(영문) 서울행정법원 2019.6.27. 선고 2018구합79971 판결

On July 11, 2018, the Defendant’s disposition of KRW 141,60,000 against an industry-academic cooperation foundation of the Plaintiff University and the disposition of restricting the participation for five years against the Plaintiff B shall be revoked.

Reasons

1. Details of the disposition;

A. The Defendant (Korea Research Foundation) selected A University as a person eligible for academic support and entered into an agreement with the president of A University on the D Project (hereinafter “instant project”) with the president of A University as follows, and paid the project cost (hereinafter “instant project cost”) in accordance with the agreement.

○ Order of Project: Diplomatic Association

○ Head of the Project Bureau (the Team): A.I.D. E

○ Project Period

The total project period: The period of the agreement for the relevant year from September 1, 2013 to August 31, 2020: The president of a university, the president of an industry-academic cooperation foundation, and the head of a project team, as determined by the Minister of Education, shall faithfully perform the project in accordance with the Directive on the Management of C Business, and relevant statutes.

Article 8 (Management of Project Funds) The president of A University, the president of a industry-academic cooperation foundation, and the president of a project team shall faithfully manage project funds in accordance with the guidelines prescribed by the Directive on the Management and Operation of Projects of this case and the President of the National Research Foundation of Korea.

B. The Plaintiff A University Business Cooperation Agency (hereinafter referred to as the “Plaintiff Cooperation Agency”) received project funds from the Defendant and managed them, and the Plaintiff B participated in the instant project as a professor of the Electric Engineering Department of the Plaintiff University.

C. On July 11, 2018, the Defendant: (a) obtained research scholarships (hereinafter referred to as “the instant personnel expenses”) from around July 201, 2012 to around 2016, from the Plaintiff’s student researchers affiliated with his/her research institute (hereinafter referred to as “the instant personnel expenses”) and jointly managed the instant project expenses and executed the instant redemption of KRW 141,60,000 for the project expenses (hereinafter referred to as “the restitution disposition”); and (b) excluded the Plaintiff from the selection of a person eligible for funding for five years with respect to the Plaintiff (hereinafter referred to as “the instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 2, Eul evidence 1, 2, and 4, the purport of the whole pleadings

2. Relevant statutes;

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

3. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) Non-existence of grounds for disposition

The fact that Plaintiff B received, in advance, the passbook, cash card, and password in his own account from the student research institute and managed the instant personnel expenses by depositing them into each of the above accounts. However, the amount wrongfully managed is not KRW 141,60,000, but KRW 57,094,075, KRW 20,078,798, out of KRW 57,094,075, and KRW 20,078,798, out of KRW 57,075, was paid as personnel expenses to the student research institute in cash, and the remainder of KRW 37,015,278 was used to purchase machinery and equipment, materials cost, maintenance, and management of clean rooms, and administrative expenses. Accordingly, the part that is ultimately not useful for private purposes is not used by Plaintiff B. Accordingly, the instant disposition was unlawful because the instant personnel expenses were not used for any other purpose.

(ii) the deviation and abuse of discretionary power;

Even if the grounds for the instant disposition exist, considering that Plaintiff B paid most of the instant personnel expenses to the student researchers and used them as personnel expenses, used them for private use, derived outstanding results in the instant project, and that there was a need to create common laboratory expenses to purchase various machinery, equipment, clean room maintenance, material cost, and other equipment, the instant disposition is unlawful as it excessively deviates from and abused discretionary power.

B. Determination

1) Whether the instant disposition grounds exist

A) 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." 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 under 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 payment of project costs is suspended or paid by researchers, universities, etc. falls under any subparagraph of Article 19(2).

In addition, Article 20 (3) of the Enforcement Decree of the Sciences Promotion Act provides for the period of exclusion from the selection of persons eligible for scientific assistance, among the reasons under Article 20 (1) of the Sciences Promotion Act, and provides for the period of exclusion from the selection of persons eligible for scientific assistance, such as embezzlement, fraud, or useful: 3 years to 5 years; 2 years to 3 years; 3 years to : 3 years; 2 years to ; and 3 years to : 2 years to : 2 years.

