An industry-academic cooperation foundation and one other (Law Firm LLC, Attorneys Kim Un-soo et al., Counsel for the plaintiff-appellant)

The Minister of Science and ICT (Law Firm Lee & Lee, Attorney Park Jong-hoon, Counsel for defendant)

August 25, 2017

1. The action shall be dismissed by the industry-academic cooperation foundation of the Seoul National University

2. The Defendant’s disposition of restricting participation in national research and development projects for three years against Plaintiff 2 (Seoul: Nonparty) on March 15, 2016 and disposition of recovering government contributions KRW 126,356,839 shall be revoked.

3. Of the litigation costs, the portion arising between the Plaintiff and the Defendant shall be borne by the industry-academic cooperation foundation of the Seoul National University, and the portion arising between the Plaintiff 2 and the Defendant shall be borne by the Defendant.

The Defendant’s disposition of restricting participation in national research and development projects for three years against the Plaintiffs on March 15, 2016 and disposition of recovering government contributions KRW 126,356,839 shall be revoked.

1. Details of the disposition;

A. On April 1, 2010, the Korea Research Foundation (hereinafter “Korea Research Foundation”) which is a foundation that vicariously executes the Defendant’s business on planning, management, evaluation, and utilization of national research and development projects, as a specialized institution under the Framework Act on Science and Technology, concluded an agreement on the standard for research and development tasks (hereinafter “instant agreement”) with respect to the research and development tasks (the title: Convergence Cine-Indiet Design Group, and the research period: from April 1, 2010 to February 28, 2019; hereinafter “instant research tasks”) with the Plaintiff Industry-Academic Cooperation Foundation (hereinafter “Plaintiff Industry-Academic Cooperation Foundation”). The instant agreement was renewed each year by March 1, 2015.

B. The Plaintiff-academic cooperation foundation was the main research institute, and Plaintiff 2, the professor of the △△△△△ University, the Seoul University’s ○ University’s ○○ University, participated in each of the instant research tasks.

C. Under the instant agreement, the Plaintiff-academic cooperation foundation received a total of KRW 3.39 billion from April 1, 2010 to February 2, 2016.

라. 한국연구재단은 2015. 4. 20. 피고 산학협력단에 ‘2015년 연구비 집행 정밀정산 현장점검 실시’를 통보하고, 이에 따라 2015. 4. 22.부터 2015. 4. 24.까지 원고 산학협력단에 대한 점검을 실시하였고, 위 점검의 실시결과 한국연구재단은 2015. 6. 9. 서울대학교에 이 사건 연구과제 연구비 집행의 적정성과 관련하여 ‘타 기관 소속 참여연구원인 □□대학교 ◇학과 소외 2 교수는 원고 2의 배우자로서 연구과제에 대한 기여도를 인정할 수 없으므로 전문가 검토가 필요하고(소외 2가 집행한 직접비 및 연구수당 합계 44,402,807원), 원고 2 교수의 연구실에서 행정직원이 연구원에 대한 인건비 일부를 공동관리하면서 집행한 사실이 인정되며, 원고 산학협력단에 제출한 거래명세서 내역 중 2011년, 2013년, 2014년에 집행한 연구장비·재료비 12건 합계 13,140,300원의 금액이 실제 구입내역과 불일치하고 그 중 연구재료비로 허위 구매한 프린터는 소외 2에게 전달되었다’는 취지의 정밀정산 결과를 통보하였다.

E. On March 15, 2016, the Defendant issued a disposition on March 15, 2016 with respect to Plaintiff 2 on the grounds that “use for other purposes (including joint management of students’ personnel expenses, participation in researchers belonging to other institutions that do not have any task task, and false purchase of research equipment and materials)” (hereinafter collectively referred to as “each of the instant dispositions”) to impose additional monetary sanctions separately, pursuant to Article 11-2(1)5 of the Framework Act on Science and Technology and Article 27 of the Regulations on the Management, etc. of National Research and Development Projects, for three years subject to the restriction on participation in national research and development projects, and restitution of KRW 126,356,839 (including surcharges 116,67, and the Defendant recovered the amount to KRW 126,240,172, excluding them).

