2020 Gohap2653 Other (general administration)

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may 4, 2021

June 1, 2021

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition to recover the settlement of accounts against the plaintiff ○○○ shall be revoked.

1. Basic facts

A. The Plaintiff is an operator of an enterprise called ○○○○○○, which mainly engages in the development and supply of software, and the Defendant is the head of the Small and Medium Enterprise Technology Promotion Agency established to efficiently promote technological innovation and informatization management of small and medium enterprises pursuant to Article 20 of the Act on the Promotion of Technology Innovation of Small and Medium Enterprises (hereinafter “Small and Medium Enterprise Innovation Act”).

B. On June 13, 2017, the Administrator of the Small and Medium Business Administration (former Minister of SMEs and Startups) publicly announced the 4th implementation plan for start-up technology development projects in 2017 (Public Notice No. 2017-251 of the Small and Medium Business Administration) and designated the Small and Medium Enterprise Information Promotion Agency as a specialized institution in charge of planning, evaluation, and management thereof.

C. The Plaintiff submitted the application form, business plan, etc. as the instant task, and supported the business start-up growth development project in 2017, and the Defendant selected the instant task as the support task after the selection evaluation.

D. The Defendant entered into an agreement on technology development projects between the Plaintiff and the Plaintiff, an operator of ○○○○○○, a major institution in charge of developing the technology of the instant task (hereinafter “instant agreement”). The main contents of the instant agreement are as follows.

Article 2 (Duty of Good Faith of Technology Development) The supervising agency participating in technology development projects under this Convention shall faithfully perform the technological development of Article 1 with the coordination and supervision of the task manager, as prescribed by this Convention, the Promotion of Technology Innovation of Small and Medium Enterprises, the Enforcement Decree, the Enforcement Decree of the Act on the Promotion of Technology Innovation of Small and Medium Enterprises, the Operational Guidelines for Small and Medium Enterprise Technology Development Support Projects (hereinafter referred to as the "Guidelines"), and the Guidelines for the Management of Technology Development Support Projects for Small and Medium Enterprises (hereinafter referred to as the "Guidelines"), and shall make every effort to manage intellectual property rights such as the provision of guidelines for securing research ethics, the establishment and implementation of security measures for technology development projects, the prohibition of application for personal name.The supervising agency shall comply with the Technology Innovation Promotion Act, the Enforcement Decree and the Enforcement Decree of the same Act,

(3) If the institution in charge violates the terms of this Convention or any of the above relevant laws and regulations, the institution may take a disciplinary measure under Articles 30 and 31 of the Guidelines against the institution in charge or any other person involved.

E. As a result of auditing the actual use of the project cost for the instant task of ○○○○○○○○○, the Defendant did not recognize the KRW ○○○○ as the project cost.

F. The defendant notified ○○○○○ that ○○○ was the settlement of the project cost for the business start-up growth technology development project (the result of the first) to the plaintiff, and notified the plaintiff that ○○○○ was the settlement fee for the defendant, and the procedure for raising the objection was also

G. Accordingly, the Plaintiff filed an objection against the Defendant pursuant to Article 39 of the former Guidelines for Operation of Small and Medium Enterprise Development Support Projects (amended by the Small and Medium Enterprise Division Notice No. 2018-16 of March 13, 2018; hereinafter “Operational Guidelines”). However, the Defendant dismissed the Plaintiff’s objection following the review of the review committee for the application for the settlement of ○○○○ Project Costs, and on the same day notified the Plaintiff of the payment of the settlement money ○○○○○ (hereinafter “the instant notification”).

2. Whether the lawsuit is lawful;

A. The disposition of an administrative agency, which is the subject of an appeal litigation, refers to, in principle, an act of an administrative agency under public law, and refers to an act directly related to the rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations, or directly causing other legal effects with respect to a specific matter, and thus, an act does not constitute an act that does not directly affect the legal status of the other party or related persons (see, e.g., Supreme Court Decision 2005Du7853, Oct.

B. Based on these legal principles, examining the contents and purport of the relevant statutes, the facts acknowledged earlier, and the following circumstances revealed by each of the aforementioned evidence, the Defendant’s demand to the Plaintiff to return the instant settlement amount calculated by settling the project cost under the instant agreement, which is a public contract between the parties equal to the Plaintiff via the instant notification, merely constitutes an administrative disposition, which is the exercise of public authority by the Defendant as superior status. Accordingly, the instant notification is inappropriate by rendering the instant lawsuit seeking the revocation of the instant notification, which is unlawful by holding the relevant eligibility.

