2017Guhap72003 Action Demanding revocation of Disposition of Redemption of Research Expenses

A

Law Firm Bululul, Counsel for the plaintiff-appellant

[Defendant-Appellant]

The Minister of Science and ICT

Standa type of the litigation performer, leapification

Law Firm Gyeong-tae, Counsel for the plaintiff-appellant

Attorney Lee Jae-ju

August 16, 2018

October 25, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On July 3, 2017, the Defendant’s disposition to recover KRW 245,928,963 as a sanction against national research and development projects by the industry-academic cooperation foundation for B University on July 3, 2017 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a professor in biotechnology of a public college of B University.

B. The Ministry of Education, Science and Technology (the Ministry of Science, ICT, and Future Planning on March 23, 2013, and the pertinent affairs are succeeded to by the Ministry of Science and ICT on July 26, 2017) and the National Research Foundation of Korea (hereinafter referred to as the "National Research Foundation of Korea") published the recruitment of researchers to support GRL (Glbal Resar Lbb) (hereinafter referred to as the "GL task in this case") with research and development related to six fields, other than drug delivery technology, on March 14, 2013. On April 18, 2013, the Plaintiff filed an application for participation in the instant GRL task with the position of a person in charge of research, who is called "development of a gene delivery system for amam/pactotonic cells cells cells in the position of a person in charge of research and development on April 18, 2013."

C. On May 9, 2013, the Ministry of Science, ICT and Future Planning and the Korea Research Foundation publicly announced the recruitment of researchers to support the bio-medical technology development company business (the next-generation, etc.) in the year 2013 as a new task (hereinafter referred to as the "the bio-related task in this case"). On May 2013, the Plaintiff applied for participation in the bio-research project in the position of a person in charge of research with D professors affiliated with C University as the subject of research.

D. On July 24, 2013, the Ministry of Science, ICT and Future Planning: (a) selected and publicly announced the “VH technology development project” that the Plaintiff applied with D professors as a new task for the instant bio-treatment; (b) on August 20, 2013, the “development of the gene transmission system for the purpose of diagnosis and treatment of cancer cells” applied by the Plaintiff was selected and publicly announced as a new task for the instant bio-research. Accordingly, the Plaintiff started research and development of the instant bio-research project from August 1, 2013, and started research and development of the instant bio-research project from September 1, 2013.

E. On April 30, 2014, the Korea Research Foundation confirmed that the Plaintiff was a person in charge of national research and development projects and was selected as a person in charge of research on the instant GL task, even though the Plaintiff was already a person in charge of national research and development projects and was already performing three tasks including the instant bio-related task.

F. Accordingly, on July 16, 2014, the Korean Research Foundation may participate in a maximum of five research and development tasks and may conduct a research as a responsible researcher on three research and development tasks (so-called "three-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-five-party") of the former Regulations on the Management, etc. of National Research and Development Projects (amended by Presidential Decree No. 24764, Sep. 26, 2013; hereinafter referred to as the "Management Regulations"), determined that the Plaintiff was selected in the instant GL task in violation of Article 32(2) main sentence and Article 27(1)7, and proposed the selection of the Plaintiff's instant GL task as an agenda for 100-60-10-60-one-one-one-one-month.

G. The Plaintiff filed a lawsuit against the Korea Research Foundation (Seoul Administrative Court 2016Guhap74040), and the above court confirmed that the previous disposition was null and void on the ground that according to Article 11-2 of the Framework Act on Science and Technology on January 19, 2017 and the management regulations of this case, the authority to impose restrictions on participation and recover project costs is the head of a central administrative agency, and that the said authority can not be delegated to the head of a specialized agency, and that the said authority can not be delegated to the head of a specialized agency. Therefore, it is obvious that the Korea Research Foundation, which is not the Minister of Science, ICT and Future Planning, imposed restrictions on participation and the recovery of research costs on the Plaintiff by an agency without legitimate authority, is an administrative disposition by an agency with no authority to do so, and the judgment became final and conclusive on February 15, 2017.

