2017Nu86875. Revocation of disposition, etc. of restriction on participation in national research and development projects

A University Industry Cooperation Foundation

Representative B

C

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

Attorney Kim Un-hoon

The Minister of Science and ICT

Law Firm Doodo, Counsel for the defendant-appellant

Attorney Kim Il-young

Stand-type of a litigation performer;

Seoul Administrative Court Decision 2016Guhap65862 Decided November 17, 2017

July 18, 2018

August 29, 2018

1. The decision of the court of first instance (excluding the part invalidated by the withdrawal of the plaintiff C’s lawsuit), including a claim for exchange change in this court, shall be modified as follows:

A. The action shall be dismissed by the Plaintiff A University Industry-Academic Cooperation Foundation.

B. The Defendant’s disposition of restricting participation in national research and development projects for three years against Plaintiff C on May 27, 2016 is revoked.

2. The portion arising between the Plaintiff A and the Defendant out of the total costs of the lawsuit shall be borne by the Plaintiff A and the Industry-Academic Cooperation Foundation. The part arising between the Plaintiff C and the Defendant shall be borne by the Defendant.

1. Purport of claim

(a) An industry-academic cooperation foundation for Plaintiff A University;

Government contributions made by the Defendant to the Industry-Academic Cooperation Foundation of the Plaintiff University on September 20, 2016

The disposition of restitution of KRW 126,356,839 shall be revoked (the industry-academic cooperation foundation of the Plaintiff AU shall be revoked by this Court

The Gu was changed on an exchange basis).

B. Plaintiff C

The defendant's restriction on participation in national research and development projects for three years against the plaintiff C on May 27, 2016

The disposition is revoked (the plaintiff C shall be subject to the disposition of restriction on participation in the national research and development project

The defendant's disposition date was corrected on May 27, 2016, and the revocation of the disposition for recovery of government contributions was revoked.

(1) A withdrawal was made.

2. Purport of appeal

(a) An industry-academic cooperation foundation for Plaintiff A University;

Of the judgment of the first instance, the part concerning the claim of the Plaintiff A University Industry Cooperation Foundation shall be modified as follows:

Section 1-A. Judgment as to the purport of the claim

B. Defendant

Of the judgment of the first instance, the part of the plaintiff C's claim is revoked, and the plaintiff C's claim is dismissed.

1. The reasoning of the judgment of the court of first instance is as stated in the reasoning of the judgment of the court of first instance (including each of the annexed papers, but excluding 4. conclusion) except for the modification or addition of the corresponding parts of the judgment of the court of first instance as stated in the following paragraph (2) and supplement or addition of the judgment as stated in paragraph (3). Thus, it is acceptable as it is in accordance with Article 8(2) of the Administrative Litigation Act

2. Parts to be corrected;

○ Under 2, the term “Defendant” shall be followed by the following:

【Ministry of Education, Science and Technology (the Ministry of Education, Science and Technology was amended by the Government Organization Act as amended by Act No. 11690, Mar. 23, 2013; the Ministry of Science, ICT and Future Planning was transferred to the Ministry of Education and the Ministry of Science, ICT and Future Planning; and the Ministry of Science, ICT and Future Planning was reorganized into the Ministry of Science, ICT and Future Planning as amended by Act No. 14839, Jul. 26, 2017; the Ministry of Education, and the Minister of Science, ICT and Future Planning was amended by the Government Organization Act as amended

The defendant's 2nd 3th 3th 1st 3th 2th 2th 3th 2th 2th 3th 3th 2th 20, "A University" was "A University," and the defendant's 2th 2th 2th 2th 3th 3th 2th 200th 2th 2th 206th 2th 16th 26th 16th 206th 26th 16th 206. 26th 206th 26th 16th 206. 2th 206th 26th 16th 206. 3th 26th 206. 26th 206. 3th 26th 2016. 3th 26th 2016. 3th 26th 2016. 3th 26th 2016.

From 4th to 12th, "2. Judgment on the legality of the lawsuit by the plaintiff-academic cooperation foundation" is as follows.

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

A revocation suit shall be instituted within 90 days from the date on which the disposition, etc. is known, and shall not be filed after the lapse of one year from the date of the disposition, etc. (Article 20(1) and (2) of the Administrative Litigation Act). In the event that the previous suit is withdrawn by modifying the purport of the claim and the alteration of the new suit is made, compliance with the period for filing a lawsuit against the new suit shall, in principle, be based on the time the lawsuit is modified (see, e.g., Supreme Court Decision 2004Du7023, Nov

In light of the above legal principles, in light of the overall purport of the arguments in the statement Nos. 11 and 17 as to the instant case, the Defendant: (a) revoked ex officio on the grounds of clerical error in the other party to the disposition of restitution of KRW 126,240,172 against A University on August 31, 2016, which was pending in the first instance trial; and (b) notified the Plaintiff of the same disposition to the Industry-Academic Cooperation Foundation on September 20, 2016; and (c) notified the Plaintiff of the foregoing disposition to the Plaintiff on the ground that the Plaintiff received the above disposition on September 20, 2016; (d) it is evident that the Plaintiff △△ Cooperation Foundation received the above disposition on March 15, 2016 after the lapse of 20 years from the date of the Plaintiff’s request for revocation of the disposition on March 15, 2016; and (e) the Plaintiff’s request for revocation of the disposition on the ground of the instant claim.

