(영문) 서울행정법원 2017.9.29. 선고 2017구합59956 판결

1. The Minister of Education’s disposition of restricting the Plaintiff’s participation in research on March 20, 2017 with respect to the development B and C development tasks shall be revoked.

2. The plaintiff's remaining claims against the defendant and the defendant's claims against the Minister of Education are dismissed, respectively;

3. Of the costs of lawsuit, the portion arising between the Plaintiff and the Defendant Education shall be borne by the Plaintiff, the remainder by the Defendant, and the portion arising between the Plaintiff and the Defendant shall be borne by the Plaintiff.

Purport of claim

The disposition of restricting research participation in the Plaintiff on March 20, 2017, and disposition of recovering KRW 40,410,222, which was taken by the Plaintiff on the development agenda set forth in Paragraph (1) of this Article by the Minister of Education, shall be revoked, respectively. Defendant’s disposition of recovering KRW 49,706,411, which was taken by the Minister of Science and ICT with respect to E development tasks on March 15, 2017, shall be revoked.

Reasons

1. Details of the disposition;

A. The Minister of Education, Science and Technology had the F, a foundation corporation under the Framework Act on Science and Technology (hereinafter referred to as the “F”), which is a specialized foundation under the Framework Act on Science and Technology, vicariously performed national research and development projects, and D University Industry Cooperation Foundation concluded a standard agreement on research and development projects with each F, as listed below, and performed a research and development task (hereinafter referred to as the “each of the instant tasks”). (The Ministry of Education and the Ministry of Science, ICT and Future Planning amended the Government Organization Act on March 3, 2013; and the National Research and Development tasks were transferred to the Ministry of Education or the Ministry of Science, ICT and Future Planning.)

【Plaintiff’s F Participation Agenda】

(unit:,000 won)

A person shall be appointed.

B. The Plaintiff, as a professor of the Convergence Electronic Engineering Department of D University, participated in each of the instant tasks as a person in charge of the research in charge.

C. Around June 2016, the F Audit Office conducted a specific audit and inspection, and the result of the audit conducted by the Plaintiff from February 2, 2011 to November 2015, the fact that the Plaintiff was found to have received a report on the details of joint management of personnel expenses each month while having the head of the research institute and the general manager of the research institute jointly manage part of the personnel expenses (a total of KRW 157,981,90 out of the total of KRW 435,030,970) paid to the graduate students participating in the implementation of the task in the instant case.

D. On September 29, 2016, F held a meeting of the sanctions evaluation group to deliberate on the Plaintiff’s sanctions on the instant task, F calculated the instant task as KRW 9,732,478 (9.5% for non-use ratio) and KRW 30,677,74 (16.9% for non-use ratio) for the instant task 2 task, and KRW 47,173,631 for the instant task 3 task ( separate imposition of KRW 15.7% for non-use ratio, additional monetary sanctions 2,532,780) and KRW 2) for the instant task 1,2 task, five years for the instant task, and three years for the instant three task, and finally, the period of restriction on participation in national research and development projects under the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 2560, Aug. 24, 2015).

E. On October 31, 2016, F notified the president of D University as an addressee on November 7, 2016, upon receipt of the notification of approval from the Defendant’s Minister of Education on the result of the deliberation by the relevant sanctions evaluation committee (hereinafter “instant notification”).

The notification of the results of sanctions related to the use of G research expenses and guidance on objection 1. The Ministry of Education's promotion and -5601 (the notification of the results of deliberation by the sanctions evaluation committee on October 31, 2016) 2. In relation to the above subparagraph, if there is an objection to the notification of the disposition according to the approval of the Ministry of Education as a result of deliberation by the sanctions evaluation committee on the use of G research expenses other than the purpose of use conducted by a person in charge of research of a research institute, he/she shall submit it to the Ministry of Education within the time limit and submit it as an official document.

- Article 27 (Standards for Period of Restriction on Participation and Redemption of Project Costs) of the Regulations on Management, etc. of National Research and Development Projects under Article 11-2 of the Framework Act on Science and Technology (Restrictions on Participation in National Research and Development Projects, etc.)

