2018Guhap10198 Revocation of Disposition of Revocation of Research Expense Redemption

A

Law Firm Bernero, Counsel for the defendant-appellant

[Defendant-Appellee]

The Minister of Education

Law Firm Loplus et al., Counsel for the defendant-appellant

Attorney Lee In-bok

June 27, 2019

August 29, 2019

1. On October 30, 2017, the part exceeding KRW 169,60,000 among the disposition of recovery of research funds rendered against the Plaintiff shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s disposition of recovering research funds of KRW 217,964,70 against the Plaintiff on October 30, 2017 shall be revoked.

(1) The Plaintiff stated in the purport of the claim that “the Defendant’s claim shall be revoked on October 30, 2017, as well as KRW 203,606,700, and KRW 14,358,000, respectively.” However, it is reasonable to deem that there was a single recovery disposition based on multiple violations. As such, the Plaintiff’s claim shall be examined as above.

1. Details of the disposition;

A. The Plaintiff was appointed as a full-time lecturer at B University on September 1, 1996, and was promoted to the associate professor on October 1, 1998, the associate professor on October 1, 2002, the associate professor on October 1, 2002, and the professor on October 1, 2007, and served as a professor in the literature and information department at B University.

B. The Plaintiff, as a person in charge of research, entered into an agreement with the Korean Research Foundation and the Industry-Academic Cooperation Foundation (hereinafter referred to as the “Industrial-Academic Cooperation Foundation”) which is the authority awarding the contract, on May 1, 2010 to April 30, 2013, on the “C” task with the research period from May 1, 2010 to April 30, 2013, each of which is KRW 150 million in research expenses from the first to the third year (hereinafter referred to as “first research task”), and on May 9, 2013 to the research period from May 1, 2013 to April 30, 2016, and on the “D task with the research expenses of KRW 20 million in each of the first to third years (hereinafter referred to as “second research task,” and in combination with the first research task).

C. From September 15, 2014 to October 17, 2014, the Board of Audit and Inspection conducted a "State R&D management status" audit. On the grounds that the Plaintiff received research assistants by falsely or unreasonably registering them, received research expenses, and managed research expenses in a lump sum, and executed them in an unjust manner. On the grounds that, around May 2015, the Board of Audit and Inspection notified the Defendant to take measures, such as restriction on participation in national research and development projects against the Plaintiff.

D. On October 10, 2016, the president of the Daejeon University removed the Plaintiff from office on the grounds as follows. On November 8, 2016, the Plaintiff filed a petition review with the Teachers’ Appeal Committee on the foregoing removal on the ground that the Plaintiff filed a petition for review, but the dismissal was decided on January 4, 2017, and the Plaintiff filed a lawsuit against the president of the Daejeon High Court seeking the revocation of the said removal, and is still pending in the appellate trial (Seoul High Court 2018Nu12822).

○ Based on false registration of the participating researchers, five persons, such as E, who did not participate in research other than doctoral courses, were falsely registered as a participating researchers, and seven persons, such as F, etc., who were employed by the industry-academic cooperation foundation to be paid for 64,243,200 won for 64,243,200 won for 88,710,800 won for 88,710,800 won for 162,131,60 won for 162,60 won for personnel expenses paid by the industry-academic cooperation foundation (including false registration of the participating researchers, 64,243,200, 88,710,80 won for 88,710,80 won for 304,600 won for 204,604,207, 209, 209, 207, 209, 209, 4,700

E. On October 30, 2017, the Defendant issued a disposition to recover KRW 217,964,700 in total with respect to the first research task, except for the selection of a person eligible for academic support for five years pursuant to Articles 19, 20 of the Sciences Promotion Act and Article 20 of the Enforcement Decree of the same Act, on the ground that “the Plaintiff used the instant task for any purpose other than its original purpose (e.g., exploitation and fraudulent execution).”

(hereinafter referred to as the "disposition of this case").

