2. The plaintiff's remaining claims are dismissed.

3. One-fifth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

A. The Plaintiff is a company that imports and sells cars of C, D, and E brand from “B” company of Germany.

B. As a result of investigating the Plaintiff’s suspicion of violating the Clean Air Conservation Act, the Seoul Main Customs confirmed the Plaintiff’s failure to obtain certification for alteration or report for alteration (hereinafter “instant ground for second disposition”), and notified the Defendant of the revocation of the certification of the Plaintiff’s automobile model under Article 46(1) of the former Clean Air Conservation Act (hereinafter “instant ground for disposal”) by altering the test report of the vehicle exhaust gases of another 28 model, including F, from July 2012 to November 2017, with respect to the Plaintiff (hereinafter “instant ground for second disposition”) by altering the test report of the vehicle exhaust gases of the former Clean Air Conservation Act (amended by Act No. 1487, Dec. 27, 2016; hereinafter the same shall apply) (hereinafter “instant ground for second disposition”). < Amended by Act No. 14535, Dec. 5, 2017>

D. The Defendant: (a) on December 28, 2017, on the ground that the Plaintiff sold an automobile without obtaining certification of exhaust gas; (b) on the ground that the automobile model the sales of which was terminated by July 27, 2016, Article 56(1)1 of the former Clean Air Conservation Act (Amended by Act No. 13874, Jan. 27, 2016); (c) Article 52 [Attachment Table 12] of the former Enforcement Decree of the Clean Air Conservation Act (Amended by Presidential Decree No. 2850, Jan. 12, 2017; hereinafter the same shall apply); (d) on the automobile model the sales of which was continued after July 28, 2016; (d) on the ground that Article 56(1)1 of the former Clean Air Conservation Act; and (d) Article 52 [Attachment Table 12] of the former Enforcement Decree of the Clean Air Conservation Act (amended by Presidential Decree No. 2581, Feb. 15, 2015].

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) As to the Disposition No. 1 of this case

A) The ground for the instant disposition No. 1 is that the Plaintiff received the certification by arbitrarily modifying the documents necessary for the certification of exhaust gas, and constitutes so-called “illegal certification.” However, the case where the Plaintiff manufactured and sold a motor vehicle without obtaining the certification in violation of Article 48(1) of the former Clean Air Conservation Act is against the so-called “unauthorized certification.” Thus, it cannot be viewed as the same as the “unauthorized certification.” There is no ground for imposing a penalty surcharge on the “illegal certification” under the former Clean Air Conservation Act. Nevertheless, the instant disposition No. 1 was made on the premise that the ground for the instant disposition No. 1 was meeting the requirements of Article 56(1)1 of the former Clean Air Conservation Act, and thus, is unlawful.

B) Article 56(1) of the Clean Air Conservation Act was amended by Act No. 13874 on January 27, 2016, and the upper limit of the penalty surcharge was increased from 1 billion won to 10 billion won upon the enforcement of July 28, 2016. Among the grounds for Disposition No. 1 of this case, a large number of the grounds for Disposition No. 1 of this case are about the automobiles imported and sold prior to the enforcement of the above Act, and separate offenses are established for each act of importing and selling, so the upper limit of the penalty surcharge shall be KRW 1 billion for the automobiles imported and sold prior to the enforcement of the above Act. Nevertheless, the Disposition No. 1 of this case was unlawful since the above Act retroactively applies the above Act to the entire automobiles, if some of the automobiles were imported and sold after the enforcement of the Act, and the upper limit of the penalty surcharge is applied to KRW 10 billion.

C) In full view of the circumstances such as the fact that the pertinent type of vehicles was imported and sold in compliance with the manufacturer’s permissible emission standards, and there was no other technical defect, it is too excessive to calculate a penalty surcharge in an amount equivalent to 3% of the sales revenue of each type of vehicles in the instant first disposition, and thus, is unlawful by abusing and abusing discretionary power.

2) As to the Disposition No. 2 of this case

A) According to Article 48(2) of the former Clean Air Conservation Act and Article 67(1) and (3) of the Enforcement Rule of the Clean Air Conservation Act, “certification of alteration and report of alteration for the certification of exhaust gas.” In the case of “report of alteration,” it is nothing more than the duty newly created under the Enforcement Rule of the Clean Air Conservation Act without delegation of the Act. Therefore, in the case of failing to perform the duty of alteration, which is merely a duty of alteration under the Enforcement Rule, the administrative sanctions under Article 56(1)2 of the former Clean Air Conservation Act may not be taken in the same manner as the case of failing to perform the duty of alteration, which is a legal obligation. In the case of [Attachment 2] Nos. 1 and 2 of the attached Table 2, the quantity of exhaust gas is not increased despite the alteration of parts, and thus, the Plaintiff is subject to the report of alteration or alteration, and thus, even if the Plaintiff did not perform the duty of alteration, it cannot impose penalty surcharges under Article 56(1)2 of the former Clean Air Conservation Act.

