2016Guhap65862 Revocation, etc. of restrictions on participation in national research and development projects

1. A university, industry-academic cooperation foundation;

Representative B

2. C

Plaintiffs (LLC) LLC et al., Counsel for the defendant-appellant

Attorney Kim Jong-soo, Attorneys Kim Ma-young

The Minister of Science and ICT

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

[Defendant-Appellee]

August 25, 2017

November 17, 2017

1. The action shall be dismissed by the industry-academic cooperation foundation of the Plaintiff A University;

2. The Defendant’s disposition of restricting participation in national research and development projects for three years against Plaintiff C on March 15, 2016 and disposition of recovering government contributions KRW 126,356,839 shall be revoked.

3. Of the litigation costs, the portion arising between the Plaintiff A and the Defendant shall be borne by the industry-academic cooperation foundation of the Plaintiff University, and the portion arising between the Plaintiff C and the Defendant shall be borne by the Defendant

The Defendant’s disposition of restricting participation in national research and development projects for three years against the Plaintiffs on March 15, 2016 and disposition of recovering government contributions KRW 126,356,839 shall be revoked.

1. Details of the disposition;

A. On April 1, 2010, the Korean Research Foundation (hereinafter referred to as the "Korea Research Foundation") which is an incorporated foundation that vicariously executes the Defendant's business of planning, management, evaluation, and utilization of national research and development projects, as a specialized institution under the Framework Act on Science and Technology, entered into an agreement on the standard for research and development tasks (hereinafter referred to as the "agreement" in this case) relating to the research and development tasks relating to the Abio-Mebrat Design Group (hereinafter referred to as the "Plaintiff Industry-Academic Cooperation Foundation") with the Plaintiff A-Industrial Cooperation Foundation (hereinafter referred to as the "Plaintiff-Academic Cooperation Foundation"), and the research tasks in this case by March 3, 2015.

B. The Plaintiff-academic cooperation foundation was the main research institute, and the Plaintiff C, a professor of A University’s official college, a shipbuilding engineering, and a professor, participated in each of the instant research tasks. Pursuant to the instant agreement, the Plaintiff-academic cooperation foundation received a total of KRW 3.3 billion from April 1, 2010 to February 2, 2016.

D. On April 20, 2015, the Korean Research Foundation notified the Defendant Industry-Academic Cooperation Foundation of the 2015 "on-site on-site inspections for the execution of research expenses". From February 22, 2015 to April 24, 2015, it inspected the Plaintiff Industry-Academic Cooperation Team. On June 9, 2015, the Korean Research Foundation notified the Plaintiff University of the results of the inspection as to the propriety of the implementation of the research expenses in this case’s research project, as the Plaintiff’s spouse, it is necessary to examine experts (the aggregate of research expenses and research allowances directly executed by the E, 44,402,807 won), and it is recognized that the Plaintiff’s research institute jointly managed part of personnel expenses for the Institute; the Plaintiff’s research institute notified the Plaintiff of the results of the research institute purchase in 2011, E-13 and E-14 of the specifications of the transactions submitted to the Plaintiff, the research institute’s total amount of research expenses in 2013.

E. On March 15, 2016, after review of the explanatory materials submitted by Plaintiff C and deliberation by the sanctions evaluation group, the Defendant used Plaintiff C for the purpose other than research expenses (including joint management of students' personnel expenses, participation in researchers belonging to other institutions that do not have task task, and false purchase of research equipment and materials) (hereinafter referred to as “each of the instant dispositions”) as the grounds for disposition, pursuant to Article 11-2(1)5 of the Framework Act on Science and Technology and Article 27 of the Regulations on the Management, etc. of National Research and Development Projects, the three-year disposition of restriction on participation in national research and development projects and the redemption disposition of KRW 126,356,839 (including surcharges 116,67, and the Defendant imposed additional monetary sanctions, and subsequently changed the amount to KRW 126,240,172 (hereinafter referred to as “each of the instant dispositions”).

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 1 through 6 (including each number; hereinafter the same shall apply), Eul evidence No. 2, the purport of the whole pleadings

2. Determination on the legality of the Plaintiff-academic cooperation foundation’s lawsuit

ex officio, as seen earlier, the Korean Research Foundation took each of the instant dispositions against Plaintiff C on March 15, 2016. As such, the Plaintiff Industry-Academic Cooperation Foundation cannot be deemed the counterpart to the instant dispositions, and no other circumstance exists to deem that there exists a legal interest to seek revocation of each of the instant dispositions against the Plaintiff Industry-Academic Cooperation Foundation. Therefore, the Plaintiff Industry-Academic Cooperation Foundation’s lawsuit was instituted by a non-party to standing to sue (in light of the evidence No. 11, the Defendant’s restitution disposition of KRW 126,240,172 against the Plaintiff Industry-Academic Cooperation Foundation on September 20, 2016, although it is deemed that the instant disposition was lawful, the Defendant’s restitution disposition of KRW 126,240,172 was taken separately against the Plaintiff Industry-Academic Cooperation Foundation on September 20, 2016. Thus, it cannot be determined to the effect that the Plaintiff’s lawsuit against the Plaintiff Industry-Academic Cooperation Foundation is legitimate on September 20, 2016).

