2018Guhap79964 Revocation of disposition, such as redemption of research funds

1. A industry-academic cooperation foundation;

2. B

[Defendant-Appellant] Plaintiff LLC

Attorney Park Jae-de

The Minister of Education

Law Firm branch of the Republic of Korea

Seoul High Court Decision 200Na1448 decided May 1, 200

May 3, 2019

July 5, 2019

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s disposition to recover research funds of KRW 53,662,160 against Plaintiff A-academic cooperation foundation on July 25, 2018 and disposition to restrict Plaintiff B’s participation in research for five years is revoked.

1. Details of the disposition;

A. The plaintiff A-academic cooperation foundation (hereinafter referred to as the "Plaintiff-academic cooperation foundation") is a corporation established under the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act, and the plaintiff B was a professor of the Electrical Engineering Department of Cuniversity.

B. On April 201, the Plaintiff-academic cooperation foundation entered into an agreement (total research and development period: period from May 11, 201 to April 30, 201) for the performance of a research and development task (hereinafter “the instant task”) as follows (including external personnel expenses; hereinafter “the instant personnel expenses”) between the Defendant-based research foundation and the Korea Research Foundation, which was delegated by the Defendant to carry out the research and development project, and received research and development expenses (government contributions) including the student personnel expenses (including external personnel expenses; hereinafter “the instant personnel expenses”), and the Plaintiff B participated as a person in charge of the instant task.

A person shall be appointed.

C. On July 25, 2018, the Defendant rendered a disposition to recover the instant personnel expenses of KRW 53,662,160 against the Plaintiff-academic cooperation foundation on the ground that Plaintiff B, while carrying out the instant task, managed the student personnel expenses paid to the graduate students participating in the task, and imposed a disposition to restrict Plaintiff B’s participation in research for five years (hereinafter collectively referred to as “each disposition of this case”).

D. On November 8, 2018, Plaintiff B was sentenced to the Seoul Southern District Court (2018 High Court 2018Da433, Nov. 8, 2018) that “research expenses” cannot be used for any purpose other than the original purpose. Of the research expenses, labor expenses should be paid to the individual account of the participating research institute, and joint management of labor expenses of the participating research institute by the participating research institute is prohibited by the execution of research expenses. However, the direct management of the participating research institute’s account was conducted by E, etc., and acquired it by transfer of labor expenses equivalent to KRW 766,37,333, including the instant labor expenses, in the name of the participating research institute, including E, under the name of the participating research institute (i.e., the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), two years of imprisonment, three years of suspension of execution, social service

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, Eul evidence Nos. 1, 2, and 4, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) Although Plaintiff B jointly managed the instant personnel expenses, it paid KRW 36,694,526 among them ( KRW 34,402,526 by account transfer + cash payment of KRW 2,292,00) as personnel expenses for students. The portion paid to students should be excluded from the subject of recovery disposition due to “use for other purposes,” as it was used in line with their intended purposes.

2) It is harsh that Plaintiff B paid a considerable portion of the personnel expenses of this case to students, and the remaining amount was used for the performance of the task of this case, and the recovery disposition was taken by deeming it as “the full amount of non-use” without being used for a private purpose. Since Plaintiff B had achieved outstanding research results by performing the task of this case, each disposition of this case is unlawful as it is against the principle of proportionality, and it is against the principle of proportionality.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether "the use of the instant personnel expenses for other purposes" was "the use of the instant personnel expenses."

A) Article 12(5) [Attachment 2] [Attachment 2] of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 27369, Jul. 22, 2016; hereinafter “former Management Regulations”) provides that “A student personnel expenses paid to a student research institute shall not be jointly managed by a person in charge of research.” The purport of the above provision is that personnel expenses paid to a student research institute shall be immediately attributed to the principal of the student research institute, thereby allowing the student research institute to be subject to his/her free disposition, and further protecting the livelihood of the student research institute. Therefore, the personnel expenses paid to the student research institute shall be directly paid to the student research institute for its original purpose. Accordingly, it shall be deemed that a person in charge of research is placed in a situation other than for its original purpose. Even if a person in charge of research received personnel expenses paid by the student research institute and mixed them with public funds for the performance of the research and development task, it cannot be used for the first time from public funds lost specific nature as personnel expenses.”

B) Furthermore, Article 11-2(1)5 of the former Framework Act on Science and Technology (amended by Act No. 12673, May 28, 2014) provides that where research and development costs are used for any purpose other than the original purpose, all or part of the project costs may be recovered. According to the detailed criteria for recovery of project costs by reason of Article 27(9) [Attachment 5] of the former Management Regulations (amended by Presidential Decree No. 27369, Jul. 22, 2016), where research and development costs are used for any purpose other than the original purpose, the project costs may be recovered from “within the total amount of the contributions for the pertinent year”. Thus, even if the Plaintiff was used for the original purpose, even if the remaining amount is still used for any purpose other than the original purpose, the recovery amount of project costs should not be limited to the remainder.

2) Whether the discretion is deviates or abused

In light of the following circumstances that can be acknowledged by comprehensively taking account of the overall purport of the evidence presented above, it is difficult to deem that the Plaintiffs violated the principle of proportionality, even if considering the circumstances alleged by the Plaintiffs.

A) The research and development expenses paid to the managing research institute pursuant to Article 12 of the former Management Regulations are paid to promote the development of the national economy, enhance the quality of life of the people, and contribute to the development of the human society by providing support to the national research and development projects to promote the development of science and technology, enhance the quality of life of the people, and contribute to the development of the human society. In particular, in order to resolve the closure of joint management due to joint management of school personnel expenses, it is highly necessary for public interest to impose strict sanctions on the fact that joint management of school personnel expenses is still being carried out on the ground that it is a practice, even though it is explicitly prohibited by Article 12(5) [Attachment Table 2] of the former Management Regulations, and thus, it is very necessary

B) Each of the instant dispositions seems to be an appropriate means for a person in charge of research and development who conducts the next national research and development projects to use the project funds for purposes other than those by jointly managing student personnel expenses.

C) As seen earlier, it is possible to collect less than the total amount of contributions for the pertinent year. The collection disposition against the Plaintiff Industry-Academic Cooperation Foundation is to recover only the amount equivalent to the instant personnel expenses under joint management among the total amount of contributions, and it is difficult to deem that the disadvantages the Plaintiff Industry-Academic Cooperation Foundation suffered therefrom exceed the public purpose and interest to achieve thereby. Moreover, it is difficult to view that the criteria for recovery of project funds and the criteria for imposing additional monetary sanctions are not manifestly unreasonable.

D) According to the management regulations, etc. delegated pursuant to Article 11-2(9) of the Framework Act on Science and Technology, the period of restrictions on participation in Plaintiff B is three to five years pursuant to Article 27(1)5(a) of the former Management Regulations (amended by Presidential Decree No. 23788, May 14, 2012); the period of restrictions on participation in Plaintiff B is three to five years pursuant to Article 27(1)5(c) of the former Management Regulations (amended by Presidential Decree No. 23788, May 14, 2012); the research period of two (2) (from January 1, 2013 to April 30, 2013); the research period of three (3) research periods (from May 1, 2013 to April 30, 2014) is beyond the respective management regulations (amended by Presidential Decree No. 25544, Aug. 12, 2014).

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

For the transfer of judge;

Judges Lee Lee Jae-chul

Judge Powers Governing Authority

1) The above provisions on the prohibition of joint management are amended only from the management regulations at the time of the conclusion of the agreement for the implementation of the instant task to the old management regulations, to the non-high number and partial phrases, and the same content is maintained.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.