2020 Gohap78377 Revocation of restrictions on participation in national research and development projects

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May 14, 2021

June 18, 2021

1. The Defendant’s disposition of restricting participation in national research and development projects against the Plaintiff on August 20, 2020 (five years) is revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Order 1 and the defendant's disposition of restitution of research and development expenses (19,628,591 won) and additional monetary sanctions (9,814,285 won) made against the plaintiff on August 20, 2020 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is the professor of △○○○○○, and the Defendant is implementing cancer research projects pursuant to Article 9(1) of the Cancer Control Act. Meanwhile, the National Cancer Center is a juristic person established pursuant to Article 27(1) of the same Act, and performs duties such as planning, management, evaluation, etc. of cancer research projects.

B. On June 9, 2016, May 29, 2017, and January 22, 2018, and January 15, 2019, the National Cancer Center concluded an agreement with △ Technology Institute and the Plaintiff as follows with respect to the blood, namely, blood of the "research and development project for the development of ambia," which is a national research and development project, and the next generation, through a senior molecule who can respond respectively (hereinafter "the instant task"):

A person shall be appointed.

C. Article 2(3) of the above Convention provides that “The head of the main research institute shall manage contributions from the government or persons other than the government, contributions from the government, and contributions from the participating enterprises according to the regulations on the management of research and development projects of health and medical service technology when receiving contributions from the participating enterprises.” Article 19(1) of the above Convention provides that “The head of the main research institute and the supervising research officer shall faithfully observe the regulations on the management of research and development projects

D. The National Cancer Center paid to the Plaintiff KRW 1,667,974,000 in total, including KRW 500,000,000 in research and development expenses on the instant task, KRW 333,33,00 in 2017, KRW 492,200,00 in 2018, and KRW 342,441,00 in 2019.

E. However, from May 2016 to March 2019, the Defendant received a report from the Anti-Corruption and Civil Rights Commission that “the Plaintiff collected part of the personnel expenses of the student researchers from 77,520,000 won (the amount related to the instant task is KRW 19,628,591; hereinafter “joint management fund”) as joint expenses, and used them as personnel expenses of other student researchers and laboratory expenses, etc.” (hereinafter “the instant report”). On November 20, 2019, the Defendant conducted on-site inspection of research and development expenses related to the instant task at the Plaintiff’s laboratory located in △ Technology Institute.

F. Next, on August 20, 2020, the Defendant issued a redemption disposition of KRW 19,628,591 (hereinafter “the restitution disposition of this case”) with the amount of unlawful spending of research and development expenses under Article 11-2(1)5, 8, and (7) of the former Framework Act on Science and Technology (amended by Act No. 17340, Jun. 9, 2020; hereinafter the same) on August 20, 202, and imposed a disposition of KRW 9,628,591 (hereinafter “the restitution disposition of this case”), a disposition of imposition of additional monetary sanctions of KRW 9,814,285 (hereinafter “instant disposition”), and a disposition of restriction on participation in national research and development projects for five years (hereinafter “instant disposition”). The grounds for the disposition are as follows.

In violation of Article 12(5) [Attachment 2] of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 29625, Mar. 19, 2019; hereinafter referred to as the “former Regulations on the Management of National Research and Development Projects”), Article 12(5) [Attachment 2] and Article 12(5) [Attachment 2] of the former Regulations on the Management, etc. of National Research and Development Projects (the student personnel expenses paid to the student research institutes of government-funded research institutes operating the master and doctor’s degree courses for universities, colleges, specific research institutes, and academic cooperation shall not be jointly managed), the Plaintiff recovered the total of 19,628,591 won paid to the student research institute out of the research and

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, Eul evidence Nos. 1 to 7 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The methods of joint management of student personnel expenses in the plaintiff's laboratory shall be as follows:

① When considering the draft personnel cost, the office personnel obtains approval by adding some amount (a) to the actual personnel cost, and if the amount is decided, the office personnel cost +a shall be transferred to the accounts of the Institute. ② The Institute shall determine ‘Research Institute and so-called Woo' to be in charge of the management of joint funds. â…………………‘ The Institute shall additionally receive the additional amount (a) by account transfer or cash payment to the rap. â…………‘ The office personnel has had the Institute disburse the cost that is ever handled from the joint fund. â…………………………………‘ The Institute shall have the Institute pay the additional amount from the account transfer or cash payment. â…………

Although such a method is not consistent with the research and development fund management method stipulated in the law, the common fund was used for the items that can be used for the research fund (such as personnel expenses, transportation expenses, meeting expenses, meal expenses, and research expenses incurred from administrative room) and it cannot be viewed that the research and development fund was used for any purpose other than the original purpose.