Furthermore, as seen earlier, the Plaintiff Industry-Academic Cooperation Foundation seems to have lawfully received the instant Disposition No. 2 from September 20, 2016 and became aware of the existence of the instant Disposition No. 2 (in addition, since the Defendant submitted the instant Disposition No. 2 to the court of first instance on October 27, 2016, it appears that the Plaintiff Industry-Academic Cooperation Foundation was aware of the instant Disposition No. 2). As such, the Plaintiff did not have any legal or factual impediment to the alteration of the lawsuit against the instant Disposition No. 2, the Plaintiff Industry-Academic Cooperation Foundation cannot be deemed to have justifiable grounds for filing a lawsuit after one year from the date of the Disposition to the Plaintiff Industry-Academic Cooperation Foundation (Article 20(2) of the Administrative Litigation Act).

Therefore, the plaintiff industry-academic cooperation foundation's lawsuit that was changed to exchange in this court is unlawful (the plaintiff industry-academic cooperation foundation against the plaintiff) because it did not comply with the filing period.

Although the parties asserted that the amendment was merely a correction of the purport of the claim that changed the date of disposition, the evidence submitted by the parties alone is not sufficient to acknowledge that the defendant made any disposition against the plaintiff C or A University prior to the second disposition. Prior to that, only the plaintiff C or C University president was sent each notice as the recipient on March 15, 2016 and May 27, 2016 (the court of first instance also issued the notice as of March 15, 2016 in the decision as of September 9, 2016 on the suspension of execution of the instant case to the court of first instance to the effect that only the plaintiff C is the other party and the industry-academic cooperation foundation is not the other party. Furthermore, according to the legal brief as of February 9, 2017 submitted by the plaintiff 2 to the court of first instance, even if the plaintiff 2 did not have any dispute over the amendment of the purport of the lawsuit as to the plaintiff 2's disposition, it cannot be deemed that the plaintiff 2 was unlawful.

0. Each of the instant dispositions, below 9, 4, below 7, 5, 6-2, 16-2, 16-4, 5, and 5 below below 17, "each of the instant dispositions", below 17, shall be deemed "each of the instant dispositions".

○ 5 and below the 8th page, and the 1, 2, and 3 as the "each of the grounds for dispositions in this case" are "each of the grounds for dispositions in this case."

○ 11. The following shall be added between 11 and 4:

(5) On March 2012, 2012, D, together with Plaintiff C and other researchers, published a thesis related to the instant research task in the nano Association. In addition, D, for two years from 2012 to 2013, published the results of joint research with Plaintiff C, etc. relating to the instant research task.

○11. The 11.m. “(5)’ on the 11st place shall be read as “(6)”, “(6)’ on the 7th day below as “(7)”, and “(7) on the 3rd day below as “(8)”, respectively.

○ 12 10 and 11 acts are as follows: 【No dispute exists; 【No dispute exists; Gap 9 through 11, 36, 37 evidence, Eul 14 evidence; E of the witness E of the first instance trial, F’s testimony, and the purport of the whole pleadings】

3. Supplement and addition of judgments;

(a) Additional statement of the reasons for the disposition;

1) The defendant's additional assertion

In relation to the ground for the first disposition, the Plaintiffs paid research allowances to the student research institute without evaluating contribution or settling accounts through a receipt for payment of tuition fees in violation of the joint management regulations. ② Plaintiff C used it for purposes other than the joint management, and actually used it as compensation and bounty for the student research institute’s individual. Thus, it should be viewed as using research and development expenses for purposes other than

With respect to the grounds for the disposition No. 2, D’s expenditure spent for any purpose unrelated to the research and development project of this case shall be deemed to be used for any purpose other than the purpose of the research and development project, and the Plaintiff C is liable for such unfair research and development project. Therefore, in determining the legitimacy of the disposition No. 1 against Plaintiff C, the improper disbursement of D’s research and development expenses shall also