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 1 through 6 (including each number; hereinafter the same shall apply), Eul evidence No. 2, the purport of the whole pleadings

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

ex officio, as seen earlier, the Korean Research Foundation took each of the instant dispositions against Plaintiff 2 on March 15, 2016. As such, there is no circumstance to deem that the Plaintiff’s Industry-Academic Cooperation Foundation cannot be the other party to the instant dispositions and otherwise there is a legal interest to seek revocation of each of the instant dispositions against the Plaintiff’s Industry-Academic Cooperation Foundation. Therefore, the Plaintiff’s lawsuit filed by a non-party to the Plaintiff’s Industry-Academic Cooperation Foundation on September 20, 2016, on the ground that it is unlawful (as stated in the evidence No. 11, according to the Plaintiff’s evidence No. 11, the Defendant’s disposition to recover KRW 126,240,172, separately against the Plaintiff’s Industry-Academic Cooperation Foundation on September 20, 2016, but the said disposition is deemed to differ from the other party to each of the instant dispositions and dispositions, the timing of dispositions, and details of dispositions, etc., and thus, it cannot be determined to the effect that the Plaintiff’s lawsuit against the Plaintiff’

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

A. The plaintiff 2's assertion

1) Since Plaintiff 2 cannot be deemed to have used research funds for any purpose other than the original purpose, each of the instant dispositions is unlawful since all of the grounds for the disposition are not recognized.

A) As to the joint management of student personnel expenses (hereinafter “the first disposition ground”);

The amount of money under joint management in relation to the instant research task is not a "student's personnel expenses," but a "research allowance" is not a "student's personnel expenses," and even if the plaintiff 2 jointly managed the personnel expenses of the affiliated researchers, it cannot be said that it constitutes a case where the research and development expenses are used for any purpose other than the original purpose. The plaintiff 2 did not instruct such joint management or take part in such management.

B) Regarding the participation of researchers belonging to other institutions that do not have any task (hereinafter “the ground for Disposition 2”)

The research objective of the instant research task is to develop the optimal design theory of the Nano Kyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyysnyys, by providing Nonparty 2 with Nanononono-2's various variabless (in temperature and pressures.

C) Regarding false purchase, etc. of equipment equipment and materials (hereinafter “reasons for Disposition 3”).

All the products purchased from the Plaintiff 2’s laboratories are computers, computers’ accessories, and other electronic devices necessary to carry out the instant research task, and Plaintiff 2 used research and development funds for the purpose of use. Even if the details of the products actually purchased and the details of the transaction statement submitted to the Plaintiff Industry-Academic Cooperation Foundation are partly different, the actual purchase of research and development funds cannot be deemed to constitute a case where research and development funds are used for any purpose other than the original purpose.

2) Even if the grounds for each of the instant dispositions are recognized, each of the instant dispositions is unlawful as a disposition that deviates from and abused discretion.

B. Relevant statutes

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

C. Determination as to whether the grounds for each disposition of this case are recognized

1) Whether the grounds for the first disposition are recognized

A) Facts of recognition

(1) The Minister of Education shall entrust the Research Foundation to the Korea Research Foundation in accordance with the Sciences Promotion Act and implement the science support project. The Minister of Education shall select the Seoul National University as a person eligible for academic support; the Seoul National University president of the Seoul National University and the second-stage two brain 21 Project (BK) Convention with the president of the Seoul National University (BK) (i.e., from March 1, 2012 to February 28, 2013); the BK21 Plux Project (i.e., the business period: from September 1, 2013 to August 31, 2020); and the “BK21 Plux Project (WCU) Agreement” (hereinafter collectively referred to as the “relevant project”).

(2) The Plaintiff Industry-Academic Cooperation Foundation received project funds from the Minister of Education for the instant project, and the Plaintiff 2 participated in the research of the instant project.

(3) The Korean Research Foundation conducted a precise on-site inspection of Plaintiff 2 by aggregating the instant research task and the instant related project, and confirmed that Plaintiff 2’s graduate students from May 201 to April 2015 returned part of the personnel expenses and research allowances paid to the individual account to the joint management account (an administrative employee’s account) and deposited KRW 140,673,491. The Korean Research Foundation calculated the amount of money under joint management by project based on the detailed details of the joint management account, if it is not possible to specify the relevant project, the amount of money under joint management by project was calculated in proportion to the amount of personnel expenses paid. As a result, Plaintiff 2 was calculated as joint management by two levels, 21, 230,048, BK21, 16,05, 232, 436, 1966, 197, 1466, 196, 167, and 200.

[Reasons for Recognition] Unsatisfy, Gap evidence 3, Eul evidence 1, the purport of the whole pleadings

B) Determination

Article 11-2(1)5 of the former Framework Act on Science and Technology (amended by Act No. 12673, May 28, 2014; hereinafter the same) provides that where an institution participating in a national research and development project, a person in charge of research and development project, etc. uses research and development expenses for any purpose other than the original purpose, the head of a central administrative agency may restrict the participation in the national research and development project under his/her jurisdiction within five years, and fully or partially recover the project expenses already contributed. Article 11-2(5) provides that matters necessary for the specific standards for the period of restriction on participation by reason of restriction on participation, redemption of project expenses, etc. shall be prescribed by Presidential Decree. Accordingly, Article 12(1)5 of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 23788, May 14, 2012; hereinafter the same shall apply) provides that the head of a central administrative agency may contribute all or part of research and development expenses, the items paid by the head of a central administrative agency shall constitute labor expenses, direct and indirect labor expenses.