A. Plaintiff C’s assertion

1) Since the Plaintiff C cannot be deemed to have used research funds for any purpose other than the original purpose, each of the instant dispositions is unlawful since all of the grounds for the disposition are not recognized.

A) The amount under joint management of the student personnel expenses (hereinafter referred to as the "grounds for Disposition 1") with respect to the instant research task is not a "student personnel expenses" but a "Gu's allowance", unlike the student personnel expenses, and the research allowance is not prohibited, and even if the plaintiff C jointly managed the personnel expenses of the affiliated researchers, it does not constitute a case where the research expenses are used for any purpose other than the original purpose. The plaintiff C did not instruct such joint management or take part in such management.

B) With respect to the participation of researchers belonging to other institutes that do not have a task (hereinafter referred to as "Class 2 disposition ") in the research task of this case, the research objective of the research task of this case is to determine the impact of the variables through a veterinary calculation based on the results of the study conducted by the Plaintiff C after obtaining from E various variables (e.g., temperature, pressure, etc.), and to repeatedly submit a plan for research on the participation of the Plaintiff C as part of the research task of this case for the research task of this case to determine the optimal design theory of the Nanoey in consideration of all the variables that may affect the size and form of the Nanocle, and to develop the optimal design theory of the Nanoeyy in consideration of all the variables that might affect the precision of the optimal design theory of the Nanoyyyy, under the premise that the optimal design theory of the Nanoyyy may affect the precision of the best design theory of the Kanyyyy. The research task of this case, as part of the participating institute, submitted the research task of this case to the Defendant's for research and approval.

All of the products purchased from the Plaintiff C’s laboratories are computers, computers’ accessories, and other electronic devices necessary for the implementation of the instant research task, and the Plaintiff C used research and development funds for the intended purpose. Even if the details of the products actually purchased and the details of the transaction statement submitted to the Plaintiff Industry-Academic Cooperation Foundation are partly different, the actual purchase details may not be deemed to constitute a case where research and development funds are used for any purpose other than the intended purpose.

2) Even if the grounds for each of the instant dispositions are recognized, each of the instant dispositions is unlawful as a disposition that deviates from and abused discretion.

B. Relevant statutes

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

C. Determination as to whether the grounds for each disposition of this case are recognized

1) Whether the grounds for the first disposition are recognized

A) Facts of recognition

(1) 교육부장관은 학술진흥법에 따라 한국연구재단에 위임하여 학술지원 사업을 추진한다. 교육부장관은 A대학교 를 학술지원 대상자로 선정하고, A대학교 총장과'2단계두뇌한국(BK)21사업'(사업기간:2012.3.1.|2013.2.28.)협약을, 'BK21플러스사업'(사업기간:2013.9.1.2020.8.31.)협약을,'세계수준의연구중 심대학육성(WCU)사업'(사업기간:2008.12.1.2013.8.31.)협약을각체결하였다.(이하 위 세 가지 사업을 통틀어 '이 사건 관련사업'이라 한다).

(2) The Plaintiff Industry-Academic Cooperation Foundation received project funds from the Minister of Education to manage the pertinent project, and the Plaintiff C participated in the relevant project. (3) The Korea Research Foundation integrated the instant research task and the instant related project, and conducted a close settlement on the Plaintiff C’s account, and returned part of the personnel expenses and research allowances that Plaintiff C received to the personal account from May 201 to April 2015, to the joint management account (administrative staff) and deposited KRW 140,673,491 in total. The Korea Research Foundation calculated the amount of joint management by each project based on the detailed details of the joint management account. As a result, the Korea Research Foundation calculated the amount of money for each project based on the proportion of personnel expenses paid if it is not possible to specify the relevant project. As a result, the Korea Research Foundation calculated the amount of money for joint management by two levels, 212,230,204, 214, 216, 365, 206, 146, 216, 365, 165.

