(영문) 서울고등법원 2016.12.6.선고 2016누37661 판결

1. The plaintiff's appeal and the plaintiff's conjunctive claim added in the trial are all dismissed. 2. The costs of the lawsuit after the appeal are filed shall be borne by the plaintiff.

Purport of claim and appeal

The judgment of the first instance is revoked. In the first instance court, the Defendant’s settlement and settlement disposition is revoked. In the first instance court’s determination, the Defendant’s settlement and settlement disposition is revoked. In the first instance court’s determination, it is confirmed that: (a) the amount of unfair spending of research funds from the Research Center for New Natural Substances in 2013, 158,683,941, which was settled and imposed on the Plaintiff on December 26, 2014; and (b) the amount accrued after the termination of the research period; and (c) the Plaintiff’s settlement and return disposition is revoked.

Reasons

1. Basic facts

A. The Plaintiff is a corporation established pursuant to the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act (hereinafter “Industrial Education-Academia-Research Cooperation Act”) and the regulations of Seoul National University, which is an industrial educational institution under the Industry-Academic Cooperation Promotion Act, and carries out the conclusion and implementation of industry-academia-Research Cooperation Agreements of Seoul National University, which is an industrial educational institution, and related accounting management. The Defendant is a public corporation established under the Ministry of Oceans and Fisheries in accordance with the Framework Act on Maritime Affairs and Fisheries for the planning, evaluation, etc. of marine science and technology research and development projects, which is designated as a specialized institution by

B. On April 5, 2013, the Plaintiff entered into an agreement with the Defendant on January 1, 2013 through December 31, 2013 during the relevant year with the term of the agreement (hereinafter “instant agreement”) and entered into the agreement on research and development of technology for maritime and marine areas (hereinafter “instant agreement”). The agreement stating that “where the Plaintiff fails to prove the amount of use of research and development expenses, the amount equivalent to the share of government-invested funds should be returned to the account designated by the Defendant” (Article 4(5)1 of the instant agreement). On November 19, 2014, the Defendant provided the Plaintiff with a guidance to the effect that the Plaintiff should return to the Defendant the amount equivalent to the share of government-invested funds, which was recognized as an unfair execution of research and development expenses subject to settlement as a result of the settlement of research and development expenses pursuant to the instant agreement, to the end of the research period.

D. On December 2, 2014, the Plaintiff filed an objection against the result of the above settlement with the Defendant. On December 26, 2014, the Defendant accepted the objection by deeming that the portion of KRW 600,000,00 among the above objection filed to the Plaintiff was proven, and on December 26, 2014, the remainder was KRW 158,683,941, and notified the Plaintiff that the revised amount of unfair enforcement research and development expenses was KRW 158,683,941, and that the said amount and the interest accrued after the completion of the research period should

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 4, 7, Eul evidence Nos. 1 and 3, the purport of the whole pleadings

2. Whether a lawsuit is lawful for the primary claim;

We examine the legitimacy of this part of the lawsuit.

A. The issue of whether a certain act of an administrative agency can be a subject of an appeal cannot be determined abstractly and generally. In a specific case, an administrative disposition is an enforcement of law with regard to a specific fact by an administrative agency as a public authority, which directly affects the rights and obligations of the people. In mind, the administrative disposition must be determined individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, actual relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act (see, e.g., Supreme Court Decision 2013806, Dec. 23, 201

B. Article 11-2(1) of the Framework Act on Science and Technology provides that the head of a central administrative agency may restrict the participation in a national research and development project under his/her jurisdiction within five years, and may recover all or part of the project cost already contributed or subsidized if the other party who entered into a research and development agreement with the defendant fails to prove the amount used for the research and development project (hereinafter referred to as the "the Presidential Decree of this case"), on the other hand, he/she does not have any provision regarding the settlement of the relevant research and development cost (hereinafter referred to as the "the Presidential Decree of this case"), Article 9 and Article 19 of the Regulations on the Management, etc. of National Research and Development Projects enacted with delegation under Article 11(5) of the Framework Act on Science and Technology to determine detailed matters on the management, etc. of national research and development projects (hereinafter referred to as "the order of this case") and Article 42 of the Regulations on the Management of Maritime Affairs and Fisheries enacted to determine the amount spent for the settlement of research and development expenses and the amount spent for the collection thereof.