F. On November 15, 2016, the Minister of Science and ICT notified the Plaintiff of the disposition of restricting participation in national research and development projects for five years against the Plaintiff and the disposition of recovering project costs (47,173,631 won + additional monetary sanctions 2,532,780 won) (the period of restricting participation in the instant task 1,2, and 3 years based on the comprehensive consideration of the period of restricting participation in the instant task 47,173,631 won and the period of restricting participation in the instant task 2,532,780).

G. On November 23, 2016, the Plaintiff filed an objection with respect to each of the instant tasks, but on January 7, 2017, the sanctions assessment group dismissed the objection.

H. On March 15, 2017, the Minister of Science and ICT issued a disposition to restrict participation in national research and development projects for five years, and to recover project costs of KRW 49,706,411 against D University Industry Cooperation Foundation, on the ground that “the Plaintiff’s personnel expenses paid to the researchers who participated in research and development projects” were managed by the Plaintiff, the representative students of the Plaintiff, the research institute, and the general manager, and the details of joint management of personnel expenses were executed as joint laboratory expenses, etc.”

I. On March 20, 2017, the defendant Minister of Education issued a disposition to recover project costs of KRW 40,410,222 against the plaintiff for five years (hereinafter "disposition to restrict participation in national research and development projects in this case") on the ground that "the plaintiff jointly managed KRW 40,410,222, which was paid by the graduate students participating in research and development from February 201 to November 2015, as personnel expenses paid by the plaintiff to the graduate students participating in research and development (hereinafter "the recovery disposition of project costs in this case") and the redemption disposition of project costs of KRW 40,410,222 against the D University Industry Cooperation Foundation (hereinafter "the recovery disposition of project costs in this case").

[Reasons for Recognition] The facts without dispute, Gap evidence 1 through 3, 10 through 13 (including each number, hereinafter the same shall apply), Eul evidence 11, Eul evidence 1 to 6, and the purport of the whole pleadings

2. Determination on the defendants' main defense

A. Main Safety Defenses

Each disposition of this case is against the president of the Korea University Industry-Academic Cooperation Foundation, and the plaintiff is not the other party to the disposition, and there is no standing to sue against the illegality of disposition.

B. Determination

1) Article 11(2) of the former Framework Act on Science and Technology (amended by Act No. 1339, Jun. 22, 2015; hereinafter the same) that regulates the integration of matters concerning the operation and management of various national research and development projects provides that the government shall carry out the national research and development projects according to the following subparagraphs, while each of the above provisions provides that the government shall strengthen the support for the enhancement of research and development capacity by creating the highest research environment for research institutes and researchers (Article 2). If the government prepares systems or regulations related to national research and development projects, it shall consider the autonomy of research institutes and researchers as the top priority (Article 3).

2) In addition, the instant provision governing detailed matters to be implemented in accordance with the delegation of the former Framework Act on Science and Technology requires the selection of research and development subjects subject to subsidization following the examination of a research and development task applied by a researcher affiliated with a research institute, such as a university, etc., under Article 7. Article 9 provides that research and development expenses shall be subsidized by entering into a project agreement with the head of a central administrative agency or the head of a specialized research institute entrusted with duties by him/her under Article 9. Article 12 provides that research and development expenses contributed by the head of a central administrative agency shall be paid to the head of a main research institute for managing and executing them. Article 11 provides that the head of a central administrative agency may cancel an agreement as stipulated by the agreement where it is difficult to continue to perform research and development due to a serious violation of an agreement by a research institute or a participating enterprise (Article 1(2)). In particular, if an agreement is cancelled on the grounds of a research and development task attributable to a research institute, etc.,

3) In addition to the legislative intent and provisions of the Framework Act on Science and Technology, the legislative purpose and contents of the Framework Act on Science and Technology, and the interpretation of the Framework Act on Research and Development, ① contributing research and development expenses to universities which are the main research institute for national research and development projects, seems to be aimed at strengthening the capacity of research human resources belonging to the universities, as well as research-oriented universities. ② basically, the subsidization of research and development expenses for national research and development projects is based on a research unit belonging to a university (hereinafter “research team”), not on the basis of affiliated universities, and ③ the industry-academic cooperation foundation of a university or a university is an external entity of the management and implementation of research and development projects. ③ The industry-academic cooperation foundation of a university or a university is merely a party to the agreement. The substantial interest in the agreement can be deemed to belong to the research team, which is the main body of the relevant research and development project. Furthermore, the collection measures of research and development expenses under the Framework Act on Science and Technology fall under an administrative disposition with the superior status of an administrative agency, and thus, the researcher affected by its legal status appears to have no legal interest in the Plaintiff.

