Attorney Lee Jong-soo et al.*

소송수행자 @@

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

가. 원고는 울산 울주군 언양읍 □□로 255에서 '○○주유소'라는 상호로 주유소를 운영하는 석유판매업자이다. 원고는 유류 1,500리터를 수송할 수 있는 이동판매차량(이하 '이 사건 이동판매차'라고 한다)을 보유하고 있다. 이 사건 이동판매차는 2가지 유종을 적재할 수 있는데, 외부 주유기는 1개이다. 따라서 차량 외부에 설치된 유종 선택 레버를 작동하여 유종을 선택한 뒤 위 외부 주유기를 이용하여 주유를 하게 된다. 나. 원고는 2017. 9. 28. 울산 울주군 □□면 ■■길 소재 ●● 산업으로부터 지게차에 자동차용 경유를 주유해달라는 요청을 받고, 같은 날 14:10경 이 사건 이동판매차를 이용하여 ●●산업에 있는 지게차(이하 '이 사건 지게차'라고 한다)에 55리터의 경유를 주유하게 되었다.

C. The Plaintiff, as seen above, worked as a volunteer server in the course of making the gas station, was found to have been exposed to the employees of the Yong-Nam headquarters of the Institute.

D. On December 4, 2017, the Defendant filed an administrative appeal with the competent police station against the Plaintiff on the ground that the Plaintiff “the act of selling class oil, which is an act prohibited under Article 39(1) Subparagraph 8 of the Petroleum and Petroleum Substitute Fuel Business Act (hereinafter “petroleum Business Act”),” which is the act prohibited under Article 13(4) Subparagraph 8, Article 14(1)3, Article 39-2, and Article 46 of the Petroleum Business Act, issued a disposition of penalty surcharge of KRW 100,000,000, and filed an appeal against the Plaintiff for the revocation of the instant disposition (hereinafter “instant disposition”), and the Plaintiff filed an appeal with the competent police station. However, the Busan Metropolitan City Administrative Appeals Commission dismissed the Plaintiff’s administrative appeal on February 28, 2018.

F. On March 5, 2018, the Plaintiff: (a) around 14:10 on September 28, 2017, the Ulsan District Court Decision 2018Da1882; and (b) around September 14:10, 2017, the Plaintiff used the instant mobile-sale vehicle, which is in custody of light oil and heavy oil, and used the instant mobile-sale vehicle, which used the instant mobile-sale vehicle in which light oil and heavy oil were stored, and the main flow cannot be known to the instant mobile-sale vehicle; (c) thereby, the Plaintiff, as a petroleum retailer, sold a petroleum product prohibited from selling as fuel, was indicted for summary facts constituting a violation of the Petroleum Business Act. The Plaintiff filed a request for formal trial with the Ulsan District Court Decision 2018Da2966, Feb. 15, 2019; and (d) the said court acquitted the Plaintiff. The Prosecutor appealed against this, and the instant case is still pending in the appellate court pursuant to the Busan District Court Decision 2019238.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 7, 12, 15 evidence, Eul evidence 1 through 5, 10 evidence (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. Summary of the plaintiff's assertion

1) The non-existence of a fact causing the disposition

Although there are two oil storage tanks, only one external alcoholic beverage is installed. The plaintiff, first of all, after having a gas station via the industry, planned to serve the oil for domestic use at the other delivery places. Thus, the plaintiff, while making a gas station through the oil station, was changing the oil station into the oil station, such as a gas station, and continued to serve approximately 30 liters or 40 liters, which remains in the gas station, and did not have a limited liability for the oil station which tried to serve the light. Since the plaintiff did not have a limited liability for the oil for a motor vehicle, the disposition of this case was issued even if there was no fact that there was no reason for the disposition of this case.

(ii) the deviation and abuse of discretionary authority;

Even if the plaintiff's act of oiling on a motor vehicle, taking into account the fact that the amount of oiling on the motor vehicle of this case is small in quantity and that the plaintiff supported his family while operating a small gas station with his wife, the degree of sanctions by the disposition of this case is too high compared to the contents of the administrative laws and regulations committed by the plaintiff. Thus, the disposition of this case is in violation of the principle of proportionality, and is in violation of the principle of proportionality and abuse of discretion.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) As to the assertion that there is no fact causing the disposition

A) Relevant legal principles

In an appeal litigation, the burden of proving the legality of the pertinent disposition is, in principle, against the disposition agency claiming the lawfulness of the relevant disposition, but where there is proof to the extent reasonably acceptable as to the legality of the relevant disposition asserted by the disposition agency, the disposition is justifiable, and it is reasonable to deem that the assertion and proof of exceptional circumstances contrary to this, return to the other party’s responsibility (see, e.g., Supreme Court en banc Decision 2010Du27639, 27646, Jun. 18, 2012; Supreme Court Decision 2015Du42817, Oct. 27, 2016). In an appeal litigation seeking revocation of the disposition of the suspension of petroleum sales business, where the gasoline sold under the Plaintiff’s possession and management of oil is proved to be a pseudo petroleum product, the Plaintiff shall be deemed to have sold and stored pseudo petroleum product, and the Plaintiff shall assert and prove that there was a special circumstance that the Plaintiff did not recognize that it was an pseudo petroleum product (see, e.g., Supreme Court Decision 91Nu3710, Aug.

