Seoul University Industry Cooperation Foundation

Plaintiff 2 (Law Firm LLC, Attorneys Kim Un-soo et al., Counsel for the plaintiff-appellant)

The Minister of Science and ICT (Law Firm Doodo, Attorneys Kim Il-young, Counsel for defendant-appellant

July 18, 2018

Seoul Administrative Court Decision 2016Guhap65862 Decided November 17, 2017

1. The following modifications are made to the judgment of the court of first instance (excluding the part invalidated by the withdrawal of the lawsuit by the plaintiff 2 (Plaintiff 2):

A. The plaintiff's industry-academic cooperation foundation of the Seoul National University shall be dismissed.

B. The Defendant’s disposition of restricting participation in national research and development projects for three years against Plaintiff 2 on May 27, 2016 is revoked.

2. Of the total litigation costs, the part arising between the Plaintiff and the Defendant is borne by the Plaintiff-Seoul University Industry Cooperation Foundation, and the part arising between the Plaintiff 2 and the Defendant is borne by the Defendant.

1. Purport of claim

A. An industry-academic cooperation foundation for the Seoul National University;

On September 20, 2016, the Defendant revoked the disposition of restitution of KRW 126,356,839 of government contributions to the Plaintiff-Seoul University on September 20, 2016 (the industry-academic cooperation foundation for the Plaintiff-Seoul University changed claims to exchange them in this court).

B. Plaintiff 2

On May 27, 2016, the Defendant revoked the Defendant’s disposition of restricting participation in national research and development projects for three years against Plaintiff 2 (the Plaintiff 2 corrected the date of the Defendant’s disposition regarding the disposition of restricting participation in national research and development projects as of May 27, 2016, and withdrawn the Defendant’s disposition of revoking the disposition of withdrawing government contributions (the Plaintiff 1).

2. Purport of appeal

A. An industry-academic cooperation foundation for the Seoul National University;

Of the judgment of the first instance, the part concerning the claim of the Plaintiff-Seoul University Industry Cooperation Foundation is modified as follows. The judgment is identical to the purport of the claim in the above 1-A(a).

B. Defendant

Of the judgment of the first instance, the part of the plaintiff 2's claim shall be revoked, and the plaintiff 2's claim shall be dismissed.

1. Quotation, etc. of the judgment of the first instance;

The reasoning of the judgment of the court of first instance is as follows, except for the modification of the relevant part of the judgment of the court of first instance as follows 2 and supplement or addition of the judgment in accordance with paragraph (3), and it is identical to the reasoning of the judgment of the court of first instance (including each of its attached papers, but excluding the part of the conclusion of April 2). Therefore, it is acceptable as it is in accordance with Article

2. Parts to be corrected;

○ Under 2, the term “Defendant” shall be referred to as follows:

【Ministry of Education, Science and Technology (the Ministry of Education, Science and Technology was amended by the Government Organization Act as amended by Act No. 11690, Mar. 23, 2013; the Ministry of Science, ICT and Future Planning was transferred to the Ministry of Education and the Ministry of Science, ICT and Future Planning; and the Ministry of Science, ICT and Future Planning was reorganized into the Ministry of Science, ICT and Future Planning as amended by Act No. 14839, Jul. 26, 2017; the Ministry of Education, Science and Technology, the Minister of Science, ICT and Future Planning, and the Defendant collectively referred

The "Defendant" of the 3rd page of the ○○ 3rd page shall be brought to the "Plaintiff".

○ 3 5 parallels and 6 parallels "Seoul University" shall be "Seoul University, a national university corporation (hereinafter referred to as "Seoul University")."

○ From 8 to 200 up to 3 pages are as follows:

E. On March 15, 2016, the Defendant notified Plaintiff 2 of the result of sanctions on the grounds of “use of research expenses (joint management of students’ personnel expenses, participation in researchers affiliated with other institutions that do not have a task, purchase research equipment and material expenses, etc.)” following the review of explanatory materials submitted by Plaintiff 2 and the deliberation by the sanctions evaluation committee. On May 27, 2016, Plaintiff 2 issued a notice of the result of sanctions on the grounds of Plaintiff 2’s withdrawal of research funds and material expenses from Plaintiff 2 under Article 11-2(1)5 of the Framework Act on Science and Technology, Article 27 of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 27369, Jul. 22, 2016) and Article 27 of the former Act on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 27369, Jul. 22, 2016). 201.

From 4th to 12th, “2. Determination of the legality of the Plaintiff-academic cooperation foundation’s action” is as follows.

