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서울행정법원 2018구합66951 판결

사업비환수처분등취소청구의소

Cases

2018Guhap6951 Action for revocation, such as the recovery of project costs

Plaintiff

1. A stock company;

Representative In-house Directors B

2. B

Plaintiffs (LLC) LLC et al.

[Defendant-Appellee]

Defendant

The Minister of Science and ICT

Litigation performers shall be commercialized;

Government Legal Service Corporation (Law Firm LLC)

Attorney Shin Byung-il

Conclusion of Pleadings

May 16, 2019

Imposition of Judgment

July 18, 2019

Text

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

The Defendant’s disposition to recover project costs of KRW 345,647,455 against the Plaintiff Company and disposition to restrict the participation in national technology development projects for five years against the Plaintiffs with respect to the task of “development of a digital exhibition platform in the form of ecific digital exhibition by using IMO technology” on March 13, 2018. The Defendant’s disposition to recover project costs of KRW 366,001,963 against the Plaintiff Company and disposition to impose additional monetary sanctions of KRW 507,003,925 against the Plaintiffs and disposition to restrict the participation in national technology development projects for five years are revoked.

Reasons

1. Details of the disposition;

A. The plaintiff A Co., Ltd. (hereinafter referred to as the "Plaintiff Co., Ltd.") is a corporation that runs Internet information service business, Internet information and communication business, design business, etc., and the plaintiff B is the representative of the plaintiff Co., Ltd.

B. On September 21, 2016 and May 25, 2017, the Plaintiff Company entered into an agreement with the Information and Communications Technology Promotion Center (hereinafter referred to as the "Defendant, including the Minister of Science, ICT and Future Planning, as amended by Act No. 14839, Jul. 26, 2017; hereinafter referred to as the "Defendant,") under which the Minister of Science, ICT and Future Planning (the Ministry of Science, ICT and Future Planning) entrusted the planning, evaluation, and utilization of national research and development projects by the Minister of Science, ICT and Future Planning, and the Minister of Science, ICT and Future Planning (hereinafter referred to as the "Defendant," both of the Defendant, with respect to the task of building a VR service platform and developing VR image technology and content engineering (hereinafter referred to as the "VR task in this case").

[이 사건 VR과제] 주관기관: 원고 회사(연구책임자: 원고 B) 참여기관: ㈜SBS, 미디어프론트, ㈜더봄기술, 비덴트, 노아시스템㈜, ㈜아이온커뮤니케이션즈, 주무버, 가우디오디오랩 대상금액(총 사업비): 1,850백만 원(4,181백만 원) 총 연구기간(당해 협약기간): 2016. 7. 1.부터 2017. 12. 31.까지(1차년도 2016. 7. 1.부터 2017. 3. 31.까지, 2차년도 2017. 4. 1.부터 2017. 12. 31.까지) [이 사건 IoT과제] 주관기관: ㈜씽크브릿지 참여기관: 에스케이플래닛(주), 자비스테크, 원고 회사(세부 연구책임자: 원고 B) 대상금액(총 사업비): 695백만 원(3,960 백만 원) 총 연구기간(당해 협약기간): 2014. 10. 1.부터 2017. 8. 31.까지(2차년도 2015. 9. 1.부터 2016. 8. 31.까지, 3차년도 2016. 9. 1.부터 2017. 8. 31.까지) 다. 피고는 2017. 8.경 원고 회사의 연구비 집행 등에 대한 현장실태조사(기술전문가 1인, 공인회계사 2인)와 특별평가위원회(산·학·연 전문가 7인)의 심의, 2017. 9.경 원고들의 이의신청에 따른 타당성검토위원회(산·학·연 전문가 2인, 정보통신기술진흥센터 전문가 3인, 참고인 2인)의 심의 등을 거친 다음, 사업계획서에 기재된 참여연구원 중 일부가 T 주식회사(이하 'T'라 한다)에 파견되어 전혀 다른 연구용역을 수행하였고, 연구업무가 아닌 단순 행정업무와 영업 등에 종사함으로써 이 사건 각 과제를 수행하지 않았으며, 원고 회사가 이 사건 각 과제와 무관한 노트북을 구입하였다는 등의 이유로, 2017. 11.경 사업비 환수 등 처분의 사전통지를 하였다.