As Plaintiff 2, a person in charge of the instant research task, is responsible for managing the labor cost out of the research and development expenses paid by the Defendant to the student researchers who directly participate in the instant research task, it constitutes a case where the said labor cost is not directly attributed to the student researchers, but has been used for the research project’s joint expenses, etc. In addition, the joint management of labor cost constitutes an act prohibited by the instant provision and constitutes a use contrary to the purpose of the joint management, regardless of whether the money under joint management was paid to the student researchers.

The purpose of the instant provision prohibiting joint management of personnel expenses is to prevent the payment of personnel expenses that a professor, who is a responsible researcher, jointly manages and diverts them for other purposes, from breaking the minimum economic basis of the research institute and undermining the desire for research because he/she did not use them for its original purpose. However, unlike “outside personnel expenses” which have the nature of fixed salary for the research and development researcher participating in the relevant research and development project, “research allowances” has the nature as incentives for the payment of compensation and incentives to the research researcher and participating researchers related to the relevant research and development task, and the instant provision explicitly separates the items of research and development expenses into personnel expenses, direct expenses, consignment research and development expenses, and indirect expenses. In light of the content of the instant provision and the nature of research allowances, research allowances are distinct from personnel expenses, and thus, they cannot be deemed as prohibited under joint management.

In light of the following circumstances, i.e., ① the Defendant calculated the amount of 68,697,065 won out of the grounds for Disposition 1 of this case’s research task is based on the “data on the allocation of personnel expenses for each project” as stipulated in subparagraph 1, 2, and Plaintiff 2 denies the formation of the Plaintiff 2’s industry-academic cooperation foundation. Thus, it is insufficient to recognize that Plaintiff 6’s establishment of the above material was difficult to believe that Plaintiff 6’s establishment of evidence No. 1 was difficult, ② the research allowance was returned to the account; ② the research expense was returned in excess of 6th evidence No. 1; ② the research expense was returned in excess of 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 2020 6th 6th 120 6th 6th 1. 206th 202. 6th 202. 20. 20. 202. 202.

2) Whether the grounds for the second disposition are recognized

A) Facts of recognition

(1) The optimal design column, “at the time of designing regardless of, the most appropriate performance, material, processing method, etc.,” and the optimal design theory means finding out the most appropriate design method. The best design method is one of the various best design theory, and the optimal design theory is mainly Nano [1 m = 100 billion m = 1 m) but has been engaged in research in the series of series of series more than dominiums. The research plan of May 14, 2015 on the instant research task of this case includes the purpose of developing the optimal convergence design method of the convergence of the dynamics-Nanobine which is integrated through the convergence of the series of years, and the purpose of developing the optimal design method of the convergence of the design method is to include the development method of the convergence of the design in the combination of the design and the combination of the design method of the two design.

(2) On July 201, Plaintiff 2 had the second agreement on the instant project, and submitted a plan for the annual research and performance of the Libyer Researcher Support Project (original research) to the Defendant on or around July 201, and the said plan includes the research goal that “I will conduct the interpretation of the Libycare Automatic Interpretation and the theory and experimental verification of the best design of the Libye-Miby character” from the year 201, which is the second year, in order to foster the “domestic and foreign researchers theory and experimental foundation research group”, and it also states that Nonparty 2 will participate as the Institute.

(3) From September 1, 2012, Nonparty 2, a general researcher support project, is conducting research as a person in charge of the “production of a new metal or nanotechnology for responding to Schlage,” and he/she has a career of success in the composition of Nano.

(4) Since 2012, there are 25 copies of the SCI thesis among the papers published jointly by Plaintiffs 2, 2 and 2, and student research institutes, and the "(Name 1 omitted)" among which the "(Nomenclature 1 omitted)" was published as a doctor's degree thesis by Nonparty 6, who is the student research institute, and "(Name 2 omitted) (Nomenclature 2 omitted) (Nomenclature 2 omitted)" (Nomenclature 2 omitted)" as a student research institute.

(5) On May 14, 2015, the Korean Research Foundation constituted a review committee consisting of two engineering experts and three pharmaceutical experts, and reviewed the research plans, research reports, and explanatory materials submitted by Plaintiff 2, as well as, whether the participation of Nonparty 2 in the instant research task is appropriate by drawing comprehensive opinions (hereinafter “instant review”). The summary of the review results of the Review Committee is as follows.