3. Determination on the legitimacy of the disposition

A. The plaintiff's assertion

1) Although Defendant Minister of Education issued a disposition to refund project costs and restrictions on participation in research on the instant tasks 1 and 2 through the instant notification, he/she imposed the same disposition on March 20, 2017, and thus, the restitution of project costs as of March 20, 2017 and the instant disposition on participation restriction are null and void due to double disposition.

2) The Plaintiff paid monthly personnel expenses equivalent to the performance of the pertinent task to the aforementioned researchers even before the payment of personnel expenses for the researchers who participated in the research of each task of this case was made. The Plaintiff paid the aforementioned researchers for the monthly amount of personnel expenses for the month in which the previous payment was made after the payment of the research expenses or the previous payment was jointly managed. Since the amount equivalent to the personnel expenses for the research expenses paid by the Plaintiff was deposited into a certain monthly amount for each research personnel invested in the task and the total amount was deposited as a result, the Plaintiff cannot be deemed to have used the said research expenses for any purpose other than the original purpose, and the instant redemption disposition of this case and the instant restriction on participation (hereinafter collectively referred to as the “each disposition of this case”) was unlawful, since the grounds for such disposition

3) The Plaintiff successfully performed each of the instant tasks. The Plaintiff’s operation of part of the research funds as joint management costs is to assist the stable livelihood of researchers and thus, the money under joint management is paid to all researchers, and there is no use of the said funds regardless of research by the Plaintiff. Nevertheless, the Defendants were found to have committed each of the instant dispositions, which would seriously impede the Plaintiff in carrying out research activities as a professor in the future, and is unlawful by abusing discretionary power.

B. Relevant statutes

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

C. Determination

1) Determination on the assertion that double disposition is invalid

The issue of whether a certain act of an administrative agency can be the subject of an appeal shall be determined individually taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the administrative disposition, the 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, in mind, in view of the fact that an administrative disposition is an enforcement of law with respect to a specific fact conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people (see Supreme Court Decision 2009Du23617, 23624, Mar. 10,

Article 11-2(1)5 of the former Framework Act on Science and Technology provides that the head of a central administrative agency may restrict participation in national research and development projects under his/her jurisdiction, and may recover all or part of the project cost already contributed or subsidized. Paragraph (9) of the same Article provides that matters necessary for the period of restriction on participation by reason of restriction on participation, recovery of project cost, etc. shall be prescribed by Presidential Decree. Accordingly, Article 27 of the same Act provides that the head of a central administrative agency shall organize and operate a sanctions evaluation team to deliberate on matters concerning restriction on participation and recovery of project cost under Article 11-2(1)5 of the Act, and Article 11-2(6) provides that the head of a central administrative agency may operate a system for raising an objection to the result of deliberation under paragraph (5). In light of such provisions of the former Framework Act on Science and Technology and the content and system of the provisions of this case, the provision of this case does not directly stipulate the period of restriction on participation by the head of the central administrative agency (or a specialized institution) and the Minister of Education’s notification of the outcomes of the instant measures.

