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

The result of this Court’s review of constitutional and unlawful enforcement rules

Article 17 of the Enforcement Rule of the Industrial Standardization [Attachment 9] of Article 17 of the Enforcement Rule of the Industrial Standardization Act (Articles 14(5) and 17 related to the examination of certification) that "the proviso to subparagraph 2 (a) shall apply mutatis mutandis to the investigation of goods in the market under Article 17 in the manner and procedure for the investigation of goods in the market and on-site investigation, etc. on the market" is unlawful since it exceeds the scope delegated by the Enforcement Rule under Article 20(1) of the Industrial Standardization Act and Article 27(1) and (3) of the Enforcement Decree of the

A. The Plaintiff, a company running the manufacture and sales business of ready-mixeds, obtained certification of Korean Industrial Standards (KS) marks on ready-mixed concrete produced by the Korean Standards Association.

B. From August 6, 2015 to August 7, 2015, the Defendant secured the automatic measurement records of ready-mixed concrete (hereinafter “Plaintiff ready-mixed”) manufactured and sold by the Plaintiff at the manufacturing factory of ready-mixed located in Busan District, and conducted a quality test on Plaintiff ready-mixed based on the details of the automatic measurement records (hereinafter “instant quality test”).

C. As a result of the above quality testing and inspection, the Plaintiff was judged to have failed each of the 10 products at the same load testing of measuring instruments, and 3 products at the same time as products are manufactured.

D. Accordingly, the Defendant: (a) deemed that the instant investigation constituted “investigation of goods on the market” conducted pursuant to Article 20(1) of the Industrial Standardization Act (hereinafter “Act”); (b) Article 27(1) and (3) of the Enforcement Decree of the Industrial Standardization Act (hereinafter “Enforcement Decree”); and (c) Article 17 [Attachment 9] subparag. 5 and subparag. 2(a) proviso of the Enforcement Rule of the Industrial Standardization Act (hereinafter “Enforcement Rule”); and (c) on December 21, 2015, issued a disposition to the Plaintiff to indicate the certification mark of the Korean Industrial Standards and suspend sales for three months pursuant to Article 21(1) of the Act; and Article 28 [Attachment 1-2] subparag. 2(c) of the Enforcement Decree of the Industrial Standardization Act (hereinafter “instant disposition”).

[Reasons for Recognition] Each entry of Gap evidence Nos. 1, 2, 4 and Eul evidence Nos. 1, 2, 4, 5, 7, 8, 10 through 14 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of disposal requirements

Article 20(1) of the Act, Article 27(1) and (3) of the Enforcement Decree of the Act (hereinafter collectively referred to as “the provisions of this case’s mother law,” among the above provisions, is delegated to determine only the matters concerning the method, procedure, etc. of investigation into goods on the market by collecting samples as the Enforcement Rule. As such, Article 17 [Attachment 9] subparagraph 5 of the Enforcement Rule provides that “The investigation of goods on the market may be conducted by comparing and analyzing documents related to the production of goods by applying mutatis mutandis the proviso of subparagraph 2(a) to the investigation of goods on the market market (hereinafter “documents examination”) in Article 17 [Attachment 9] subparagraph 5 of the Enforcement Rule, “The investigation of goods on the market may be conducted by comparing and analyzing documents related to the production of goods on the market” (hereinafter “documents examination”), which shall be delegated only by the Enforcement Rule to determine the method, procedure, etc. of investigation into goods on the market market by collecting samples and thus, the investigation of goods on the market is invalid.

2) Grounds for procedural illegality

Since the investigation of this case is an on-site investigation under Article 20 (1) of the Act, the defendant must notify the person subject to investigation of the investigation of the investigation date, reason, content, etc. seven days prior to the investigation (see Article 20 (4) of the Act). Since the defendant did not notify the plaintiff of the investigation plan seven days prior to the investigation of this case, the disposition of this case is unlawful in the procedure.

(iii) deviation from and abuse of discretionary power;

In light of the fact that the Plaintiff did not have been subject to any sanctions prior to the instant disposition; the Plaintiff’s replacement of the board after the instant disposition to the latest form the Korean Industrial Standards after the Plaintiff’s replacement; and the Plaintiff’s manufacture of ready-mixed in line with the Korean Industrial Standards, which is likely to be misunderstood that the instant disposition is not so, even though the Plaintiff produced ready-mixeds that conform to the Korean Industrial Standards, the instant disposition violates the principle of proportionality because the disadvantages suffered by the Plaintiff are excessively large compared to the public interest purpose to be achieved thereby.

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

C. Determination

First, we examine the existence of the grounds for the instant disposition.