2) A deviation from or abuse of discretionary power

In light of the fact that the Red Gain, which was an office member of the laboratory, created at will for his own convenience, and the Plaintiff did not actively participate in the joint management fund. The portion of the joint management fund out of the total research and development expenses is small, most of them are disbursed in line with the purpose of use, most of them are not allowed to participate in the long-term national research and development project for a total of 25 years if the prior disposition mentioned above and the five years of the restriction on participation in the instant disposition are combined, which is a total of 25 years. In light of the fact that it is too harsh to the Plaintiff as a researcher, and it is not consistent with the public interest to achieve the dispositions in this case, each of the dispositions in this case

(b) Fact of recognition;

1) In the Plaintiff’s laboratory, the number of students participating in the Plaintiff’s research assistant collected a certain amount of money paid as personnel expenses, and the head of rap stored and managed them.

2) At the Defendant’s on-site inspection, the Plaintiff explained that the details of the use of the above joint management fund were explained, and there were parts related to the research, such as the distribution of labor cost, the execution of common expenses, the latter transferee, and the approval of the research fund within the research fund. However, some of the details of the joint management fund did not sufficiently explain such details of the use.

3) After receiving the instant report from the Anti-Corruption and Civil Rights Commission, the Minister of Science and ICT also conducted the relevant investigation, and as a result, the Plaintiff collected a total of KRW 41,671,574 from the personnel expenses paid to the student researchers in relation to the four research and development tasks listed in the table as follows, and used them for any purpose other than the purpose of the laboratory expenses, etc., on January 14, 2020, the Minister of Science and ICT imposed a total of 20 years restriction on participation on the Plaintiff for the Plaintiff as indicated in the table below (hereinafter referred to as “prior restriction on participation”) and imposed a collection of research expenses and an additional monetary sanction against the Mari Technology Institute.

A person shall be appointed.

[Grounds for recognition] The descriptions of evidence Nos. 2, 6, 7, 11, and 12, and the purport of the whole pleadings

C. Determination

1) As to the non-existence of grounds for disposition

Article 12(5) [Attachment 2] of the former National Research Management Regulations provides that “A student personnel expenses paid to a student researcher of a university, a specific research institute, or a government-funded research institute that operates a master’s or doctor’s degree course shall not be jointly managed.” The purpose of the above provision is to ensure that personnel expenses paid to a student researcher shall be immediately reverted to the student researcher himself/herself, and that he/she shall be subject to his/her free disposition, and further to protect the livelihood of the student research institute. Thus, a professor or a person in charge of research collects the personnel expenses paid to a student researcher and mixing them with public funds for the performance of a research and development task, in itself, shall be deemed to be in a state of use outside

Thus, the act that the plaintiff, who is a person in charge of the research project responsible for managing the personnel expenses to be paid to the student researchers who participated in the research project, is the act that the plaintiff, in itself, jointly manages the personnel expenses of the project in this case, constitutes a case where the research and development expenses, which are the grounds for the restriction on participation under Article 11-2 (1) 5 and 8 of the Framework Act on Science and Technology, the disposition of recovery of project expenses, and the disposition of imposing additional monetary sanctions under Article 11-2 (7), are used for

2) As to the assertion of deviation and abuse of discretionary power

A) Relevant legal principles

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 disadvantage suffered by an individual due to the disposition, by objectively examining the content of the offense committed as the ground for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances (see, e.g., Supreme Court Decision 9Du5207, Mar. 9, 2001).

B) As to the instant disposition of restriction on participation

(1) Article 27(1) [Attachment 4-2] of the former Regulations on National Research Management under the delegation of Article 11-2(9) of the Framework Act on Science and Technology sets the period of restriction on participation in cases where the amount used for purposes other than the original purpose is included in student personnel expenses among “where research and development expenses are used for purposes other than the original purpose.” However, in light of the legislative purpose and purport of the Framework Act on Science and Technology, the principle of excessive prohibition under the Constitution and the principle of equality, etc., even if the same type of violation is committed, it is necessary to set the appropriate period of restriction on participation according to the case, by comprehensively taking into account various factors, such as the scale and period thereof, social criticism, other circumstances punished by other Acts due to the violation, the individual circumstances of the offender, and the size of illegal gains generated from the violation, etc. Therefore, it is reasonable to interpret “five years” as the maximum period, rather than the fixed period (see, e.g., Supreme Court Decision 9Du5207, Mar. 9, 2001).

(2) However, in light of the following circumstances where the purport of the entire pleadings can be seen as seen earlier, the instant disposition of restriction on participation is an unlawful disposition that deviates from and abused the Plaintiff’s discretion over the disadvantage suffered by the Plaintiff compared to the public interest to be achieved by it. The Plaintiff’s allegation in this part is with merit.

