(영문) 서울행정법원 2017.11.3.선고 2016구합76848 판결

The Defendant’s redemption disposition of government contributions of KRW 328,582,080 against Plaintiff A on August 26, 2016 and disposition of restriction on participation for five years against the Plaintiffs is revoked.

Reasons

1. Details of the disposition;

A. The plaintiff A Co., Ltd. (hereinafter referred to as the "Plaintiff Co., Ltd.") is a corporation established on July 28, 2008 for the purpose of engineering activities under the Engineering Technology Promotion Act, the responsibility supervision and design supervision under the Construction Technology Management Act, the regional and urban planning investigation, measurement, design, supervision, public survey, aerial photography, technical services concerning map production, etc., and the plaintiff B is the plaintiff Co., Ltd.'s internal director.

B. Around August 2015, Plaintiff Company decided to take charge of 4 to 6 years of research and development projects (total research period from August 20, 2012 to December 19, 2018; hereinafter referred to as “research and development projects in this case”). On September 21, 2015, the research projects in the 4th year (from August 20, 2015 to April 30, 2016; 954,000,000 won for research and development projects in the relevant year) were specialized research and development projects, the Korea Institute of Marine Science and Technology was established as a cooperative research institute, the Plaintiff Company as a cooperative research institute, the Korea Institute of Marine Science and Technology D, the Plaintiff Company as a manager of research and development projects, and the Plaintiff Company as a manager of research and development projects in charge of Plaintiff B’s joint research and development projects (hereinafter referred to as “the instant research and development project”). The Plaintiff Company was prepared with the 30th anniversary of the instant agreement.

① In the course of performing research and development as a cooperative research and development institution of the instant research and development task from August 20, 2015 to April 27, 2016, Plaintiff Company transferred KRW 298,145,000 from the research and development fund account (enterprise G) of the said research and development task to the corporate account (corporate bank H) during eight times from November 2, 2015 to March 24, 2016.

It is confirmed that two times have withdrawn 20,000,000 won in cash.Third, it is confirmed that the amount of execution, which has been retained by documentary evidence at the direct cost of 712,105,000 won under the plan for research and development up to now, is KRW 521,879,079, and that the amount for which it is impossible to confirm the use of research and development costs, excluding the balance of 26,748,670 won, is KRW 163,47,251.(4) In addition, it is confirmed that the account was transferred from the account for research and development to the corporate account for the purpose other than the research and development project concerned, and that the same amount was returned from the corporate account to the account for research and development

D. On August 26, 2016, the Defendant issued a redemption disposition for the amount of KRW 328,582,080 (the total amount of KRW 492,059,31, 300, excluding KRW 163,477,251) out of the total amount used for non-purpose purposes, pursuant to Article 11-2 of the Framework Act on Science and Technology and Article 61 of the former Operational Regulations on Marine and Fisheries Research and Development Research and Development (amended by Ordinance of the Ministry of Oceans and Fisheries No. 188, Oct. 1014; hereinafter referred to as the “Operation Regulations”) on the ground that “use of research funds” for the Plaintiff Company and the person in charge of research, who is a research institute, were subject to a redemption disposition for the period from August 25, 2016 to August 24, 201 (hereinafter referred to as the “instant restriction on participation” and each of the instant dispositions were recovered (hereinafter referred to as the “instant restriction on participation”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3 (including branch numbers in case of additional number), Eul evidence 1, 5, and 6, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) The Plaintiff Company was partly erroneous in using research and development expenses and corporate accounts for mixed use due to lack of knowledge on the use and settlement of research and development expenses, but no research and development expenses were actually used for any purpose other than the actual purpose. The Plaintiff Company spent the Plaintiff Company’s lawful use of research and development expenses from August 20, 2015 as the research and development expenses from the said corporate account, and the item ② KRW 20,000,000, out of research and development expenses and the item ② paid the Plaintiff Company’s employees for the structural review and settlement of profits and expenses for research and development, and the amount transferred from the corporate account to the corporate accounting employee’s account by mistake, and was not used for any purpose other than the original purpose.