1) Issues of this part

Article 21(1) of the Act, Article 28 [Attachment 1-2] subparag. 2(c) of the Enforcement Decree of the Act (hereinafter “Enforcement Decree Criteria”) (hereinafter “Enforcement Decree Criteria”), and Article 28 subparag. 2(c) of the Enforcement Decree of the Act’s Criteria for Disposition No. 2(c) of the Enforcement Decree of the Act provide that the applicable requirements of the criteria for disposition are “where the level that does not meet the Korean Industrial Standards under Article 12(1) of the Act as a result of an investigation of goods in the market falls under a serious defect, such as a quality or performance defect, as prescribed in the criteria for the examination of certification under Article 17(1) of the Act. Therefore, the investigation of goods in the market for certified

On the other hand, the fact that the investigation of this case was conducted by the method of document screening to analyze the contents of the entry in the automatic measuring recording book without collecting samples against Plaintiff Lebs. In addition, Article 17 [Attachment 9] [Attachment 5] of the Enforcement Rule excludes the part of the proviso of subparagraph 2 (a) of Article 17 [Attachment 9] that shall apply mutatis mutandis to the investigation of goods on the market (hereinafter “the Enforcement Rule of this case”), there is no provision that allows the investigation of goods on the market by means of document screening. Therefore, if the provision of the Enforcement Rule of this case goes beyond the delegation scope of the provisions of the mother law of this case and becomes null and void, the investigation of this case cannot be deemed to fall under the investigation of goods on the market, and the disposition of this case does not meet the disposal requirements, which is the

Ultimately, the issue is whether the provision of the instant enforcement rule deviatess from the scope delegated by the enforcement rule of the instant parent law provision, and this is a matter of statutory interpretation that determines the scope of delegation of the instant parent law provision.

2) Determination

As a matter of principle, since the law is a universal norm with the same binding force against many and unspecified persons, it shall be interpreted that it is reasonable to clarify the standard meaning of the law and allow it to be objectively reasonable, and as much as possible, it shall not be prejudicial to legal stability by maintaining consistency with the language used in the law. Therefore, the statutory interpretation ought to be faithfully interpreted in principle, and it should be done by using additional methods of systematic and logical interpretation that takes into account the legislative intent and purpose, history of enactment and amendment, harmony with the entire legal order, relationship with other Acts and subordinate statutes, etc. Therefore, if the text of the law consists of relatively clear concepts, it is no longer necessary to use any other method of interpretation in principle, and even if it is intended to interpret the terms used in a certain provision differently from the ordinary meaning of the text of the law, it is difficult to disregard the systematic relationship with other Acts and subordinate statutes or its entire legal system, and thus, it shall not be limited to a certain extent that there is no need for administrative benefits to exclude the other party from the statutory interpretation of the law.

Meanwhile, in a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of whether the subordinate statute complies with the limits of delegation should be made by comprehensively examining the legislative purpose and contents of the pertinent provision, structure of the provision, and relationship with other provisions. In addition, even though the delegation provision itself explicitly provides the limits of delegation by using terms with which the meaning can be accurately known, it should also be taken into account whether the delegation provision exceeded the limits of its literal meaning, or whether a new legislation was made beyond the bounds of the delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision. In addition, in determining whether a certain subordinate statute goes beyond the scope of delegation of the mother law, one of the important criteria is predictability in determining whether the pertinent subordinate statute goes beyond the scope of delegation of the mother law. This means that, even if the contents of the relevant subordinate statute already specifically delegated by the mother law, it should be within the scope that can predict the delegated contents from the mother law itself (see Supreme Court Decision 2011Du28431, Jul. 26, 2012).

Article 20(1) of the Act provides that "the Minister of Trade, Industry and Energy may require a public official or certification examiner to conduct a quality test of certified products sold in the market (hereinafter referred to as "investigation of goods in the market"), as prescribed by Presidential Decree," and Article 27(1) of the Enforcement Decree upon delegation of the Act provides that "the investigation of goods in the market for certified products under Article 20(1) of the Act shall be conducted from among certified products in circulation: Provided, That where it is difficult to collect samples in the course of distribution, a sample may be collected in the factory for the products in question." Accordingly, a quality test conducted without collecting samples for certified products shall be deemed a test method not presented by the investigation of goods in the market."

In addition, Article 27(3) of the Enforcement Decree provides that “The procedures, methods, etc. for the investigation of goods in the market under paragraph (1) shall be prescribed by Ordinance of the Ministry of Trade, Industry and Energy.” However, the phrase “investigation of goods in the market under paragraph (1)” under Article 27(3) of the Enforcement Decree refers to the investigation of goods in the market under Article 27(1) of the Enforcement Decree by itself.