(A) In addition to the instant task, the Plaintiff created a joint management fund in the course of performing the four different tasks under the supervision of the Minister of Science and ICT. As a result, the Plaintiff already received a prior disposition ordering the restriction on participation for 20 years for the same reason. Since research and development expenses for four different tasks from the instant task are able to be separated, and the act of using them for any other purposes is also classified as a separate one, each of the instant tasks cannot be deemed unlawful in itself. However, even if the Plaintiff was subject to a separate restriction on participation for four tasks different from the instant task, it cannot be said that each of the instant tasks was unlawful in itself. However, since the Plaintiff was subject to a separate restriction on participation for the same type of tasks, not for the Plaintiff to be subject to sanctions for the same violation but for the same time, the Plaintiff was not given an opportunity to correct the violation. In addition, in light of the aforementioned several relationships, the period of the prior disposition should also have been considered, and the Defendant was able to use the instant task for 5 years and 15 years, and the Plaintiff was subject to be subject to the instant restriction 165 years and 165 years.

(B) Of the joint management fund, KRW 19,628,591, which is a part related to the instant task, is merely part of KRW 1,667,97,97,00,00 in total of the research and development funds already paid for the instant task. Furthermore, most of the aforementioned student personnel expenses were used for the students belonging to the laboratory, including the Plaintiff’s personal usage, and the amount used for the purpose other than the operation of the laboratory is not significant.

(C) The reason for the instant disposition is not to use all or part of the student personnel expenses to the student research institute without paying the whole or part thereof or to directly manage the account in the name of the student research institute, but to have the student research institute manage it by collecting some of the amount in accordance with its own standards after paying the legitimate student personnel expenses. This is somewhat minor compared to the utilization of the student personnel expenses by the student research institute without having the opportunity to hold the student personnel expenses in the absence of knowledge of the fact that the student research institute paid the student personnel expenses itself or of the accurate amount.

(D) Furthermore, the disposition of restriction on participation under the Framework Act on Science and Technology excludes a specific person in charge of research from a national research and development project for a certain period. Accordingly, if the period of restriction on participation is excessively set, a competent person in charge of research and development may have long been excluded from a national research and development project more than necessary. This is not in line with the purpose of the Framework Act on Science and Technology, thereby promoting the development of the national economy and enhancing national competitiveness by creating the foundation for the development of science and technology and strengthening the national competitiveness. In this regard, a careful judgment is

C) As to the instant restitution disposition and disposition

(1) Relevant provisions

Article 11-2 (1) of the former Framework Act on Science and Technology provides that a penalty surcharge may be imposed and collected within five times the amount already contributed or subsidized for any purpose other than the original purpose. Paragraph (7) of the same Article provides that a penalty surcharge may be imposed and collected within the amount used for the purpose other than the original purpose. Paragraph (9) of the same Article provides that matters necessary for the specific standards for the recovery of project costs by reason, the type of offense, etc. shall be prescribed by Presidential Decree. Article 27 (11) [Attachment 5] of the former Regulations on National Research Management shall be prescribed as “where research and development expenses are used for any purpose other than the original purpose” and Article 27-4 (1) [Attachment 6] provides that the standards for the recovery of project costs shall be determined as “within the total amount of contributions by the relevant year” and Article 27-4 (1) [Attachment 6] provides that the amount used for the research purpose other than the original purpose is 50 million won or less within the scope of 1/2 pursuant to a certain standard.

(2) Specific determination

In full view of the following circumstances revealed through the aforementioned facts and the purport of the entire pleadings, it cannot be deemed that the public interest seeking the instant restitution disposition and imposition disposition cannot be deemed to be less than the disadvantage suffered by the Plaintiff. Therefore, it is difficult to deem that each of the above dispositions has exceeded or abused the scope of discretion under the social norms. The Plaintiff’s allegation in this part is without merit.

(A) The Defendant applied the standards stipulated in the above provisions to determine the amount of research expenses recovered and the amount of punishment imposed. There is no special circumstance to deem that the standard does not conform with the Constitution or laws or is unreasonable.

(B) The Plaintiff’s leading role in raising the joint management fund is red, and it is also argued that it was only wrong with the knowledge of the fact. However, even if such assertion is true, it is reasonable to assume the ultimate responsibility for such unlawful act committed in the laboratory by considering the Plaintiff’s status as a professor and a person in charge of research as a person in charge of research.

(C) The purpose of this case’s restitution and disposition is to protect the rights and interests of the student research institute by inducing research institute, a person in charge of research, professors, researchers, etc. to use the school personnel expenses for its intended purpose of use, and to publicly announce the basis of their living. Accordingly, the public interest to achieve the above disposition is reasonable. On the other hand, the amount of the research expense restitution ordered in the instant restitution and disposition is the same amount as the joint management fund created by the Plaintiff in relation to the instant task, and the amount of additional monetary sanctions is the amount corresponding to 1/2. In light of each amount, the economic disadvantage that the Plaintiff would incur due to the above disposition is too excessive to the extent that the public interest needs of the above disposition are threatened.

3. Conclusion

The plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.