H. On July 3, 2017, the Minister of Science, ICT and Future Planning rendered a disposition of restitution of research funds (i.e., redemption of KRW 245,928,963 (i., 462,00,000) - returned on August 29, 2014 216,071,037) on the ground of the violation of 3 books 5 books as above (i.e., the Defendant’s overall transfer), and (ii) the instant disposition was in violation of Article 27(1)8, Article 32(2) of the Framework Act on Science and Technology, and Article 5 of the former Enforcement Decree of the Framework Act on Science and Technology (amended by Ordinance of the Ministry of Science, ICT and Future Planning No. 130, Nov. 17, 2014; hereinafter referred to as “instant disposition”). Furthermore, the Defendant’s disposition was in violation of Article 18(2)8(1)5 of the former Enforcement Rule of the Framework Act on Science and Technology No. 18(2).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 10 to 14, Eul evidence 1 to 4 (including each number), the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

The other party to the instant disposition is not only the Plaintiff but also the Plaintiff, and the instant lawsuit is unlawful as it is filed by a person who has no standing to sue.

B. Determination

If a third party, who is not the direct counter-party to an administrative disposition, intends to obtain a decision of propriety by filing a lawsuit seeking the revocation or invalidity confirmation of the administrative disposition, it shall be a case where the interests protected by law, i.e., the interests protected by the relevant administrative disposition, are infringed or have concerns over being infringed on the individual, direct, and specific interests protected by the relevant laws and regulations (see, e.g., Supreme Court Decision 2007Du16127, Apr. 15,

However, Article 11-2(1) of the former Framework Act on Science and Technology provides that the other party to the instant disposition may live in the research team, as well as the institution participating in the national research and development project and the institution in charge of research and development as well as the institution participating in the research and development project. As such, the Defendant is merely a formal issue to whom the party to the disposition to recover project costs is designated, and in particular, the Plaintiff can be deemed to have a substantial status in the instant case where the fundamental reason for the disposition to recover project costs lies in the Plaintiff, who is a person in charge of research and development projects. ② Research and development expenses subsidies for universities are not based on a specific research unit applied for the research and development project, but are not based on the university’s government. ③ Research and development expenses subsidies for universities or universities are clearly related to the management and implementation of the research and development project, and substantial interests arising from the agreement can be attributed to the research team, which is the main agent of the relevant research and development project. In light of the research and development project’s fact-finding results on the B university’s research and development project.

Therefore, the defendant's main defense is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In the instant disposition, only Articles 27 and 32 of the Management Regulations, and Articles 18 and 45 of the Management Regulations are stipulated as the basis for disposition, and the instant disposition is not based on the law.

Furthermore, even when considering Article 11-2 (1) 7 and 8 of the former Framework Act on Science and Technology, which the Defendant cited as the basic Act on the Disposition of this case in the process of the lawsuit of this case, the above subparagraph 7 is limited to "a case where research and development is conducted by fraudulent or other illegal means," and subparagraph 8 is limited to "other cases where it is inappropriate to conduct a national research and development project and where it is in violation of the provisions of the Convention," and there are no grounds for violation at the stage of "the selection". However, the management regulations of this case, which are the Enforcement Decree of this case, are extended unfairly by "the cases where it is selected by fraudulent or illegal means". This is unlawful as it is based on the ground that there is no legal basis, and it is unconstitutional that if the above Act is interpreted as unconstitutional, it is against the principle of equity and proportionality.

2) In light of the fact that the Plaintiff’s violation of the three books was more than three years ago and the statute of limitations for a general public official’s disciplinary action is three years, the instant disposition is unlawful as it goes against the three-year statute of limitations.

3) Although the Plaintiff did not have been in violation of 3 books at the time of applying for the instant GL task, the Plaintiff’s selection of both the instant BL task and the instant GL task constitutes a violation of 3 books 5. The Plaintiff tried to remedy the defects of 3 books 5 books by changing the position of a person in charge of research as to the instant BL task or one of the preexisting tasks into a person in charge of research. The Korean Research Foundation, knowing that the Plaintiff’s participation in the instant GL task was in violation of the main sentence of Article 32(2) of the instant provision, and officially approved the Plaintiff’s participation in the instant GL task through the Plaintiff’s inquiry and computer system, and concluded an agreement on the instant GL task with the Plaintiff and the Plaintiff’s performance of the instant GL task, and the Plaintiff had already been subject to 6 months’s restriction on participation due to the instant disposition, as well as the remaining amount of 215, 310, 2071, 207, 2067.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant disposition is based on the constitutional law and enforcement decree, and the existence of the grounds for disposition is recognized