B) The type of automobile at issue in the disposition No. 2 of the instant case was imported and sold in compliance with the manufacturer’s permissible emission standards, and there was no other technical defect. This part of the Plaintiff’s violation is more severe than a case where the report of modification was omitted, and the revised Clean Air Conservation Act also provides that if the report of modification was omitted, a minor penalty shall be imposed much more than a case where the report of modification was omitted, and the Plaintiff committed a violation by negligence in the course of improving the performance of the automobile, and the Plaintiff did not take any benefit therefrom. In full view of the above, it is excessive to uniformly calculate the penalty surcharge amount equivalent to 1.5% of the sales amount of each type of automobile in the instant disposition, and thus, it is unlawful by

B. Relevant statutes

Attached Form 3 shall be as listed in attached Table 3.

C. Whether the disposition No. 1 of this case is legitimate

1) First, we examine whether the ground for the instant disposition No. 1 falls under the requirements of Article 56(1)1 of the former Clean Air Conservation Act. Administrative laws and regulations that serve as the basis for such administrative act should be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted or analogically interpreted in the direction unfavorable to the other party to such administrative act, and even if the teleological interpretation that takes into account the legislative intent and purpose thereof is not entirely excluded, such interpretation does not deviate from the ordinary meaning of the language and text (see, e.g., Supreme Court en banc Decision 2011Du3388, Dec. 12, 2013). In addition, the interpretation of penal provisions should be strict, and the interpretation of penal provisions in the direction unfavorable to the accused is not permitted as they are contrary to the principle of no punishment without law. This principle of statutory interpretation likewise applies to the interpretation of the provisions of the administrative laws and regulations where the contents of the administrative laws subject to such penal provisions are contents (see, e.g., Supreme Court en banc Decision 90Do1616, Nov.

A motor vehicle manufacturer shall manufacture the motor vehicle in compliance with the permissible emission standards of manufactured motor vehicles prescribed by Ordinance of the Ministry of Environment (Article 46(1) of the former Clean Air Conservation Act). Before manufacturing the motor vehicle, the manufacturer shall obtain certification from the Minister of Environment that the exhaust gas of the motor vehicle can be maintained in compliance with the permissible emission standards of manufactured motor vehicles during the warranty period of exhaust gas (main sentence of Article 48(1) of the former Clean Air Conservation Act). Meanwhile, Article 56(1)1 of the former Clean Air Conservation Act provides that "where the motor vehicle manufacturer manufactures and sells the motor vehicle without obtaining certification in violation of Article 48(1) of the former Clean Air Conservation Act" and Article 48(2) of the former Clean Air Conservation Act provides that "where the motor vehicle manufacturer manufactures and sells the motor vehicle differently from the details certified under Article 48(1) of the former Clean Air Conservation Act, he/she may impose a penalty not exceeding the amount calculated by multiplying the sales amount by 3/100,000 on the motor vehicle manufacturer.

2) In light of the following circumstances that can be acknowledged by comprehensively taking account of the above legal principles, the contents of the relevant laws and regulations, and the facts recognized earlier, the ground for Disposition No. 1 of this case does not constitute “cases where the Defendant manufactured and sold a motor vehicle without obtaining authentication in violation of Articles 56(1)1 and 48(1) of the former Clean Air Conservation Act, which the Defendant cited as a ground law in Disposition No. 1 of this case. Therefore, the disposition No. 1 of this case is unlawful, and thus, it should be revoked without

① The ground for Disposition 1 of this case is that the Plaintiff imported and sold a motor vehicle after obtaining the certification of exhaust gas by altering the test date, vehicle exhaust certificate, name of the vehicle, engine type, chassis number, vehicle type, string and pressure, string and pressure, speed reduction, power wheel, and nitrogen oxide test result, etc. of another motor vehicle model, which constitutes “the case where the Plaintiff obtained the certification by unlawful means.”

② Under the language and structure of Article 56(1)1 of the former Clean Air Conservation Act, cases where exhaust gas is not certified, subparagraph 2 of the same Article, and cases where automobiles are manufactured and sold differently from the certified contents. However, it cannot be interpreted that “cases where an automobile is manufactured and sold differently from the certified contents” are included as a matter of course in the ordinary meaning of statutory text, “not obtaining certification” under Article 56(1)1 of the former Clean Air Conservation Act, and “cases where an automobile is certified in an unlawful manner.” However, “cases where an authentication was obtained in an unlawful manner” are included in the process of the authentication, but the wrongful method was involved in the process. Thus, it is natural in the structure and text of each provision.

