(영문) 서울고등법원 2020.6.24. 선고 2020누32113 판결

The Defendant’s disposition of 71,976,426 won was revoked on May 19, 2016, which was excluded from the selection of persons eligible for academic support for three years committed to the Plaintiff.

2. Purport of appeal

The part against the plaintiff in the judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

A. The Defendant, as delegated to the Korea Research Foundation pursuant to the Sciences Promotion Act, selected A University as a person eligible for academic support, and entered into an agreement with the president of A University and "C business" (the business period: from March 1, 2012 to February 28, 2013), "D business (the business period: from September 1, 2013 to August 31, 2020)," and "E business (the business period: the business period: the business period from December 1, 2008 to August 31, 201), respectively (hereinafter referred to as "the project in this case").

B. An industry-academic cooperation foundation of A University is a department that manages the project costs of the instant project from the Defendant, and the Plaintiff participated as a researcher of the instant project as A University shipbuilding engineering and professor.

C. From April 22, 2015 to April 24, 2015, the Korean Research Foundation inspected the execution details of the project cost of this case with respect to A University Industry Cooperation Foundation. As a result, the Plaintiff’s research institute affiliated with the research institute deposited KRW 71,976,426 (hereinafter “joint management amount”) out of the total personnel expenses for the research scholarships, etc. received from May 2011 to April 2015 as the joint management account managed by the administrative personnel (hereinafter “joint management account of this case”). The Plaintiff’s research scholarship (the “amount paid”) received by the students affiliated with the research institute in the instant project and the amount deposited by the students research institute into the joint management account (the “amount recovered” in the table below) are as follows.

(unit won)

A person shall be appointed.

D. On May 19, 2016, the Defendant issued a disposition to recover project costs of KRW 71,976,426 under Article 19(2)1 of the Sciences Promotion Act (hereinafter “instant restitution disposition”) to the Plaintiff on the ground that it would dispose of improper execution of the student personnel expenses (use for purposes other than joint management of the students’ personnel expenses) and a disposition to exclude persons eligible for support for three years under Article 20(1) of the same Act and Article 20 subparag. 3 of the Enforcement Decree of the same Act (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 6 and Eul evidence Nos. 1 through 3, 9, 11 and 12 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Relevant statutes;

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) Non-existence of grounds for disposition

The student researchers voluntarily collected part of the research scholarships received in relation to the instant project and jointly managed them, and the Plaintiff did not participate therein at all. The Plaintiff embezzled or misappropriated the amount of the instant joint management, and used the amount of the instant joint management for the interest of all the students researchers. In other words, the Plaintiff did not use the amount of the instant joint management for any other purpose, and thus, the instant disposition was unlawful on the ground that there was no ground for disposition.

(ii) the deviation and abuse of discretionary power;

Even if the grounds for the instant disposition exist, the amount of the instant joint management is to assist the stable livelihood of the student researchers, and thus, the amount of the instant joint management was used for the full student researchers; the Plaintiff embezzled or misappropriated it; the amount of the instant joint management was managed by the student researchers without the Plaintiff’s involvement; 10,257,40, out of the amount of the instant joint management, 10,257,400, the amount of the instant joint management was financed from the instant joint management account and was paid to the student researchers as a living expense; and then the student researchers received the research scholarship from the instant project, the relevant amount was deposited into the instant joint management account; and 12,619,200,000, which was paid to the student researchers, was paid to the student researchers from the pool of personnel expenses of the instant joint management, and the student researchers received the research scholarship from each project of the instant case, and thus, it cannot be deemed that it was a joint management by itself.

B. Facts of recognition,

1) The Korea Research Foundation paid the instant project cost to A University Industry Cooperation Foundation. From around 2009, the A University Industry-Academic Cooperation Foundation paid the relevant project among the instant projects to the account of the relevant student researchers as follows: (a) the integrated management system of school personnel expenses for national research and development projects to enhance efficiency and transparency in executing the school personnel expenses; and (b) to secure stable personnel expenses for the student researchers (an integrated management of school personnel expenses for national research and development projects by research institutes or researchers units; and (c) the researcher files an application for payment to the research expenses management department in consideration of the participation rate of the student researchers, monthly payment limit; and (d) the research expenses transfer from the research expenses management department to the private account of the student research institute at the request of the project body to which the Plaintiff belongs.

2) Meanwhile, from 2008, A University Chosun Marine Engineering and affiliated research institutes received certain personnel expenses for each degree course (2 million won for each doctoral degree course, 1.5 million to 1.8 million won for each doctoral degree course, and 9 million won for each degree course) and transferred the amount to be paid in excess to the joint management account of this case to the joint management account of this case and used it as joint expenses for the laboratory. In the past, one of the students research institutes was a method of opening and managing the joint management account under his/her own name. In the past, one of the students research institutes was employed by the Plaintiff, who requested that the student research institute be responsible for joint management of personnel expenses and personnel expenses for the administrative employees, and the Plaintiff received these opinions. From around 2010, the administrative staff became a joint management account (the name of the administrative staff).