However, Article 11(4) of the Framework Act on Science and Technology provides that the head of a central administrative agency may authorize an institution or organization prescribed by the statutes under his/her jurisdiction to carry out the planning, etc. of national research and development projects on behalf of the head of a central administrative agency, and Article 11(5) provides that matters concerning the business of a specialized institution under paragraph (4) shall be prescribed by Presidential Decree for the smooth promotion of national research and development projects, and the matters concerning the settlement of research and development expenses and the collection of unfair spending amount shall not be delegated to subordinate statutes. Therefore, the provisions on the refund of the settlement amount of research

C. Examining the facts acknowledged earlier and the above legal provisions, in light of the above legal principles, the instant agreement is a public contract concluded by the Defendant on the equal status as the Plaintiff and the public law parties. The effect of the Plaintiff, who is the party to the instant agreement, failed to prove the amount of research and development expenses, is entirely determined in accordance with the instant agreement, and there is no provision in the public law as to its effect or administrative sanctions incidental thereto. Thus, each known person of November 19, 2014 and December 26, 2014, who is the Defendant’s party to the instant agreement, notified the Plaintiff, who is the party to the instant agreement, to return the amount of settlement, which is a contractual obligation, under the instant agreement, and cannot be deemed as an administrative disposition as an exercise of public power by an administrative agency on the superior status. Accordingly, the Plaintiff’s lawsuit seeking revocation of the instant claim is unlawful on the premise that the Plaintiff’s notice of December 26, 2014 constitutes an administrative disposition.

3. Determination on the conjunctive claim

A. The plaintiff's assertion

Inasmuch as the transaction between the Defendant and IMS Korea (hereinafter “NS Korea”) is actual transaction, and the transaction between the Plaintiff (hereinafter “instant transaction”) is proved by a detailed statement and a trading ledger of IMS Korea, and it is insufficient to recognize that the instant transaction was false solely on the ground that credit transaction occurred, there is no obligation to refund the Plaintiff’s settlement money related to research and development expenses to the Defendant.

(b) Fact of recognition;

1) According to the instant agreement, the Plaintiff is obligated to prove matters relating to the accounting management used by the Plaintiff (Article 4(1)5), and the documents pertaining to the results of the use of research and development funds shall be submitted to the Defendant or the consignment settlement agency within three months after the expiration of the agreement period (Article 5(1)). If the Plaintiff fails to prove the amount used for research and development expenses, the amount equivalent to the share of government contributions out of the relevant amount shall be returned to the account designated by the Defendant (Article 4(5)1). Furthermore, the Plaintiff’s manager of research and development funds shall prepare a written resolution and receipt for the payment of research and development funds, and other necessary documents, such as a written estimate, written request for the written contract, contract, books, evidentiary documents, etc. (Article 4(1)4), and shall be preserved for at least five years after the end of the pertinent tasks (Article 4(1)5). Meanwhile, Article 18 of the instant agreement provides that the Plaintiff may faithfully comply with all relevant Acts and subordinate statutes, operational regulations and management guidelines for the instant bill or sales guidelines for research and development funds.

2) The instant transaction that the Defendant recognized as an unfair spending of research and development expenses is: (a) 6 cases of material cost transaction between January 31, 2013 and June 2013 (a total of 57,294,600 won) ; (b) 6 cases of material cost transaction between July 2013 and December 2013 (a total of 5,592,176 won); and (c) 4 cases of test and analysis fees for March 2013 (a total of 45,797,165 won) ; (b) the Plaintiff paid us a total of 158,638,941 won to us on December 31, 2013 and December 12 (a total of 45,797,165 won).

3) Of the entire transaction details between the Plaintiff in 2013 and IMS Korea, the instant agreement term, the remaining transaction details, excluding the instant transaction, recognized as unfair execution research and development expenses, are as follows.

A person shall be appointed.

4) AIMS Korea is a stock company of KRW 100 million with capital established on November 13, 2012. [Grounds for recognition] The fact that there is no dispute, the entries in Category A 1, 3, 4, and 6, and the purport of the entire pleadings.

In light of the contents of the agreement of this case, it seems that the plaintiff is responsible for proving that research and development expenses have been properly executed. In full view of the following circumstances as revealed by the evidence mentioned above, evidence mentioned above, evidence mentioned above, evidence mentioned above, evidence mentioned above, evidence Nos. 5, 6, 8, 9, 11 through 17, Eul Nos. 5, 8, 11, and 12 (including serial numbers in the case of serial numbers), evidence No. 158, 11, and 12, witness A of the first instance trial, and witness of the first instance trial, the evidence presented by the plaintiff alone is insufficient to acknowledge that the amount of 158,683,941, which is recognized as an unfair execution amount, was properly executed as research and development expenses, and there is no other evidence to prove otherwise. Accordingly, the plaintiff bears the obligation to refund the settlement amount corresponding to the above amount to the defendant pursuant to Article 4(5)1 of the agreement of this case.