A) Article 11-2 (1) 7 and 8 of the former Framework Act on Science and Technology provides that "where research and development is conducted by fraudulent or other illegal means (Article 11-2 (1) 7)," and "the head of a central administrative agency may restrict participation in a national research and development project under his/her jurisdiction and recover all or part of the project cost already contributed," while Article 11-2 (1) 7 and 8 of the former Framework Act on Science and Technology provides that "where a person in charge of the national research and development project, etc. who participated in the national research and development project, etc. is unfit to conduct the national research and development project, etc. (Article 11-2 (7)

Accordingly, the main text of Article 27 (9) of the Management Rules of this case provides that "the criteria for recovery of project costs by reason under Article 11-2 (1) of the Act are as shown in attached Table 5," the above [Attachment Table 5] provides that "in the case of being selected by fraudulent or other illegal means among "in the case of participating in or performing research and development activities by fraud or other improper means", "within the total amount of contributions paid during the total execution period", and "in the case of being inappropriate to carry out national research and development projects and in the case of violating the provisions of the Convention", "in the case of violating the provisions of the Convention, the amount taking into account

B) According to the above relevant laws and regulations, the instant disposition is deemed to have been made pursuant to Article 27(9) [Attachment 5] of the instant Management Regulations based on the legal basis of Article 11-2(1) of the former Framework Act on Science and Technology. Moreover, in cases where research and development is performed by false or other unlawful means, the meaning of “execution” should be construed to include all the processes from the application stage of research and development to the completion stage, in light of the legislative intent of the aforementioned provision, in order to recover the research and development expenses received by fraudulent or other unlawful means, it is reasonable to interpret that the instant management regulations [Attachment 5] or [Attachment 5] as one of the reasons for recovering the project expenses is not beyond the delegation scope of the above Acts, but rather can be deemed to have more concrete provisions for the reasons prescribed in the above Acts. Furthermore, even if the Plaintiff violated the provisions of Article 11-2(8) of the former Framework Act on Science and Technology, it cannot be construed that the research project expenses were recovered within the scope of the scope of sanctions imposed on the Plaintiff’s performance period of research funds.

Therefore, in the case of the 3rd 5th 5th public project, the project cost can be recovered as the case where the Defendant was selected by false or unlawful means under Article 11-2 (1) 7 and 8 of the former Framework Act on Science and Technology and Article 27 (9) [Attachment 5] of the Management Regulations, or other cases where it is inappropriate to conduct the national research and development project.

C) Furthermore, in this case, we examine whether the Plaintiff’s act is subject to redemption of project costs under the aforementioned relevant statutes.

According to the overall purport of evidence Nos. 6 and evidence Nos. 4 and 5 of this case, the "qualification for application" column for new recruitment of research and development projects under the jurisdiction of the Ministry of Education, Science and Technology (Article 18(3) of the Regulations on the Disposal of Research and Development Projects under the jurisdiction of the Ministry of Education, Science and Technology) was stated as "the applicant must submit faithfully the details of participation by the private sector and government tasks that he/she performs," and the plaintiff was selected as the researcher of the instant GRL task on August 20, 2013 and finally submitted to the defendant on September 2, 2013 to conclude the GRL Convention, "other research and development projects (in the process of implementation, planned implementation, and during application)" and "the research and development projects under the jurisdiction of the Ministry of Education, Science and Technology (Article 18(5) of the Regulations on the Disposal of Research and Development Projects under the jurisdiction of the Ministry of Education, Science and Technology (Article 18(3) of the Regulations on the Disposal of Research and Development Projects).

According to the above facts, even if before the Plaintiff applied for the instant bio-related task at the time of the Plaintiff’s application for the instant bio-related task, it was clear that the Plaintiff already selected the instant bio-related task at the time of the Plaintiff’s application for the instant GCR task and at the time of the submission of the plan for the instant GTR agreement, and thus, the Plaintiff would be in violation of Article 32 of the Management Regulations by failing to clearly state the fact, and further carry out the instant GAL task. This constitutes “a case where the Plaintiff was selected by false or unjust means” under Article 27(9) [Attachment 5] of the Management Regulations (only as otherwise alleged by the Plaintiff, if the Plaintiff was selected as a person in charge of the instant GAL task with knowledge of the Plaintiff’s violation of five books and five books, the Plaintiff may still be deemed as a case where the Plaintiff was selected as a person in charge of the instant GAL task by false or unjust means, or as long as the Plaintiff submitted such evidence as “where there is no other objectively inappropriate reason for the Plaintiff’s research and development project.”

