The costs of appeal are assessed against the Defendant.

1. As to the grounds of appeal Nos. 2 and 3

A. The so-called administrative rules, which are issued by a superior administrative agency to a subordinate administrative agency, are generally effective only within the administrative organization, and do not have external binding force. However, if the provisions of statutes are not specified in the administrative rules in the form of administrative rules in which the delegated administrative agency grants the authority to determine specific matters of the statutes and does not specify the procedure or method of exercising the authority to determine the specific matters of the statutes, such administrative rules do not have the general effect of administrative rules as seen above, but have the function to supplement the contents of the statutes in accordance with the provisions of the statutes that grant the authority to supplement the specific matters of the statutes to the administrative agency. Accordingly, such administrative rules have the effect of an external binding law order in combination with those of those regulations, unless they do not go beyond the bounds delegated by the statutes in question (see Supreme Court Decision 2006Du3742, Mar. 27, 2008).

Furthermore, with respect to the interpretation of the law on taxes and charges, it shall be interpreted as the legal text, unless there are special circumstances, regardless of the requirements for imposition or exemption, and it shall not be permitted to expand or analogically interpret without reasonable grounds (see Supreme Court Decision 2007Du9884, Oct. 26, 2007).

B. (1) Article 18(1)1 of the former Petroleum and Petroleum Substitute Fuel Business Act (amended by Act No. 8768 of Dec. 21, 2007 and enforced on June 22, 2008; hereinafter “former Petroleum Business Act”) provides that a charge may be collected from petroleum refining business operators, petroleum exporters or importers, or petroleum retailers who import petroleum products or sell petroleum products (hereinafter “petroleum refining business operators, etc.”) for the stabilization of supply and demand of petroleum, and Article 19 of the former Petroleum and Petroleum Substitute Fuel Business Act provides that where a person subject to the above charge uses or supplies petroleum for the purposes prescribed by the Presidential Decree, the charge collected may be refunded, while Article 19 of the same Act provides that the criteria and procedures for refund and other necessary matters concerning refund shall be prescribed by the Presidential Decree.

Accordingly, Article 27(1) of the former Enforcement Decree of the Foreign Trade Act (amended by Presidential Decree No. 20840, Jun. 20, 2008; hereinafter "former Enforcement Decree of the Petroleum Business Act") provides that if a person who has paid dues falls under any of the following subparagraphs, all or part of the dues paid shall be refunded. subparagraph 1 provides that "if a petroleum refiner or petroleum exporter exports products prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy from the process of refining petroleum products or petroleum (hereinafter "reasons 1") and a product prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy, which is produced in the process of refining petroleum products or petroleum, and supplies products prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy for industrial raw materials (including the case of supplying petroleum products for manufacturing raw materials among by-products as fuel for the purpose of manufacturing industrial raw materials), Article 27(1) of the former Enforcement Decree of the Petroleum Business Act provides that 0-1 of the former Enforcement Decree of the Petroleum Business Act shall be 0-2 of the same Act:

(1) The main sentence of Article 23 (1) shall be prescribed in subparagraph 1; (2) the amount of money to be refunded shall be prescribed by Presidential Decree; (3) the amount of money to be refunded shall be prescribed by Presidential Decree; (4) the amount of money to be refunded; (4) the amount of money to be refunded shall be prescribed by Presidential Decree after calculating the quantities of petroleum for the production of petroleum products subject to refund; (4) the amount of money to be refunded shall be prescribed by Presidential Decree after calculating the quantities of petroleum for the purpose of calculating the quantities of raw materials for the production of the Association (hereinafter referred to as "the rate for calculating the quantities of petroleum for the preceding month") and then prescribed in attached Form 2; and (5) the amount of petroleum by-products for the purpose of calculating the quantities of petroleum by-products for the purpose of calculating the quantities of petroleum products subject to refund under Article 26, and (2) 1, and (3) the amount of petroleum subject to refund shall be prescribed by Presidential Decree for the purpose of calculating the quantities of petroleum by-products for the production of petroleum products subject to be refunded.