Sanction against a violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws and regulations to achieve administrative purposes, and thus, barring any special circumstance, such as where a failure to perform the duty of the violator is not caused due to a justifiable reason, etc., the sanction may be imposed even if the violator does not have intention or negligence (see, e.g., Supreme Court Decisions 2002Du5177, Sept. 2, 2003; 2013Du5005, Oct. 15, 2014).

B) Determination

In light of the facts acknowledged earlier and the overall purport of the statements and arguments set forth in subparagraphs 6 through 8 above, the following circumstances, which can be seen as being comprehensively revealed, can be acknowledged as having limited liability by the Plaintiff, and there are no special circumstances, such as the Plaintiff’s failure to perform his/her duties regarding such acts, and there is no justifiable reason not to acknowledge that there was a cause for the instant disposition, regardless of whether the Plaintiff’s intention or negligence was recognized. The Plaintiff’s allegation in this part is without merit.

(1) On September 28, 2017, employees of the Yong-Nam headquarters collected two liters of oil in the oil tank in the instant vehicle with the consent of the manager of the Bright industry at the site where the Plaintiff’s act was controlled. As a result of the quality inspection of the sample, the aforementioned sample was a mixture of products in which other petroleum products (e.g., light oil, etc.) were about 95% on the automobile diesel, and the petroleum and petroleum substitute fuel products pursuant to Article 2 subparag. 10 of the Petroleum and Petroleum Substitute Fuel Business Act were referred to as “fake petroleum products”. As such, it is reasonable to view that the instant oil tank in the instant case was a large quantity of oil (as stated in the evidence No. 15 of the evidence No. 15, it is presumed that the results of the fact-finding conducted in the Ulsan District Court 2018Kagi296 case, but even if so, it appears that the sample in the instant case was equivalent to the quantity of oil taken from the instant vehicle).

(2) As long as it is deemed that the instant oil possessed a considerable amount of oil gas, the Plaintiff, barring special circumstances, knew that the instant oil oil oil was oil gasing from the instant oil tank. It would be deemed that the Plaintiff, barring special circumstances, knew that the oil oil was gasing from the instant oil tank. While the Plaintiff asserted that the instant oil oil was a gas gasing with the operation of the oil gaser for the purpose of fasting the oil oil remaining in the main oil tank, it is difficult to view that the Plaintiff merely entered the oil oil being stored in the instant oil tank with the small amount of oil being mixed.

(3) As seen earlier, the facts that the Plaintiff was acquitted on February 15, 2019 in Ulsan District Court 2018 High Court Decision 2018 High Court Decision 2018Da296, which was indicted due to the violation of the Petroleum Business Act under the instant case. However, since criminal punishment and sanctions against the violation of administrative regulations differ from its purpose and requirements, it is difficult to deem that there is a justifiable reason that the Plaintiff could not be caused by the Plaintiff’s failure to perform his/her duty on the ground that the judgment of innocence was rendered in relation to criminal punishment. In addition, even based on the evidence submitted by the Plaintiff, there is insufficient evidence to acknowledge the Plaintiff’s failure to prove the Plaintiff’s failure to perform his/her duty,

2) As to the assertion of deviation and abuse of discretionary power

A) Relevant legal principles

Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the act of violation and the public interest to be achieved by the act of violation as the ground for the disposition. In this case, even if the criteria for the punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it has no effect to guarantee the public or court externally since it is merely nothing more than that prescribed in the administrative agency's internal administrative affairs rules, and whether such disposition is legitimate or not shall be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes as well as the above criteria for disposition. Thus, the above criteria for disposition cannot be deemed legitimate merely because they meet the above criteria for disposition. However, unless the above criteria for disposition do not in itself conform with the Constitution or laws, or there are reasonable grounds to believe that the sanction administrative disposition in accordance with the above criteria for disposition is significantly unreasonable in light of the content and purport of the relevant Acts and subordinate statutes and regulations, it shall not be determined that such disposition has exceeded or abused discretion (see, etc.).

B) Determination

As to this case, comprehensively taking into account the following circumstances, the aforementioned evidence and the overall purport of statement Nos. 1 and 11 as well as the overall purport of pleading, namely, ① the act of selling petroleum products as fuel for automobiles, vehicles, and machinery by deceiving oil via light oil, etc., not only disrupt the distribution order of petroleum products but also causes damage to the performance or safety of automobiles beyond merely unreasonable prices to many and unspecified people, but also causes an increase in social expenses due to environmental pollution, and thus there is a need for public interest to regulate such act. ② Articles 16, 17(1) and 17(1) [Attachment 1] of the former Enforcement Rule of the Petroleum Business Act (amended by Ordinance of the Ministry of Industry and Energy No. 296 of Apr. 20, 2018; hereinafter the same shall apply) provides that the Plaintiff’s act of selling petroleum products, such as petroleum retailers, constitutes an unlawful act of violating the provisions of the Enforcement Rule of the Petroleum Business Act for a certain period of time under which it is difficult to view that the Plaintiff’s act constitutes a violation under Article 26(1).

3. Conclusion

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

Judges Lee Jae-py

Judge Lee Jong-soo