3) The Plaintiff, while having the student researchers belonging to one’s own laboratory engage in the instant project and the F business activities (the title of the Department of Science for Future Creation, the title of the subject: G, the research period: from April 1, 2010 to February 28, 2019), approved the operation of the joint management account as above. The student researchers did not raise an objection to the method of operating the joint management account of this case or paying labor cost or expressed complaints to the Plaintiff.

4) The student researchers participated in one or all of the instant projects, regardless of the number of their respective projects, received uniform personnel expenses according to the labor cost payment standards, and deposited more research scholarships in the joint management account, and used them as personnel expenses for student researchers who did not participate in the relevant projects, personnel expenses for the month in which the Defendant did not receive the research scholarships for each of the instant projects from the Defendant, personnel expenses, laboratory operating expenses, school expenses, local accommodation expenses, travel expenses, etc.

5) Of the amount of the instant joint management, 12,619,000 won was refunded to the student personnel cost pool of the F Project, and the remaining money was used for laboratory operation expenses (such as drinking water, water supply and water purifiers maintenance expenses, cost of book purchase, etc.) or for the purchase of airline tickets and accommodation expenses for participation in international academic societies, and other expenses (10,257,40 won out of the amount of the instant joint management was used temporarily for the payment of school personnel expenses if the payment of school personnel expenses was delayed by the Korea Research Foundation).

6) Although the Plaintiff explicitly instructed the method of managing the common expenses, it was involved in the management of the common expenses by receiving the balance of the monthly research expenses from the administrative staff managing the common expenses along with the monthly research expenses.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 3, 7, 8, 12 through 14, Eul evidence No. 12, Eul's testimony of witness I of the first instance trial, the purport of the whole pleadings

C. Determination

1) Whether the instant disposition grounds exist

In full view of the following circumstances revealed through the evidence and the purport of the entire pleading, it is reasonable to view that the Plaintiff’s act of using part of the research scholarships received from the student researchers participating in the instant project through the administrative staff under his direction and supervision as the personnel expenses, laboratory operation expenses, and the student researchers’ participation expenses for the instant project constitutes “the case where the Plaintiff used the project funds for any purpose other than the purpose of recovery stipulated in Article 19(2)1 of the Sciences Promotion Act and the case where the project funds, which are the grounds for exclusion from the persons eligible for support for science under Article 20(1) of the same Act, are used. Accordingly, the Plaintiff’s grounds for disposition of the instant case are recognized, and this part of the Plaintiff’s assertion is without merit.

A) Article 19(2)1 of the Sciences Promotion Act provides that "the Minister of Education may suspend the payment of project costs or recover all or part of the project costs already paid if the researchers, universities, etc. subsidized project costs use them for any purpose other than the purpose of use," and Article 20(1) of the same Act provides that "the Minister of Education shall exclude the selection of persons eligible for science support under Article 6(1) from the scope of one to five years, as prescribed by Presidential Decree, where the payment of project costs is suspended or all or part of the project costs already paid by researchers, universities, etc. fall under any subparagraph of Article 19(2).

In addition, Article 22(4) of the C Business Management Guidelines, Article 28(4) of the D Business Management Guidelines, Article 28(1) [Attachment 2] [Attachment 2] and Article 20(1)2 of the E Business Management Guidelines, and Article 7(3) of the E Business Management Guidelines, which are the Ministry of Science, ICT and Future Planning published by the Ministry of Science, ICT and Future Planning, provide that since the student personnel expenses paid for the purpose of a graduate school student participating in the project in the project in this case are money paid to the individual of the graduate student, since the students' personnel expenses paid for the purpose of a research scholarship, etc., which are paid to the graduate student participating in the project in this case, are paid for a certain amount of money, and therefore, it is strictly prohibited from collecting and joint management or managing each individual's passbook or seal.

Article 3 of the Convention on the Project of this case provides that "The Minister of Education, Science and Technology shall faithfully implement the project in accordance with the directives on the management and operation of the project prescribed by the Minister of Education, Science and Technology."

The reason why the above guidelines strictly prohibit the joint management of school personnel expenses is that researchers are seriously embling or melting school personnel expenses under the pretext of joint management of school personnel expenses by using their own position, and to protect the rights of graduate students and enhance transparency in the execution of research expenses by blocking them in advance. In light of the contents and purport of the above provisions, joint management of school personnel expenses constitutes an act prohibited by the provisions and agreements related to the instant project, and ultimately, it constitutes “where the project expenses are used for other purposes”.

B) The Plaintiff accepted the opinion on the joint management of the students’ personnel expenses, and the joint manager of the students’ personnel expenses was an administrative employee employed by the Plaintiff, not an A University employee or a student research institute. The Plaintiff determined or participated in the criteria for payment of personnel expenses to determine the amount of joint management of the research scholarship received by the student research institute, and received a report on the balance of the joint management amount from an administrative employee. In light of the foregoing, the Plaintiff may be deemed to have been involved in the management of the instant joint management amount.