Accordingly, Article 1-2 of the former Act (amended by Presidential Decree No. 2008 - No. 36 of Nov. 3, 2008 and enforced on Nov. 10, 2008; hereinafter referred to as the "former Customs Service Notice") provides for the total amount of loss of raw materials generated in the normal process of producing export goods (excluding the quantity of raw materials used in the normal process of producing export goods) (Article 2); "by-products" means one M goods with economic value generated in addition to the export goods during the production process of export goods; "the total amount of raw materials generated in the production process of export goods" means the total amount of 1 M goods sold or used for itself; "the autonomous required amount" means the required amount calculated by dividing the total amount of raw materials in the production process of the goods by type (Article 10 (1) of the Act and Article 11 of the Decree; Article 1-2 of the former Customs Service by the total amount of raw materials generated during the production process of the goods for a specific period of time;

In addition, Article 2-14 of the former Customs Service Notice 2-14 provides that where it is difficult to distinguish the raw materials that have caused by-products from the whole raw materials required in the manufacturing process of products, by-products shall be deemed to have been generated from the whole of the raw materials required in the manufacturing process of the products. Paragraph (2) provides that "the deduction ratio by-products" means the formula in which the deduction ratio by-products is calculated: (a) the price of the products produced in the manufacturing process in which by-products are generated; (b) the price of the total raw materials required in the process in which by-products are generated; (c) the price of the relevant raw materials that cause by-products; and (d) the price of the relevant raw materials that cause by-products: Provided, That where it is difficult to calculate the price A and B, the price of the by-products may be calculated by-products if it is difficult to calculate the by-products by-products; and (d) the refund amount for the raw materials that have generated by-products is calculated by applying the deduction ratio by-products under paragraph (2).

C. Comprehensively taking account of the contents, form, purport, etc. of the relevant laws and regulations as seen earlier, each provision of the former Notice and the former Notice of the Korea Customs Service is based on delegation of the former Petroleum Business Act that provides that the Minister shall determine and publicly notify “B, such as the refund standards or the subject, size, method, etc. of refund,” and thus, it shall be deemed that the same has the effect as an external binding legal order when supplementing the content of the relevant laws and regulations and combining them.

Furthermore, when collecting charges from a petroleum refiner, etc., but refunding part of charges under the former Petroleum Business Act, thereby setting the amount of charges to be finally borne by a petroleum refiner, etc.. In light of the substance of imposing and refunding oil refunds, the legal doctrine on the interpretation of the Act on the Interpretation of the Taxes and Charges shall be applied in interpreting the provisions on the basis of calculating refunds, such as the subject, size, and method of refund. Therefore, the provisions on the former Public Notice of the Child Register and the former Public Notice of the Customs Service, which set the basis for calculating refund, shall be interpreted and applied as a matter of principle, and shall not be extensively interpreted or analogically interpreted without reasonable grounds.

(1) As to the method of treating fuel gases, (A) fuel gases, which have been previously produced in the process of crude oil refining, have gone through a minimum stabilization for burning through separate processing by the Plaintiff, and are manufactured for the purpose of sale or actually commercialized and are not able to sell to third parties. Thus, it is reasonable to view that “by-products” is not included in “ hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand, which is generated in the process of normally producing export goods, and is an incidental economic value, other than the production process of export goods, and is sold or used by himself.

(B) However, in addition to the language, history, purport, etc. of the relevant regulations and notifications, it is stipulated that the fuel gas is included in by-products. However, in the former Public Notice of Magman and the former Public Notice of the Korea Customs Service, which was applied during the period subject to the instant disposition, the method of disposal of the fuel gas was not clearly defined in the calculation of the refund amount. ② The former Public Notice of Magman had priority over the refund amount in Article 21, Article 23, and Article 26(1), clearly define the method of calculating the refund amount, with regard to the refund amount, Article 26(1) provides that the calculation shall be made by applying the "self-required quantity required by the Public Notice of the Korea Customs Service" as one of the constituent elements of the above formula. ③ However, Article 214 (Management by-products) of the former Public Notice of the Korea Customs Service provides for the calculation of the refund amount by-products with respect to the raw material that was generated.

