(영문) 서울행정법원 2017.12.7. 선고 2016구합81253 판결

On February 4, 2016, the Defendant confirmed that the imposition of a penalty surcharge of KRW 10,600,850 against the Plaintiff is null and void (the date of the disposition stated in the Plaintiff’s written application for modification of the lawsuit is a clerical error).

Reasons

1. Details of the disposition;

A. B Co., Ltd. (hereinafter “B”) is a company that manufactures semiconductor equipment, machinery, equipment, and so on. The Plaintiff was the representative director B from June 11, 2014 to February 5, 2015. The Korea Food and Drug Agency is an exclusive institution that manages various research projects for innovation of industrial technology established and conducted by the Minister of Trade, Industry and Energy pursuant to Article 38 of the Industrial Technology Innovation Promotion Act.

B. Around April 9, 2014, the Defendant publicly announced a C business implementation plan. B submitted a plan on D development task (hereinafter “instant task”) in accordance with the foregoing public notice, and the instant task was selected as the subject of the instant project on or around June 27, 2014. B entered into an agreement with the Korea Institute for Advancement of Technology on or around July 2014, and was paid KRW 270,000,000 with the contributions of the first year thereafter (hereinafter “the contributions of this case”). The parties to the Convention (general manager, E, representative director)

· Either Party to the Convention (participating Party): The Main Hybex Co., Ltd. and the Electronic Parts Research Institute

- Project period: July 1, 2014 to June 30, 2016

- Convention Period: from July 1, 2014 to June 30, 2021

- Government contributions: 1st ( July 2014), 270,000,000 won and 2nd ( August 2015),0,000 won. The Korea Institute for Advancement of Technology was notified by the Gyeonggi Provincial Police Agency that B used the contributions of this case for any purpose other than the research purpose on August 6, 2015 and conducted on-site surveys around August 26, 2015, and around September 17, 2015, B used 56,082,000 won out of the contributions of this case for any purpose other than the research purpose (hereinafter referred to as “misappropriation”).

E. On October 29, 2015, the Korea Institute for Advancement of Technology restricted the Plaintiff’s participation in national research and development projects for four years (4 years (9.10, 26.-25 October 2019) on the ground that B was the representative director of B from around December 2015 to June 2014, and thereafter overall control over B’s operation, fund management, etc. as vice-chairperson) and B used the instant contributions to the Plaintiff, and imposed a disposition to recover KRW 15,000,000 for B.

F. On February 4, 2016, the Defendant imposed an additional monetary sanction of KRW 10,60,850 regarding the appropriation of the instant contributions on the ground that the Plaintiff, as the representative director B, was executing the instant contributions by overall control and management (hereinafter referred to as “instant disposition”). Moreover, the Defendant imposed a disposition imposing an additional monetary sanction of KRW 10,60,850 [Article 14-4 of the Enforcement Decree of the X-gu Industrial Technology Innovation Promotion Act (amended by Presidential Decree No. 26889, Jan. 12, 2016)] on the Plaintiff (hereinafter referred to as “instant disposition”).

【Fact-finding without dispute over the basis of recognition, Gap evidence 1 through 5, Eul evidence 1 through 7, 10, 11 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

B There is no useful fact in terms of the contribution of this case.

2) Even if the illegalB party’s specific illegal contribution was appropriated, the Plaintiff is merely a person registered as a representative director on the registry for a limited period of time, and the Plaintiff did not have been fully involved in the process. Therefore, the Plaintiff is not liable for the above diversion.

(iii) deviation from and abuse of discretionary power;

① The Plaintiff was merely a formal representative director, and was merely a research on the task as the president of the research institute. ② The Plaintiff was not involved in the purchase of equipment or materials at issue and was not a criminal prosecution for that reason. ③ Even if a part of the instant contributions was appropriated, it was due to negligence, such as minor negligence or error, etc., the instant disposition was beyond the scope of discretion or abuse of discretionary authority.

B. Relevant statutes

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

C. Judgment on the non-existence of grounds for disposition

1) It is a matter of whether the organizingB of the issues and arguments has appropriated contributions equivalent to the amount relating to the purchase of each of the items listed below. The party’s arguments concerning the relationship between the item at issue and the research task at issue, the place of use, etc. are as listed below.

A person shall be appointed.

2) Determination

A) There is no dispute between the parties as to the facts that each product-related B listed in the above table 7 through 9, 12, and 14 used contributions equivalent to the amount relating to the purchase of each of the above items. The grounds for disposition as to this part are recognized.