[Ground of recognition] Unsatisfy, Gap evidence 3, Eul evidence 1, the purport of whole pleadings

Article 11-2(1)5 of the former Framework Act on Science and Technology (amended by Act No. 12673, May 28, 2014; hereinafter the same) provides that the head of a central administrative agency may restrict the participation of a national research and development project under his/her jurisdiction if an institution participating in a national research and development project, a person in charge of research, etc. uses research and development expenses for any purpose other than the original purpose, and may recover all or part of the project expenses already contributed. Article 11-2(5) provides that matters necessary for the detailed criteria for the period of restriction on participation by reason of restriction on participation, redemption of project expenses, etc. shall be prescribed by Presidential Decree. Accordingly, Article 12(1) of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 23788, May 14, 2012; hereinafter the same shall apply) provides that the head of a central administrative agency may contribute all or part of research and development expenses, and that the items paid by the head of a central administrative agency shall not be included.

The Plaintiff C, a person in charge of the instant research task, is responsible for managing the labor cost out of the research and development expenses paid by the Defendant to the student researchers who directly participate in the instant research task. As such, it constitutes a case where the said labor cost is not directly reverted to the student researchers, but has been used for the research project’s joint expenses, etc. In addition, the joint management of labor cost constitutes an act prohibited by the instant provision and constitutes a use contrary to the purpose of the joint management, regardless of whether the money under joint management was paid to the student researchers.

The purpose of the instant provision prohibiting the joint management of personnel expenses lies in preventing a joint management of personnel expenses to be paid to researchers by jointly managing personnel expenses in a superior position and using them for other purposes, thereby undermining the minimum economic foundation of the researchers and undermining their desire for research. However, unlike the “external personnel expenses” which have the nature of fixed salary for researchers participating in the relevant research and development project, the “old allowances” has the nature of as incentives for the payment of compensation and incentives to a person in charge of research and development and participating researchers related to the relevant research and development project as one item of direct expenses, and the instant provision prohibits joint management only for external personnel expenses by clearly distinguishing the cost of research and development expenses from the cost of personnel expenses, direct expenses, consignment research and development expenses, and indirect expenses. In light of the content of the instant provision and the nature of research allowances, inasmuch as the research allowances are distinct from the cost of personnel expenses, it cannot be said that joint management is prohibited.

In light of the following circumstances, i.e., ① the Defendant calculated the amount of 68,697,065 won out of the grounds for Disposition 1 of the instant research task, i.e., the amount of 68,697,065 won for the purpose other than the purpose of Disposition 1 of the instant research task i.e., the Defendant asserted that the Plaintiff 1 directly prepared the labor cost allocation data for each project i.e., the Plaintiff 3 denies the formation of the Plaintiff 30 industry-academic cooperation foundation i.e., the evidence No. 4 is insufficient to recognize that the Plaintiff 1 had prepared the above data. Thus, it is difficult to believe that the evidence No. 6 of the above evidence No. 1 was not clear as it is, ② the research cost return out of the detailed evidence No. 1 evidence No. 6 of the above evidence No. 1 was stated as the joint management return to the account, and the number of funds were stated as the amount of labor cost return out of the instant research task i.e., the amount of the research task 201.

2) Whether the grounds for the second disposition are recognized

A) Facts of recognition

(1) The optimal design column, "at the time of designing" refers to the application of performance, material processing method, etc. to the most known one, and the optimal design theory refers to the finding of the most appropriate design method. The best design method of Abiomermeral design is one of the various best design theory, and the best design theory has been conducted in a series of series series of series more than the Oralno (1 m. 1 m. m. n. n. n. n. n. n. n. n.) and more than the Oralno (1m). The research plan of May 14, 2015 on the research task of this case includes the goal of developing the optimal convergence design method of Balno Cinu-I. in combination with the design method of Calian in combination with the design of Calinian-I. M. n. r. r. the best design method in combination with the development method of Calinalian.

(2) On July 201, the Plaintiff C had the second agreement on the instant project, and submitted a plan to support the researcher (original research) to the Defendant on or around July 201. The said plan includes a research objective that “in order to foster the “domestic and foreign researchers theory and experimental-based research group” from the year 2011, the second year, and that “in order to perform the interpretation of the part-time automatic calendar and the theory and experimental verification of the best design for the character,” and that “E shall participate as the researcher.”

(3) From September 1, 2012, E carries out research as a person in charge of the “production of new metal or know-hows for responding to Schlage's countermeasures, which is a general researcher support project, and it has success in the composition of Nano.m.

(4) Since 2012, there are 25 parts of the paper jointly published by Plaintiffs C, E, and C, and C, and C, and among them, the "Design Domination of Materials" among them was published as a student’s doctor’s degree in G, “F,” which is a student research institute, and “Desnit Sclerta, Domincers, taking into account the uncertainty of the cultural variables and social variables,” which is the design Domination of nanotechnology materials.