2) Determination as to whether the grounds for disposition are recognized

Article 12(5) [Attachment 2] Paragraph (2) of the instant provision provides that personnel expenses to be paid to the student researchers of universities shall not be jointly managed by a person in charge of research. The Plaintiff, who is a person in charge of research on each of the instant tasks, shall not be jointly managed by a person in charge of research. As such, the Plaintiff, who is a person in charge of research on each of the instant tasks, is responsible for managing labor expenses paid by the Defendants to the student researchers who directly participate in each of the instant tasks, and thus, constitutes a case where the said personnel expenses are not directly reverted to the student researchers and used for the purpose of the research institute’s joint expenses. Moreover, the joint management of personnel expenses constitutes an act prohibited under the instant provision and thus constitutes a use contrary to the purpose of the joint management, regardless of whether the money

According to the above facts, the Plaintiff, as a person in charge of the research on the task of this case, managed part of the personnel expenses paid to the student researchers who participated in the task of this case through the rap and the general affairs, etc., and used the research expenses for the purpose other than the purpose of use. As such, the Plaintiff’s grounds for each disposition of this case are acknowledged and the Plaintiff’s assertion cannot be accepted.

3) Determination as to whether discretionary power has been exceeded or abused

A) In light of the following circumstances, each of the instant redemption dispositions, which can be seen by the above facts of recognition, is more unfavorable than the public interest to be achieved through each of the instant redemption dispositions, and thus, it is difficult to view each of the instant redemption dispositions as abusing and abusing discretion. The Plaintiff’s assertion is without merit.

(1) The research and development expenses paid to a managing research institute pursuant to Article 12 of the instant provision are paid to support national research and development projects to promote the development of the national economy, 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. As such, the public interest to be appropriately disbursed according to the payment purpose and purpose is highly high. Moreover, the use of the research expenses paid by a person conducting a national research and development project for any purpose other than its original purpose is highly likely to lead to the national research and development project’

(2) Each of the instant dispositions is an appropriate means to impose sanctions on the Plaintiff from among the research expenses paid to the Industry-Academic Cooperation Foundation for each of the instant tasks to recover the portion used by the Plaintiff for purposes other than its original purpose, and to use the research expenses for purposes other than its original purpose, and to ensure that the same institution, such as the D University and Industry-Academic Cooperation Foundation that conducts a national research and development project, is used

(3) Each of the instant dispositions is limited to the joint management part of the personnel expenses paid for each of the instant tasks, and the restitution is limited to 584,660,000 won paid for each of the instant tasks to the Industry-Academic Cooperation Foundation of the Korea University (= KRW 102,770,000 + KRW 181,890,000 + KRW 300,000 + KRW 87,583,853 (= KRW 40,410,222 + KRW 47,173,631,631, and penalty surcharge). Accordingly, the disadvantage that the Plaintiff suffered is limited to the minimum extent necessary to achieve the above public interest purpose.

(4) According to Article 27(10) [Attachment 5] of the instant provision, where research and development expenses are used for any purpose other than the intended purpose, a disposition to recover less than the total amount of contributions for the pertinent year is prescribed so that each of the instant recovery measures ordering the recovery within the total amount of contributions can be made.

B) In full view of the following circumstances as to the instant disposition of restriction on participation, the above recognition facts, Gap evidence Nos. 5 through 9, 13, and 14, Eul evidence Nos. 2 through 10, and the overall purport of the pleadings, the restriction on participation in the research by the Minister of Education is deemed to have been too much disadvantageous to the plaintiff compared to the public interest to be achieved by the restriction on participation in the research, and thus, it is unlawful as it deviates from and abused the discretionary authority.

(1) As the disposition of restrictions on participation under Article 11-2(1) of the former Framework Act on Science and Technology excludes a competent managing research institute or a person in charge of research from a national research and development project for a certain period of time, it is likely to hinder the ultimate purpose of the Framework Act on Science and Technology to strengthen national competitiveness through scientific and technological innovation and promote national economic development, and thus, the decision of

(2) The purport of the instant provision prohibiting joint management of personnel expenses lies in preventing a professor, who is a responsible researcher, from using the personnel expenses to be paid to the Institute for other purposes by jointly managing personnel expenses in a superior position, thereby breaking the economic foundation of the Institute and undermining the desire for research. Most of the money the Plaintiff under joint management was used for the research students, such as the salaries and joint expenses of the students in a laboratory, and there seems to be no personal benefit, such as embezzlement or misappropriation of personnel expenses through joint management. Considering the aforementioned circumstances, it is difficult to view that the Plaintiff’s joint management of research expenses is contrary to the intent of prohibiting joint management of personnel expenses as above, and thus, it is unlikely to criticism.

