(영문) 서울행정법원 2020.5.8. 선고 2019구합80701 판결

On August 23, 2019, the Minister of Education revoked the three-year restriction on participation on the development B and C development task conducted on August 23, 2019 and the three-year restriction on participation imposed by the Minister of Science and ICT on D on July 8, 2019.

Reasons

1. Details of the disposition;

A. Details of each of the instant tasks, details of audit, etc.

1) The Minister of Education, Science and Technology has a specialized foundation E (hereinafter referred to as “E”) under the Framework Act on Science and Technology vicariously performed the duties of national research and development projects, and the F University Industry Cooperation Foundation established a standard agreement on research and development projects with each E (hereinafter referred to as “each of the instant tasks”) by supporting the national research and development projects as listed below [Attachment] (The Ministry of Education, Science and Technology changed the National Government Organization Act to the Ministry of Education and the Ministry of Science, ICT and Future Planning on March 23, 2013, and transferred national research and development tasks to the Ministry of Education or the Ministry of Science, ICT and Future Planning).

【Status of Plaintiff’s E-Participation Tasks】

(unit: ,000 won)

A person shall be appointed.

2) The Plaintiff, as a professor of the Convergence Electronic Engineering Department of FU, participated in each of the instant tasks as a person in charge of the research in charge.

3) Around June 2016, E’s audit and inspection office conducted a specific audit and inspection, and the result of the audit and inspection showed that the Plaintiff was found to have received a report on the details of joint management of personnel expenses each month while having the head of the research institute and the general manager of the research institute jointly manage part of the personnel expenses paid to the graduate students participating in the implementation of the task in the instant task from February 201 to November 2015 (total amount of KRW 157,981,900 out of total amount of KRW 435,030,970).

4) On September 29, 2016, E held a meeting of the sanctions assessment group to deliberate on the Plaintiff’s sanctions on the instant task, and calculated the instant task as KRW 9,732,478 (9.5% for non-use ratio) and KRW 30,67,744 (16.9% for non-use ratio) for the instant task 2 task, and KRW 47,173,631 for the instant task 3 task ( separate imposition of KRW 15.7% for non-use ratio, additional monetary sanctions 2,532,780) and KRW 2) for the instant task 1,2 and KRW 35 years for each of the instant tasks, and KRW 257 of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 2650, Aug. 24, 2015); finally, the period of restriction on participation in national research and development projects for each of the instant task 3 tasks was determined by applying mutatis mutandis.

(b) Details and details of the original disposition and the revocation thereof;

1) On October 31, 2016, E received approval from the Defendant’s Minister of Education on the result of the deliberation by the relevant sanctions evaluation task force, and notified the president of the F University as the addressee on November 7, 2016.

1. The Ministry of Education's Research Promotion and-5601 (the notification of approval of the results of deliberation by the Sanctions Evaluation Committee No. 31 October 31, 2016) 2. In relation to the above subparagraph, if there is an objection to the notification of the disposition according to the approval of the Ministry of Education as a result of deliberation by the sanctions evaluation committee on the use of research funds for other than the purpose of the basic research support project conducted by a person in charge of research of a research institute, he/she shall submit it to the public document within the time limit and submit it to the public document. (a) The subject of disposition: Defendant Education;

A person shall be appointed.

(c) Measures to recover research expenses and restrictions on participation in national research and development projects under the relevant provisions according to the use of the dispositive cause ○○ research expenses for purposes other than joint management of labor expenses;

Article 27 (Standards for Restriction on Participation in National Research and Development Projects, etc.) of the Regulations on Management, etc. of National Research and Development Projects under Article 11-2 of the Framework Act on Science and Technology (Restrictions on Participation in National Research and Development Projects, etc.) (Standards for Recovery of Project Costs)

2) On November 15, 2016, the Minister of Science and ICT notified the Plaintiff of the five-year restriction on participation in national research and development projects for the Plaintiff, as a measure to impose sanctions against the use of research funds for the instant tasks for the purpose other than the purpose of research on the said tasks (i.e., KRW 47,173,631 + additional monetary sanctions 2,532,780) (i.e., KRW 47,173,631 + the period of restriction on participation in the instant tasks 5 years, which is the first deliberation by the evaluation group of sanctions, and the period of restriction on participation in the instant three tasks, five years, comprehensively taking into account the three-year period of restriction on participation in the instant tasks).