D. Among the plaintiffs, the plaintiffs asserted that 11 personnel expenses and equipment costs for the instant tasks and 5 personnel expenses for the instant tasks were acknowledged, and the defendant held a review evaluation committee comprised of four outside industrial, academic, and legal experts around February 2018. The above committee recognized that the costs of the VR equipment and the personnel expenses for the instant tasks were limited to the costs of the instant tasks, and reduced the amount of the recovery of the project expenses for the instant tasks to 36,001,963 won, the additional monetary sanctions to 507,03,925 won, and the amount of the recovery of the project expenses for the instant tasks to 345,647,455 won, respectively. The details of the review by the review evaluation committee on the matters for which the plaintiffs' explanation was not accepted are as follows (No. 5).

(E) E (unit: hereinafter the same shall apply) on the ground that the Defendant used project costs for any purpose other than research purpose, pursuant to Article 11-2 (1) 5 and (7) of the Framework Act on Science and Technology, Article 27 (1) [Attachment 4-2], Article 27 (1) [Attachment 5], Article 27-4 (1) [Attachment 6], Article 27-4 (1) [Attachment 6], Article 48 (1) 8 [Attachment 4], and Article 48 (1) 8 of the Regulations on the Management of Information and Communications Technology and Broadcasting, and Article 48 (1) 8 [Attachment 4] and (14 of the Regulations on the Management of Information and Communications Technology and Broadcasting. On March 13, 2018, the Defendant imposed on the Plaintiff Company a redemption disposition of project costs in the amount of KRW 345,647,455 and imposed on the Plaintiffs for five years. On March 14, 2018, the instant disposition of restriction on participation in national technology development projects was imposed on the Plaintiff 36, 50050.

* In the absence of dispute, the entries in Gap evidence Nos. 1, 2, 3, 14, 18, 18, Eul evidence Nos. 1, 3, 3, 5, 7, 7, 8 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings, each statement in the evidence Nos. 1, 2, 3, 3, 14, 18, and 8 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The instant disposition is unlawful for the following reasons, and thus should be revoked.

1) Human resources, who are not 100% of the participation ratio in the instant tasks, have conducted research services for the instant tasks and T at the place provided by T. Among the human resources for the instant tasks, some of the human resources for the instant tasks have used a space available for access to the T-in system for collaboration with the cooperation company (department in charge of development of DNA exclusive for VR content). Therefore, the aforementioned human resources cannot be deemed to have not performed each of the instant tasks solely on the ground that they were dispatched to T. Furthermore, in the instant tasks, the remaining human resources did not perform the instant tasks. In addition, in the instant tasks, the design development team, writing service team, fry, rap, rap, IM business team, and IMF business team, and in the instant tasks, each of the instant tasks was actually conducted.

2) Although external companies, such as E, F, G, and H, and R and S were not registered in the business plan for each of the instant tasks, since they performed each of the instant tasks on behalf of registered human resources, it should be deemed that the aforementioned unregistered human resources or external companies were used for business purposes of the instant tasks.

3) Even if the grounds for the above disposition are recognized, Plaintiff B did not privately use the government contributions, and the Plaintiff Company actually performed each of the instant tasks through an unregistered or external entity with a separate expense, and as a result, the technical level set by the respective tasks of this case has been generally achieved, and in light of the motive, method, result, financial capacity, etc. of the Plaintiff Company, the instant disposition is in violation of the proportional principle, and is in violation of the principle of proportionality, thereby deviating from and abusing its discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

(c) the existence of the reasons for the measure;

Article 11-2 (1) and (7) of the Framework Act on Science and Technology (Article 11-2 (1) of the Framework Act on Research and Development (Article 5) provides that "where research and development costs are used for any purpose other than the original purpose of research (Article 5), etc. (Article 27 (1) [Attachment Table 4-2] 2 (b) of the Regulations on the Restriction on Participation in National Research and Development Projects, the period of restriction on participation shall vary depending on the portion of the amount used for the purpose other than the original purpose of research and development expenses, and Article 27 (11) [Attachment Table 5] provides that the project expenses shall be recovered within the total amount of contributions for the relevant year, and Article 27-4 (1) [Attachment Table 6] 1 provides that "where the project expenses are used for any purpose other than the original purpose of research (Article 48 (1) of the Regulations on the Management and Development of Information and Communications Technology) and the project expenses shall be recovered for the purpose other than research and development projects (Article 48).

