2. The costs of the lawsuit are assessed against the defendant.

A. The Plaintiff is a person who engages in wholesale and retail business, such as freezing and press greenhouse gas, with the trade name of “B.”

B. On November 1, 2017, the Plaintiff filed an application with the Defendant for approval of “HCFC-22 (hereinafter “instant specific substances”) under Articles 11 and 13 of the Act on the Regulation, etc. of Manufacture of Specific Substances for the Protection of the Austria (hereinafter “the Act”).

C. On December 29, 2017, the Defendant sent a reply to the Plaintiff that the approval of the instant import and sales plan for specific substances was not possible (hereinafter “instant disposition”).

[Reasons for Recognition] Uncontentious Facts, Entry of Evidence A Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Relevant statutes

The entries in the attached statutes are as follows.

B. Whether procedural illegality is procedural

1) Summary of the parties’ assertion

A) The plaintiff's assertion

The Defendant did not fully state the grounds or reasons for the instant disposition while rendering the instant disposition. The instant disposition is unlawful in violation of Article 23(1) of the Administrative Procedures Act.

B) Defendant’s assertion

In order to reduce the production and consumption of the specific substance of this case (HFC) that destroys the ozone layer in accordance with the Montreal Protocol on Substances that Destroyed the ozone layer, the Defendant publicly announced the production and consumption levels of the specific substance (as of October 26, 2012, the Ministry of Environment’s announcement No. 2012-518, Ministry of Knowledge Economy’s announcement No. 2012-487, hereinafter “instant announcement”) and distributed them in the form of news report materials. The instant public announcement contains the following contents: “The manufacture and import license shall be limited to cases where the manufacture and import license holder had the production or import performance (standard quantity) in 209 and 2010. Moreover, the Korean detailed chemical industry seminars were replaced by the Plaintiff’s average production volume and import license for the year 200 and 2010, not the Plaintiff’s average production volume and import license for the year 201.

In light of these circumstances, the Plaintiff was fully aware of the grounds for the instant disposition. Therefore, the instant disposition was not conducted in violation of Article 23(1) of the Administrative Procedures Act, but is lawful.

2) Determination

가) 관련 규정과 법리행정청이 처분을 할 떄에는 신속히 처리할 필요가 있거나 사안이 경미한 경우 또는 다른 법령 등에 특별한 규정이 있는 경우를 제외하고는 문서로 하여야 하고(행정절차법 제24조 제1항), 신청 내용을 모두 그대로 인정하는 처분인 경우, 단순·반복적인 처분 또는 경미한 처분으로서 당사자가 그 이유를 명백히 알 수 있는 경우, 긴급히 처분을 할 필요가 있는 경우 등을 제외하고는 당사자에게 그 근거와 이유를 제시하여야 한다(행정절차법 제23조 제1항). 이는 행정청의 자의적 결정을 배제하고 당사자로 하여금 행정구제절차에서 적절히 대처할 수 있도록 하려는 취지이다. 따라서 당사자가 신청하는 허가 등을 거부하는 처분을 하면서 당사자가 그 근거를 알 수 있을 정도로 이유를 제시한 경우에는 처분의 근거와 이유를 구체적으로 명시하지 않았더라도 그로 말미암아 그 처분이 위법하다고 볼 수는 없다(대법원 2002. 5. 17. 선고 2000두8912 판결 참조). 이때 '이유를 제시한 경우'는 처분서에 기재된 내용과 관련 법령 및 당해 처분에 이르기까지의 전체적인 과정 등을 종합적으로 고려하여, 처분 당시 당사자가 어떠한 근거와 이유로 처분이 이루어진 것인지를 충분히 알 수 있어서 그에 불복하여 행정구제절차로 나아가는 데 별다른 지장이 없었다고 인정되는 경우를 뜻한다(대법원 2009. 12. 10. 선고 2007두20362 판결, 대법원 2017. 8. 29. 선고 2016두44186 판결 등 참조).

(B) fact finding;

(1) While rendering the instant disposition, the Defendant issued the Plaintiff a written disposition with the following content (hereinafter “instant disposition”).

The applications and replies for approval of import and sales plans for specific substances in 2018

1. He/she wishes to promote the development of the Rose of Sharon;

2. As to the application for approval on import and sale plans for specific substances by your company in 2018:

The 57th Enforcement Decree of the Act on the Control, etc. of Manufacture of Specific Substances for the Protection of the Ozone Floors and the 57th Specific Substance Supply and Demand Coordination Council shall be notified of the "no approval" in accordance with the results of the deliberation.