1) According to the transaction details between the Plaintiff and IMS Korea as seen earlier in paragraphs 3-b and 3-B, the Plaintiff appears to have paid each of the payments on the date of purchase of the goods from IMS Korea except for the four trades that were paid on May 2, 2013 and one transaction that was paid on October 17, 2013 (Provided, That in the case of four trades that were paid on May 2, 2013, it appears that the instant 2013 research and development expenses were paid on April 12, 2013 from the Defendant for 4 items of materials purchased on January 4, 2013, it is difficult to view that the Plaintiff paid each of the payments on the date of the instant transaction to be paid immediately after the date of the instant transaction, without having paid the payment on May 2, 2013.

2) The Plaintiff asserted that the credit transaction in this case was conducted with IMS Korea from around 2006 to around 8 years prior to the incorporation of IMS Korea as an individual business entity, and that the credit transaction in this case was conducted based on trust arising from such continuous transactions. However, in light of the fact that the foreign commercial transaction price exceeds 1.5 times the IMS Korea’s capital, it is not easy for IMSCo to extend the due date by December 31, 2013 without any demand for payment based only on the trust relationship.

3) In light of the fact that the Plaintiff had had a credit transaction with IMS Korea in 2011 and 2012, and there was a credit transaction with other companies than IMS Korea, the Plaintiff cannot be readily concluded that the instant transaction was false solely on the ground that the Plaintiff paid 158,683,941 won to IMS Korea on December 31, 2013, the transaction statement itself cannot be deemed as having high probative value to confirm the existence of the corresponding transaction. Of the transaction statement submitted by the Plaintiff to verify the existence of the instant transaction, the transaction statement without the Plaintiff’s signature was total of 6 items totaled of 47,315,141 won, and the head of IMS Korea submitted by IMS Korea is merely abstracting only the transaction statement submitted by the Plaintiff and the head of IMS Korea, and the Plaintiff’s submission of the transaction statement is insufficient to recognize the transaction statement of this case by means of compiling and editing the transaction statement with the Plaintiff.

4) '실험실을 이전할 때 이 사건 거래의 거래명세표의 훼손 여부라든지 분실 여부에 대하여 확인하지 않고 짐을 쌌다'는 취지로 증언한 제1심 증인 A의 진술 등을 고려할 때, 원고가 와이엠에스코리아에 2013. 12. 31. 일괄하여 집행한 158,683,941원의 연구개발비는 각 품목별로 미결제된 것이 맞는지, 매월 결제한 것과 중복된 것은 아닌지, 당초 미결제된 품목과 수량 등을 비교 · 확인한 후 결제된 것인지 등에 대한 충분한 검토나 확인 없이 집행되었을 가능성이 높고, 원고는 위 집행 금액의 적정성 등에 대하여 신뢰할 만한 증거를 제출하지 않고 있다.

5) According to the instant agreement, the Plaintiff is obligated to prove the details of payment with the written resolution, receipt, written request, contract, inspection report, etc. regarding the payment of research and development expenses in a transparent manner, and the Plaintiff bears the duty of proving the payment thereof. The Plaintiff’s aforementioned documentary evidence is simple monthly or quarterly, and then entered and sealed the total number of cases, total purchase, total amount, and the manager’s position and name on the mark, and kept it. However, it is deemed that there was no systematic management of the inventory, order, acquisition, etc. of the goods by document. Thus, it cannot be deemed that the Plaintiff fulfilled its duty under the instant agreement on the proof of payment of research

6) The Plaintiff alleged to the effect that the instant transaction was actually conducted, but the instant transaction was not delayed due to frequent replacement of the staff in charge of research and development expenses and the administrative number. However, as seen earlier, KRW 98,651,01 of the product price was normally paid to IMS Korea 15 times in total during the period from May to December 7, 2013, and in particular, it cannot be deemed that the settlement of research and development expenses was delayed due to the transfer of the laboratory, etc., as well as there was a record of the payment of the Plaintiff’s personnel expenses. According to each of the statements in Eul’s evidence 11 to 10 (the details of payment of Plaintiff’s personnel expenses), the Plaintiff’s assertion on this part is difficult to believe, taking into account the following circumstances: (a) there was at least one employee who has been engaged in administrative affairs for at least three months except August 2013.

4. Conclusion

Therefore, the part of the plaintiff's main claim in the lawsuit of this case is unlawful, and the plaintiff's main claim is dismissed as it is without merit. The judgment of the court of first instance as to the main claim in the lawsuit of this case is legitimate with this conclusion. Thus, the plaintiff's conjunctive claim added in the plaintiff's appeal and trial of this case is dismissed as it is without merit and it is so decided as per Disposition.