B) Comprehensively taking account of the overall purport of pleadings as to each item in the above table Nos. 1, 2, 6, 10, and 11 as to each item in the above table Nos. 3, 5, 12, and 14, the following facts can be acknowledged: (a) the Plaintiff presented research notes (Evidence No. 8), computerized business reports (Evidence No. 7) as to the use details of each item, but its description (in the case of No. 500, it is difficult to grasp the relevance to and specific details of use of the task in this case), the process of preparing the statement (in the case of No. 500, it is deemed that there was an additional package attached with "each sign affixed with multiple fences," and thus, it is not an obstacle to the above fact-finding; and (b) further, the Plaintiff’s inventory of the item can be acknowledged as not having been verified by considering the following circumstances: (c) the amount of the items purchased and confirmed as a whole; and (d) the purport of each item No. 3, 15 or 1718.

① Each item described in Nos. 1 and 2 (Ag Plaste) is a high-priced subject and generally purchased and used in small quantities due to its nature. The Plaintiff entered 7 km level in the business plan as necessary. In fact, even after purchasing 10 km around August 7, 2014, the Plaintiff purchased additional 10 km each around August 28, 2014 and December 18, 2014. As such, while the Plaintiff purchased large quantities of items in excess of the purchase amount stated in the business plan, the Plaintiff failed to present the details of the instant task and objective use (the large printing machine claiming that the Plaintiff used each item in question was not confirmed at the time of the fact-finding survey, and the materials submitted by the Plaintiff alone cannot be deemed necessary to perform the instant task, and it is difficult to deem that the said large printing machine was used at one time for the said large printing machine.

② Items Nos. 6 are items that were not included in the project plan from the beginning, as well as items that were much larger than the quantity necessary for general experiments (B). However, although the Plaintiff asserted that the above items were purchased around September 30, 2014, the initial stage of the instant task, the number of items used for the first test is less than 200 square meters even according to the materials submitted by the Plaintiff (Evidence No. 7-6). Nevertheless, the Plaintiff failed to present the relationship with the above items and the instant task and the objective details of use.

③ Each of the items listed in Nos. 10 and 11 appears to have been purchased more than the quantity necessary for general experiments (in the case of No. 10, Oct. 29, 2014; and No. 11, Nov. 7, 2014, in the case of No. 10, the number of items alleged to have purchased 15km around Oct. 29, 2014; however, according to the materials submitted by the Plaintiff (No. 7, No. 10, No. 11 of the evidence No. 7), the number of items used for the first test is less than 2 cm.) Nevertheless, the Plaintiff failed to present the relevance and objective use details of each item and the instant task. In addition, the Plaintiff asserted that the sales volume was a minimum unit, but did not submit objective materials to support the purchase.

C) Comprehensively taking account of the overall purport of the arguments in the evidence Nos. 3, 5, 6, 12, and 14 with respect to each of the items listed in the above table Nos. 3 through 5, each of the items can be acknowledged as having not been indicated in the business plan related to the instant task. In addition, in light of the following circumstances acknowledged by considering the overall purport of each of the above evidence as a whole, it can be ratified that B has appropriated contributions equivalent to the amount related to the purchase of each of the items.

① The items indicated in No. 3 are, after making a license, used for completing the development of products and producing prototypes in order to protect circuits. The items listed in No. 4 and No. 5 are, with the appearance of the license, a CD indicating the name of the product or the name, function, etc. of the product name, the product name, or the marketing pressing by attaching them to the license. Ultimately, each item is necessary for the manufacture of finished products, such as a prototype, and it is difficult to regard it as an item necessary to perform the instant task as an item.

② Nevertheless, B purchased a large quantity of each of the above items that are not included in the business plan, and the time of purchase has completed the task and it was not the stage of producing prototypes, but the initial stage of the task.

③ At the time of the fact-finding survey, the data was not verified as to how the relevant item was used in order to carry out the instant task, and the inventory of the relevant item was also not verified (the Plaintiff submitted as evidence the inventory photograph of the items Nos. 4 and 5 as to the relevant items, which came up on November 7, 2017).

D) Comprehensively taking account of the overall purport of the arguments in the evidence Nos. 3, 5, 6, 12, 14, and 19 regarding the items listed in the above table Nos. 13, B had already been purchased prior to the selection of the task in this case. Nevertheless, the facts that B included the above items in the business plan related to the instant task in the business plan and presented the tax invoice of F on January 1, 2014, 26 in the process leading to the instant disposition, such as the fact-finding survey, as evidence. Further, considering the overall purport of the arguments in the evidence Nos. 12, 14, 16, and 19, considering the following circumstances, it may be ratified that B has useful contributions equivalent to the amount relating to the purchase of the said items:

(1) At the time of fact-finding survey, not only the existence of the above item but also the purchased data were not confirmed.