According to the following circumstances or facts, the developments leading up to the above disposition, Gap evidence Nos. 1, 2, Eul evidence Nos. 2, 4, 6, and 9 and the purport of the entire pleadings, the plaintiffs' use of research and development expenses for each of the instant tasks constitutes "where research and development expenses are used for any purpose other than the original purpose", and the amount used for the purpose other than the original purpose constitutes 378,202,369 won for the instant VR task and 350,061,147 won for the instant ITR task as a result of a review by the Evaluation Committee. Accordingly, the grounds for the disposition in this case are sufficiently recognized, and the plaintiffs' assertion on this part cannot be accepted.

1) The Plaintiff Company’s development details and scope of the first year of the instant VR system’s development of the instant VR system, ① the planning and design of the VR system engineering (VR system-based policy/services/services settlement planning, VR Common Data Base design, VR Commission’s detailed design, VR project development of major technology for the VRPP system-based development of each of the instant VR system-based / Services, ② the development of the VR system-based integrated engineering/system-based engineering system-based engineering, ② the development of each of the instant 2 years and scope of the Plaintiff Company’s development of the VR system-based engineering/service, ③ the development of each of the instant BR system-based engineering/service-based engineering/service-based integrated design, ③ the development and development of each of the instant PVR system-based engineering/service-based model, ③ the development and development of each of the 2 years and scope of the Plaintiff Company’s development and/or VRRR system-based development/based development of each of the PVR system-based system-based development/based model-based development/service model-based development.

In light of the contents and scope of the development of each of the above tasks in this case, each of the tasks in this case includes professional and technical areas such as whether the human resources registered as participating researchers actually performed the task in question, the results of the task in this case, and the relationship between the task and the task in this case.

The evaluation results by evaluation members in a professional and technical area, such as the foregoing, shall be respected to the maximum extent possible, unless there is any defect in the process or contents.

As seen earlier, the Special Evaluation Committee, the Feasibility Review Committee, and the Review Committee consisting of experts from relevant institutions or academic circles, provide the Plaintiffs with sufficient opportunity to vindicate, and closely examine the plaintiffs' explanatory materials, and then specifically state the grounds for the determination that some of the aforementioned evaluation members did not perform each of the instant tasks. Thus, there is no special circumstance to suspect the fairness, expertise, and objectivity of the evaluation members.

2) If an administrative agency has obtained a written confirmation from the other party to the investigation to the effect that the person is a specific violation in the course of conducting an on-site investigation, the value of such written confirmation cannot be easily denied unless there are special circumstances, such as that the written confirmation was forced against the will of the author, or it is difficult to consider it as evidentiary materials for specific facts due to lack of details (see, e.g., Supreme Court Decision 2015Du2864, Jul. 11, 2017). Plaintiff B cannot easily deny the value of the evidence of the written confirmation (see, e.g., Supreme Court Decision 2015Du2864, Aug. 2, 2017). The Plaintiff Company did not appear to have obtained a long-term confirmation document on the status of the Plaintiff, 361,272,370 won for personnel expenses (cash) and personnel expenses, 110,206,628 won, 478,998 won, and 294, 394,5, etc.

3) The Plaintiffs received prior notice of the disposition from the Defendant, and filed an objection only against 11 personnel expenses and equipment costs of the instant VR, and five personnel expenses of the instant ITR’s task, and the remaining personnel did not dispute the instant lawsuit.

4) On March 10, 2015, and March 15, 2016, the Plaintiff Company entered into a service contract for fourth project R&D (service period from January 1, 2015 to December 31, 2016) with T, and concluded a service contract for development and development (from January 1, 2015 to December 31, 2016) with T, and on March 9, 2017, it is reasonable to conclude that the Plaintiff Company dispatched the aforementioned service at the office for a long period of time to cooperate with T, i.e., participating researchers of each of the of the instant tasks, to December 31, 2017. In light of the empirical rule that it is difficult to recognize that the Plaintiff Company provided the foregoing service at the outside of the office with T, i.e., cooperation with T, K, M, N (T) for each of the instant tasks.

