2017Guhap60956 Action for the Revocation of Restriction on Participation in Research

A

Law Firm Bululul, Counsel for the plaintiff-appellant

[Defendant-Appellant]

The Minister of Science and ICT

Law Firm Gyeong-tae, Counsel for the plaintiff-appellant

Attorney Lee Jae-ju

August 11, 2017

September 29, 2017

1. The Defendant’s disposition of five years of restriction on participation in national research and development projects conducted on March 15, 2017 with respect to the Plaintiff’s project for supporting a person conducting field-to-door research project for vehicles with a clustery antenna is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Minister of Education, Science and Technology, a foundation which is a specialized institution under the Framework Act on Science and Technology (hereinafter referred to as the “Korea Research Foundation”), has the Korea Research Foundation (hereinafter referred to as the “Korea Research Foundation”) vicariously performed the duties on national research and development projects, and the Korea Research Foundation established a standard agreement on research and development projects with each Korean Research Foundation (hereinafter referred to as the “each of the instant tasks”) as listed below (The Ministry of Education, Science and Technology amended the Government Organization Act on March 23, 2013 to the Ministry of Education and the Ministry of Science, ICT, and Future Planning, and transferred the tasks on national research and development to the Ministry of Education or the Ministry of Science, ICT, and Future Planning). 【The current status of the Plaintiff’s research tasks (unit: 1,000 won). The Plaintiff participated as a professor of the Integrated Research Foundation of the Korea Research Foundation of the Korea Research Foundation of the Korea Research

C. The Audit Office of the Korea Research Foundation conducted a specific audit on June 2016, and the result of the audit conducted from February 2, 201 to November 2015, the Plaintiff was found to have conducted some of the personnel expenses paid to graduate students participating in the task (a total of KRW 435,030,970, KRW 157,981,90) out of the personnel expenses paid to them (a total of KRW 435,030, KRW 970, KRW 157,90) as the head of the research institute and the general manager of the research institute jointly managed the task, and had them executed the joint management of personnel expenses every month as the joint management expenses. D. The Korean Research Foundation held a meeting of the Evaluation Board on Sanctions on September 29, 2016, conducted a sanctions against the Plaintiff on the two-year task of this case, and conducted the two-year task of this case with the Presidential Decree No. 30,732,474 and the two-year period of the National Research Project.

E. On November 15, 2016, the Defendant notified the Plaintiff of the disposition of restriction on participation in national research and development projects for five years against the Plaintiff and the disposition of recovery of project costs for the Korea-China Industry Cooperation Foundation (47,173,631 + 2,532,780 won) as a disciplinary measure against the use of research costs for the instant task 3 task (the period of restriction on participation for the instant task 1,2,532,780, taking into account the first deliberation by the evaluation group of sanctions, five years of restriction on participation for the instant task 1,2, and three years of restriction on participation for the instant task 3 task). Accordingly, the Plaintiff filed an objection against each of the instant tasks on November 23, 2016, but the sanctions evaluation group on January 7, 2017 dismissed the objection.

G. On March 15, 2017, the Defendant issued a disposition to restrict participation in national research and development projects for five years (hereinafter “instant disposition to restrict participation”) against the Plaintiff on the ground that “the Plaintiff’s personnel expenses paid to the researchers who participated in research and development were managed by the Plaintiff, the representative students of the Plaintiff, and the manager of the research and development, and that the details of the non-joint management were executed as joint laboratory expenses, etc.” (hereinafter “instant disposition to restrict participation”) and the industry-academic cooperation foundation of the Hanyang University were recovered from the project expense amounting to KRW 49,706,411.

H. On March 20, 2017, the Minister of Education issued a disposition to restrict the participation in national research and development projects for five years against the Plaintiff, and to recover project costs for KRW 40,410,222 against the Hanyang University Industry Cooperation Foundation, on the ground that “the Plaintiff jointly managed KRW 40,410,22, which was paid by the graduate students participating in research and development projects from February 201 to November 2015, which was paid by the Plaintiff to the graduate students participating in research and development projects.”

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 3, 10, 11 (including each number, hereinafter the same shall apply), Eul evidence 1 to 6, and the purport of the whole pleadings

2. Determination on the legitimacy of the disposition

A. The plaintiff's assertion

1) The Plaintiff paid monthly personnel expenses equivalent to the performance of the pertinent task to the aforementioned researchers even before the payment of the personnel expenses for the researchers who were employed in the instant task 3, and paid them as the personnel expenses for the month in which the payment of the expenses was not made. Since the amount corresponding to the personnel expenses out of the research expenses paid by the Plaintiff was deposited in a certain amount each month for each research personnel who was employed in the task and the payment was made in full, the Plaintiff cannot be deemed to have used the said research expenses for any purpose other than the original purpose. The instant disposition of restriction on participation is unlawful since the grounds for the disposition of restriction on participation are not recognized.

2) The Plaintiff successfully performed the instant 3 tasks. The Plaintiff’s operation of part of the research funds as joint management costs is to assist the stable livelihood of researchers and thus, the money under joint management is paid to all researchers, and there is no means to use it regardless of research by the Plaintiff. Nevertheless, the Defendant rendered a disposition of restriction on participation in the instant case as a professor, which would seriously hinder the Plaintiff in carrying out research activities in the future, and is unlawful by abusing its discretion.