(2) The instant public announcement made on October 26, 2012 by the Defendant and the Minister of Environment includes the following: ① the type and standard quantity of specific substances; ② the production and consumption level of specific substances including the instant specific substances from 2013 to 2030; ③ the basis for annual standard limit establishment; ④ the manufacturing and import license of specific substances and the manufacturing and import license of specific substances; ④ the public announcement of the instant case includes the following: “The manufacturing and import license of specific substances shall be limited in cases where a person subject to the manufacturing and import license of specific substances has the production or import performance (standard quantity) in 2009 and 2010 for the smooth reduction of specific substances.” The public announcement of the instant case also included the content that “the manufacturing and import license of specific substances shall be limited to cases where a person subject to the manufacturing and import license of specific substances has the production or import performance (standard quantity).”

(3) On December 21, 2017, the Korea Close Chemical Industry Promotion Association organized the “HFC quota instruction and the seminars for the promotion of alternative transition.” In the above seminars, the following guide was given: ① domestic standard limit of HFC in 2018; ② domestic use status in the HFC; ③ details regarding the allocation of plans for manufacturing, importing, and selling specific substances and the permission for manufacturing and importing specific substances; ③ as a part of the content thereof, the content was “to permit manufacturing and importing only to businesses with average production and consumption in 209 and 2010.” The Plaintiff participated in the above seminars.

(4) On October 26, 2017, the Plaintiff and the public official in charge of the Defendant made a telephone conversation between 5 seconds on October 26, 2017 and 59 seconds on December 29, 2017 and 13:31 on the same day and 76 seconds on the same day.

[Reasons for Recognition] A without dispute, Gap evidence 2, Eul evidence 1-3, the purport of the whole pleadings

C) Specific determination

Considering the following circumstances that can be seen as the above facts, it is reasonable to view that the Defendant violated the duty to present reasons for dispositions under Article 23(1) of the Administrative Procedures Act by making the Plaintiff unable to properly cope with the administrative remedy procedure, by failing to present the grounds for disposition while rendering the instant disposition.

① The instant disposition merely states that “in accordance with the results of the 57th Adjustment Council on Supply and Demand of Specific Substances, it is not possible for the Plaintiff to know the details of the 57th Adjustment Council on Supply and Demand of Specific Substances, and there is no way to know the grounds or reasons for the instant disposition. The instant disposition did not present any grounds or reasons for the instant disposition.

② Article 11(1) and (2) of the Act provides that a person who intends to import a specific substance shall obtain permission from the defendant as prescribed by Ordinance of the Ministry of Trade, Industry and Energy, and the defendant may obtain permission only when the specific substance satisfies the standard limit for calculating the quantity of consumption. Article 13 of the same Act provides that a person who intends to sell a specific substance manufactured or imported shall obtain approval from the defendant after setting forth a sales plan that includes the purpose of use, type of demand, type of business, method of sale, etc. of the specific substance, as prescribed by Ordinance of the Ministry of Trade, Industry and Energy. Meanwhile, Articles 7 and 9 of the Enforcement Rule of the same Act provide that the specific substance shall be included in the import license and the sales plan. According to the above provision, the defendant has considerable discretion as to the establishment of the standard for calculating the quantity of consumption of the specific substance of this case within the scope of the standard limit for calculating the quantity of consumption of the specific substance of this case and whether to grant such permission. Where the defendant refuses to grant such permission by exercising discretion and does not clearly state the grounds for such disposition.

③ Although the instant public notice made by the Defendant and the Minister of Environment and the seminars organized by the Korea Close Chemical Industry Promotion Association include the contents regarding persons eligible for permission to manufacture and import specific substances, the content that “where a person eligible for permission to import specific substances has an import performance (standard quantity) in 2009 and 2010, it is nothing more than a part of the content. In particular, the instant public notice was made five years prior to the instant disposition, and the said seminars were not hosted by the Defendant. It cannot be deemed that the Plaintiff could have known the grounds for the instant disposition solely on the said public notice or seminars.

④ Although a public official in charge of the Defendant had a telephone conversation with the Plaintiff three times before and after the instant disposition, there is no evidence to prove that the content thereof pertains to the instant disposition. Furthermore, even if a public official in charge of the Defendant explained to the Plaintiff the instant disposition in the course of telephone conversation on the date of the instant disposition, in light of the purport of Articles 23(1), 24(1) and (2) of the Administrative Procedures Act, the procedural violation of the duty to present the grounds for disposition solely based on a verbal explanation not based on the written disposition cannot be deemed to be cured

C. Sub-committee

With respect to the remaining arguments of the plaintiff, the disposition of this case is unlawful without examining them.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.

Judges Kim Gin-han

Judges Hong-man

A person shall be appointed.