2. Determination on the legality of the Plaintiff-academic cooperation foundation’s lawsuit

A revocation suit shall be instituted within 90 days from the date on which the disposition, etc. is known, and no lawsuit shall be instituted after the lapse of one year from the date on which the disposition, etc. is taken (Article 20(1) and (2) of the Administrative Litigation Act), and when the alteration of the purport of the claim is made to the effect that the lawsuit is withdrawn and the new lawsuit is changed, compliance with the period for filing a lawsuit against the new lawsuit shall, in principle, be based on the time when the new lawsuit is changed (see Supreme Court Decision 2004Du7023, Nov. 25,

In light of the above legal principles, in light of the overall purport of the arguments in the statement Nos. 11 and 17 as to the instant case, the Defendant: (a) revoked ex officio on August 31, 2016 to the Seoul University on the grounds of clerical error in the disposition of restitution of KRW 126,240,172, which was pending in the first instance trial; and (b) notified the Plaintiff Industry-Academic Cooperation Foundation in writing on September 20, 2016; (c) notified the Plaintiff of the same disposition of restitution; and (d) notified the Plaintiff on September 20, 2016, the Plaintiff Industry-Academic Cooperation Foundation received the above disposition; and (d) it is evident that the Plaintiff Industry-Academic Cooperation Foundation received the aforementioned disposition from the date of the filing of the instant claim for revocation on March 15, 2016; and (e) notified the Plaintiff’s revocation of the disposition on March 15, 2016.

Furthermore, as seen earlier, the Plaintiff Industry-Academic Cooperation Foundation seems to have been aware of the fact of the instant second disposition after receiving the instant second disposition on September 20, 2016 at that time (in addition, as the Defendant submitted the instant second disposition to the court of first instance on October 27, 2016, it appears that the Plaintiff Industry-Academic Cooperation Foundation was aware of the instant second disposition at the latest). Since there was no legal or factual obstacle to making the instant second disposition subject to the instant second disposition, it cannot be deemed that there was a justifiable reason for filing a lawsuit after one year from the date of the instant disposition to the Plaintiff Industry-Academic Cooperation Foundation (Article 20(2) of the Administrative Litigation Act).

Therefore, the plaintiff 2's lawsuit was unlawful (the plaintiff 2's industry-academic cooperation foundation against this case is merely correction of the purport of the claim changing the date of disposition made in this court, but the evidence submitted by the parties alone does not admit any disposition against the plaintiff 2 before the second disposition of this case, and only the plaintiff 2 or the president of Seoul University was sent each notice dated March 15 and May 27, 2016 (the first instance court also issued the notice from September 9, 2016 to September 15, 2016 to the plaintiff 2 as the counter-party and the second industry-academic cooperation foundation was not the counter-party of the lawsuit, and even if the plaintiff 2's lawsuit against this case was corrected, it cannot be deemed that the plaintiff 2's lawsuit against the plaintiff 31's previous disposition was unlawful after the amendment of the legal brief from February 9, 2017, which was submitted by the first instance court.).

Pursuant to ○ 4, each of the instant dispositions, “each of the instant dispositions,” below 17, 7, 5, 6, 6, 16-2, 16-4, 5, and 5 below below 17, shall be deemed to be “instant Disposition 1”.

○ 5 (hereinafter referred to as “each of the instant dispositions”) shall be deemed to read “eight below,” and the grounds for the first, second, and third dispositions shall be deemed to read “each of the instant dispositions.”

○ 11. The following shall be added between 11 and 4:

(5) On March 2012, 2012, Nonparty 2, along with Plaintiff 2 and other researchers, published a thesis relating to the instant research task in the nanoology conference held in the United States of America, and published a thesis relating to the instant research task. In addition, Nonparty 2, from 2012 to 2013, published the results of joint research with Plaintiff 2, etc., along with the e-mail conference, the Korea Pharmaceutical Association, etc. for two years from 2012.

The 11th parallel "(5)" shall be "(6)", the 7th parallel "(6)" on the same side shall be "(7)", and the 3rd parallel "(7)" on the same side shall be respectively "(8)".