The method of calculating "by-products" (paragraph (2) and "by-products" (paragraph (3) of the presumption of "raw materials that cause by-products" (paragraph (2) and "by-products") and "price of by-products necessary for calculating by-products" (paragraph (3) of the above Article), it is difficult to see that the contents of the above Article 2-14 are "voluntary requirements by-products by the public notice issued by the Korea Customs Service," and (4) even if it is necessary to apply by-products of Article 2-14 of the former Public notice issued by the Korea Customs Service, the application of "by-products," other than by-products (value standard) is the same as "products," and therefore, it is not reasonable to apply the provision of Article 2-14 of the former Public Notice to "by-products" as "by-products, which generally have economic value generated in the process of manufacturing by-products, and are not equivalent to that of the Korea Customs Service, and thus, it does not conform with the concept of "by-products" and the public notice.

(2) On the method of handling hydrogens, hydrogens generated from the petroleum chemical process that produces a variety of chemical products using naphthas are various circumstances, i.e., the Plaintiff’s use of the above hydrogen for desulfur in the crude oil refining process.

In light of the fact that considerable economic benefits have been obtained, ② hydrogen is the product sold in the market, ③ hydrogen is incidental to the brine decomposition process, etc., it is reasonable to grasp it as by-products, not as grandchildren.

(B) However, considering the following circumstances that can be known in light of Article 25(1) of the former Public Notice of the Busan Metropolitan Government, which provides for the calculation method of "charge refund rate" for the calculation of the amount of subparagraph 2, and the content of the index of the material in Form No. 4, i.e., (i) application of surcharges refund rate to Type 20, i.e., ‘fuel' for fuel sale' and ‘specific by-products for fuel use and other sale' for the purpose of calculating the amount of net input, the Plaintiff appears to be excluded from the calculation of the amount of refund. (ii) It is difficult to view that the Plaintiff is not a person who sells petroleum by-products for the purpose of calculating the amount of surcharges under Section 25(1) of the former Public Notice, as it can be seen that it is difficult for the Plaintiff to separately state the quantity of petroleum by-products and other by-products for the purpose of calculating the amount of surcharges by-products in Form No. 4, but it is difficult for the Plaintiff to separately state the quantity of petroleum by-products and other by-by-products for use.

D. After recognizing the facts as stated in its holding, the lower court determined that the Defendant’s disposition of this case based on a different premise is unlawful on the grounds that (1) arbitrarily calculating the required amount and the amount of petroleum subject to refund, such as the Defendant’s calculation method, without any clear legal basis, is against the legal principle of surcharges or the principle of clarity, and (2) as to hydrogen, it is difficult to regard the indication of the column of by-products of “material water index,” which is submitted in the process of calculating the rate of refund of surcharges, as an exemplary provision, and the calculation of the rate of refund of surcharges is also contrary to the legal principle of surcharges and the principle of clarity.

In light of the aforementioned legal principles and records, such determination by the court below is just, and contrary to the allegations in the grounds of appeal Nos. 2 and 3, the court below did not err by misapprehending the legal principles on the interpretation and application of the former Petroleum Business Decree, the former Forest Service Notice, and the former Customs Service Notice Regulations, thereby affecting the conclusion of the judgment.

2. As to the ground of appeal No. 1, revocation of the administrative act is a separate administrative disposition extinguishing its validity retroactively on the ground of an unlawful or unreasonable defect in the act, and the ground of appeal is a defect that existed at the time of the establishment of the administrative act (see Supreme Court Decision 2003Da6422, May 30, 2003, etc.).

Therefore, in order for the Defendant to recover part of the refund money that was collected as dues when he imported petroleum from the Plaintiff, but that was returned due to certain grounds for refund, it should be presumed that there was an unlawful or unjustifiable defect in the previous disposition on refund. As such, as seen earlier, it cannot be deemed that there was a defect related to the fuel gas and hydrogen alleged by the Defendant in the previous disposition on refund. Therefore, this part of the ground of appeal is without merit without

3. Conclusion

The appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-han

Justices Kim So-young

Justices Lee Dong-won