(영문) 대전고등법원 2016.11.17.선고 2016누10662 판결

1. On December 11, 2014, upon a claim for an exchange change in the trial, the Defendant’s redemption of research costs of KRW 606,00,000 against the Plaintiffs, and the disposition for two years of restriction on participation in national research and development projects is confirmed to be null and void.

2. All costs of the lawsuit shall be borne by the defendant.

3. Disposition falling under paragraph (1) for two years from the restriction on participation in national research and development projects shall be suspended until this judgment becomes final and conclusive;

Purport of claim and appeal

The decision is as follows (the plaintiff sought confirmation of invalidity when seeking restitution of research expenses and revocation of restriction on participation as stated in paragraph (1) of this Article in the first instance court, and the claim was modified in exchange for exchange).

Reasons

1. Details of the disposition;

A. The Plaintiff A University Industry-Academic Cooperation Foundation (hereinafter referred to as the “Plaintiff Industry-Academic Cooperation Foundation”) is a juristic person established under the former Industrial Education Enhancement and Industry-Academic Cooperation Promotion Act (amended by Act No. 7869 of March 3, 2006), Plaintiff B is the Plaintiff’s chemistry and professor of the secondary college of the A University, and the Defendant is a juristic person established under the Korean Research Foundation Act.

B. On January 16, 2013, the Defendant publicly announced the support program for middle-standing researchers in the year 2013 and publicly recruited new tasks.

C. On February 19, 2013, Plaintiff Industry-Academic applied for a new task as the research task called “C” (hereinafter referred to as the “research task in this case”) by designating the person in charge of the research as Plaintiff B, and the Defendant selected the research task in this case as the subject of support.

D. On June 1, 2013, the Plaintiff Industry-Academic Group and the Defendant entered into an agreement on the research and development task of the instant research task (hereinafter referred to as the “Convention 2013”) with respect to the research task, and the main contents are as follows: (i) Convention Research and development cost: Government contributions in the first year (the pertinent year); KRW 303,000,000 for the second year; KRW 303,000 for the third year; and total research and development period: from June 1, 2013 to May 31, 2016:

3) Research period of the Multi-year Convention: From June 1, 2013 to May 31, 2016

4) The research period of the relevant agreement for the relevant year: From June 1, 2013 to May 31, 2014

5) A senior research officer: Plaintiff B

E. On June 1, 2014, the Plaintiff Industry-Academic Group and the Defendant entered into a research and development agreement on the instant research task (hereinafter referred to as the “Convention 2014”) with respect to the research task, and the main contents are as follows: (i) the research and development agreement cost: Government contributions amounting to KRW 303,00,000 in the first year of the second year (the pertinent year), KRW 303,000,000 in the second year (the pertinent year), total research and development period of KRW 909,000 in the third year: from June 1, 2013 to May 31, 2016:

3) Research period of the Multi-year Convention: from June 2013, to May 31, 2016

4) The research period of the relevant agreement for the relevant year: From June 1, 2014 to May 31, 2015

5) A senior research officer: Plaintiff B

F. Article 26(3) of the Convention of 2013 provides that “The Defendant may recover all research and development expenses excluding personnel expenses paid according to the result of the assessment if the Plaintiff B selected as the head of the Research Institute for Basic Science (including outside research teams) or the head of the research group, etc. within one year from the first date of commencement of the research.” Article 26(3) of the Convention of 2014 provides that “The Defendant may, in principle, recognize the transfer of the Plaintiff B to another project, such as the head of the Research Institute for Basic Science and the group group, etc., during the research, and recover the full amount of restrictions on participation and the payment of research expenses by deeming the Plaintiff B as an unfaithful research in violation. However, where it is verified that the research task is scheduled to be completed or is linked to the project to be moved at the time of the completion of the research task, suspension may be permitted.”

G. Around November 1, 2014, Plaintiff B was selected as the head of the Research Institute for Basic Science and Technology to conduct research on the Basic Science Research Institute.

H. On December 11, 2014, the Defendant cancelled the agreement with the Plaintiff’s Industry-Academic Group on the grounds of the Plaintiff’s violation of the Convention (Suspension of Research following the Movement of Basic Science Research Institute) and recovered the Plaintiffs’ research and development expenses paid for the instant research task, and the Plaintiffs’ participation in national research and development projects for two years from December 9, 2014 to December 8, 2016 (hereinafter “instant disposition”).