3) On November 23, 2016, the Plaintiff filed an objection with respect to each of the instant tasks, but on January 7, 2017, the sanctions assessment group dismissed the objection.

4) On March 15, 2017, Defendant Minister of Science and ICT issued a disposition to restrict participation in national research and development projects for five years and to recover project costs from F University Industry Cooperation Foundation KRW 49,706,411 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 reported monthly personnel expenses joint management to the Plaintiff.”

5) On March 20, 2017, the Defendant: (a) imposed a disposition to recover the project cost of KRW 40,410,222 on the ground that “the Plaintiff jointly managed KRW 40,410,22, which was paid by the graduate students participating in research and development from February 2011 to November 2015; (b) the Defendant’s disposition to restrict participation in national research and development projects for five years (hereinafter “the Defendants’ respective dispositions to restrict participation in each of the instant tasks”) against the Plaintiff, including the Defendants’ respective dispositions to restrict participation in national research and development projects for five years (hereinafter “the first disposition to restrict participation”); and (c) the F University Industry Cooperation Foundation for the redemption of the project cost of KRW 40,410,222 (the Defendants’ respective dispositions to recover the project cost of each of the instant tasks; and (d) the first disposition to be taken for convenience in combination with the initial disposition to restrict participation.”

C. Circumstances and details of the instant disposition

1) The Plaintiff filed a lawsuit seeking revocation of the initial disposition (Seoul Administrative Court No. 2017Guhap609564), 2017Guhap59565). The first instance court and the appellate court (Seoul High Court No. 2017Nu7406, 2017-808) found the grounds for the final disposition related to the initial disposition. Accordingly, the restitution disposition of this case is legitimate, but the first disposition of restriction on participation was determined to the effect that the Defendants’ first disposition of restriction on participation constitutes a case where the period of restriction on participation deviates from or abused discretion. Accordingly, the judgment revoking only the first disposition of restriction on participation was finally finalized.

2) Based on the results of the aforementioned judgment, the Defendant Minister imposed three-year restriction on participation with respect to the instant task 1 and 2 on August 23, 2019, and the Defendant Minister issued a three-year restriction on participation with respect to the instant task 3 on July 8, 2019 to the Plaintiff when the instant disposition on the restriction on participation with respect to the instant task 3 (hereinafter referred to as the “instant disposition in combination with the Defendants’ respective restriction on participation”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 6, Eul evidence 1 to 5 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The Plaintiff’s operation of part of the research and development costs as joint management costs is to help the researchers lead a stable life, and the money actually under joint management was paid to all researchers, and the Plaintiff did not use it regardless of research.

In addition, the Plaintiff not only performed a successful task by conducting a normal research on each of the instant tasks, such as conducting a number of papers and patent registration, but also imposed sanctions on using part of research and development funds for purposes other than the original purpose and preventing further recurrence can be sufficiently achieved through the recovery disposition of the instant case. The Plaintiff is fully paid the amount of recovery disposition.

Nevertheless, without considering the above circumstances, the Defendants issued the instant disposition without considering such circumstances, and this constitutes a case where the Plaintiff’s interest, which was infringed, was in violation of the principle of proportionality, compared to the public interest to be achieved through the instant disposition, was abused and abused by the Plaintiff’s interest.

C. Determination

1) Whether a punitive administrative disposition deviatess from or abused the scope of discretionary authority shall be determined by comparing and comparing the degree of infringement of public interest and the disadvantage suffered by an individual due to the disposition with the content of the offense on the ground of the disposition, the degree of the violation, the necessity of public interest to be achieved by the disposition, the disadvantages to be borne by an individual, and all relevant circumstances (see, e.g., Supreme Court Decisions 98Du11779, Apr. 7, 200; 2004Du3854, Apr. 14, 2006).