B. Relevant statutes

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

C. Determination

1) Determination as to whether the grounds for disposition are recognized

Article 11-2(1)5 of the former Framework Act on Science and Technology (amended by Act No. 1339, Jun. 22, 2015; hereinafter the same) provides that the head of a central administrative agency may restrict the participation of national research and development projects under his/her jurisdiction where institutions participating in national research and development projects, a person in charge of research and development projects, etc. use research funds for any purpose other than the intended purpose, and may recover all or part of the project funds already contributed or subsidized. Article 11-2(1)5 of the former Framework Act on Science and Technology (amended by Act No. 1339, Jun. 22, 2015; hereinafter the same shall apply) provides that the necessary matters, such as the period of restriction on participation by reason of restriction on participation, the period of restriction on participation, and the standards for recovery of project funds, etc. shall be prescribed by Presidential Decree. Accordingly, Article 12(5) [Attachment 2] of the instant Act provides that personnel expenses paid to the student research institute shall not be jointly managed by the research institute.

According to the above facts, the plaintiff, as a research manager of each task of this case, managed part of the personnel expenses paid to the students' researchers who participated in the task of this case through the rap and the general affairs, etc. under his command and supervision, and used the research expenses for the purpose other than the purpose of use. As such, the grounds for the disposition of restriction on participation in this case is recognized as grounds for the disposition of restriction on participation in the research of

2) Determination as to whether discretionary power has been exceeded or abused

In full view of the following circumstances that can be seen by comprehensively taking into account the above facts of recognition, the entries in Gap evidence Nos. 4, 6 through 10, and 12, and the purport of the entire pleadings, the restriction on the participation in research by the Minister of Education is deemed to have a great disadvantage to the plaintiff as a result of the restriction on the participation in research, compared to the public interest to be achieved, so it is unlawful as it deviates from

A) As the disposition of restrictions on participation 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, it is likely to hinder the ultimate purpose of the former Framework Act on Science and Technology to strengthen national competitiveness through scientific and technological innovation and promote national economic development, and thus, it requires careful

B) The purport of the instant provision prohibiting joint management of personnel expenses lies in preventing the payment of personnel expenses to the Institute by jointly managing personnel expenses in a superior position and dedicated them to other purposes, thereby impairing the minimum economic foundation of the Institute and undermining the desire for research. Most of the money jointly managed by the Plaintiff was used for the research students, such as the payment and common expenses of the researchers, and there seems to be no personal benefit, such as embezzlement or misappropriation of personnel expenses through joint management. Considering the aforementioned circumstances, it is difficult to view that the Plaintiff’s joint management of research expenses is contrary to the intent of prohibiting joint management of personnel expenses as above, and thus, is likely to be subject to criticism.

C) The Plaintiff appears to have conducted a normal research on each of the instant tasks and achieved the purpose of the research. In the instant tasks, the Plaintiff published 3 copies of international academic journals and 2 copies of patent registration. In the instant tasks, 5 copies of international academic journals were published in the instant tasks. As to the instant tasks 3 tasks, 6 copies of paper were published in international academic journals, and 5 proposals were made for patent applications and registration. If the Plaintiff, who has achieved considerable research results, was excluded from national research and development projects for 5 years, it would be excessively harsh to the Plaintiff, who has undergone long-term research, and thus, would be contrary to the purpose of achieving this Decree of the Framework Act on Science and Technology, which aims to innovative science and technology and strengthen national competitiveness by creating the foundation for the development of science and technology through the decline of activities in the relevant research sector.

D) The period of the instant disposition of restriction on participation is deemed to include the entire period of restriction on participation in each of the instant tasks, including the period of restriction on participation in the instant tasks 1 and 2 pursuant to Article 27(3) of the instant provision, but such calculation method is deemed to be calculated as five years within the upper limit by applying mutatis mutandis paragraph (2). Such calculation method is inappropriate as it does not distinguish the subject of disposition from each other and does not compute the period by each disposition. The calculation method is limited to the instant tasks 3 tasks supervised by the Defendant Science and ICT pursuant to Article 27(1)5(a) of the instant provision only constitutes the period of restriction on participation in research within 15.7%, and thus, the instant disposition of restriction on participation is not consistent with

E) In light of the above circumstances, sanctions against the use of personnel expenses for the instant tasks 3 for purposes other than the original purpose, and the prevention of recurrence in the future, are likely to achieve the objectives of the lawsuit even through the recovery of project expenses for the Korea-Korea University Industry Cooperation Foundation, and the need to impose restrictions on the Plaintiff’s participation in research is not significant.

3) Sub-decisions

Therefore, the disposition of restriction on participation in this case should be revoked because it is illegal as a disposition that deviates from and abused discretionary power.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

The judges of the presiding judge;

Judges Kim Jae-nam

Judges Gangseo-gu

1) Since the Ministry of Science, ICT and Future Planning was changed to the Ministry of Science and ICT by the amendment of the Government Organization Act on July 26, 2017, before and after the amendment.

There is no distinction between the Ministry of Science and ICT or the defendant.

2) The amount of joint management by each subject shall be 157,981,900 won for the students' labor cost under joint management by each rap office from February 2, 2011 to November 2015 (=industry-academic cooperation)

Provided, That 435,030,970 won - Amount paid actually as student personnel expenses 277,049,070 won shall be the industry-academic cooperation foundation for each month.

From the perspective of the labor cost ratio for each source of revenue received from the National Research Foundation of Korea, it was reasonably calculated in consideration of the ratio of the subsidy ratio, etc.

(c)