F. On October 14, 2016, the Plaintiff was sentenced to a suspended sentence of two years in the first instance court with prison labor for ten months (Seoul Daejeon District Court 2015Da2849) on the following criminal facts. The Plaintiff and the Prosecutor appealed from both the Plaintiff and the Prosecutor. On December 13, 2017, the appellate court reversed the first instance judgment without accepting all of the Plaintiff and the Prosecutor’s assertion of mistake of facts, and sentenced the Plaintiff to a fine of twenty five million won, and the said appellate judgment became final and conclusive (hereinafter referred to as “related criminal case”).

Around May 5, 2010 and April 19, 2013, Defendant (the Plaintiff’s end-up) participated in the above research task and conducted research with a view to individually acquiring personnel expenses paid to researchers in relation to the first research task differently from the original purpose. However, Defendant (the Plaintiff’s end-up) was aware that the researchers did not participate in the above research task and did not pay only a part of or at all the personnel expenses of the assistants who participated in the above research task while keeping the head of the Tong in the name of the assistants to whom personnel expenses are paid. As such, Defendant (the Plaintiff’s end-up) was informed of the victim industry-academic cooperation foundation by preparing an application for research tasks and plans, and submitted them to the victim industry-academic cooperation foundation by submitting the victim’s application for research tasks and submission of them to the victim’s industry-academic cooperation group, and was granted a total of KRW 156,000,000,0000,000 for E, total of the personnel expenses of the research assistants related to the above research task.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 7, 11, 12, 13, Eul evidence 2 through 6, the purport of the whole pleadings

2. Relevant statutes;

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

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) Claim concerning mistake of facts

① Labor cost of KRW 64,92,00 paid by the Plaintiff to G and H, outside experts, KRW 57,700,000,000,000,000,000,000,000,000 paid to research assistants L, M, N,O, P, Q, R, etc. for scholarships, and common expenses of KRW 32,313,00,00,00, which was used for holding seminars, such as seminars, to carry out research tasks. Although there was a procedural problem for the management of the Plaintiff, however, it was used for the implementation of the instant research task, the amount of labor cost of the research assistant does not fall under “where it is used for any purpose other than the purpose” prescribed in Article 19(2)1 of the Sciences Promotion Act and Article 19-

② Research assistant I. Labor costs for J are executed unfairly by K professors who cause joint research, so they cannot be recovered from the Plaintiff.

③ The Plaintiff’s registration of a student who had been enrolled in a master’s and doctor’s degree course as a research assistant is not unfair registration, and thus, the Plaintiff’s payment of personnel expenses does not constitute unfair execution.

④ S, E, T, U, and V are not research assistants registered falsely by the Plaintiff. Even if the aforementioned research assistants were registered falsely, since regular researchers and research assistants participated together and actually participated in the meeting, it cannot be deemed that the above conference expense was executed unfairly, and even if it is deemed that the aforementioned research assistants were subject to the reimbursement of the conference expense, only the portion of the research assistants registered with the falsity should be recovered separately.

2) The assertion of deviation and abuse of discretionary power

The plaintiff was used for the implementation of the instant research task while jointly managing the personnel expenses of research assistants, and it was not privately useful, and it is too excessive to recover the total amount of the project expenses incurred for other purposes.

B. Judgment of mistake of mistake

1) Determination as to the assertion

A) Inasmuch as the facts established in a criminal judgment that became final and conclusive on the same factual basis are significant evidence, barring any special circumstance where it is difficult to adopt a factual judgment in the above criminal trial in light of other evidence submitted in the administrative trial, the fact of violation cannot be recognized (see, e.g., Supreme Court Decision 98Du10424, Nov. 26, 199).

B) In light of the above legal principles, the Plaintiff: (a) was convicted of the Plaintiff on the premise that the Plaintiff had actually participated in the instant research task; (b) was aware that the Plaintiff had not participated in the instant research task; or (c) was responsible for the full payment of the personnel expenses, by submitting relevant documents, such as an application for a research task and a plan, to the Industry-Academic Cooperation Foundation; and (b) was deceiving the Plaintiff by submitting to the Industry-Academic Cooperation Foundation the application for a research task and a plan, etc., as if the Plaintiff paid the full payment of the personnel expenses to the researchers, and (c) was issued a total of KRW 169,60,000 (i.e., KRW 156,00,000 + KRW 13,600,000 for the research task related to the instant research task + KRW 156,60,000 for the research task related to the instant research task; and (d) there is no special circumstance to recognize the Plaintiff’s conviction of the evidence submitted in the instant case.