2) Determination

A) In an appeal seeking the revocation of an administrative disposition, from the perspective of the substantive rule of law and the protection of confidence in the people who are the other party to the administrative disposition, a disposition agency is not allowed to assert as the grounds for disposition on the grounds of separate facts that are not recognized identical to the grounds for the initial disposition. However, other grounds may be added or modified to the extent deemed identical to the basic facts pertaining to the grounds for the initial disposition. The existence of the factual identity of the basic facts here is determined based on whether the social factual relations, which are the basis for the initial disposition, are identical in the basic point of view (see, e.g., Supreme Court Decisions 2004Du4482, Nov. 26, 2004; 2004Du4482, Nov. 26, 2004; 200 already existed at the time of the initial disposition, and the parties have been aware of such facts (see, e.g., Supreme Court Decisions 91Nu390531, Feb. 14, 1992; 20305Du3131.).

B) In relation to the ground for Disposition 1, since the Defendant had reached this court and received research allowances other than the previous reason for disposition, and did not have been disbursed for the purpose other than the research funds received by the researchers for the purpose other than the previous reason for disposition, this part of the ground for disposition can be deemed to have been added. If the Defendant’s additional reason for disposition is compared with the previous reason for disposition (joint management of school personnel expenses), it is common that the student research institute transferred the research funds received directly through its own account to the joint research account, and it is merely correct as the research allowances, which is an accurate item of expenditure, which is the research funds assessed as the student personnel expenses that the Defendant received as at the time of Disposition 1 of this case, and thus, it is identical to the social factual relationship that serves as the basis for using the research funds received by each research institute for the purpose other than the purpose of transferring them to the joint account, and thus, the addition

C) However, it is not allowed to add the above reasons, in full view of the purport of the arguments in the evidence No. 18 and No. 38, even if the defendant's additional assertion on the part that the defendant omitted the evaluation of contribution and paid research allowances to each researcher without settlement by the registration fee receipt is significantly different from the original reason for the disposition that "joint management by building, a student," and the contents and purport of the disposition of this case's Regulation No. 2 [Attachment 2] different from its applicable subparagraph, and it is difficult to recognize the identity even in light of the social factual relations that form the basis for the disposition, and it is difficult to recognize the identity. ( even if the addition of the ground for disposition is allowed, it is assumed that the contribution evaluation was made for each researcher at the time of payment of research allowances corresponding to the ground for disposition No. 1.

D) In addition, the Defendant added the first disposition of this case to Plaintiff C on the ground that there was no contribution rate of D with respect to the ground for the second disposition. The Defendant added the points that D professors executed regardless of the research task of this case to this court. The Defendant added the above ground for disposition to the grounds that there was no contribution rate of D research tasks, which is the initial ground for disposition, and that there is no basic factual basis that it is identical with D’s basic fact ( even if the addition of the ground for disposition is allowed, it is insufficient to readily conclude that D used research expenses for other than the original purpose, and there is no other evidence to acknowledge it, rather, according to the Defendant’s written evidence Nos. 36 and 37, it appears that D used for the purpose of this case’s study program No. 36 and No. 5 of the Republic of Korea Research Foundation, since it appears that D used for the purpose of this case’s study No. 36 and No. 5 of the 2012.28, 2012.28, 2015 of the name and No.36.201.

E) Therefore, the Defendant’s grounds for disposition related to the portion used for research allowances out of the grounds for Disposition 1 are allowed. Of the grounds for Disposition 1, the Defendant’s ground for disposition related to the portion used for research allowances out of the purpose of use is not allowed to additionally pay research allowances to the student researchers without evaluating contribution or settling accounts by means of a receipt of registration fees in violation of joint management provisions among the grounds for Disposition 1, and the Defendant’s ground for disposition related to the portion executed regardless of research tasks out of the grounds

B. Whether research allowances are used for purposes other than those of use

As seen earlier, research allowances are not money prohibited under joint management. Administrative laws and regulations that serve as the basis for aggressive administrative dispositions shall be strictly interpreted and applied and shall not be excessively expanded or analogically interpreted to the disadvantage of the other party to the administrative disposition. Even if such interpretation is not entirely excluded from the teleological interpretation that takes into account legislative intent and purpose, etc., such interpretation shall not go beyond the ordinary meaning of the language and text (see Supreme Court Decision 2007Du13791, 13807, Feb. 28, 2008). In light of the following circumstances, it is difficult to readily conclude that the Plaintiff’s assertion that the research allowances were partially deposited into the account by taking into account the following circumstances: (a) there is no dispute between the parties, or there is no evidence between the parties, evidence Nos. 3 through 7, 12, 18, 20 through 35, 37, 38, and No. 1, 4, 12, 18, and 19, and the entire purport of the testimony by witnesses G of the first instance.