○ 12 10 and 11 others are as follows:

[Ground for Recognition] A without dispute, Gap evidence Nos. 9 through 11, 36, 37, Eul evidence No. 14, non-party 3 and non-party 4's testimony and the purport of the whole pleadings]

3. Supplement and addition of judgments;

(a) Additional statement of the reasons for the disposition;

1) The defendant's additional assertion

In relation to the ground for the first disposition, the Plaintiffs paid research allowances to the student research institute without evaluating contribution or settling accounts based on the receipt for payment of tuition fees in violation of the joint management regulations. ② Plaintiff 2 used them for purposes other than the joint management, and actually used them as compensation and incentives to the student research institute. Thus, the use of research and development funds for purposes other than the purpose of use

With respect to the grounds for the disposition No. 2, the research and development expenses spent by Nonparty 2 for any purpose unrelated to the research and development expenses of this case shall be deemed to be used for any purpose other than the purpose of the research and development expenses, and Nonparty 2 is responsible for Nonparty 2 who permitted the aforementioned unfair research and development expenses. Therefore, in determining the legitimacy of the first disposition against Plaintiff 2, the unfair disbursement of research and development expenses by Nonparty

2) Determination

A) In an appeal seeking the revocation of an administrative disposition, in view of the substantive rule of law and trust protection of the people who are the other party to the administrative disposition, the disposition agency is not allowed to assert as a ground for disposition on the ground of separate facts that are not recognized as identical in basic facts with the original disposition. However, other grounds may be added or modified to the extent that it is recognized as identical in basic facts with the original disposition. The existence of basic facts here is determined based on whether the social factual relations, which are the basis of the disposition, are identical in basic facts based on the specific facts before the disposition is legally assessed (see Supreme Court Decisions 2004Du4482, Nov. 26, 2004; 2004Du4482, Nov. 26, 2004; 200 were already existing at the time of the initial disposition, and the parties were aware of such facts (see Supreme Court Decisions 91Nu389531, Feb. 14, 1992; 2005Du3831305, Mar. 130, 2019).

B) In relation to the ground for Disposition 1, since the Defendant had reached this court and received research allowances other than the previous reason for disposition and did not have been disbursed for the purpose other than the research funds received by the student researchers to the joint account, it can be deemed that this part of the ground for Disposition was added. If the Defendant’s additional reason for Disposition is compared with the previous reason for Disposition (joint management of school personnel expenses), it is common that the student research institute transferred the research funds received directly through its own account to the joint research account, and it is merely correct as the research allowances, which is an accurate item of expenditure, which is the research funds assessed as the student personnel expenses that the Defendant received at the time of Disposition 1 of this case, and thus, it is identical to the social factual relationship that serves as the basis for using the research funds received by each research institute for the purpose other than the purpose of transferring them to the joint account, and thus, the addition of the ground for Disposition 1

C) However, it is not allowed to add the above reasons in light of the purport of the arguments in the evidence No. 18 and No. 38 of this Decree, even if the Defendant’s additional assertion that the Defendant had omitted the assessment of contribution and paid research allowances to each researcher without settlement by the registration fee receipt is significantly different from the ground for and purport of the disposition “joint management of students’ labor cost.” The Defendant’s assertion in this part is without merit in light of the above, even if it is deemed that the addition of the ground for disposition is permitted, it is not allowed to add the above reasons (Article 18 and No. 38 of this Decree, even if the addition of the ground for disposition is permitted, it is assumed that the contribution assessment was made for each researcher at the time of payment of research allowances corresponding to the ground for disposition No. 1.

D) In addition, the Defendant added the first disposition of this case to Plaintiff 2 on the ground that Nonparty 2 did not have any contribution to Nonparty 2’s research project. Nonparty 2’s research expenses executed regardless of this case’s research project out of the research expenses executed by Nonparty 2. The addition of the above disposition grounds is not allowed on the ground that the Defendant added non-party 2’s contribution to Nonparty 2’s research project, which is the initial disposition ground, and the basic facts cannot be the same (it is insufficient to readily conclude that Nonparty 2 used the research expenses for the purpose other than the original disposition ground and the fact-finding of this Court’s research foundation, based on Nonparty 36 and 37 evidence, and there is no other evidence to acknowledge that Nonparty 2 used the research expenses for the purpose other than the purpose of this case’s research project’s publication, which appears to have been made for Non-party 2’s use in the name of Nonparty 2, 1, 36 and 37, and it appears that Nonparty 2 appeared to have been used for the research project’s purpose of this case’s study.