(1) Article 8(1) of the former Enforcement Decree of the Act on the Promotion of Innovation of Small and Medium Enterprises (amended by Presidential Decree No. 29970, Jul. 9, 2019; hereinafter referred to as “former Enforcement Decree of the Act on the Innovation of Small and Medium Enterprises”) upon delegation of Article 10(2) of the Act on the Innovation of Technology of Small and Medium Enterprises provides that where the Minister of SMEs and Startups contributes to technological innovation projects, etc. to facilitate technological innovation of small and medium enterprises, he/she shall enter into an agreement with a person who performs the relevant projects, including details of the relevant projects, use and management plan of contributions, utilization of business performance, matters concerning the modification of the agreement, and other matters deemed necessary by the Minister of SMEs and Startups for the implementation of the projects.

(2) Articles 2 and 11(1) of the Convention stipulate that the operating guidelines of technological development support projects for small and medium enterprises and the management guidelines for technological development support projects for small and medium enterprises shall be complied with. Article 2 of the Addenda to the Operational Guidelines of this case (Article 26(1) through (5), 8 through (10) of the Operational Guidelines of this case concerning the settlement of contributions shall apply from the task agreed upon after April 1, 2018. As such, Article 26(6), (7), and (11) of the Operational Guidelines of this case except for the aforementioned provisions shall apply to the settlement of contributions in this case, and Article 26(6), (7), and (5) of the Operational Guidelines of Small and Medium Enterprises (amended by Notice No. 2017-9, Sept. 22, 2017; hereinafter referred to as the “former Operation Guidelines”).

③ Article 26(2) of the former Operational Guidelines provides that detailed matters, such as the settlement of project costs, procedures, etc., shall be governed by the management guidelines by each project. According to the management guidelines for projects for supporting technological development of small and medium enterprises (the third amendment; hereinafter referred to as the "management guidelines of this case") in 2017, a specialized institution shall notify the competent institution of the results of settlement of project costs, which was finalized after the completion of settlement of project costs, and the major institution shall deposit the relevant settlement funds notified by the specialized institution into the management account in the name of the specialized institution within 30 days from the date of notification; and the head of the specialized institution may take legal measures, such as debt collection, if he/she delays payment for at least three months without good cause (14-B-2) after the notification of settlement funds (see, e.g., the agreement of this case, the operation guidelines of this case, and the operation guidelines prior to the amendment, the Plaintiff, a specialized institution, is obligated to pay the settlement funds notified by the specialized institution immediately.

(4) Article 31 (1) 9 of the Innovation of Small and Medium Enterprises Act and Article 20 (1) 2 of the former Enforcement Decree of the Act on the Innovation of Small and Medium Enterprises provides that "where the Minister of SMEs and Startups has violated an agreement entered into with a person who performs the relevant business, and the Minister of SMEs and Startups has not paid settlement money of business expenses" as the grounds for restricting participation in business, and the Acts

(5) Articles 31 and 32 of the Innovation of Small and Medium Enterprises Act and Articles 19(1), 20, and 21 of the former Enforcement Decree of the Act on the Innovation of Small and Medium Enterprises provide that the Defendant entrusted with duties by the Minister of SMEs and Startups may recover the subsidized project costs or restrict the participation in the projects for supporting technological innovation if the person performing the relevant project fails to pay the amount of settlement of project costs. If the amount to be recovered is not paid, restrictions on participation in the projects for supporting technological innovation shall be separately provided, and if the person subject to a disposition for recovery fails to pay the amount to be recovered, it shall be able to collect the amount in the same manner as delinquent national taxes are collected. According to such provision, the disposition for redemption of project costs under Article 32 of the Act on the Innovation of Small and Medium Enterprises is going beyond the procedures for notifying the payment of the amount of settlement of project costs under the instant agreement, etc., and thus, it cannot be said that there is an act of public authority, such as recovery of project costs under the said Act.

(6) In addition, the operating guidelines of the instant case also include ‘report on the actual use of project costs and the procedure for settlement of accounts (Article 26) and ‘restriction on the participation in national research and development projects' (Article 30), and ‘Restriction on the Restriction Period by Grounds for Restriction on Participation and the Scope of Recovery of Contributions' (attached Table 3) and ‘Restriction on the Participation in Projects for Promotion of Technological Innovation' and ‘Restriction on the Recovery of Contributions and Promotion of Technological Innovation' respectively.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.