Meanwhile, 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 where an institution participating in a national research and development project, a person in charge of research and development project, etc. uses research and development funds for any purpose other than the intended purpose, the head of the central administrative agency may restrict the participation in the national research and development projects under his/her jurisdiction within the scope of five years, and that necessary matters, such as detailed criteria for the period of restriction on participation by reason of restriction on participation under Article 12(5) [Attachment 2] and Article 12(2) of the former Framework Act on Science and Technology (amended by Act No. 13339, Jun. 22, 2015;

2) In light of the above relevant legal principles and regulations, even if considering all the circumstances alleged by the Plaintiff, there is no error of law that deviates from or abused the discretionary power on the following grounds. Therefore, the Plaintiff’s assertion is without merit, and the instant disposition is lawful.

(1) Research and development expenses to be paid to a managing research institute pursuant to Article 12 of the instant provision are paid in order to promote the development of the national economy, enhance the quality of national life, and support the national research and development projects to contribute to the development of human society by innovative science and technology and strengthening national competitiveness, and is highly public interest to be appropriately disbursed according to the payment purpose and use.

In addition, the necessity to strictly prohibit the use of research and development funds paid by a person who carries out national research and development projects for any purpose other than the purpose is highly likely to lead to the insolvency of national research and development projects.

In particular, although Article 12(5) [Attachment 2] [Attachment 2] of the instant provision and Article 12(2) of the instant provision are explicitly prohibited in order to resolve the closure due to joint management of students' personnel expenses, joint management of students' personnel expenses is becoming inevitable because it is a practice, and there is a need for public interest to correct wrong practices by imposing strict sanctions.

② However, it is recognized that the Plaintiff managed part of the personnel expenses paid to the student researchers participating in each of the instant tasks through the head of rap and general affairs under his/her command and supervision as a person responsible for the management of each of the instant tasks and executed them with joint laboratory expenses, etc.

In such a case, according to the Plaintiff’s assertion, even if the Plaintiff paid monthly personnel expenses to the above student researchers with other money before the payment of personnel expenses for each of the instant tasks, and settled or jointly manages the paid research expenses, and the Plaintiff paid the total amount of personnel expenses to the relevant student researchers by means of paying the monthly personnel expenses for the month in which no personnel expenses are paid, the execution of such a method constitutes “where research and development expenses are used for any purpose other than the purpose of use,” which is the ground for restriction on participation under Article 11-2(1)5 of the former Framework Act on Science and Technology, and as a result, it cannot be denied that it is necessary to impose sanctions according to the period of restriction on participation prescribed by the provisions of this case.

Furthermore, according to the overall purport of the evidence Nos. 5 and Nos. 1 through 9 and the whole arguments, there are some aspects that it is difficult to view that the amount under joint management was used only as labor cost as the total amount, such as the plaintiff's assertion, as it is recognized that the amount under joint management was partially paid for the purpose of the research fund, such as MT support expense, meal expenses, and replacement of water purifiers.

Specifically, Article 27(1)5 of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 23788, May 14, 2012) shall apply to the use of part of research and development funds related to each of the instant tasks for purposes other than the aforementioned tasks, first of all, since each agreement relating to the instant tasks for the first year tasks and the instant tasks for the second year tasks was concluded on or before July 1, 2012.

However, Article 27 (1) 5 (b) of the above provision provides that the period of restriction on participation shall be two to three years in the case of intentional fraudulent execution of research and development expenses, and in relation to the above provision, [Attachment Table 5] provides that "where a person in charge of research and development has recovered and distributed personnel expenses of a participating researcher as one of the detailed criteria applicable under the above item (b), the period of restriction on participation in each of the above tasks shall be two to three years.