1. The results of the review by the Review Committee are inappropriate for Nonparty 2 to participate in the original agenda, and it is deemed inappropriate for him to use Nonparty 2’s thesis from the original agenda. The content and implementation of the research under the general researcher’s project are deemed to have no serious problem. 2. Other details irrelevant to the initial research plan are used for the purpose of the research. A person in charge of research, who is in charge of research, has been engaged in MaD interpretation, participating in the research, but has not conducted relevant research, regardless of the original tasks, and the core of the task.

(6) The thesis “(name 3 omitted)”, which is a joint author by Plaintiff 2 and Nonparty 2, was published in the academic journal on September 6, 2016, and the paper contains photographs (HR-ETM) taken by Nonparty 2 by combining gold workers.

(7) Nonparty 4, who is a member of the Review Committee of this case, testified to the effect that Nonparty 2’s research using the Plaintiff’s synthetic water that Nonparty 2 provided to the Plaintiff was unable to understand clearly how to use the Plaintiff’s research using the Plaintiff’s synthetic water. Engineering and engineering studies cannot be said to have no connection because of the same dust. However, given that the optimalization is the field of water supply and the development of techniques by inserting the generally known values on water, it is not a key element even if the relationship with materials is difficult. The link of Nonparty 2’s research with the instant research task is lower than the relationship with the initial research plan. Nonparty 3, who is a member of the Review Committee of this case, was also connected with the same purport, and Nonparty 2’s testimony was not used in the research process of Nonparty 2, who was the result of Nonparty 2’s research. However, it cannot be known to the purport that Nonparty 2’s testimony was used in the Seoul University.

[Reasons for Recognition] Facts without dispute, Gap evidence 9, 10, 11, Eul evidence 14, the witness non-party 3 and non-party 4's testimony and the purport of the whole pleadings

B) Determination

(1) Comprehensively taking into account the aforementioned facts and the purport of the entire pleading, the following circumstances: (i) Plaintiff 2 and Nonparty 2, and student researchers, who seem to be related to the interpretation of Na materials, have been published in the academic journal; (ii) such joint research content was reflected in the research plan and the Defendant and the Korea Research Foundation have concluded a renewal of the instant agreement without any particular objection; (iii) the main purpose of the instant review committee’s opinion is that the relationship between Plaintiff 2 and Nonparty 2 is not known or is low, and its relevance may not be entirely excluded; and (iv) the instant research project, as a support project for the researcher, is a research researcher with creative ideas or knowledge, is likely to find research tasks for a long time to support the world and select a small number of researchers and support research tasks, and thus, the modification of the research plan and the relevant research method cannot be concluded to be beyond the first research project’s implementation of the research project’s implementation of the research project’s implementation of the development project’s implementation of the research project’s implementation of the research project’s implementation of the existing development project’s implementation of the research project.

(2) In addition, even if there is little relevance between the instant research task and Nonparty 2’s research project, such circumstance alone alone cannot be readily concluded that scientific and technological innovation is recognized. The basic principle of the former Framework Act on Science and Technology lies in ensuring that scientific and technological innovation is in harmony with the natural environment and social ethical values on the basis of human dignity and that it becomes a driving force for economic and social development, and that autonomy and creativity of scientists and engineers are respected (Article 2). In light of the foregoing, sanctions on research implementation should be imposed within the scope specifically stipulated in the former Framework Act on Science and Technology. Article 11-2(1) of the former Framework Act on Science and Technology provides for the requirements for restrictions on research participation and recovery of project costs, and provides for cases where research and development is determined as a failed project based on the evaluation conducted by the central administrative agency on the basis of extremely poor research outcomes under subparagraph 1 and Article 11-2(1) of the former Framework Act on Science and Technology, and thus, it cannot be concluded that the research implementation of the research project in question only constitutes an unlawful research implementation of Article 17.

(3) Therefore, this part of the disposition is not recognized.

3) Whether the grounds for the third disposition are recognized

A) Facts of recognition

(1) The research fund management manual for national research and development projects issued by the Korean Research Foundation around December 2014 provides that “the cost of maintaining office equipment, facilities, and the cost of purchasing office equipment (including OA equipment and peripheral devices, such as PC, printer, and reproduction equipment) that are not reflected in the research and development plan” is an example of unfair execution of research costs.