(5) On May 14, 2015, the Korean Research Foundation constituted a review committee consisting of two engineering experts and three pharmaceutical experts, and reviewed whether the participation of E in the instant research task is appropriate by examining the research plan, research report, and explanatory materials submitted by the Plaintiff C, and deriving comprehensive opinions (hereinafter “instant review”). The summary of the results of the review of the Review Committee is as follows.

(6) On September 6, 2016, Plaintiff C and E were published in the academic field of “Self-adrific Restatement” of this paper, which is a co-owner, and the “Self-adrific Restatement” was published on September 6, 2016, and the above paper contains photographs (HR-TEM) taken by E which combine the gold bomers.

(7) As to the Plaintiff’s research using Nanano and Nanano’s synthetics offered to the Plaintiff by H University E, a member of the review committee of this case, it was difficult to understand how to use it clearly because the field of “the field of study is too different.” The science of science and engineering cannot be said to be completely related due to the same roots, and to a certain degree is entirely connected. However, the optimalization is the field of Nana and the development of techniques to collect and put the generally known values on the water quality, and thus, it is not a key element even if the relationship with the material is difficult.

Comparing E’s research to the instant research task, testimony was made to the effect that “the relationship with the original research plan is low.” In the same purport, Jscience and Technology professor K, who is a member of the Review Committee of this case, is connected to all of the instant research tasks. The results of the instant research task may have been used in the calculation process of Plaintiff C, but may have been referred. E’s research cannot be seen as having contributed to the research of Plaintiff A University, Industry-Academic Cooperation Foundation, and Plaintiff C.

[Reasons for Recognition] Unsatisfy, Gap evidence 9, 10, 11, Eul evidence 14, witness K and Kim iron's testimony, the purport of the whole pleadings

B) Determination

(1) In full view of the aforementioned facts and arguments, the following circumstances, namely, ① Plaintiff C, E, and student researchers, who seem to be related to the interpretation of Nano Materials, have been published in the academic journal and there is a number of thesis, a joint author, and ② Such joint research content was reflected in the research plan and the Defendant and the Korea Research Foundation have renewed the instant agreement without raising any objection thereto; ③ The primary purpose of the review committee’s opinion is that the relationship between Plaintiff C and E is either unknown or low-related relationship is not known or low, and the relationship can be entirely excluded. ④ The instant research task, as a researcher support project, is the research researcher’s assistance project, is designed to discover creative ideas or knowledge and to support the level of researchers who can lead the world, and the research researcher’s selection of small number of researchers, and thus, the modification or renewal of the research project’s research project’s original research project’s research task cannot be concluded to be beyond the existing research project’s research project’s implementation or renewal of the research project’s research project’s implementation for a long time beyond the existing research project’s implementation or renewal of research project’s outcomes.

(2) In addition, even if there is little relevance between the instant research task and E’s research, such circumstance alone alone cannot be readily concluded that the act of using research is recognized for purposes other than those stipulated in Article 11-2 of the former Framework Act on Science and Technology. The basic ideology of the former Framework Act on Science and Technology is to have innovation harmonize with the natural environment and social ethical values on the basis of human dignity, to have it a driving force for economic and social development, and to respect the autonomy and creativity of scientists and engineers (Article 2). In light of this, sanctions on the contents of research implementation should be conducted within the scope specifically stipulated in the former Framework Act on Science and Technology. Article 11-2(1) of the former Framework Act on Science and Technology provides for the requirements for restriction on participation in research and recovery of project costs, and provides for cases where research is determined as a failed project according to the evaluation conducted by central administrative agencies due to extremely poor research outcomes under subparagraph 1, Article 11-2(1) of the former Framework Act on Science and Technology, and thus, it can only be deemed unlawful or unlawful if it goes beyond the research purpose of Article 17(1).

(3) Therefore, this part of the disposition is not recognized.

3) Whether the grounds for the third disposition are recognized

A) Facts of recognition

(1) The research fund management manual for national research and development projects issued by the Korean Research Foundation around December 2014 provides that "business equipment, maintenance and repair expenses of facilities, and purchase expenses of multi-purpose equipment (including OA equipment, such as PC, printer, and reproduction equipment), which are not reflected in the research and development plan, shall be an unfair example of research expenses."

(2) The AU Research Center and the Industry-Academic Cooperation Foundation Research Center specify the method of improving the content that research equipment equivalent to KRW 10 million, not included in the plan, should be executed as expendable material costs after purchasing the equipment without going through the procedure of approval for modification of the plan. In such cases, the research equipment must be executed after obtaining prior approval for modification of the research plan from the Industry-Academic Cooperation Foundation (or the Research Expense Support Agency) in advance, if the equipment is not appropriated.