Next, since each agreement on the instant tasks excluding the first year among the instant tasks 2 tasks and the instant three tasks appears to have been concluded before July 1, 2012 and August 24, 2015, Article 27(1)5 of the instant provision and Articles 1 and 5 of the Addenda (amended by Presidential Decree No. 23788, May 14, 2012) are subject to the instant provision. Article 27(1)5 of the instant provision provides that the period of restriction on participation shall be differentiated according to the ratio of the amount used for the purpose other than the pertinent year’s research and development expenses to the amount used in the pertinent year’s research and development expenses, and Article 27(1)5(a) of the instant provision provides that the period of restriction on participation within the pertinent year’s research and development expenses not exceeding three years’ amount used in the instant provision is not more than three years’ period of restriction on participation. In other words, according to the instant provision or the instant provision, the period of restriction on participation in research and development expenses is not more than three years’ own.

In this regard, the Plaintiff asserts that even if the above sanctions are applied, the amount used for research and development expenses was ultimately used as student personnel expenses, it can be evaluated as the case where the pertinent amount was recovered from the account of research and development expenses before the discovery, and that the period of restriction on participation needs to be reduced for more than one year pursuant to the proviso of Article 27(1)5 of the instant provision.

However, considering the degree and period of the Plaintiff’s violation, the intent to restrict the use of research and development funds for purposes other than their original purposes, and its sanctions, the instant disposition cannot be deemed unlawful on the ground that the Defendants did not reduce the period of restriction on participation.

(6) In addition, it is difficult to view that the Plaintiff’s exclusion from the national research and development project for a period of three years would hinder the ultimate objective of the Framework Act on Science and Technology. Rather, it is reasonable to deem that the restriction on participation in Plaintiff is an opportunity to select a research and development task of another person in charge of research and development who has lawfully used research and development expenses, and ultimately achieve the basic purpose of the Science and Technology Act by eradicating the abolition of joint management of students’ personnel expenses and preventing the

④ In light of the fact that the instant disposition is limited to the participation in national research and development projects implemented by E under the Science and Technology Act, and it does not restrict participation in research projects conducted by other central administrative agencies, public institutions, enterprises, etc., it is difficult to view the instant disposition as excessively harsh to the Plaintiff.

4. Conclusion

Each claim against the Defendants by the Plaintiff is without merit, and all of them are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Judges

The presiding judge, judges and assistant judges;

Judge Han-hee

Judges Park Young-young

Note tin

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, "Ministry of Science and ICT" or "the Minister of Science and ICT" without distinction before and after the amendment.

2) Until February 2015, the amount of joint management by each subject was reasonably calculated in consideration of the ratio of the E task subsidy to the labor cost for each financial source deposited by the managing research institute every month, based on the ratio of the E task subsidy to the labor cost for each financial source deposited by the managing research institute every month.

3) For reference, the other party to the instant restitution disposition was the president of the F University Industry Cooperation Foundation, or the lower claim for revocation of the original disposition (Seoul Administrative Court No. 2017Guhap5956, Seoul High Court No. 2017-808, Seoul High Court) rendered a judgment that the Plaintiff had a legal interest in dispute over the validity of the instant restitution disposition. Accordingly, the relevant determination was made on the legitimacy of the instant restitution disposition.

4) The case constitutes a claim seeking revocation of the restriction on participation by the Minister of Science and ICT among the initial dispositions. The appellate court is the Seoul High Court 2017-7406.

5) Of the initial dispositions, the Defendants’ remaining dispositions, excluding the restriction on participation by the Minister of Science and ICT, constitute revocation claims against the Defendants. The appellate court’s appeal is Seoul High Court 2017-80808.

6) For reference, the annual spending amount for research and development expenses related to the Three Agendas is as follows: Provided, That the annual spending amount of research and development expenses for the First Agendas 1 and 2 is not verified on the records, and only the total spending amount for the First Agendas 1 and 2 out of the aforementioned disposal purpose is confirmed as follows.

A person shall be appointed.