③ The Defendant asserts that the “certification” under Article 56(1)1 of the former Clean Conservation Act is limited to the “legal certification,” and that the certification cannot be deemed to have been obtained in cases where the documents of certification were fabricated as the grounds for disposition 1 of this case and obtained illegal certification. However, the above subparagraph 1 of Article 48(1) of the former Clean Air Conservation Act only provides that the “cases where the certification was not obtained in violation of Article 48(1) of the former Clean Air Conservation Act,” and it does not provide that no defects should be found in the certification. It is recognized that the content of the grounds for disposition 1 of this case in itself has been formally certified under Article 48(1) of the

④ The Defendant asserts that, with respect to the grounds for disposition No. 1 of this case, the validity of revocation of the certification should be deemed to be the same as that of the non-certified from the beginning, and the Defendant’s revocation of the certification of exhaust gas on automobiles related to the grounds for disposition No. 1 of this case under Article 55 subparag. 1 of the former Air Environment Conservation Act on December 5, 2017 is recognized. However, even if the certification is revoked later and the legal effect of the certification is lost, the objective fact that the certification was obtained does not lose, barring special circumstances,

shall not be treated equally as such.

⑤ Article 56(1)2 of the Clean Air Conservation Act (amended by Act No. 14487, Dec. 27, 2016) newly established a provision that “where certification or certification for alteration under Article 48 has been obtained by fraudulent or other illegal means,” and Article 56(1)1 and 2 of the former Clean Air Conservation Act (amended by Act No. 56(1)1 and 3 of the former Clean Air Conservation Act (amended by Act No. 56(1)2) provide that “where the relevant certification or certification for alteration has been obtained by fraudulent or other illegal means, it shall be added to the subject of the imposition of penalty surcharges.” In light of the system of the amended Act and the reasons for the amendment, the newly established provision cannot be punished under Article 56(1)1 of the former Clean Air Conservation Act and Article 56(1)2 of the former Clean Air Conservation Act (amended by Act No. 1487), which does not conform with the legitimate provisions of Article 56(1)2 of the former Clean Air Conservation Act.

(6) However, there may be room to deem that the act subject to the instant disposition is an act that manufactures and sells a motor vehicle different from the details of certification under Article 56(1)2 of the former Clean Air Conservation Act, and Article 48(1) of the former Clean Air Conservation Act. This is because, insofar as the Plaintiff obtained certification based on the test mark of false exhaust gas, it was not possible to manufacture and sell a motor vehicle with the same content as the exhaust gas value stated in the said test list. However, insofar as it is clearly stated that the Defendant’s failure to take the instant disposition as the grounds for the instant disposition under Article 56(1)2 of the

D. Whether the disposition No. 2 of this case is legitimate

1) Whether the grounds for the disposition are recognized

A) If a motor vehicle importer intends to import a motor vehicle, the former Clean Air Conservation Act shall obtain prior certification from the Minister of Environment that the motor vehicle exhaust gas can be maintained in compliance with the permissible emission levels for manufactured motor vehicles during the warranty period of exhaust gas (Article 48(1)), among the details of certification

Article 91 Subparag. 4 and Article 95 of the Enforcement Rule of the Clean Air Conservation Act provides that a person who has imported an automobile without obtaining certification for alteration and the corporation to which he/she belongs shall obtain the certification for alteration (Article 91 Subparag. 4 and Article 95 of the same Act). Article 56(1)2 of the Enforcement Rule of the Clean Air Conservation Act provides that a penalty surcharge shall be imposed on a person who has imported an automobile and sold an automobile differently from the certified details (Article 56(1) of the same Act). Accordingly, Article 67(1) of the Enforcement Rule of the Clean Air Conservation Act provides for the important matters prescribed by Ordinance of the Ministry of Environment, and where the quantity of exhaust gas does

In light of the fact that Article 67(1) of the Enforcement Rule of the Clean Air Conservation Act lists the subject matter of certification for alteration according to delegation of the former Clean Air Conservation Act, and Article 67(3) does not limit the scope thereof, where the quantity of exhaust gas does not increase even after changing the matters under paragraph(1) without limiting the scope thereof, it is reasonable to interpret that the obligation of certification for alteration is simplified by requiring the vehicle importer to submit a report on change to the National Environment and the head of a private teaching institute, and to report on change if any change occurs under paragraph(1) of the above Article, but to report on change under paragraph(3) of the above Article if the quantity of exhaust gas does not increase, the obligation of certification for alteration is to be imposed. Therefore, where a change in the matters under paragraph(1) of the above Article fails to obtain certification for alteration and fails to obtain certification for alteration as a result, it shall be deemed that the subject matter of punishment under Article 91 subparag. 4 of the former Clean Air Conservation Act is also subject to penalty surcharges under Article 56(1)2 of the former Clean Air Conservation Act (see Supreme Court Decision 589Do69, Sept. 2089, 9, 2

B) In the case of a model 1 attached Table 2 table 2, the plaintiff imported and sold the 'Refrigerants of the refrigerative cycle of the exhaust gas', and the 'waitr titr titr titr titr titr titr titr titr titr titr titr titr titr titr titr titr titr titr titr titr titr 2, 2018, after the disposition of this case 2 of this case, the plaintiff applied for certification for change to the President of the National Institute of Environmental Research on February 2, 2018, and there is no dispute between the parties. According to the above facts, the 'Refritr titr titr titr titr titr titr titr tritr titr titrit 2, and 3 of the above tritritrit trit trit.