① Students Research Institute sent most of a day to research and study at laboratories, so it is necessary to pay joint expenses, such as purchase of raw water, maintenance and management of water purifiers, and purchase of livers. The student research institute appears to have used joint expenses for the purchase of airline tickets to participate in the international academic society, local accommodation expenses, travel expenses, etc. in addition to laboratory operation expenses.

② Plaintiff C set a certain payment standard and made it possible for the student researchers to receive research scholarships, and the student researchers deposited and managed the money received in excess of such standard into the joint management account managed by the administrative staff. However, there is a lack of evidence to prove that Plaintiff C directly instructed or participated in the joint management of research allowances to the student researchers. However, the research scholarships were not paid to the student researchers’ account via Plaintiff C, but directly transferred from Plaintiff A University Industry-Academic Cooperation Foundation to the student researchers’ account. The student researchers deposited the research scholarships received by the student researchers into the joint account. Therefore, it is difficult to avoid the possibility that the student researchers were using the research allowances received according to their own intent.

③ According to the standards for calculation of research expenses for A University Industry-Academic Cooperation as amended on September 13, 2017, “where the researcher collected and jointly managed the former allowance, the amount under joint management shall be the same as one of the illegal execution of the national research and development projects. However, as a matter of principle, sanctions shall be based on the provisions of the act in principle, and the amended provisions after the act shall not be applied (see Supreme Court Decision 82Nu1, Dec. 28, 1982). Therefore, based on the foregoing provisions added by the amendment as of September 13, 2017, the research allowance was collected to the joint account before the amendment cannot be deemed to constitute an unjust execution.

C. Sub-committee

Therefore, we cannot accept all the above arguments of the defendant.

4. Conclusion

Thus, this court's change in exchange (the judgment of the first instance as to the plaintiff C's claim for the cancellation of the disposition on March 15, 2016 by the plaintiff industry-academic cooperation foundation was invalidated) is unlawful, and thus, the plaintiff C's claim is dismissed. The plaintiff C's claim is justified, and this court's claim is accepted. Thus, the court of first instance (excluding the claim for the cancellation of the disposition on the recovery of the government's contribution invalidated by the plaintiff C's withdrawal of the lawsuit by the plaintiff C) is modified to the above contents.

The presiding judge, judge, associate judge

Judges Park Jae-woo

Judges Gamburh

1) On June 10, 2016, Plaintiff C filed the instant complaint with the purport of seeking revocation of the Plaintiff’s notification as of March 15, 2016.

However, it can be seen as an error in the description that occurred because the defendant's statement in the disposition is unclear, and it can be seen as the defendant's error.

A harm to Plaintiff C to the purport of seeking revocation of the disposition of restriction on participation in national research and development projects conducted on May 27, 2016.

As such, Plaintiff C is subject to the disposition of restrictions on participation in national research and development projects conducted on May 27, 2016, when it came to this court.

Change to seek a lawsuit shall be deemed to be the correction of the purport of the claim and the withdrawal of the revocation of the government contribution recovery disposition.

Thus, even if the claim is changed in exchange, the background of the disposition and the process of filing the lawsuit by Plaintiff C, etc.

In light of the purport of the claim seeking the cancellation of the first notification made on March 15, 2016, the National Research Association of May 27, 2016

As can be seen to include the purport of seeking revocation of the disposition of restriction on participation in the project, the claim of this case

If a disposition taken to restrict participation in national research and development projects conducted on May 27, 2016 is changed to seek revocation of such disposition, the period for filing the lawsuit.

Whether compliance should be determined on the basis of the time when the initial lawsuit was filed, not at the time of amendment of the purport of the claim (Supreme Court)

Supreme Court Decision 2011Du27544 Decided July 11, 2013; Supreme Court Decision 2015Du45953 Decided July 27, 2016. Accordingly, Plaintiff Shipbuilding

The defendant has complied with the time period for filing a suit, and the defendant also has the second pleading in consideration of the above circumstances.

In Japan, the plaintiff C made a statement that the time limit for filing the lawsuit and the argument against the plaintiff C are withdrawn.

(ii) Article 22 (Change of Action Due to Disposition Alteration)

(1) The court shall render a decision upon request of a plaintiff when administrative agencies change the disposition after filing a lawsuit.

agency may permit any change in the purport or cause of the claim.

(2) The application under paragraph (1) shall be made within 60 days from the date on which the change of disposition is known.

3) [Attachment 2] Criteria for appropriation by item of research and development expenses (related to Article XII(5)

Jinay

3. A case paid to a student researcher of a university or specific research institute (limited to the relevant institution) among external personnel expenses;

Expenses shall not be managed by a person in charge of research.

5. Research allowances and reasonable standards for research efficiency and salary for each research institute shall be prepared, and the standards therefor shall be prepared;

shall be appropriated and paid accordingly.