B) In light of the above facts and circumstances in the instant case, it is reasonable to view that the act of Plaintiff B constitutes “where the project cost under Article 19(2)1 of the Sciences Promotion Act is used for any purpose other than its original purpose” in light of the following facts and circumstances acknowledged earlier, the evidence mentioned earlier, Gap’s evidence No. 10, and Eul’s evidence No. 2, and the purport of the entire pleadings. Therefore, it is reasonable to view that the act of Plaintiff B constitutes “where the project cost under Article 19(

① From January 2012 to November 2016, Plaintiff B submitted in advance the passbook, cash card, and password of the account in the name of the student researcher from the student researcher affiliated with his/her laboratory from January 2012 to November 2016, Plaintiff B acquired part of the funds when he/she jointly manages the funds deposited in each of the above accounts (Plaintiff B was indicted on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in the Seoul Southern District Court (2018Da433) with respect to the criminal facts that he/she acquired the funds in this case, and acquired them by fraud (Article 20 subparagraph 3 (a) of the Enforcement Decree of the Sciences Promotion Act). However, the above judgment was finalized on November 16, 2018.

② In addition, according to Article 28(4) of the Guidelines for the Management and Operation of C Business delegated by the FC Directive on the Management and Operation of Business for the purpose of efficiently prescribing the details necessary for the efficient implementation of the business promoted under the Sciences Promotion Act (hereinafter referred to as the “Guidelines”), the research scholarship for graduate school students is a research scholarship to be paid to the individual participating in C Business, so the act of managing each individual’s passbook or seal collectively or recovering a certain amount from the graduate school students is strictly limited.” The reason why the instant guidelines strictly prohibit the joint management of student personnel expenses is that the closure of which is embezzled or useful for the purpose of joint management of student personnel expenses by taking advantage of his/her position is serious, protecting the rights of graduate school students by preventing them in advance, and enhancing transparency in the enforcement of research expenses.

In addition to the contents and purport of the relevant provisions, in addition to the fact that Article 8 of the Convention on the Management and Operation of Projects of this case provides that "the project cost shall be faithfully managed in accordance with the guidelines and criteria set by the President of the National Research Foundation of Korea", it is reasonable to view that the act of joint management of the labor cost of this case by the Plaintiff B constitutes "the case where the project cost of Article 20 subparagraph 3 (b) of the Enforcement Decree of the Sciences Promotion Act, which is one of "the case where the project cost of this case is used for any purpose other than the original purpose" is "the case where the project cost of this case is intentionally wrongfully executed" under Article 1

③ The Plaintiffs asserted that, among the personnel expenses of this case under joint management, KRW 20,078,798 was paid to student researchers in cash, and the remaining KRW 37,015,278 was used for the purchase and repair of equipment, etc., and thus, Plaintiff B cannot be deemed to have used them for purposes other than the purpose of use. However, in light of the relationship between Plaintiff B and student researchers, it is difficult to readily conclude that part of the personnel expenses of this case was paid to the actual student researchers by the evidence submitted in light of the relationship between Plaintiff B and the student researchers, etc., and that the use of the personnel expenses of this case for the purchase and repair of equipment, not for the personnel expenses, cannot be permitted for use

2) Whether the discretion is deviates or abused or not

A) In light of the above provisions of Articles 19(2)1 and 20(1) of the Sciences Promotion Act and Article 20 subparag. 3(a) of the Enforcement Decree of the same Act, the Defendant’s redemption of project costs and determination of the amount thereof are subject to discretion. However, if the Defendant decides to recover project costs in accordance with the aforementioned discretion, it must be subject to a disposition of restriction on participation. However, if there are grounds, such as misconception of facts or violation of the principle of proportionality or proportionality, etc. when exercising such discretion, it is illegal as a deviation or abuse of discretionary power. Whether a punitive administrative disposition deviates or abused from the scope of discretionary power, the determination ought to be made by comparing and comparing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant disposition with the degree of infringement on public interest, the necessity of public interest to be achieved by the relevant disposition, and all the following circumstances (see, e.g., Supreme Court Decision 98Du17979, Apr. 7, 2000; 204Du48484.

