(영문) 서울행정법원 2012.3.22.선고 2011구합29113 판결

The Defendant’s disposition of restricting the participation in national research and development projects conducted to the Plaintiffs on July 20, 2011 for three years is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff A Co., Ltd. (hereinafter referred to as the “Plaintiff”) is a company that manufactures and sells aircraft, spacecraft, ships, naval vessels, and automobile-related electricity, electronic, and communication equipment, and the Plaintiff B

The vice president and the president of the Plaintiff company are the heads of research institutes.

B. On February 2, 2010 and August 2, 2010, the Plaintiff Company entered into an agreement with the Korea Institute of Marine Science and Technology Promotion (hereinafter referred to as the “Agency”) on research and development of national land technology research and development projects (hereinafter referred to as the “first agreement”) with the term of the first agreement and the total period of research and development from February 8, 2010 to September 30, 201, with respect to the “project for the development of the integrated receiver” (hereinafter referred to as the “development of the instant technology”).

On November 14, 2010, the Plaintiff Company concluded a new agreement on the instant technology development project with the Promotion Agency on November 14, 201, between the first agreement and September 30, 201, and the total period of research and development from February 8, 2010 to September 30, 201, is referred to as the "second Convention on the Research and Development of Marine Technology" (hereinafter referred to as the "Second Convention"). The first and second agreement referred to as the "the instant agreement"), and the Government provided KRW 382,080,000 from the Government. The main contents of the instant agreement are as follows.

[Agreement on Research and Development of Marine Technology, Evidence No. 1-1, 2-1, 2-1, 2-2, 2-A, 2-A, 2-A, 2-A, 2-A, 3, 2-B, 2] Article 4 (Management and Use of Research and Development Costs)

(1) Upon receipt of Government contributions and participant enterprises' contributions, Eul shall manage them as follows by establishing a separate account: Provided, That where at least two projects for the research and development of national land and marine technology are concurrently implemented, a separate account shall be established and managed, but matters concerning the accounting management used for each research and development task shall be proven:

1. Where Eul establishes a management account for research and development expenses in a financial institution, it shall be established in the name of the affiliated institution (research institute) to which Eul has been delegated, or the department in exclusive charge of research and development expenses, and shall not be established in the name of an individual: Provided, That it may be established in the name of a specific individual delegated by Eul with the approval of Eul, if it is inevitable for the execution of research;

2. Affairs concerning research and development expenses shall be handled by a person designated by B or C from among his/her employees (hereinafter referred to as a "non-manager of research and development"), and a person designated as a manager of research and development expenses shall manage research and development expenses with the care of the full manager thereof;

3. The manager of research and development expenses shall keep basically cash receipts and disbursements or other documents corresponding to the management of research and development expenses, and record and manage the current status of receipt and disbursement by item;

4. A manager of research and development expenses shall prepare a written resolution and receipt concerning the payment, and other evidential documents necessary to verify the details of payment, such as a written request for a written estimate or written contract inspection report, if necessary, and shall be bound and bound by classifying them monthly or quarterly, and the total number of cases, total amount of purchase, total amount, and the name of the manager shall

5. A manager of research and development expenses shall keep the documents for deposit and operation, books, evidential documents, etc. in his/her own regulations, but shall keep them for at least five years after the end of the relevant tasks.

(2) B shall use research and development expenses paid under Article 3 only for the performance of the relevant research and development task according to the standards determined by the Convention at the proposal of a person in charge of research.

(3) Where research and development expenses for each item are to be modified by at least 20 percent, after obtaining approval from A, they shall be disbursed: Provided, That research allowances and indirect expenses shall not be modified by exceeding the amount specified in the initial research and development plan.

In any of the following cases, Eul and Byung shall return an amount equivalent to the share of government contributions out of the relevant amount to the account designated by Gap:

1. Where it fails to prove the amount used for research and development expenses under paragraph (1), the relevant amount;

2. Where research and development expenses for each item are modified and used in excess without obtaining approval for modification under paragraph (3), the relevant amount;

3. Where it is used in excess of the standards for each item of Article 28 (1) of the Operating Rules, the relevant amount;

4. Where the relevant amount is executed regardless of the execution of the research and development task;

Article 19 (Sanctions)

(1) Where a person in charge of research and development, research institute, or participant enterprise participating in a research and development project of Eul, Byung, or Eul, falls under any of the following cases, he/she may restrict the participation of such person in research and development projects of the national land and maritime technology for any of the following periods

11. Where a contribution is used for any purpose other than the use of research and development expenses: Three years;

④ In order to comply with the provisions of this Article, Eul, etc. shall submit to Gap a letter of commitment to the implementation of the agreement. Pursuant to the above 1 and 2 agreement, the plaintiff was paid KRW 382,080,000 on February 12, 2010 from the Promotion Institute, and KRW 382,080,000 on November 10, 201 as research and development expenses (hereinafter "research and development expenses in this case").