C) Of the project cost of the instant case, the amount remaining after deducting a certain amount according to the standards for the payment of personnel expenses, which was made by the appearance of the student’s personal account and paid individually to the student, was transferred to the instant joint management account for the purpose of avoiding the restrictions on the prohibition of joint management of personnel expenses. It is deemed that, in substance, the student personnel expenses were transferred from the beginning to the joint management account, and only a certain amount according to the standards for the payment of personnel expenses, which was set in advance, are the same as remitting the student’s personal account.

D) Even if the student researchers did not explicitly express the complaints concerning joint management of the school personnel expenses, considering the fact that the Plaintiff, a guidance professor, is in the position to select the students who participated in the research and subjects among the students belonging to the Plaintiff’s laboratory, whether to confer degrees to the students, and to the future career of the students, etc., it would be difficult for the Plaintiff to raise an objection to the standards for payment of personnel expenses and the joint management of personnel expenses therefor, which have been made as practices in the Plaintiff’s laboratory, and that the operation of the instant joint management account solely depends on the students’ voluntary intent.

2) Whether the discretion is deviates or abused or not

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement of public interest and the disadvantages that an individual would suffer, by objectively examining the content of the act of violation as the grounds for the disposition, the public interest to be achieved by the act of disposal, various circumstances pertaining thereto, etc. (see Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007).

B) In full view of the following circumstances that can be acknowledged by comprehensively taking account of the purport of the entire pleadings, the instant disposition constitutes a case where the result is considerably unfair in light of the content of the offense, which is the reason for the disposition, and the relevant laws and regulations, and the purport of the relevant laws and regulations, and thus, the instant disposition is unlawful as it deviates from or abused discretion by violating the principle of proportionality.

(1) For the purpose of contributing to the strengthening of the academic foundation, the balanced development inducement of studies, and the creation of new knowledge pursuant to the Sciences Promotion Act, the expenses for academic support granted by the Defendant to universities, research institutes, academic organizations, or researchers for the development and promotion of projects for the promotion of sciences are ultimately high for the public interest to promote the development of the national economy and enhance the quality of life of the people by strengthening national competitiveness, and to ensure that the expenses are appropriately paid in accordance with the purpose and purpose of the payment. However, the suspension or recovery of project expenses pursuant to Article 19(2) of the Sciences Promotion Act and the restriction on participation pursuant to Article 20(1) of the same Act are excluded from the national research and development project for a certain period of time and the recovery of research expenses used by the research-related research institute or research researcher. As such, the active use of the research is likely to compromise the ultimate objective of the Sciences Promotion Act, and thus, the determination of the administrative agency’s discretion is required.

(2) The purport of the Defendant’s directives and each academic support project’s operational guidelines prohibiting the joint management of students’ personnel expenses lies in preventing a professor from harming the minimum economic foundation of the student research institute and undermining the desire for research because the personnel expenses to be paid to the students are not used for the original purpose by jointly managing the student personnel expenses in a superior position and by dedicated them to other purposes. The scope of the exclusion period for persons eligible for support for science is set from one year to five years according to the type and degree of the violation

Although most formally does not participate in the relevant project research, it is difficult to view that the amount of the joint management of the instant case was used for all the students belonging to the laboratory, such as personnel expenses, tuition fees, meal expenses, expenses for participating in academic conferences of affiliated student researchers, expenses for participating in the research, expenses for ordinary operation of the laboratory, etc., and that the Plaintiff does not seem to have used for personal purposes, such as appropriating students' personnel expenses through the operation of the instant joint management account. The standards for operating the instant joint management account are objectiveized and operated by the Plaintiff as arbitrary standards, and the ratio of the total personnel expenses of the instant project to the amount of the joint management of the instant case among the total personnel expenses of the instant project, it is difficult to view that the level of illegality is high to the extent that it infringes on the public interest purpose prohibiting the joint management of the students' personnel expenses under the directives and the operating guidelines of each scientific support project

(3) In full view of the fact that the Plaintiff, while participating in the instant project as the responsible research institute, allowed the operation of the joint management account that was already operated and did not actively participate in the specific management and operation thereof, the student research institute did not raise an objection to the Plaintiff regarding the operation of the instant joint management account, and that all the money jointly managed after the instant audit was returned to the students and the operation of the joint management account was already suspended in the instant research institute, it is difficult to view that there is a high possibility of personal criticism against the Plaintiff on the operation of the instant joint management account.

(4) Taking into account the degree of illegality and possibility of criticism as above and the speed of research and development in the field of natural science, the collection of the entire amount of the instant joint management account against the Plaintiff who did not gain any personal interest, and the disposition of excluding three years as stipulated by the Promotion of Sciences Act and the Enforcement Decree of the same Act intentionally and unlawfully executed project costs is excessively harsh to the Plaintiff.

3) Sub-decisions

Ultimately, the instant disposition is unlawful as it deviates from or abused discretion in violation of the principle of proportionality, and must be revoked in entirety.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and since the part against the plaintiff in the judgment of the court of first instance is justified with its conclusion, the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.