B) Comprehensively considering the aforementioned facts and the purport of the entire arguments, the following circumstances that can be acknowledged by comprehensively taking account of the circumstances alleged by the Plaintiffs, the instant disposition is not deemed to have been deviates from and abused discretionary power, since the disadvantage suffered by the Plaintiffs compared to the public interest to achieve the instant disposition even if considering the circumstances alleged by the Plaintiffs. This part of the Plaintiffs’ assertion is without merit.

① The instant project cost is paid in order to support and manage various academic activities, strengthen the academic foundation, induce the balanced development of learning, and support academic support projects to contribute to the creation of new knowledge, and is highly public interest to ensure that the project cost is appropriately disbursed in accordance with the purpose and purpose of the payment. Moreover, the use of the project cost paid by an entity that performs academic support projects for purposes other than those provided is likely to lead to the insolvency of academic support projects, and thus, the need to prohibit such use is recognized.

(2) The instant disposition is an appropriate means for imposing sanctions on using funds for any purpose other than the original purpose by deceiving students' personnel expenses and jointly managing them, and it is appropriate for a person who carries out academic support projects to use funds for the original purpose and purpose of use.

③ Although Plaintiff B is responsible for managing and supervising the student researchers who participated in the instant project as a guidance professor of the student researchers who are the researchers and the student researchers of the instant project, he/she acquired the instant personnel expenses and managed them in violation of the instant guidelines, it cannot be deemed that the possibility of criticism due to its responsibility is somewhat weak.

④ The restitution disposition of this case is redeeming the amount obtained by deceit or joint management of the project cost of this case, and it is difficult to view that the disadvantage suffered by the Plaintiff Cooperation Agency is beyond the minimum necessary level to achieve the above public interest purpose. The Plaintiffs asserted that since most of the instant personnel expenses were used in line with the above public interest purpose, it is unfair to recover all of KRW 141,60,000. However, since Plaintiff B jointly managed the instant personnel expenses of this case, it is reasonable to deem that it was used for purposes other than the original purpose by intentionally unlawful execution. Thus, the Plaintiffs’ above assertion cannot be accepted, even if it is not recognized that part of the instant personnel expenses were used for purposes other than the original purpose as alleged by the Plaintiffs (Article 19(2) of the Sciences Promotion Act, even if it can be recovered in whole or in part, and the restitution disposition of this case was taken within the scope of that disposition, it cannot be deemed excessive).

⑤ As long as the recovery disposition of this case is deemed legitimate within the discretionary authority and deemed legitimate, the defendant shall be subject to the restriction on participation in Plaintiff B pursuant to Article 20(1) of the Sciences Promotion Act. The restriction on participation in this case is conducted within the scope of Article 20 of the Sciences Promotion Act and Article 20 subparag. 3(a) of the Enforcement Decree of the same Act, and the restriction on participation in the academic support project implemented by the Ministry of Education pursuant to the Sciences Promotion Act is not limited to the restriction on participation in the research project implemented by the Ministry of Education, and it is not a restriction on the participation in any central administrative agency, public institution, or company other than the Ministry of Education.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

Judges

Awards and decorations for judges;

Judges Lee Jin-hoon

Judges Kim Gin-han

Note tin

1) The National Research Foundation of Korea was entrusted with the work of academic support by the Defendant in accordance with the Promotion of Sciences Act; hereinafter the National Research Foundation of Korea and all of the Defendant “Defendants”.