(3) As to the instant research task, Plaintiff C was supplied with other goods that are different from the details of the transaction submitted to Plaintiff Industry-Academic Cooperation Foundation, as shown in the separate items of the attached Table 3 C C-Link Trading Director.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 3, Eul evidence 9 and 10, witness G's testimony, the purport of the whole pleadings

B) Determination

According to the above facts, although Plaintiff C should execute research funds as stated in the specifications of the Plaintiff Industry-Academic Cooperation Foundation, it is difficult to determine whether they were used to perform a specific task as stated in the specifications of the Plaintiff Industry-Academic Cooperation Foundation, and it was actually used to purchase electronic equipment equipment, such as Nowon-North Korea, printer, computer CPU, monitor, keyboard, RAM, and SSS as listed in the attached Table 3. State research and development funds support is not for the implementation of a specific research task but for the general research project, it is necessary to promote appropriate budget execution in line with the purpose of the State’s research and development support by preventing research and development funds paid by the State from being used to purchase general or office fixtures. In particular, if Plaintiff C purchased and used equipment and material costs different from the reported details for the implementation of the research project, it is reasonable to view that the research equipment is used for any purpose other than the purpose of use. In the same context, Plaintiff C’s research and development project funds are not for the research project funds purchased and executed by the Research Foundation as an unfair research and development project funds.

D. Determination as to whether each of the dispositions of this case deviates from or abused discretion

In full view of the following circumstances that can be seen by comprehensively taking into account the facts of the recognition as above and the purport of the entire pleadings, each of the dispositions of this case is deemed to have a great disadvantage to Plaintiff C, compared to the public interest to be achieved thereby, and thus, it is unlawful as it deviates from and abused discretionary power.

1) The research and development expenses paid to a managing research institute pursuant to Article 12 of the instant provision are paid to support national research and development projects to promote the development of the national economy, enhance the quality of national life, contribute to the development of human society, and contribute to the development of human society by innovative science and technology and strengthening national competitiveness, and the public interest to be appropriately disbursed according to the payment purpose and purpose

However, the disposition of restrictions on participation and disposition of recovery of research funds under Article 11-2 (1) of the former Framework Act on Science and Technology excludes a competent managing research institute or a person in charge of research from a national research and development project for a certain period of time, and redeems research funds used for such research, and there is a concern that the ultimate purpose of the former Framework Act on Science and Technology is to enhance national competitiveness through scientific and technological innovation and promote national economic development. Therefore, the careful judgment of administrative agencies is required in determining whether or not the restriction on participation

2) Each of the instant dispositions is not deemed to have grounds for the first, second, and second dispositions against Plaintiff C, and the Defendant’s portion of KRW 126,240,172 recognized as the Defendant’s amount used for the purpose other than the Plaintiff C’s intended use is merely about KRW 13,140,300, and thus, it is difficult to maintain the circumstances that form the basis for the period of sanctions and the calculation of the amount to be recovered.

3) In fact, the money used by Plaintiff C for any other purpose was used to purchase equipment, such as Nowon-do, clater, computer CPU, monitors, keyboard, RAM, and SDR, and even if such equipment was not limited to the instant research task, it is recognized that it contributed to the implementation of the instant research task as equipment necessary for laboratory operation, and otherwise, Plaintiff C did not personally engage in personal benefits, such as embezzlement or misappropriation of the relevant amount. Considering the aforementioned circumstances, it is unlikely that Plaintiff C’s use for other purpose is contrary to the intent of the former Framework Act on Science and Technology prohibiting it.

4) Plaintiff C had achieved the outcome of normally conducting research on the instant research task and publishing a number of papers. As such, if Plaintiff C, which has achieved considerable research outcomes, excluded Plaintiff C from the national research and development project for three years, not only would it be too harsh to Plaintiff C, who has been engaged in long-term research, but also would be contrary to the purpose of the Framework Act on Science and Technology, which aims to innovative science and technology and strengthen national competitiveness by building the foundation for the development of science and technology by withchilling activities on the pertinent research field

E. Sub-committee

Therefore, each of the dispositions of this case is illegal as a disposition that deviates from or abused discretionary power, even though the grounds for partial disposition are recognized.

4. Conclusion

Therefore, the plaintiff's lawsuit is unlawful, and it is dismissed, and the plaintiff C's claim is reasonable, and it is decided as per Disposition by admitting it.

The judges of the presiding judge;

Judges Kim Jae-nam

Judges Gangseo-gu