D. On April 4, 2011, the Defendant notified the Plaintiffs of the on-site inspection plan regarding the execution status of the instant research and development costs. On the 20th of the same month, the Defendant inspected the spending of the said research and development costs. As a result, the Plaintiffs’ withdrawal from the management account of research and development costs of KRW 90 million on March 2, 2010, including withdrawal of KRW 1,016,99,43, a sum of KRW 1,01, up to March 30, 201 as indicated in the following table, was found to have been unjustly withdrawn from the management account of research and development costs and used for other purposes.

- -

(unit: source)

A person shall be appointed.

E. On June 8, 2011, the Defendant decided a three-year disposition of restriction on participation in development projects pursuant to Article 19(1)11 of the instant Convention, Article 11-2(1)5 of the Framework Act on Science and Technology, and Article 27(1)5 of the Regulations on the Management, etc. of National Research and Development Projects (hereinafter “instant Management Regulations”), and notified the Plaintiffs of the three-year disposition of restriction on participation in development projects, and thereafter re-deliberation following the Plaintiffs’ objection.

On July 20, 2011, the Defendant issued a disposition of restrictions on participation for three years (from July 20, 2011 to July 19, 201) with respect to the use (use) of research and development funds for purposes other than those subject to sanctions (hereinafter “instant disposition”).

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 3 evidence, Eul's 1 through 3 evidence (if there is a serial number, including each number; hereinafter the same shall apply), the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) Non-existence of grounds for disposition

In full view of the fact that the Plaintiff Company withdrawns funds several times from the government-invested research expense management account, which was to temporarily solve difficulties in managing the Plaintiff Company’s funds, that the withdrawn funds were used for research and development related to the instant technology development project, and that all the withdrawn funds were re-paid. This is a temporary loan to prevent the said funds from becoming a problem in the whole schedule of research and development or the execution of required funds, and that there is no intent of unlawful acquisition, the Plaintiffs should be deemed to have used funds for temporary use, not for any other purpose. Therefore, the disposition of this case where the Plaintiffs made a restriction on participation for three years as the grounds that the Plaintiffs appropriated research and development funds.

2) A deviation from or abuse of discretionary power

Article 11-2 (1) 5 of the Framework Act on Science and Technology and Article 27 (1) 5 (a) of the Management Regulations stipulate the upper limit of the above disposition period, and thus a disposition of restriction on participation based on the above Acts and subordinate statutes is deemed to be an act of discretionary authority. ① Since the establishment of September 1996, the Plaintiff Company has developed the navigational equipment of the world level used for national security and self-defense for 15 years, which is essential for national security and self-defense, with concentration in research related to GPS research so far, and has contributed significantly to the increase of the military combat forces. The time motive equipment that is essential for the mobile communication network, power network, and computer network has been domestically domestically generated and has contributed to technology independence as well as the research and development specialized in the development of technology. ② The Plaintiff Company has participated in a large number of national development projects for the last 15 years, but it has not been subject to sanctions or failed to take into account the development of technology and management performance of the Plaintiff Company's project. ③ The Plaintiff Company's failure to voluntarily withdraw the project from the Minister of the Minister of Commerce and Industry.

B. Relevant statutes

The entries in the attached statutes are as follows.

D. Determination

1) Whether there is a ground for disposition

In light of the above facts, in full view of the following circumstances, the term "temporary use" means the use of funds, the items of which are limited to the items of items are arbitrarily financed to other items, and the term "use" means the use of funds, the limited use of which is limited for purposes other than the limited use, and even if the funds are returned later to use them for purposes other than the limited use, it shall be deemed useful. Therefore, as long as the plaintiffs withdrawn funds to use the research and development funds of this case for purposes other than the specified use, the plaintiffs would have appropriated the above research and development funds, so the plaintiffs' assertion on other premise is without merit.