2) Whether the discretion is deviates or abused or not

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant disposition, by objectively examining the content of the act of violation, which is the reason for the disposition, and the public interest purpose to achieve through the relevant act of disposal, as well as various circumstances in compliance therewith. In this case, even if the criteria for a punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed in the administrative agency’s internal rules for handling affairs, and thus, it is not effective externally to the public or the court. Thus, the legality of the relevant disposition should be determined not only by the above criteria for disposition but also by the provisions and purport of the relevant Acts and subordinate statutes. Therefore, the relevant disposition cannot be deemed legitimate merely because it conforms to the criteria for disposition. However, unless there are reasonable grounds to recognize that the result of the application of the criteria is considerably unreasonable in light of the content of the act of violation and the purport of the relevant Acts and subordinate statutes (see Supreme Court Decision 96Du6467, Sept. 207, 2007).

B) In full view of the following circumstances acknowledged by comprehensively taking account of the overall purport of the evidence presented above, it is difficult to deem the instant disposition No. 2 as unlawful since it deviates from and abused discretion. The Plaintiff’s assertion on this part is without merit.

① Article 56(1) of the former Clean Air Conservation Act provides that a penalty surcharge may be imposed within the scope not exceeding the smaller of 3/100 of the sales amount, or 10 billion won, and Article 52 [Attachment Table 12] of the former Enforcement Decree of the Clean Air Conservation Act, which sets a disposition standard upon delegation of Article 56(2) of the former Clean Air Conservation Act, provides that where a penalty surcharge is manufactured and sold differently from the details of certification in violation of Article 56(1)2 of the former Clean Air Conservation Act, a penalty surcharge shall be calculated as X3/100 x 0.5 x 0.2.

② Article 52 [Attachment 12] of the former Enforcement Decree of the Clean Air Conservation Act provides that the amount of a penalty surcharge imposed according to the grounds for disposition differs from the amount of a penalty surcharge imposed. Unlike that, the above criteria for disposition are not in itself consistent with the Constitution or Acts, or the above criteria for disposition are deemed significantly unreasonable in light of the content of the offense constituting the grounds for disposition and the contents and purport of the relevant Acts and subordinate statutes.

③ Article 67(3) of the Enforcement Rule of the Clean Air Conservation Act provides that the modification report for a part, the quantity of which does not change, can replace the modification report, only if it is confirmed that the quantity of exhaust gas does not increase, shall be simplified. However, it is difficult to deem that the Plaintiff omitted the modification report by negligence in light of the Plaintiff’s economic location, violation period, size of sales, etc.

(4) The sales profit earned by the Plaintiff from importing and selling the vehicle at issue in the instant disposition No. 2 is reasonable, and the amount of the penalty surcharge No. 2 does not seem to be so excessive that the Plaintiff’s financial situation would significantly deteriorate.

⑤ Article 56 of the Clean Air Conservation Act amended by Act No. 14487, Dec. 27, 2016; Article 56 of the Enforcement Decree of the Clean Air Conservation Act (amended by Presidential Decree No. 28500, Dec. 26, 2017) provides that a penalty surcharge shall be imposed in consideration of the degree of increase in exhaust gas emissions; while the Enforcement Decree of the Clean Air Conservation Act [Attachment 12] amended by Presidential Decree No. 28500, Dec. 26, 2017 lowers the aggravated imposition coefficient to 0.3, even under the above Act and subordinate statutes, the level of sanctions for nonperformance of duty to report changes x 5/100 X.3, and the upper limit has increased from 10 billion won to 50 billion won. Accordingly, it is difficult to deem that there is a need to reduce a penalty surcharge even under the Act and subordinate statutes, which was enforced at the time of the instant disposition.

⑤ In order to prevent air pollution from causing harm to national health and the environment, and manage and preserve the atmospheric environment in an appropriate and sustainable manner, thereby enabling all citizens to live in a healthy and pleasant environment, strict certification system for automobiles emitting air pollutants is necessary. Even when considering all the circumstances asserted by the Plaintiff, such as damage incurred by the Plaintiff due to the instant disposition No. 2, it is difficult to deem that the private interest claimed by the Plaintiff is larger than the public interest to be achieved through the instant disposition No. 2.

3. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Gin-sung

Judges Chak-young