(영문) 서울행정법원 2015.9.18. 선고 2015구합59068 판결

A. On April 201, the Plaintiff, as the representative of B, was selected as the participant of 275kWH 3605 V Embri Systems Development Project, which is a detailed task of the Greencar Transport System and Support Industry Development Project, led by the Ministry of Trade, Industry and Energy. (hereinafter “Development Project”).

B. During the process of implementing the instant development project from July 1, 201 to June 30, 2012, the Plaintiff was able to spend KRW 876,00,000 (the rate of Government contributions to KRW 8333%; hereinafter “project costs of the instant case”) as project costs, on the grounds that the Plaintiff used the instant additional monetary charge for KRW 586,00,000 for a total of KRW 30,000 and KRW 146,000 in cash from the Government contributions to the private sector (the amount of KRW 83.333%; hereinafter “project costs of the instant case”). However, the Defendant was able to make the first financial audit around May 2012; the Plaintiff was able to use the instant additional monetary charge for KRW 30,000,000 for the purpose other than KRW 30,000 on August 31, 2011 to KRW 30,000 for research and development purposes.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 (including each number in the case of additional number), the purport of the whole pleadings

2. The plaintiff's assertion

The Plaintiff’s withdrawal of the total amount of KRW 586,00,000 from government contributions was caused by an employee’s mistake, and as such, the Plaintiff returned the amount to the Plaintiff without delay after becoming aware thereof, there exists a ground to exempt the Plaintiff from the penalty surcharge under the proviso to Article 11-3(1) and subparagraph 1 of the Industrial Technology Innovation Promotion Act (hereinafter “instant exemption provision”). Nevertheless, the Defendant imposed the penalty surcharge on the Plaintiff in violation of the above provision, and thus, the instant disposition was unlawful

Even if the exemption of the penalty surcharge due to the application of the above provision belongs to the defendant's discretion, the defendant's act of taking the disposition in this case by applying 40%, the highest imposition rate, without considering the above grounds for exemption or mitigation, is erroneous in the misapprehension of the principle of proportionality.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

(a) Facts of recognition;

1) The details of the Plaintiff’s instant project funds, which were withdrawn from the research purpose, are as follows.

A person shall be appointed.

2) On November 25, 201, the Defendant: (a) calculated a penalty surcharge of KRW 158,66,600 by multiplying the project cost incurred by the Plaintiff for any other purpose than research, by 476,00,000,000, the rate of imposition of the penalty surcharge of KRW 83.333%, which is the rate of government contributions; and (b) mitigated the penalty surcharge of KRW 79,33,300,00, by applying the rate of imposition of the penalty surcharge of KRW 40

[Ground of recognition] Facts without dispute, entry of evidence No. 1, purport of the whole pleadings

B. Whether the instant disposition is lawful

1) As to the Plaintiff’s assertion that there exist grounds for exemption from additional monetary sanctions under the instant exemption provision

A) In the main sentence of Article 11-3(1) of the Industrial Technology Innovation Promotion Act, where an institution, organization, enterprise, research officer, or executive officer or employee who participates in a project for the development of industrial technology uses a contribution to the research institute for any purpose other than the research purpose, a penalty surcharge may be imposed and collected within five times the amount used for the research purpose. However, the proviso and subparagraph 1 of the same paragraph stipulate that a penalty surcharge may not be imposed in cases where a contribution was inevitably used for any purpose other than the research purpose and the contribution used for such purpose has been restored to the original state without delay.

B) The Plaintiff asserts that the Plaintiff’s withdrawal of KRW 586,00,000,00 as described in the foregoing paragraph (1) is an error that an employee should transfer from another account under the name of B to a customer, and that there is a reason for exemption prescribed in the above provision, since the Plaintiff transferred the relevant amount without delay as a result of collecting funds from the customer after ascertaining the fact. However, Article 11-3(1) of the Industrial Technology Innovation Promotion Act imposes additional monetary sanctions on an institution, organization, company, or person in charge of research and development to strictly regulate the illegal use of government contributions. However, in light of the above provision’s structure and purport, it is reasonable to view that the reason for exemption prescribed in the proviso should be strictly construed in light of the above provision’s legislative structure and purport. In light of the above facts of recognition and the overall purport of the arguments as seen earlier, the Plaintiff cannot be deemed to have any ground for exemption prescribed in the instant provision. Therefore, the Plaintiff’s assertion on this part of the grounds for exemption is without merit.

(2) The Plaintiff’s remaining argument that the application of the provision of this case constitutes a binding act or that the provision of this case is not applied is against the principle of proportionality is not further determined, inasmuch as there are no grounds prescribed in the provision of this case’s exemption.

① Although the instant project cost account and B’s general business account, the purpose of which is limited due to the instant development project, was sufficiently separated, it is difficult to readily accept the allegation that the withdrawal was caused by an employee’s mistake. In particular, even if the Plaintiff’s assertion is based on the Plaintiff’s assertion, the Plaintiff’s withdrawal of KRW 110,000,000 and KRW 50,000,000 for the first time on August 31, 201 and November 30 of the same year respectively, respectively, was made at the same five days after the Plaintiff became aware, and it is difficult to believe that the Plaintiff again received the same amount more than one to two months thereafter, and even if the same amount was repeated as the Plaintiff’s assertion, it cannot be deemed that the Plaintiff’s failure to manage and supervise the employees under his/her control constitutes “unrefused.”