② Since the fact-finding survey, the tax invoice in the name of F submitted by the Plaintiff was issued falsely (F is not a company dealing with the above items, but the Plaintiff itself was also purchased from KBT, not a company dealing with the above items, prior to the selection of the instant task.

③ The Plaintiff asserted that the said item was purchased in advance as necessary to perform the instant task, and that it was actually used in the process of performing the instant task, but the Plaintiff did not present the objective details of use on how the said item was used for the instant task (such as evidence Nos. 7-2, No. 13, 14, 15, and 19, and there is no other evidence to acknowledge it).

3) Sub-decisions

Of the instant contributions, it is reasonable to view that the amount equivalent to the amount related to the purchase of each item as indicated in the above table has been useful. On a different premise, the prior Plaintiff’s assertion cannot be accepted.

D. Determination as to the other party to the disposition's specific illegality argument

1) Article 11-3(1) of the Industrial Technology Innovation Promotion Act provides that where a contribution is used for any purpose other than research and development expenses, the Minister of Trade, Industry and Energy may impose and collect penalty surcharges on an institution, a person in charge of research, a researcher, or an executive or employee belonging to such institution, a researcher, or an executive or employee within five times the amount used for any purpose other than research purpose. In addition, Article 7(3) of the Regulations on the Handling of Additional Monetary Charges imposes penalty surcharges on an executive, employee, research researcher, or a researcher belonging to such institution, a representative director, etc. who uses or acquired the contribution for any purpose other than research purpose, and exceptionally impose penalty surcharges on a company, etc. In light of the language and text of the relevant provisions, intent of the introduction, contents thereof, etc., it appears that the party subject to the imposition of additional penalty surcharges is at the discretion of the administrative agency. It is deemed that the administrative agency can determine the party subject to the disposition by comprehensively taking into account the status of the person involved in the act

2) Determination

In light of the following circumstances, which are acknowledged by comprehensively considering the aforementioned basic facts and evidence Nos. 1-2, 3, and 6’s evidence, the purport of the entire pleadings, namely, ① the Plaintiff entered into an agreement on the instant task as the representative director of B around July 2014; the instant task began at that time; ② the Plaintiff was the representative director from August 2014 to November 201, which appears to have been useful for the instant contributions; and ② the Plaintiff was at the same time involved as the researcher of the instant task, it is difficult to deem that the Defendant was unlawful or unjust to specify the Plaintiff as the other party to the instant disposition.

3) Sub-decisions

On a different premise, the Defendant’s assertion cannot be accepted.

E. Determination on the assertion of deviation and abuse of discretionary power

1) Legal principles

In a case where an administrative sanction is imposed on the grounds of an administrative sanction, the imposition of a sanction shall be at the discretion of the person who has the authority to impose the sanction. However, if the sanction is deemed to have abused the discretion vested in the person who has the authority to impose the sanction as an exercise of the discretionary authority, it may be said that the sanction is unlawful. In addition, in order to deem that the sanction has remarkably lost its validity under the social norms, it may be deemed that the sanction is objectively and clearly unreasonable when comprehensively taking into account various factors, such as the content and nature of the sanction, the administrative purpose to be achieved by the sanction, the criteria for the determination of the sanction, etc. (see Supreme Court Decision 2002Du6620, Sept. 24, 2002).

2) Determination

In full view of the facts acknowledged earlier and the purport of the entire arguments, the following circumstances are comprehensively taken into account: (i) B used considerable parts of the contributions for purposes other than research and development purposes by purchasing items not included in the project plan or purchasing items more than the quantity necessary for research in the process of performing the instant task; and (ii) B did not properly state the details of the process of experiment or use of materials in the process of performing the instant task; and (iii) it appears that the contributions provided under the Industrial Technology Innovation Promotion Act, such as the contributions of this case, constitute the basis of the support system under the Industrial Technology Innovation Promotion Act, and thus, if the contributions were to be denied during the process of application, selection, and execution thereof, it is highly necessary to prevent them since the need for public interest, such as general prevention, etc. to be achieved through the instant disposition, and thus, it cannot be deemed that the Plaintiff’s abuse of discretion cannot be considered to have been affected by the Plaintiff’s abuse of discretion, taking into account the circumstances alleged by the Plaintiff.

3) Sub-decisions

The plaintiff's assertion cannot be accepted.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.