2) Operational regulations presented by the Defendant based on each of the dispositions in the instant case are merely an instruction issued by the Ministry of Oceans and Fisheries and do not have any binding force as a law. The Framework Act on Science and Technology does not present any specific standard of determination in the Enforcement Decree or the Enforcement Rule, without presenting any specific standard of determination regarding the use for any purpose other than the original purpose. Therefore, Article 33 of the Operational Rule merely provides for the internal business rules of an administrative agency without the basis of delegation, and thus, it is against the principle of statutory reservation to determine whether the Plaintiff Company used research and development funds for any purpose other

3) Even if the Plaintiff Company used research and development funds for any other purpose, the Plaintiff Company obtained a high evaluation score that is able to continue to conduct the 5th year research and development project in the instant research and development project, and each of the instant dispositions is excessive in light of the size and management status of the Plaintiff Company, and thus, is erroneous in the misapprehension of discretionary authority.

B. Relevant statutes

Attached Form 1 is as shown in the relevant statutes.

C. Determination

1) Whether research and development costs are used for any other purpose

(3) According to Article 11-2(1)5 of the Framework Act on Science and Technology, the head of the central administrative agency may restrict the participation of the national research and development projects within the scope of five years if he/she uses the funds for the purposes other than those of the research and development projects under his/her jurisdiction, and may recover all or part of the funds already contributed or subsidized to Gap 9, 16, and Eul 4 and 5 from 00. The total amount of 200,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won.

2) Whether the principle of statutory reservation is violated

The principle of statutory reservation and reservation that a formal legal basis established by the National Assembly is required in the administrative action is not sufficient if the administrative action merely serves as the basis of the law, but rather, it is understood that the area of basic and important meaning for the state community and its members, in particular, the area related to the realization of the fundamental rights of the people, and the area related to the realization of the fundamental rights of the people, should not be entrusted to the administration, but to the demand that the legislators, the representative of the people, make a decision on the essential matters thereof. However, it is not possible to uniformly define what matters to be regulated by the legislators, and only to separately determine the matters in consideration of the importance of benefits or values related to a specific case, the degree and method of regulation or infringement, etc.: Provided, That when restricting the freedom or rights of the people guaranteed by the Constitution at least, the legislators on the essential matters of the restriction must be governed by the law (see, e.g., Constitutional Court en banc Decision 2015Hun-Ba125

Article 11(3) of the Framework Act on Science and Technology provides that the Government shall establish necessary matters concerning planning, management, evaluation, utilization, etc. (hereinafter referred to as “Planning, etc.”) of national research and development projects in order to promote and manage national research and development projects transparently and fairly. Article 11(5) of the Framework Act on Science and Technology delegates matters concerning planning, etc. of national research and development projects to Presidential Decree for the smooth promotion of national research and development projects, and Article 12-2(1) of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 27369, Jul. 22, 2016; hereinafter referred to as “Management Regulations”) upon delegation, shall set up a separate account for managing research and development projects and shall manage them after obtaining a credit card or debit card connected to the account. In such cases, the expenditure of research and development expenses shall be made in the form of a credit account transfer, and may be used in cash only when the use of research and development expenses card is impossible. Article 34(1) of the Management Regulations provides that the head of central administrative agencies may determine detailed provisions concerning the management regulations.

As to the instant case, the method of using the research and development funds of this case is based on Article 12-2(1) of the Management Regulations in accordance with delegation of Article 11(3) and (5) of the Framework Act on Science and Technology and Article 33(1) of the Operation Regulations providing the same contents, and there are grounds for delegation.