② On the other hand, the Plaintiff asserted that it would go against the aforementioned argument on the ground that it was inevitable for the Plaintiff to withdraw government contributions, the purpose of which is strictly limited, on the sole basis of the circumstance that the Plaintiff had a intention to divert the excess from the preparatory document as of September 2, 2015, that it would have been in an imminent situation where the company remains in existence due to the management difficulties, and that it would have been forced to do so in order to save the company. However, it cannot be said that the Plaintiff’s financial statements (i.e., evidence Nos. 3-1 through 4) submitted as the ground for the above argument, namely, for the business year of December 31, 2012 (i.e., the total debt amount and net loss of the company, etc. as of December 31, 2012, and that withdrawal from the project expense of this case was made from the account of this case on August 201-21 to 22, 2011.

③ As indicated in the foregoing paragraph (a) 1, the Plaintiff asserted that the amount was returned to the account of this case after five days from the date of withdrawal made on November 30, 201, but the amount was returned to the account of this case after the date of withdrawal made on January 31, 2012 and the date of withdrawal made on February 29, 2012, four times from March 23, 2012 to June 7, 2012. Although the Plaintiff discovered the fact of withdrawal made by mistake of employees, the Plaintiff was returned to the relevant amount from the customer, but the said amount was returned. However, if the Plaintiff was found to have been withdrawn by mistake of employees as alleged in the Plaintiff, it was difficult to believe that the amount was immediately withdrawn from the general business account of B, which should have been deposited to the account of this case, and thus, it cannot be viewed that the amount was voluntarily withdrawn, and that the amount was returned only after the use of the project expenses was not recovered for four months as necessary.

2) As to the assertion of deviation and abuse of discretionary power

A) Whether a punitive administrative disposition is a deviation from or abuse of discretionary power under the social norms shall be determined by objectively examining the content of the act of violation that constitutes the grounds for the disposition, the purpose of the public interest to achieve the disposition, and all other relevant circumstances, and comparing the degree of infringement of public interest with the degree of disadvantage suffered by an individual (see, e.g., Supreme Court Decision 2004Du3854, Apr. 14, 2006). If the criteria for punitive administrative disposition are prescribed in the form of Presidential Decree or Ordinance of the Ministry, the criteria per se do not conform to the Constitution or laws, and unless there are reasonable grounds to believe that a punitive administrative disposition in accordance with the above disposition criteria is considerably unfair in light of the content of the act of violation that constitutes the grounds for the disposition, and the content and purport of the relevant statutes, it shall not be determined that the disposition was an abuse of discretionary power (see, e.g., Supreme Court Decision 2007Du6946

B) Based on the above legal principles, in light of the following circumstances acknowledged by comprehensively taking into account the facts of recognition and the overall purport of the arguments in relation to the instant case, even if considering all the circumstances alleged by the Plaintiff, there is no violation of law that deviates from or abused discretion in the instant disposition. Therefore, the Plaintiff’s assertion on this part is without merit.

① Under Article 14-4 and subparagraph 1 of the Enforcement Decree of the Industrial Technology Innovation Promotion Act, the imposition rate of penalty surcharges under Article 11-3(1) of the Industrial Technology Innovation Promotion Act shall be 40% if the amount used for any other purpose than research is at least 100 million won, but less than two billion won. In this regard, the Plaintiff asserts that the above imposition rate constitutes a maximum rate not fixed. In this case, the Defendant’s application of 40%, which is the highest imposition rate without considering all the circumstances, goes against the principle of proportionality. However, examining the developments leading up to the amendment of Article 14-4 and [Attachment Table 1] of the Enforcement Decree of the Industrial Technology Innovation Promotion Act, the imposition rate of penalty surcharges under Article 14-4 and [Attachment Table 1] [Attachment Table 1] of the former Enforcement Decree of the Industrial Technology Innovation Promotion Act (amended by Presidential Decree No. 25540, Aug. 6, 2014; the imposition rate of penalty surcharges under Article 14-4 of the former Enforcement Decree of the Industrial Technology Innovation Promotion Act requires more than 160%.

② Nos. 2(c) of the above [Attachment 1] subparagraph 2(c) of the said [Attachment 1] provides that a person who committed an offense shall faithfully cooperate in the investigation process and voluntarily return the amount used for any purpose other than the research purpose may reduce the amount of additional monetary sanctions within the scope of 1/2 “if he/she voluntarily returns the amount used for any purpose other than the research purpose,” and the Defendant applied

③ Government contributions granted as the project costs of this case were created within a limited budget in order to enhance national competitiveness, etc. through industrial technology development and innovation and to grow national economy. As such, the main research institute, participating institution, and responsible research institute, etc. that received contributions, as well as the main research institute, participating institution, and responsible research institute, etc. that have received contributions, has the duty to faithfully perform the task, as presented in the project plan, and there is a need to strictly punish the utilization, etc. by recovering contributions, restricting national research and development

④ The instant disposition is conducted pursuant to subparagraphs 1 and 2 of attached Table 1, and the said disposition disposition does not in itself conform to the Constitution or laws. In light of the frequency and amount of the use of the project cost of this case as well as the content of the offense, etc., there is no evidence to deem that the instant disposition in accordance with the said disposition disposition is remarkably unreasonable or unjust.

⑤ The Plaintiff’s participation in the instant development project was inevitably made at the request of superior companies dealing with B, and the Plaintiff is running the instant development project with force. As such, the instant disposition also contravenes the principle of proportionality. However, there is no evidence to acknowledge that the Plaintiff was involved in the instant development project due to the circumstance as alleged above. Furthermore, even if there is such fact, the Plaintiff would be able to strictly manage and execute the instant development project as long as the Plaintiff was selected as a participant in the instant development project and received government contributions as a result of the Plaintiff’s selection of the participant in the instant development project. As seen earlier, the Defendant cannot be deemed to have excessively excessive or violating the principle of reasonableness on the ground that the instant disposition was conducted by the Plaintiff even though the amount of additional monetary sanctions imposed against the Plaintiff was reduced to up to 1/2.

5. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.