) Whether there is a defect in the prior notification procedure

A) Facts of recognition

(1) On October 14, 2016, prior to the instant disposition, the Defendant: (a) notified the Plaintiff as “J (the pertinent task name: the pertinent task name); (b) the details to be disposed; (c) the redemption of the project cost; (d) the redemption of KRW 70,105,00; and (e) the legal basis of the Framework Act on Science and Technology Article 11-2(1)8; and (b) decided on October 28, 2016, 14 days after the date on which the submission of the opinion was made. (2) The Plaintiff submitted a written opinion to the Defendant through its agent (Law K) to specifically dispute the grounds for the said disposition and the relevant statutes on the grounds for the disposition by item.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2 and 3, the purport of the whole pleadings

B) Determination

In light of the following circumstances, i.e., Gap's evidence Nos. 3 and the overall purport of pleadings, which can be acknowledged in addition to the above facts, i.e., the plaintiff notified the plaintiff that he would be subject to the disposition of this case: (i) the plaintiff was sufficiently given an opportunity to submit data favorable to the change of the grounds for the disposition of this case itself; (ii) the "illegal use of research funds" is stated in the column for the disposition of this case; and (iii) the legal basis of the above prior notice contains Article 11-2 (1) of the Framework Act on Science and Technology; (iv) the plaintiff could have sufficiently anticipated that the disposition of this case would be made for any reason in the future at the time of the prior notice; and (iv) the plaintiff was appointed to the representative after receiving the above prior notice and presented a detailed opinion to the defendant; and (iv) the plaintiff would have already been well aware of the grounds for the disposition of this case; and (iv) the defendant stated erroneously the provision "Article 11-2 (1) of the Framework Act on Science and Technology.

2) Whether the grounds for disposition exist

A) Facts of recognition

(1) The Plaintiff, the Defendant, and the Industry-Academic Cooperation Foundation, etc. entered into the instant agreement with the Plaintiff, the main research institute, and the Plaintiff, the Plaintiff, as the main research institute, paid KRW 2,900,000,00 as government subsidies for the instant general task from the Defendant, the Defendant, a specialized research institute, and the Plaintiff, the primary research institute, as government subsidies for the instant specific task, to receive KRW 1,07,60,000 as government subsidies for the instant general task.

(2) According to Article 3(5) of the instant Convention, the Plaintiff bears the duty to manage project funds received from the Defendant in accordance with the provisions of Article 12 of the F Management Guidelines (hereinafter “Business Management Guidelines”) and the F Research and Development Expense Execution Standards. Article 12 of the Business Management Guidelines provides that the management of research and development expenses shall be managed in accordance with Article 23 of the Regulations on the Management of Culture, Sports and Tourism Tourism and Tourism Tourism and Tourism Research and Development Projects (hereinafter “Rules on the Body of Culture, Sports and Tourism”). According to Article 23(6) of the Regulation on the Culture, Sports and Tourism, where the head of the competent Gu’s department received government subsidies, etc., he/she shall set

(3) In the course of performing the instant detailed tasks, the Plaintiff designated G, the president of the Plaintiff Company, as a researcher for research, I, the professor of L University Computer Information Engineering Department, and students attending L University Graduate and doctorate degree courses as a participating researcher.

(4) From November 201 to August 29, 2014, I pretended as participating researchers who did not participate in the execution of the instant detailed task, or obtained a total of KRW 70,105,000 by submitting a false application for project cost payment (hereinafter referred to as “the instant fraud”) by pretending that the participating researchers did not pay personnel expenses even though they did not directly manage each labor expense payment account under the name of the participating researchers, as in the case of submitting a false application for project cost payment (hereinafter referred to as “the instant fraud”), and was indicted on April 27, 2016 and was sentenced to a conviction of one year and six months from the Seoul Central District Court on November 19, 2017 (Seoul Central District Court 2016Da2268). The appeal is currently pending (Seoul District Court 2017Da43030).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 9, 12, Eul evidence Nos. 1 through 4, the purport of the whole pleadings

B) Determination

In full view of the following circumstances, it is reasonable to deem that the Plaintiff used the project funds for purposes other than those for the purpose of use, or conducted research and development by fraud or other improper means. As such, the grounds for the instant disposition exist.

① The Plaintiff is the first detailed managing research institute stipulated in the instant agreement, and is a legal person in charge of overall control over the instant detailed tasks, including the designation of participating researchers and substantial direction and supervision.

② According to the instant agreement, the Plaintiff is obligated to directly manage the project cost received from the Defendant as a party to the agreement separate from the Industry-Academic Cooperation Foundation for B University.

③ The instant disposition is an administrative sanction imposed on the ground of objective facts that the Plaintiff violated the criteria for the use of project costs prescribed by the Framework Act on Science and Technology. As long as part of the project costs designated as a participating researcher of the instant detailed tasks, it is reasonable to impose on the Plaintiff, who is a person in charge of the laws and regulations regarding the management of project costs.

④ The data submitted by the Plaintiff alone is insufficient to recognize that the Plaintiff has made considerable efforts to perform the duty to manage project costs by supervising whether the participating researchers have used, executed, transparent and accurate project costs, or even if such efforts have been made, the act of defraudation of this case still occurred, and there is no other evidence to acknowledge it.

(5) Even if there is no negligence on the part of the Plaintiff with regard to the instant fraud, it cannot be deemed unreasonable to require the Plaintiff to perform the obligation to manage the project cost by having the participating researchers supervise the use of the project cost as above. Therefore, it is difficult to deem that there is a justifiable reason not to consider the neglect of such obligation.

3. Conclusion

Therefore, the plaintiff's claim against the defendant of this case is dismissed as it is without merit. It is so decided as per Disposition.