D) Ultimately, the instant disposition was made based on legitimate relevant laws and regulations, and the Plaintiff’s assertion on this part is without merit.

2) Determination as to whether the statute of limitations has lapsed

In addition, even if the plaintiff's assertion is based on the principle of trust and good faith, which is the general principle of law, and the right holder did not exercise his right over a long-term period of time, the disposition of this case does not allow the exercise of his right when it comes to go against the principle of trust and good faith (see, e.g., Supreme Court Decision 87Nu915, Apr. 27, 198). However, according to the facts acknowledged earlier, even though the judgment became final and conclusive on the ground that the former disposition was made without authority by the National Research Foundation, which is not the head of central administrative agency, but the defendant, a specialized institution, as well as the defendant, it is sufficiently foreseeable that the previous disposition of this case was made again by the defendant in accordance with the purport of the judgment, and the defendant's assertion that the previous disposition of this case became null and void only when the previous disposition of this case became final and conclusive.

3) Determination as to whether discretionary power is deviates or abused

In light of the relevant provisions, even if considering all the circumstances alleged by the Plaintiff, it is difficult to deem that the instant disposition deviates from or abused the scope of discretionary authority due to excessive suspicion to the Plaintiff, even if considering the following circumstances alleged by the Plaintiff.

A) Article 32(2) of the instant Management Regulations provides, “The number of research tasks that a researcher may concurrently perform as a person in charge of research shall not exceed three, provided that the researcher in question is able to concentrate on the faithful performance of research. In addition, the purpose is to prevent specific researchers from monopolying research tasks and expand opportunities for them to participate in national research and development projects. This is one of the values that should be considered in the implementation of national research and development projects, and thus, it cannot be deemed that the act of violation is somewhat inappropriate.

B) In such purport, Article 11-2(1)7 and 8 of the former Framework Act on Science and Technology and Article 27(9) [Attachment 5] of the instant Management Regulations provide for the recovery of project costs in cases where project costs are selected by false or other unlawful means even if they were normally used for research and development, and where the project costs are inappropriate to conduct national research and development projects and where they violate the provisions of the agreement. The instant disposition was made within the scope prescribed in the aforementioned [Attachment

C) After the Plaintiff was selected as a person in charge of the instant work as a person in charge of the instant work, the Plaintiff appears to be aware that the Plaintiff would have violated 3 books 5 and endeavored to change the status of a person in charge of the instant work. However, in light of the importance of the status of a person in charge of the instant work as a person in charge of the instant work, it is not easy to make such a change. Furthermore, as alleged by the Plaintiff, the Plaintiff’s assertion that the Korea Research Foundation cannot be deemed to have impliedly recognized the violation of 3 books and 5 books, and rather, it is determined that the Plaintiff and the 190 Research Foundation’s 190s 3 books cannot use the Act to avoid 5 books in accordance with the principle of the Plaintiff’s 5 books.

D) The Defendant decided to recover the full amount of contributions paid during the pertinent year ( September 31, 2014) according to the result of the deliberation by the sanctions assessment group under the purport that "the period of restriction on participation shall be six months, considering the fact that the Plaintiff’s act of entering into the instant agreement on the instant GR task with the knowledge that the Plaintiff was in violation of three books and five books is unlawful, and thus, the full amount of research expenses shall be recovered, and that the Plaintiff created research outcomes by faithfully conducting research, etc., shall be six months. The results of the deliberation by the sanctions assessment group under the purport that "the period of restriction on participation shall be six months." Since the results of the deliberation are deemed to have been achieved by experts in the relevant field in consultation with their opinions and

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

presiding judge, judge Park Jong-yang

Judges Kim Gin-A

Judges Choi Jae-in

1) The “disposition No. 1” column is indicated as “420,000,000 won subject to restitution,” but it is obvious that it is a clerical error.

2) The six-month disposition against the Plaintiff’s restriction on participation has already become effective from October 7, 2014 to April 6, 2015, and its enforcement has already been terminated.

3) Article 18 of the instant Settlement Regulations is the same as that of Article 18.