In full view of the entries in Gap evidence No. 1 and the purport of the entire pleadings, the plaintiff company concluded the agreement in this case, and concluded a research and development agreement in good faith as prescribed by the operating rules (Article 3), and concluded an agreement on the calculation, management and use of research and development funds (Article 4(8). Accordingly, according to the above acknowledged facts, the plaintiffs seem to have been aware of the management regulations and operating rules on the method of using research and development funds as prescribed by the management regulations, and the management regulations and operating rules pursuant to the Framework Act on Science and Technology and the delegation thereof are strictly limited to the method of using research and development funds so that research and development funds can not be used for any other purpose. The violation of such method of using research and development funds is significantly difficult to verify the actual use of research and development funds, and thus, it could be sufficiently predicted that the research and development funds can be recognized as being used for any other purpose. Therefore, as the Framework Act on Science and Technology provides for the essential matters for the prohibition of use of research and development funds for any other purpose, detailed criteria for the specific method of use and non-use cannot be deemed as violating the fundamental principle of law.

3) Whether the discretionary authority is deviates or abused

Even if the criteria for a disciplinary administrative disposition are prescribed in the form of Ministerial Ordinance, it is nothing more than that which sets forth the administrative rules within the administrative agency’s internal business affairs, and thus has no effect to externally citizens or courts, and whether such disposition is lawful ought to be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes, not only the above disposition criteria, but also the relevant disposition criteria. Therefore, the pertinent disposition cannot be deemed legitimate immediately once it satisfies the above disposition criteria. However, the above disposition criteria do not in itself conform with the Constitution or Acts and subordinate statutes, or are not deemed to be considerably unfair in light of the contents and purport of the relevant Acts and subordinate statutes, and the contents and purport of the relevant Acts and subordinate statutes, barring any reasonable grounds to recognize that the disposition is considerably unfair, it shall not be determined that the disposition has deviates from the scope of discretion or has abused discretion (see, e.g., Supreme Court Decision

In light of the following circumstances, each disposition of this case is too excessive to the plaintiffs, and it cannot be deemed that it deviates from or abused discretionary power, in light of the overall purport of the above facts and arguments.

A) Research and development expenses to be paid to a research institute are paid to support national research and development projects to promote the national economic development, enhance the quality of life of the people, and contribute to the development of human society by innovative science and technology, and strengthening national competitiveness. The public interest to be properly disbursed according to the payment purpose and purpose is highly high. Moreover, the use of research and development expenses paid by a person who carries out a national research and development project for purposes other than its original purpose is likely to lead to the insolvency of national research and development projects.

B) The instant restitution disposition is to recover the portion of research and development expenses paid to the Plaintiff Company regarding the instant research and development project, which was used for any purpose other than the original purpose, and the instant disposition imposing restrictions on the participation in national research and development projects for five years on the Plaintiffs who committed the

As a means of imposing sanctions on the use of research and development costs for any purpose other than the original purpose, and for the use of research and development costs by research institutes and persons in charge of research and development in the future for the purpose and use of research and development costs.

C) Since the amount used by the Plaintiff Company for any other purpose is equivalent to half of the government contributions paid in total of KRW 328,582,080,000,000, the degree of the violation is not somewhat minor.

D) Article 61(1)5(c) of the Operating Rules provides that where research and development expenses are used for any purpose other than the original purpose in excess of 30% of the research and development expenses for the pertinent year, a restriction on participation within five years may be imposed, and the detailed criteria for the recovery of project costs by reason of attached Table 8 of paragraph (10) provide that where research and development expenses are used for any purpose other than the original purpose, the recovery of project costs within the total amount of the contributions

E) Although the Defendant was able to recover the total amount of research and development expenses paid through the instant restitution disposition, the Defendant was required to recover only the portion used for other purposes. As such, the disadvantage suffered by the Plaintiff appears to be limited to the minimum extent necessary to achieve the above public interest purpose.

3. Conclusion

If so, all of the plaintiffs' claims are without merit, they are dismissed. It is so decided as per Disposition.