A) Article 4 of the provisions of the Convention provides that when the government contributions are received, a separate account shall be opened and managed, and the receipts and disbursements status shall be recorded and managed for each item, and where the government contributions are to be used only for the performance of the relevant research and development task according to the standards set by the Convention upon the proposal of the person in charge of research and development, and are to change more than 20% of the amount set by the item, not less than the amount set by the agreement by item, they shall obtain approval from the Promotion Institute. In light of the above provisions, the government contributions received under the agreement of this case are strictly limited not only for their use but also for the item items. In such a case, the use of funds for purposes other than limited use shall be deemed as realizing the intent of unlawful acquisition (see, e.g., Supreme Court Decision 2003Do4570, Dec. 24, 2004). In addition, the Plaintiffs were paid KRW 764,160,000 for each item, and there was no other intent to withdraw funds temporarily from the government contributions.

B) Article 27(1)5(a) of the instant operational regulations also regulates cases where research and development expenses are embezzled, stolen, or useful. Since embezzlement, defraudation, or misappropriation is recognized as an intention of illegal acquisition, the form of an act similar to the degree of illegality is listed, such as embezzlement, deception, or misappropriation is recognized, it shall not be deemed to be useful in cases where the intent of illegal acquisition is recognized as such as the Plaintiffs, but it shall not be deemed to be temporary diversion and shall not be deemed to have applied Article 27(1)5(c) of the instant operational regulations

C) The National Science and Technology Council established pursuant to Article 9 of the Framework Act on Science and Technology defines the term "the National Science and Technology Council established to coordinate major policies on science and technology, research and development plans and industrial policies related to scientific and technological innovation, human resources policies and policies related to scientific and technological innovation, and to deliberate on matters concerning efficient operation of budget, etc." as the president, vice president, and the Minister of Education and Technology are the Minister of Education, Science and Technology, and it is composed of not more than 25 members including the chairman and vice president. The term "use" in Article 27 (1) of the Management Rules of this case means "a return to be made in south or in another place," and the term "temporary diversion" means "a mutual financing of the amounts between each tax item and the expense items within the scope determined in advance," and it is desirable to interpret that the plaintiff company should be judged to be useful in this case where it is identical to the case where the plaintiff

D) The common operational guidelines for knowledge and economy technological innovation projects presented by the plaintiffs as the criteria for distinguishing the utilization and temporary use (hereinafter referred to as “public notice”) are not applicable to this case, which are based on the Industrial Technology Innovation Promotion Act and the Enforcement Decree of the same Act. In addition, with respect to the case of unlawful use of project costs, such as utilization, exploitation, and embezzlement, the above public notice is merely merely an assessment of the degree of illegality differently depending on the degree of illegality and the ratio of the amount used for other purposes, and it cannot be said that it is the criteria for distinguishing whether it has been discovered under the status of re-deposit from the temporary use and the utility.

2) Whether the discretion is deviates or abused

A) Even if a certain administrative act is a binding act or a discretionary act, whether it constitutes a discretionary act or a discretionary act is not uniformly defined, and whether it constitutes a discretionary act or a discretionary act should be determined individually in accordance with the form, stay or language of the pertinent provision (see, e.g., Supreme Court Decision 97Nu15418, Dec. 26, 1997).

B) The instant management regulations specifically stipulate the specific criteria for the participation restriction period by reason of the restriction on participation according to the delegation of Article 11-2(5) of the Framework Act on Science and Technology, and are external binding legal orders.

In addition, Article 27 (1) 5 (a) of the Management Regulations of this case provides that "where research and development expenses are embezzled, stolen, or useful, from 3 to 5 years, and (c) "where research and development expenses are temporarily diverted for any other purpose, the research and development expenses are used for any other purpose, within 2 years." In light of the language and text thereof, the above provisions are set the upper limit and lower limit of the period of restriction on participation, and it cannot be deemed that the upper limit

Therefore, as long as the Plaintiffs useful the research and development costs of this case, the Defendant cannot impose a disposition of restriction on participation from 3 to 5 years on the basis of the relevant laws and regulations. Since the period of restriction on participation in the disposition of this case is three years, which is the lowest period, it is difficult to deem that there was an error of deviation and abuse of discretionary power even in consideration of the various circumstances asserted by the Plaintiffs

Article 19 (1) 11 provides that government contributions may be limited to participation in national land and maritime technology research and development projects for three years if they are used for any purpose other than the use of research and development funds. Thus, even if the maximum limit of five years is set from three to five years prescribed in the relevant provisions, in the instant case, a measure of restriction on participation for three years should be taken under the relevant provisions, and thus, no error in the instant disposition may be deemed to exist

Therefore, we cannot accept this part of the plaintiffs' assertion.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit. It is so decided as per Disposition.