C) As seen above, fraud is already established at the time when the Plaintiff deceivings an industry-academic cooperation foundation and received personnel expenses for research assistants. Accordingly, the Plaintiff constitutes “the case where the Plaintiff acquired by deception” under Article 20 subparag. 3 (a) of the Enforcement Decree of the Sciences Promotion Act, and constitutes “the case where the Plaintiff used the aforementioned amount for purposes other than the purpose of use” under Article 19(2) subparag. 1 of the Sciences Promotion Act. Even if the Plaintiff used a considerable portion of the above personnel expenses for the execution of the instant research project as alleged by the Plaintiff, it is nothing more than the situation after the acquisition of the project expenses, and it does not coincide with the original purpose of the personnel expenses to be directly attributed to the research assistants as a consideration for labor (the Plaintiff paid a certain amount to the research assistants under the pretext of scholarships, encouragement, etc.), and thus, it cannot be deemed that the Plaintiff used the above amount for the original purpose of the personnel expenses. Accordingly, this part of the Plaintiff’s assertion is rejected).

2) Judgment on the argument

Article 19(2) of the Sciences Promotion Act provides that a researcher who received subsidies for project costs may recover all or part of the project costs already paid if he/she used them for any purpose other than the original purpose. However, the following circumstances revealed in full view of the purport of the entire arguments in the aforementioned evidence, i.e., five joint researchers, including K, other than the Plaintiff who is a person in charge of research, participated in the first research task, i.e., the first research task, and the selection and management of research assistants assigned to each joint researcher, in principle, under the independent responsibility of each joint researcher. The Plaintiff was merely a research assistant assigned to K as a person in charge of research, ii) the research assistant assigned to K for the application for payment of personnel expenses for all research assistants, and K used them directly after receiving the passbook from K and directly managing them, iii) the research task stated that “K makes a request for the establishment of the passbook and cash card from the prosecutor’s office in the relevant criminal case,” and it is difficult to see that the Plaintiff’s portion of the research task stated that “the Plaintiff’s subsidy and the Plaintiff’s 2” was unlawful.

3) Judgment on the assertion

In full view of the aforementioned facts, the first instance court found the Defendant guilty on the ground that the Plaintiff was aware of the facts indicated in the evidence Nos. 7 through 10 and the purport of the entire pleadings, i.e., the pertinent criminal case’s participation in the above research task and conducted research, or that the Plaintiff did not fully pay or pay labor costs to 169,60,000 won, by deceiving an industry-academic cooperation foundation as if she were aware that she did not receive full payment of labor costs, and the Plaintiff did not know the Defendant that she did not receive full payment of labor costs for 169,80,000 won for 28,80,000 won for 18,000,000 won for 20,0000 won for 33,000,0000,000 won for 1,000,0000 won for 33,000,000 won for 33,000,000 won for 2,00.

Therefore, the above assertion by the prior plaintiff is rejected on a different premise.

4) Judgment on the argument

A) On the premise that S, E, T, U, and V as research assistants did not actually participate in the instant research task, the relevant criminal judgment convicting the Plaintiff has already become final and conclusive, and even if the evidence submitted by the Plaintiff in the instant case was examined, it is difficult to deem that there are special circumstances to recognize that it is difficult to employ a factual judgment in the instant criminal trial.

B) However, it is difficult to see that a meeting related to the instant research task cannot be directly paid due to the Plaintiff’s attendance of a research assistant registered with falsity, and there is no record to deem that there was another reason for the Defendant to not be directly paid for the said meeting, such as that a specific meeting was not held or that there was no connection with the instant research task. Accordingly, the portion of KRW 19,564,70 relating to the meeting in which a false registered research assistant among the instant disposition was present is erroneous as it is unlawful.