(3) The Plaintiff appears to have conducted a normal research on each of the instant tasks and achieved the purpose of the research. The Plaintiff published 3 copies of international academic journals and 2 copies of patent registration in the instant tasks, and published 5 copies of international academic journals in the instant task 2. As to the instant tasks 3 tasks, 6 copies of paper were published in the international academic journal and 5 suggestions were achieved. If the Plaintiff, who has achieved considerable research results, was excluded from the national research and development project for 5 years, it would be excessively harsh to the Plaintiff, who has been faced with long-term research and development, as well as to the purpose of achieving the Framework Act on Science and Technology, which aims to innovative science and technology and strengthen national competitiveness by creating the foundation for the development of science and technology through the decline of activities in the relevant research sector.

(4) According to Article 27(1)5(a) of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 23527, May 14, 2012) and Article 9 of the Addenda (amended by Presidential Decree No. 23527, May 14, 2012), in the case of the instant disposition of restriction on participation, the sanctions evaluation group presented the Plaintiff’s opinion that the term “in the case of the instant disposition of restriction on participation, embezzlement, defraudation, or useful expenses for research and development,” which constitutes three to five years of restriction on participation. However, it is reasonable to deem that the Plaintiff’s act of payment to the participating research institute in joint management falls under “where the research and development expenses prescribed in subparagraph (c) of the same subparagraph are used for any other purpose, or where the research and development expenses prescribed in subparagraph (a) of the same subparagraph are used for any other purpose, and it does not fall under “Embezzlement or misappropriation” (a) and thus, the period of such restriction falls within two to three years.

(5) In accordance with Article 27(1) [Attachment 4-2] of the Regulations on the Management, etc. of National Research and Development Projects, the Minister of Education asserts that a disposition to restrict research participation may be taken within five years if the “student labor cost” is included in the amount used for any purpose other than the original purpose. However, the attached Table 4-2 cited by the Defendant Minister of Education is newly established on July 22, 2016 and does not apply to this case. The period of restriction on participation in the instant disposition is included in the period of restriction on participation in the instant task pursuant to Article 27(3) of the same Act, including the period of restriction on participation in the instant three tasks, and is deemed to be calculated as five years by applying Article 27(2) mutatis mutandis. Such calculation method is unfair because it is not classified by each disposition subject, and as a matter of principle, Article 27(3) of the same Act does not relate to the case where a person subject to restriction on participation is again conducted due to a research and development task other than one one of two research and development tasks.

(6) In light of the above circumstances, sanctions against the use of personnel expenses for each of the instant tasks for purposes other than their original purposes and the prevention of recurrence in the future seems to be able to achieve the objectives of the lawsuit even through the recovery of project expenses against the Korea University Industry-Academic Cooperation Foundation, and the need to impose restrictions on the Plaintiff’s participation in research is not significant.

4) Sub-committee

Therefore, each of the dispositions in this case is lawful, but the disposition of restriction on participation in this case should be revoked as it is illegal as it deviates from and abused discretion.

4. Conclusion

Therefore, the plaintiff's claim against the defendant Minister of Education shall be accepted within the scope of the above recognition, and the remaining claims against the defendant Education and the defendant with respect to the Minister of Science and ICT shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges

The judges of the presiding judge;

Judges Kim Jae-nam

Judges Gangseo-gu

Note tin

1) Since the Ministry of Science, ICT and Future Planning was changed to the Ministry of Science and ICT by the amendment of the Government Organization Act on July 26, 2017, "Ministry of Science and ICT" or "the Minister of Science and ICT" without distinction before and after the amendment.

2) On February 2, 2011 to November 2015, the amount of joint management by each task was reasonably calculated in consideration of the ratio of the ratio of the subsidy for the F task to the personnel expenses for each financial source deposited by the industry-academic cooperation foundation every month, in which 157,981,90 won for the student personnel expenses (15,030,970 won for the deposit of the industry-academic cooperation foundation - 277,049,070 won for the actual amount of the student personnel expenses - the ratio of the subsidy for each financial source deposited by the industry-academic cooperation foundation