E) Therefore, the Defendant’s grounds for disposition related to the portion used for research allowances out of the grounds for disposition No. 1 are allowed. Of the grounds for disposition No. 1, it is not allowed to add research allowances to the student researchers without evaluating contribution or settling accounts by receipt of tuition fees in violation of joint management regulations, and the Defendant’s grounds for disposition related to the portion executed regardless of research tasks out of the grounds for disposition No. 2. 1. Therefore, the Defendant’s argument related to the portion used for research allowances out

B. Whether research allowances are used for purposes other than those of use

As seen earlier, research allowances are not money prohibited under joint management. Administrative laws and regulations, which serve as the basis for aggressive administrative dispositions, must be strictly interpreted and applied and shall not be excessively expanded or analogically interpreted to the disadvantage of the other party to the administrative disposition. Even if such interpretation is not entirely excluded from the teleological interpretation that takes into account legislative intent and purpose, etc., such interpretation shall not go beyond the ordinary meaning of the language and text (see Supreme Court Decision 2007Du13791, 13807, Feb. 28, 2008), and where there is no dispute between the parties, or where there is no dispute between the parties, or where there is evidence Nos. 3 through 7, 12, 18, 20 through 35, 37, 38, Nos. 1, 4, 12, 18, and 19, and the testimony of Non-Party 5 of the first instance trial witness, the defendant's assertion that part of the research allowances were deposited in the account cannot be accepted.

① Students Research Institute sent most of a day to research and study at laboratories, so it is necessary to pay joint expenses, such as purchase of raw water, maintenance and management of water purifiers, and purchase of livers. The student research institute appears to have used joint expenses for the purchase of airline tickets to participate in the international academic society, local accommodation expenses, travel expenses, etc. in addition to laboratory operation expenses.

② Plaintiff 2 set a certain payment standard and made the student research scholarship be paid to the student research institute in compliance with the said standard, and the student research institute deposited and managed the money received in excess of such standard into the joint management account managed by the administrative staff. However, there is a lack of evidence to prove that Plaintiff 2 directly instructed or participated in the joint management of research allowances to the student research institute. However, the research scholarship was not paid to the student research institute’s account via Plaintiff 2, but was directly transferred from the Plaintiff Seoul University Industry-Academic Cooperation Foundation to the student research institute’s account. Since the student research scholarship received by the student research institute was deposited into the joint account, it is difficult to avoid the possibility of using the research allowance received by the student research institute to the joint account.

③ According to the criteria for the calculation of research expenses for industry-academic cooperation amended on September 13, 2017, the Seoul National University added “the relevant amount under joint management where a researcher recovers and manages research allowances as one type of national research and development projects.” However, the punitive disposition, in principle, shall be governed by the regulations at the time of an act, and the amended provisions after an act shall not apply (see Supreme Court Decision 82Nu1, Dec. 28, 1982). Therefore, based on the foregoing provisions added by the amendment made on September 13, 2017, research allowances cannot be deemed to constitute an unfair execution for the fact that the research allowances were collected to a joint account prior to the amendment.

C. Sub-committee

Therefore, we cannot accept all the above arguments of the defendant.

4. Conclusion

Thus, this court's change in exchange (the judgment of the first instance on the plaintiff 2-academic cooperation foundation's lawsuit seeking cancellation of the plaintiff 2-academic cooperation foundation's disposition on March 15, 2016 was invalidated) is unlawful, and thus, the plaintiff 2's claim is dismissed. The plaintiff 2's claim is justified. Thus, the court of first instance (excluding the plaintiff 2's claim for cancellation of the plaintiff 2's claim for cancellation of the return of government contributions, which has become invalidated due to the plaintiff 2's withdrawal of the lawsuit) is modified as above.

Judges Poscop (Presiding Judge) Poscop

(1) Plaintiff 2 submitted the instant complaint to the effect that Plaintiff 2 seeks revocation of the initial notification of March 15, 2016, which was issued on June 10, 2016, but can be seen as an error in the description that occurred due to the Defendant’s uncertainty of the description of the disposition, and may harm Plaintiff 2’s right to seek revocation of the disposition of restriction on participation in national research and development projects conducted on May 27, 2016. Thus, the change of Plaintiff 2’s right to seek revocation of the disposition of restriction on participation in national research and development projects conducted on May 27, 2016 at this court shall be deemed as correction of the purport of the claim and withdrawal of the government contribution recovery disposition made on May 27, 2016. Even if the change of the exchange of the claim changed, in light of the background of the disposition and the background leading up to Plaintiff 2’s filing the lawsuit, the first claim for revocation of the restriction on participation in national research and development projects made on March 15, 2016.

2) Article 22 (Change of Action Due to Change of Disposition) (1) If an administrative agency modifies after filing a lawsuit that is the subject of a lawsuit, the court may, upon a request of the plaintiff, permit by decision the alteration of the purport or cause of the lawsuit.

Note 3) [Attachment 2] Criteria for appropriation by item of research and development expenses (related to Article XII(5)) and 3. Personnel expenses to be paid to the student researchers of universities and specific research institutes (limited to the relevant bodies) out of external personnel expenses shall not be jointly managed by the person in charge of research. 5. Research and development allowances shall be prepared for each research institute and shall be appropriated and paid in accordance with the standards.