I. The Plaintiffs notified the instant disposition on March 2014, 12, and 11, and filed an objection with the Defendant on December 16, 2014, and the Defendant notified the Plaintiffs that the instant objection was dismissed on March 13, 2015.

【Ground of recognition】 Evidence Nos. 1 through 7, No. 1, 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

The Framework Act on Science and Technology and the Enforcement Decree thereof, which are the basis for the instant disposition, do not have any provision stipulating that the authority to impose sanctions against national research and development projects may be delegated to the Defendant, which is a specialized institution, such as the disposition of restrictions on participation or the disposition of recovery. Therefore, the instant disposition is null

B. Determination

1) First, we examine whether the Defendant is authorized to take the instant disposition.

A) Relevant legal principles

Administrative laws and regulations, which serve as the basis for sediment administrative acts, shall be interpreted strictly and applied, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the other party to such administrative act. Even if the teleological interpretation that takes into account the legislative intent, purpose, etc. is not entirely excluded, such interpretation shall not go beyond the ordinary meaning of the text and text (see, e.g., Supreme Court Decision 2007Du13791, 13807, Feb. 28, 2008)

In addition, the delegation of administrative authority is a modification of the legal attribution of the authority to transfer a specific authority to the delegated authority under the law, and its internal delegation is limited to the execution of the authority in fact by the delegated authority or by the subordinate administrative authority in order to promote the convenience of internal administrative affairs of the administrative authority. In the case of the delegation of authority, the delegated authority may exercise its authority in its own name. In the case of internal delegation, the delegated authority can exercise its authority only in its own name, but it cannot be done in its own name. Since the delegation of administrative authority is an alteration of the legal attribution of the authority, it is recognized only where the law permits its delegation (see, e.g., Supreme Court Decisions 86Nu569, Dec. 9, 1986; 91Nu5792, Apr. 24, 1992).

B) In light of the above legal principles, it is reasonable to deem that the Defendant has no legal authority to take the instant disposition, and ultimately, the instant disposition taken by the Defendant without the authority to take the disposition was unlawful, in view of the following circumstances that can be acknowledged by adding the aforementioned evidence and the evidence No. 3 to the purport of the entire pleadings.

① Even if an administrative agency may refuse to modify or cancel the terms and conditions of a contract or seek payment of a certain amount pursuant to the terms and conditions of a contract in cases where an administrative agency implements administrative purposes under an administrative contract, the restriction on participation in the national research and development projects conducted by other central administrative agencies, etc., other than parties to the agreement, also brings about restrictions on the plaintiffs' participation in the national research and development projects, which are conducted by the parties to the agreement, constitutes an indivative administrative act, which infringes the plaintiffs' rights and interests, and also constitutes an indivative administrative act, which can be collected in the same manner as delinquent national taxes

② Article 11(4) of the Framework Act on Science and Technology provides that, if deemed necessary for the efficient promotion of national research and development projects under its jurisdiction, the head of a central administrative agency may authorize an institution or organization prescribed by the relevant statutes to vicariously carry out the planning, etc. of national research and development projects. In such cases, the head of a central administrative agency may fully or partially subsidize expenses incurred in planning, etc. for a person who vicariously carries out planning, etc. (hereinafter referred to as "specialized institution"). Article 11(5) of the Framework Act on Science and Technology provides that, for the smooth promotion of national research and development projects, matters concerning planning, etc. of national research and development projects under paragraph (3) and the affairs of a specialized institution under paragraph (4) shall be prescribed by Presidential Decree. However, it seems to be an excessive expansion interpretation to interpret that the term "restriction on participation or the recovery of research expenses," which are not related to the planning, etc. of national research and development projects, includes a "non-related planning," and Article 11(4) of the Framework Act on Science and Technology, the head of a central administrative agency.

