(영문) 서울행정법원 2019.2.1.선고 2018구합70431 판결

A. The Plaintiff is in accordance with the Industrial Education Enhancement and Industry-Academia-Research Cooperation Promotion Act and A university regulations.

The defendant shall be a corporation established, and the head of the Korea Institute of Marine Science and Technology Promotion established to efficiently support the planning, management, evaluation, etc. of research and development projects, etc. for fostering marine science and technology pursuant to Article 23 (1) of the Marine Science and Technology Promotion Act (hereinafter referred to as the "Maritime Science and Technology Promotion Act").

B. The Plaintiff and the Defendant concluded a multi-year agreement for research and development projects with the following contents (the first agreement of January 27, 2014, the second agreement of December 24, 2014, and the third agreement of December 24, 2015; hereinafter collectively referred to as the “instant agreement”), and the Defendant paid research and development expenses under the instant agreement to the Plaintiff.

○○ Research and Development Project Name: B○ General Research and Development Project Name on December 23, 2016: The Convention Period on December 24, 2013: December 23, 2016: 20: December 23, 2014 (the first year); December 23, 2014 (the second year); December 23, 2015 (the second year); December 24, 2015; 26,70,000 won for the Convention on December 23, 2016: 53,40,000 won for the 333,40,000-3: 407,000,000 won for the 4007,000,000 won for the 3rd year: A Maritime Science and Technology Promotion Institute (the main research institute 2).

A collaborative research institution: Unless the term used in this Convention is otherwise defined, it shall be governed by the Regulations on Operation of Marine Science and Technology Research and Development Projects (hereinafter referred to as the "Operational Regulations"), the Guidelines for Management of Marine Research and Development Projects (hereinafter referred to as the "Management Guidelines"), and other supplementary regulations. All the parties involved in research and development tasks under Article 3 shall faithfully perform research and development under Article 1, as prescribed by the Convention, the Enforcement Decree of the said Act, operating regulations, management guidelines, and management guidelines. (1) The head of a main research institute shall submit research and development funds to the Maritime Science and Technology Promotion Institute within three months after the end of the annual agreement period, in the form determined as the actual usage results by the Maritime Science and Technology Promotion Institute or the Maritime Science and Technology Promotion Institute. The head of a main research institute shall, if necessary, submit the results of research and development funds under paragraph (1) to the Maritime Science and Technology Promotion Institute or the Maritime Science and Technology Promotion Institute or the Maritime Science and Technology Promotion Institute, and shall also submit the results of research and development funds under paragraph (1).

C. The relevant provisions of operational regulations and management guidelines are as follows.

[] Article 41 (Report on Results of Use and Settlement) (1) The head of a main research institute shall report to the head of a specialized institution the results of using any of the following documents or electronic research and development funds within three months after the end of the annual agreement.3. (2) Evidential documents related to the execution of research and development funds ② If a cooperative research institution or entrusted research and development institute exists when submitting usage results of research and development funds under paragraph (1), the head of the main research institute shall examine and verify the documents specified in paragraph (1) and submit the results to the head of the specialized institution.

The results of settlement, such as balance of interest (hereinafter referred to as "amount of settlement"), shall be reported to the project officer and paid to the National Treasury through the general officer in charge: Provided, That the amount equivalent to the share of corporate charges, out of the amount of settlement, shall be used as agreed upon by the representative of the participating enterprise and the head of the managing research institute. (5) The detailed standards for and scope of collection of the amount of unfair execution under paragraphs (1) and (2) shall be as specified in attached Table 5. (Administrative Guidelines) and Article 43 (Submission of Records of Use of Research and Development Expenses, etc.) (3) The head of the managing research institute shall submit the performance report to the relevant specialized institution or the entrusted settlement institution, and shall reflect the results of self-resolution if there is a joint (joint) and entrusted research institution. (4) Article 44 (Standards for Settlement of Research and Development Expenses) (1) The scope of settlement of research and development expenses shall be in accordance with Article 41 (4) of the Operating Rules.

D. On April 24, 2018, the Defendant received a report on the results of the third year project expenses from the Plaintiff, and completed settlement through F Accounting Firm, and then notified the Plaintiff of the result of the settlement of research expenses (hereinafter referred to as “the instant notification”) that “The total amount of KRW 65,170,937 related execution money was executed after the expiration of the research period, or the payment of expenses for the issuance of tax invoices and clinical trial expenses was not submitted, or was executed unfairly.”

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 1 and 3, Eul evidence No. 9-1, Eul evidence No. 1, Eul evidence No. 2-1, 2, 3, Eul evidence No. 3-1, 2, Eul evidence No. 4-1 through 4, and the purport of the whole pleadings;

A. The defendant's assertion

As to the instant lawsuit seeking revocation on the premise that the instant notification constitutes an administrative disposition, the Defendant asserts that the instant notification does not constitute an administrative disposition that is the object of appeal litigation, because it merely notifies the Plaintiff of the return of the amount wrongfully executed through the settlement procedure agreed in the instant agreement.

B. Relevant statutes

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

C. Determination

1) Article 2(1)1 of the Administrative Litigation Act provides that a “disposition” subject to an administrative litigation is an exercise of public authority, refusal thereof, and other similar administrative action as an enforcement of law with respect to a specific fact by an administrative agency. A certain act by an administrative agency is subject to appeal litigation.