In light of the language and structure of the above provisions of the mother law of this case, it is reasonable to interpret that delegation to be made by the Enforcement Rule of the provisions of the mother law of this case is related to the procedure, method, etc. of the "investigation of Goods in the Market by Collecting Samples" under Article 27 (1) of the Enforcement Decree. It does not seem to include the delegation of the provisions of the mother law of this case, which is not presented in Article 20 (1) of the Act and Article 27 (1) of the Enforcement Decree.

However, Article 17 [Attachment 9] 5 of the Enforcement Rule provides that Article 17 [Attachment 9] subparagraph 2 (a) of the above [Attachment 9] shall apply mutatis mutandis to the investigation of goods on the market. The main sentence of the above subparagraph (a) is related to the inspection of samples, but the proviso is related to the method of examining documents conducted without collecting samples. Therefore, the provisions of the above case concerning the procedure, method, etc. of the investigation of goods on the market by the collection of samples delegated by the Enforcement Rule under the provisions of the mother law of this case, not to prescribe matters concerning the procedure, method, etc. of the investigation of goods on the market, which is a new method of the investigation of goods on the market

In addition, the provisions of the mother law of this case do not present any method other than the collection of samples with respect to the investigation of goods in the market, and it is difficult to collect samples only in the case of the provisions of the mother law of this case, it cannot be deemed that the investigation of goods in the market can be conducted in a way other than the collection of samples. Thus, it is difficult to view the provisions of the mother law of this case as an interpretation of the mother law of this case only to clarify the possible meaning of the provisions

In addition, Article 27(1) of the Enforcement Decree provides that the method of investigating goods in the market shall be conducted after collecting samples from among the certified goods in circulation: Provided, That where samples are difficult to be collected in the distribution process, samples from the manufacturing factory of the goods may be collected. In principle, the place of collecting samples shall be different from the manufacturing factory of the goods, and even if it is difficult to do so, the method of collecting samples may still be different from the place of collecting samples. In light of the language and structure of Article 27(1) of the Enforcement Decree, it is clear that the method of collecting samples is determined by the method of collecting samples. In light of the language and structure of Article 27(1) of the Enforcement Decree of the Enforcement Decree of the Act, it is evident that the contents to be determined by the Enforcement Rule of the Enforcement Decree of the instant case, which shall be determined by the procedure, method, etc. of collecting samples from the certified goods in circulation, or by the “procedures, method, etc. of collecting samples from the manufacturing factory, etc.” It is difficult to expect new contents concerning the method of collecting samples.

In addition, the criteria for the disposition of the Enforcement Decree is based on the delegation provisions of Article 21(1) of the Act. Thus, unlike the Enforcement Rule or the Municipal Rule of the local government, its nature constitutes an order that externally limits citizens or courts, and Article 2(b) through (e) of the Enforcement Decree of the Enforcement Decree of the Act provides that if a certified product falls short of the standards for certification by an on-site investigation, if the certified product is determined to be below the standards for certification by an on-site investigation, more severe sanctions may be imposed. Thus, unlike the provisions of Article 27(1) of the Enforcement Decree, interpreting it as delegated to determine the method of the on-site investigation, which is not subject to the collection of samples under the Enforcement Rule of the mother Act, would result in expanding the concept of the on-site investigation, which serves as the basis for the punitive administrative disposition, to the public, which is disadvantageous to the people (the same applies even if it cannot be established that the act does not fall under the on-site investigation

Meanwhile, the examination of the Korean Industrial Standards for mining and industrial products is permitted not only to collect samples but also to examine products by document method (see Articles 15(1), 17(1) and (5) of the Act, Article 24(2)2 of the Enforcement Decree, and attached Table 9 of the Enforcement Rule, Article 14(5)2 of the Enforcement Rule. The attached Table 9 of the above Enforcement Rule includes the provisions of the Enforcement Rule, Article 17 subparag. 9 of the above Enforcement Rule. However, among the product examination methods that can be used at the examination stage to determine whether the certified products certified in the Korean Industrial Standards already fall short of the standards for the examination of certification, it cannot be deemed that the legal basis exists to determine the method of the examination of products at the market, and there is no logical and inevitable reason to see that the method of the examination of products at the market is contrary to the legislative purport of Article 20(1) of the Act, and it seems that the method of the examination of products at the market is unreasonable in light of the legislative purport of the Act.

In conclusion, the provision of the instant enforcement rule is beyond the scope delegated by the provisions of the mother law of this case and thus cannot be recognized as effective. Therefore, the instant investigation does not constitute a test of goods on the market, and the instant disposition was unlawful without examining the remainder of the Plaintiff’s assertion, as it did not meet the requirements for disposition prescribed by the relevant statute.

3. Conclusion

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

[Attachment]

Judges Lee Jin-hun (Presiding Judge)