5) Sub-committee

In a case where a single recovery disposition is taken against several violations, but only the recovery disposition against some violations is unlawful and there is data that can calculate the amount of recovery based on such partial violations, only the part equivalent to the amount of recovery related to such partial violations should be revoked even if a single recovery disposition is taken (see, e.g., Supreme Court Decisions 2004Du1483, Dec. 22, 2006; 2009Du11218, Oct. 29, 209). In this case, it is reasonable to determine the portion of recovery of the instant disposition as follows: (i) the part related to the personnel expenses of I and J 28,80,000; and (ii) the portion equivalent to the amount of recovery related to the registered research assistant’s portion exceeding 19,564,70,000, excluding the aforementioned portion of the amount of recovery; (iii) the portion exceeding 160,740,706, 207.

(c) Whether the discretion is deviates or abused;

In light of the following circumstances revealed by taking full account of the overall purport of the arguments presented earlier, even if the Plaintiff used a considerable portion of the personnel expenses of research assistants obtained by the industry-academic cooperation foundation for the implementation of the instant research project, the instant disposition taken to recover the full amount of the said personnel expenses is difficult to be deemed to have exceeded and abused discretionary power. Accordingly, the Plaintiff’s assertion on this part

1) Article 24 [Attachment 1] of the Convention on the Research Tasks in this case and Article 24 [Attachment 1] of the Regulations on the Handling of Scientific Research in the Cultural and Social Studies and the Regulations on the Handling of Scientific Research Support in the Cultural and Social Studies provide that personnel expenses among the research expenses shall be paid directly to the relevant research assistant, and that the person in charge of research shall not be jointly managed by him/her. The personnel expenses shall be the compensation for the labor of the research assistant who inputs his/her time and effort to perform the relevant research task. The above provisions stipulate that the research assistant may directly receive them when prohibiting joint management in order to prevent the payment of personnel expenses or use them for other purposes by taking advantage of the superior position

Nevertheless, the plaintiff, however, managed the amount of money paid as personnel expenses in a lump sum with the passbook opened in his name from the research assistants, and further registered those who did not participate in the research project in this case as research assistants to pay personnel expenses.

2) Article 19-2 [Attachment 1] of the Enforcement Decree of the Sciences Promotion Act provides that "within the full amount of the contributions for the pertinent year" shall be recovered for cases where project costs are used for any purpose other than the original purpose. Since the remaining part of the disposition in this case except for the revoked part is subject to recovery of the amount equivalent to the personnel expenses acquired by the Plaintiff, the Plaintiff complied with the above recovery standards stipulated by the Enforcement Decree of the Sciences Promotion Act (the Plaintiff’s collection standard was newly established on November 29, 2016, and thus, it cannot be applied to this case where the Plaintiff applied for personnel expenses for research assistants prior to the imposition of the aforementioned collection standard. However, the administrative disposition is based on the legal standard set by the Act and subordinate statutes at the time of the disposition, and there is no transitional provision as to the criteria for recovery of project costs, it is reasonable to view that the above provision of the Enforcement Decree of the Sciences Promotion Act, which

3) In that it is difficult for teachers to improve their character and qualities to always become a letter of apology, to search for academic support and educational principles, and to educate students, a higher morality than that of ordinary professionals is required, and the act of injury to dignity is likely to cause harm to the public’s trust as well as the society as a whole. Nevertheless, the Plaintiff seriously damaged the external trust in the academic support project promoted by the Defendant in violation of the basic research ethics on research funds. Nevertheless, it is necessary for the Defendant to recover the total labor cost acquired by the Plaintiff and prevent the recurrence of inappropriate cases related to future research funds.

4. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judge and assistant judge

Judges Kang Chang-soo

Judges Lee Chang-hwan

1) As to the fraud related to the total labor cost of KRW 28,800,000, the first instance court rendered a not guilty verdict on the ground that the decision-making authority on whether or not to manage or pay the above labor cost had been made to K professors who cause joint research.

2) The judgment of the first instance court was reversed ex officio due to changes in indictment on the part of acquittal of the reasons for the judgment of the first instance.

A person shall be appointed.

A person shall be appointed.