The issue of whether to be a matter of whether an administrative disposition can be determined abstractly or generally, and in specific cases, an administrative disposition is an enforcement of the law with respect to a specific fact conducted by an administrative agency as the public authority, which directly affects the rights and obligations of the people, with the mind that it is an act that directly affects the rights and obligations of the people, and should be determined individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the actual relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act (see, e.g., Supreme Court Decision 2010Du7321, Jun. 10, 2011): Provided, That in order to be subject to an appeal litigation, an expression of intent based on the relevant contract as a party to the contract does not constitute an exercise of public authority unilaterally by an administrative agency as a party to the contract (see, e.g., Supreme Court Decisions 2013Du6241494, Apr.

2) In light of the above legal principles, in light of the following facts and circumstances, which can be acknowledged by comprehensively taking into account the facts acknowledged earlier and the purport of the entire pleadings, the instant notice is merely a peremptory notice to the Defendant to return the settlement amount following the settlement procedures stipulated in the Convention concluded as a party equal to the Plaintiff, and it cannot be deemed an exercise of public authority or an equivalent administrative action unilaterally conducted by the Defendant in a superior position. Thus, the instant notice does not constitute an administrative disposition subject to appeal. Accordingly, the instant lawsuit seeking its revocation is unlawful on the premise that the instant notice constitutes an administrative disposition.

A) The instant agreement is a contract under public law concluded between the Plaintiff and the Defendant at an equal position, and operational regulations and management guidelines are also incorporated into the contents of the instant agreement according to the autonomous agreement between the Plaintiff and the Defendant (no circumstance exists to deem that the operational regulations and management guidelines were incorporated into the contents of the instant agreement as statutory demand or unilaterally made in a superior position based on the Defendant’s public authority).

B) Articles 41 and 42 of the Operating Rules provide for the settlement of research and development expenses and the collection of unfair spending amounts. Articles 44 and 48 of the Management Guidelines provide for the return following the settlement of research and development expenses, but each of the above provisions does not have a direct binding force on the Plaintiff unless there is any ground for delegation under specific Acts and subordinate statutes. Each of the above provisions is incorporated into the contents of the instant agreement, and thus, it would only affect the normative effect on the Plaintiff.

C) There is no explicit provision regarding the granting of the right to make the instant notification to the Defendant without the basis of the instant agreement. Article 25(2) of the Marine Science and Technology Act and Article 21(2) of the Enforcement Decree of the same Act provide that “The Minister of Maritime Affairs and Fisheries shall entrust the Defendant with the establishment of agreements, payment of contributions, subsidization of expenses, etc.,” and do not have any delegation provision regarding the collection or settlement of contributions paid. The Framework Act on Science and Technology also provides that the head of a central administrative agency may restrict the participation of national research and development projects under his/her jurisdiction within five years if the research and development results are so extremely poor that a central administrative agency determines as a research and development task suspended or failed due to the evaluation conducted by the relevant central administrative agency, and may recover all or part of the project costs already contributed or subsidized.” It does not include any provision regarding the settlement of research and development expenses where the other party who entered into the instant agreement fails to prove the amount used, etc., based on the instant operational regulations and management guidelines for the settlement of contributions.

D) Even if the Plaintiff did not refund the settlement money to the Defendant, there is no statutory basis for the Defendant to collect the amount corresponding to the disposition on default in the same manner as delinquent taxes are collected, or sanctions under public law are imposed against the Plaintiff. Article 48(1) of the Administrative Guidelines only stipulates, “The head of a specialized institution may take legal measures to recover the settlement amount, such as debt collection, where the head of a specialized institution or the head of a specialized cooperative research institution after notifying the return of the settlement amount pursuant to Article 42(4) of the Administrative Regulations, or if he/she

E) If the instant notification violates the instant agreement or cannot be held liable for the return of the amount to be settled to the Plaintiff, etc., the Plaintiff can obtain remedy by filing a party lawsuit against the Defendant seeking confirmation of the non-existence of the amount to be settled. Therefore, it cannot be deemed that there is an inevitable circumstance to allow an appeal litigation by deeming the instant notification as an administrative disposition.

3. Conclusion

Therefore, the lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.

Judges

The presiding judge, the rank of the judge;

Judge Kim Gin-hun

Judges Kim Gin-jin

Note tin

1) On the basis of Article 33-2 of the first Framework Act on Marine Fishery Development (Amended by Act No. 14515, Dec. 27, 2016), the Sea and South Korea.

Although it was established under the name of "School Technology Advancement Institute", the Act on Marine Science and Technology was enacted by Law No. 14515 on December 27, 2016, as the Act on Marine Science and Technology was enacted.

The provisions of the applicable law are deleted, and the applicable law of the establishment was changed to Article 23 of the Maritime Science and Technology Act, and the name was changed to the present.

2) At the time of the conclusion of the instant agreement, “Korea Institute of Marine Science and Technology Promotion” was changed in its name as seen earlier.

3) At the time of the conclusion of the instant agreement, the Framework Act on Marine Fishery Development was “the Framework Act on Marine Fishery Development,” but the relevant law was amended as seen earlier.

4) At the time of the conclusion of the instant agreement, “the President of the Korea Institute of Marine Science and Technology Promotion” was the same.

5) Pre-amended by Ministry of Oceans and Fisheries Directive No. 384 on August 3, 2017

6) It is a company entrusted with research on the instant project task by the Plaintiff.