(3) Article 11-2 (1) of the Framework Act on Science and Technology may restrict participation in national research and development projects under the jurisdiction of the head of a central administrative agency if any of the following applies to the institutions, organizations, enterprises, research officers, researchers, or executives or employees belonging to such institutions, organizations, research officers, or researchers, or executives or employees, he/she may recover all or part of the project expenses already contributed or subsidized." Article 11-2 (6) of the Framework Act on Science and Technology provides that "the head of a central administrative agency or the head of a specialized institution which has obtained approval from the head of a central administrative agency under paragraph (1) may urge the recovery of the project expenses within a specified period if a person subject to a disposition to recover the project expenses under paragraph (1) fails to pay the recovery within the specified period, or may collect the amount of national taxes in the same manner as delinquent local taxes are collected if an act falling under paragraph (1) 5 occurs, the head of a central administrative agency may impose and collect additional monetary sanctions within the scope of five times the amount used for purposes other than the purposes of use; however, the specific period of restriction on participation in research and development expenses may be prescribed by Presidential Decree."

④ As long as the Framework Act on Science and Technology explicitly permits or does not stipulate that the delegation of the authority to take measures to restrict participation or to recover research funds is prescribed by Presidential Decree, even if the provisions on the management, etc. of national research and development projects, which are subordinate statutes, and the regulations on the management, etc. of research and development projects under the jurisdiction of the Ministry of Science, ICT and Future Planning stipulate that “the authority to take measures to restrict participation or to take measures to recover research funds, which is a specialized institution

⑤ Article 27(7) of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 26500, Aug. 8, 2015; hereinafter referred to as the "former Management Regulations") provides that "the head of a central administrative agency may authorize the head of a specialized institution to act on behalf of the head of a specialized institution for the organization and operation of the sanctions evaluation team under paragraph (5)." Article 28 subparag. 11 of the above regulations provides that "other matters deemed necessary for the implementation of national research and development projects by the head of a central administrative agency" as his/her duties, and Article 10 subparag. 10 of the Regulations on the Management of Research and Development Projects under the jurisdiction of the Ministry of Science, ICT and Future Planning provide that "other matters deemed necessary by the Minister for the implementation of research and development projects shall be carried out by a specialized institution." However, the above regulations do not stipulate that "the authority to restrict participation or to recover research expenses is delegated or entrusted to a specialized

(6) According to the evidence No. 3, although the Minister of Science, ICT and Future Planning may know the fact that the result of deliberation by the sanctions evaluation team for the same contents as the instant disposition was approved, such approval cannot be deemed as delegation or entrustment that causes the change of legal attribution of the authority to dispose of the instant disposition, unless there is an explicit ground in the statutes (However, it may be deemed internal delegation that only allows the defendant to actually exercise the authority of the Minister in order to promote internal administrative convenience, but even in such case, the defendant can only take the instant disposition under the name of the Minister of Science

7) Article 19(2) of the Convention in 2013 and 2014 provides that "the head of a specialized institution may take measures to restrict participation in research and development projects with respect to the head of a major research institute, a person in charge of research, a participant enterprise, or an executing company, for a period not exceeding five years, in accordance with the following guidelines." However, apart from the fact that a contract provision in public law exercises a judicial right (e.g., rescission, etc. of a contract), the administrative agency may escape the principle of statutory reservation that an infringement should be done only on the basis of the law, and therefore, the provision of the above Convention cannot be deemed the legal basis for the disposition in this case.

2) Meanwhile, the administrative agency’s authority is limited to the nature and content of the administrative agency’s affairs, and there is a limit in regional and personal. Thus, an act beyond the scope of such authority, namely, an administrative disposition by an unincorporated agency, in principle, shall be deemed null and void as it is significant and apparent (see, e.g., Supreme Court Decisions 93Nu621, May 27, 1993; 96Nu4374, Jun. 28, 1996; 2002Du10704, Jul. 22, 2004).

As seen earlier, the Framework Act on Science and Technology and the former Management Regulations, which are the Presidential Decree of the Framework Act on Science and Technology, stipulate the authority to take sanctions, such as restrictions on participation in national research and development projects, as the head of a central administrative agency, and otherwise do not have the authority to delegate the authority to take such sanctions to the Defendant, who is the head of a specialized agency. Thus,

3. According to the records of this case, since it is recognized that the validity of the disposition of this case, among the dispositions of this case, requires urgent measures to prevent irrecoverable damage caused to the plaintiffs due to the occurrence of the validity of the disposition of restriction on participation, and no other data are likely to have a significant impact on public welfare due to the suspension of the validity, the validity of the disposition of this case, which

4. Conclusion

Therefore, the plaintiffs' claim for confirmation of invalidity of the disposition of this case is justified, and it is so decided as per Disposition with the assent of all Justices.