5) The plaintiffs asserted that the human resources listed in the business plan belong to each team and actually performed the task of this case (Evidence A to 49) and submitted as evidence the confirmation document, e-mail, research notes, etc. prepared by the said human resources (Evidence A to 19 through 49). However, although the plaintiff B signed a confirmation document stating that the additional supporting materials on the non-use items at the time of review on February 27, 2018, other than the materials submitted at the time of review, were not submitted, the additional supporting materials for the non-use items are submitted in the lawsuit of this case, and it is difficult to see that the above human resources are included in the sender, addressee, or reference column of e-mail, solely because it is difficult to find relevance with each of the tasks of this case, ③ research notes are insufficient and do not amount to some human resources, ④ the fact-finding survey at the time of review, as well as the evidence submitted by the Evaluation Committee (No. 23, 2012).

6) The project plan includes a detailed statement (e.g., specifications (e., specifications) on the part of participating researchers' major, degree, area in charge of research, participation period, participation rate, and personnel expenses for each participating researcher, and the defendant paid project expenses to the plaintiff company on the premise of the project plan. If the purpose of the project plan is to stipulate that restrictions on participation, recovery of project expenses, restriction on participation, imposition and collection of penalties shall be imposed on the plaintiff company, the structure and contents of the statutes on restriction on participation, imposition and collection of penalties, and sanctions shall be imposed on the non-registered personnel or external company on behalf of human resources, even if the non-registered personnel or external company not listed in the project plan performed each of the instant tasks on behalf of human resources, it cannot be deemed that the personnel expenses were used for each of the instant tasks, and therefore, there is no room to reflect the expenses in the instant disposition. Accordingly, the plaintiffs' assertion on this part cannot be accepted without further need to review (It is difficult to deem that the aforementioned unregistered personnel or external company performed each of the instant tasks

(d) Whether the discretion is deviates or abused;

Whether a punitive administrative disposition deviates from or abused the scope of discretionary power under the social norms shall be determined by comparing and comparing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the offense committed as the grounds for the disposition, the public interest purpose to be achieved by the relevant disposition, and all the relevant circumstances (see, e.g., Supreme Court Decision 2005Du11982, Feb. 9, 2006).

According to the evidence evidence No. 13, it is recognized that the final evaluation committee, on November 7, 2017, judged that the technical level of "the technical level specified as the target for the performance of the instant IT was generally achieved, and usually assessed as "it is judged that the convenience to prepare for the existing platform is excellent in terms of employers, exhibit planning persons, and exhibit operators," and that "the representative, etc. of the Plaintiff company on August 25, 2017 does not seem to have any circumstance in which the government contributions are personally taken by the Plaintiff company on August 25, 2017." However, in light of the following circumstances known by the evidence, it cannot be deemed that the instant disposition violated the principle of proportionality, thereby deviating from and abusing discretionary power. Thus, the Plaintiffs' assertion on this part cannot be accepted.

1) The plaintiffs' total amount of 700 million won used for the purpose other than the intended use reaches the total amount of 700 million won, and thus, the implementation of the instant VR task was suspended, and the degree of the violation is not weak.

2) The Defendant issued an order to recover only the amount used by the Plaintiffs, other than the entire government contributions, for purposes other than the original use.

3) Even if the final evaluation committee conducted a positive evaluation on the implementation of the instant task, the main institution of the task is the Dolbro, Inc., and the Plaintiff Company is merely a part of the aforementioned task as a participating institution.

4) The Defendant’s instant disposition conforms to the disposition standards stipulated in Article 11-2 of the Framework Act on Science and Technology, the regulations on the management, etc. of national research and development projects, and the regulations on the research and development of information and communications technology, etc., and otherwise, the said disposition standards do not in itself conform with the Constitution or laws, and it is difficult to deem that there exist reasonable grounds to recognize the instant disposition as considerably unfair in light of the content of

5) In order to promote the financial soundness of national research and development projects and to secure transparency in their operation, project costs must be strictly controlled and managed. The disadvantage that the Plaintiffs are entitled to due to the instant disposition is larger than that of such public interest.

3. Conclusion

Therefore, the plaintiffs' claims of this case are without merit, and they are dismissed. It is so decided as per Disposition.

Judges

presiding judge, judge Park Jong-yang

Judges Park Jong-hwan

Judge Lee Professor

Note tin

1) VR refers to the highest-tech technology that enables a computer to experience virtual reality.

2) The Internet of Things (Internet) is a technology or environment in which data are given and delivered via the Internet in real time with a license attached to an object.

I refer to this.