(2) The Seoul National University Research Center and the Industry-Academic Cooperation Foundation Research Institute research funds worth KRW 10 million, not stated in the plan, are stated as cases of unfair execution in cases where the research funds are purchased and requested to be executed as expendable materials costs without going through procedures for approval for modification of the plan. In such cases, the research funds stipulate the improvement methods that the research funds should be executed after obtaining prior approval for modification of the research plan from the Industry-Academic Cooperation Foundation (or the research funds support institution) if they are not appropriated materials.

(3) As to the instant research task, Plaintiff 2 was supplied with other goods that are different from the details of the transaction submitted to Plaintiff Industry-Academic Cooperation Foundation, such as the entry by each item of the attached Table 3 Co-Link Trading Director.

[Reasons for Recognition] Facts without dispute, Gap evidence 3, Eul evidence 9 and 10, non-party 5's testimony, the purport of the whole pleadings

B) Determination

According to the above facts, although the plaintiff 2 should execute the research funds as stated in the statement of the plaintiff 2-academic cooperation foundation transaction, it is difficult to determine whether the research funds were used to perform a specific task as stated in the statement of the plaintiff 2-academic cooperation foundation, it was reported as if the plaintiff 2 had actually paid material expenses, such as green cream, etc., and actually used to purchase electronic equipment equipment, such as Nowon-west, cream, computer CPU, monitor, key, RAM, and SSS as listed in the attached Table 3. The State's research and development funds support is not for the implementation of a specific research task but for the general research project, it is necessary to promote appropriate budget execution in line with the purpose of the State's research and development support by preventing research funds paid by the State from being used for general operation expenses or office supplies, and in particular, it is reasonable to view that the research funds and material expenses were used to be used for any other purpose than the research funds, regardless of whether the research funds were used for the specific task. In the same context, it is recognized that the research funds were not used for the research funds.

D. Determination as to whether each of the dispositions of this case deviates from or abused discretion

In full view of the following circumstances that can be seen by comprehensively taking into account the facts acknowledged as above and the purport of the entire pleadings, each of the dispositions of this case is deemed to have been significantly affected by Plaintiff 2 compared to the public interest to be achieved thereby, and thus, it is unlawful as it deviates from and abused discretionary power.

1) Pursuant to Article 12 of the instant provision, research and development expenses paid to a managing research institute pursuant to Article 12 of the Framework Act on Science and Technology are paid to support a national research and development project to promote the development of the national economy, enhance the quality of life of the people, contribute to the development of the human society, and contribute to the development of the human society. As such, there is a significant public interest to ensure that they are appropriately disbursed according to the payment purpose and usage thereof. However, inasmuch as a disposition on restriction on participation and a disposition on redemption of research expenses 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, and redeems research expenses used for such research from the national research and development project, which is likely to undermine the ultimate objective of the former Framework Act on Science

2) Each of the dispositions of this case is not deemed to have grounds for the first, second, and second dispositions against Plaintiff 2, and is merely a part of KRW 126,240,172 recognized by the Defendant as the amount used for the purpose other than the original purpose of use by Plaintiff 2, the circumstances constituting the basis for the period of sanctions and the calculation of the amount to be recovered are difficult to maintain.

3) The money actually used by Plaintiff 2 for any purpose other than the original purpose was used to purchase equipment, such as Nowon-gu, clickter, computer CPU, monitors, keyboard, RAM, and SDR, and even if such equipment was not limited to the instant research task, it seems that Plaintiff 2 contributed to the implementation of the instant research task as equipment necessary for laboratory operation, and otherwise, Plaintiff 2 did not personally embezzled or misappropriated the relevant amount. Considering the aforementioned circumstances, it is difficult to view that Plaintiff 2’s act of use for any purpose other than the original purpose is contrary to the intent of the former Framework Act on Science and Technology prohibiting such act, and thus, it is unlikely to be subject to criticism.

4) Plaintiff 2 performed an ordinary research on the instant research task and published a number of papers. As such, Plaintiff 2’s exclusion of Plaintiff 2 from the national research and development project for three (3) years, it is likely that the Framework Act on Science and Technology would be contrary to the purpose of achieving the Framework Act on Science and Technology, i.e., enhancing science and technology, and enhancing national competitiveness, by creating the foundation for the development of science and technology through the decline in activities relating to the pertinent research sector, and thus, reducing science and technology and enhancing national competitiveness.

E. Sub-committee

Therefore, each of the dispositions of this case is illegal as a disposition that deviates from or abused discretionary power, even though the grounds for partial disposition are recognized.

4. Conclusion

Therefore, the plaintiff 2-academic cooperation foundation's lawsuit is illegal and dismissed, and the plaintiff 2's claim is reasonable, and it is decided as per Disposition by admitting it.

[Attachment]

Judges Kim Yong-ran (Presiding Judge) Kim Yong-Namn et al.