Law Firm Cord Co., Ltd.

[Defendant-Appellee]

Law Firm Man-woo, Counsel for plaintiff-appellant

Attorney Lee In-tae, Counsel for the plaintiff-appellant

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

A. The Plaintiff is a company that manufactures and sells fire-fighting-related products.

B. On October 19, 2015, pursuant to Article 16 of the Industrial Technology Innovation Promotion Act (hereinafter referred to as the “Industrial Technology Innovation Promotion Act”), the Plaintiff filed an application with C (hereinafter referred to as the “instant product”) for the extension of the term of validity of the instant product’s certification to D (hereinafter referred to as the “instant association”) on April 20, 2015, and on January 16, 2018. The instant association notified the Plaintiff of the refusal of the said application on May 23, 2018 (hereinafter referred to as “first notification”).

C. On June 4, 2018, the Plaintiff filed an objection against the instant Association regarding the first notification, but the instant Association notified that the results of the review of the Formal Objection Review Committee were dismissed on the grounds as follows on July 13, 2018 (hereinafter “the second notification”).

It is appropriate to approve the extension of certification of a new product at the expiration of three years since it is appropriate to approve the technically improved product, and, aside from the legitimacy of the notice, the extension of the term of validity of the new product should also be equipped with Article 19(1) of the Enforcement Decree of the Industrial Technology Innovation Act. The plaintiff is deemed to have been properly conducted all procedures such as examination of documents and interviews that the plaintiff is not fully equipped with the requirements due to lack of prima facie proof.

D. On October 2, 2018, the Plaintiff filed with the Central Administrative Appeals Commission an administrative appeal seeking revocation of the second notification of the instant case against the Defendant. However, the Central Administrative Appeals Commission rendered an dismissal ruling on the ground that “the second notification of the instant case does not affect the Plaintiff’s rights and obligations, so it constitutes an object of administrative appeal” on February 12, 2019.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. Determination as to the defendant's defense prior to the merits

A. The defendant's assertion

The plaintiff primarily sought confirmation of invalidity of the first notification of this case and revocation of the first notification of this case under the premise that the first notification of this case is a rejection disposition. Accordingly, the defendant asserts that the administrative agency that made the first notification of this case by the Association of this case, and that the lawsuit of this case against the non-qualified person, is unlawful.

B. Determination

1) Whether the instant association delegated the authority to extend the certification of new technology

A) According to the Industrial Technology Innovation Act, the Defendant has the authority to certify a product with excellent performance and quality, among the products completed by applying innovatively improved and improving technologies that have been developed in Korea as core technology, which has a high technological and technological ripple effect as a new product (Article 16(1) and (2) and to delegate part of its authority to a corporation or organization prescribed by Presidential Decree, as prescribed by Presidential Decree (Article 44(1)). Under the Enforcement Decree of the same Act, the authority to examine a new product is delegated by the Defendant to the instant association designated as an assessment agency (Article 57(5)3-3). However, even under the above Act and subordinate statutes, since the authority to extend the certification of a new product is not expressly delegated by the Defendant to the Association, the authority to extend the certification of a new product is also examined as to whether the instant association is delegated with the authority to extend the certification of a new product.

B) Article 57(5) of the Enforcement Decree of the Industrial Technology Promotion Act provides that the authority of the defendant with regard to "the receipt of an application for the extension of the term of validity of a new excellent product (Article 1-2), "the receipt of an objection against the extension of the term of validity of a new excellent product (Article 2(2))," "the prior notice of the term of validity of a new excellent product (Article 3-4)" shall be delegated to the Association of this case. In addition, Article 20(7) of the Enforcement Decree of the same Act provides that the defendant shall determine and publicly notify necessary matters concerning the standards for extension of the term of validity of a new excellent product (NEP) certification and the purchase promotion thereof (Notice of the Ministry of Trade, Industry and Energy) shall be the same as the standard for the extension of the term of validity of a new excellent product (Article 1(1)), and the person who intends to extend the term of validity of a new excellent product shall file an application for the extension with the evaluation agency along with documentary evidence (Article 2(3) of this case).

2) Whether the defendant of the instant lawsuit is eligible for defendant to the Minister of Trade, Industry and Energy

A) In general, when an administrative agency delegates its authority to a subordinate administrative agency or a subsidiary agency, the authority is delegated to an administrative agency, a public organization, or a private person who is not directly under its command and supervision. The delegation and entrustment of authority is the delegation of authority, the delegation authority, and the matters are the authority of the delegation authority. Therefore, the refusal of the extension of the term of validity to the Plaintiff on May 23, 2018 by the instant association shall be deemed the delegation of authority by the Defendant. Thus, when the Plaintiff files an appeal suit against the rejection disposition, such as revocation of the said refusal disposition, the instant association, the delegation authority, and the Defendant, the delegation authority, shall be the Defendant, who is not eligible for the defendant (see, e.g., Supreme Court Decision 96Nu1757, Feb. 28, 1997).

B) In principle, an administrative disposition, etc., which is the subject of a lawsuit, must be the defendant in the external name of the administrative agency. The same does not apply to the administrative disposition under the direction or notification of the superior administrative agency or other administrative agency. The delegated administrative agency upon delegation or entrustment of authority does not mean any disposition under the legitimate authority of the delegated administrative agency. It is merely an internal delegation or delegation of authority, and it is merely an administrative agency without disclosing the name of the original administrative agency or the representative relationship, and the administrative agency, the title of disposition, without authority, must be the defendant (see, e.g., Supreme Court Decision 94Nu1197, Jun. 14, 1994). Since the first notification of this case is an association of this case, the person seeking confirmation or revocation of the first notification of this case must be the association of this case, not the defendant, but the other party to the claim seeking confirmation or revocation of the first notification of this case.

3) Sub-determination

Ultimately, the instant lawsuit is unlawful as it is filed against a non-qualified person.

3. Conclusion

Therefore, since all of the lawsuit of this case is unlawful, it is decided to dismiss it as per Disposition.

Judges Lee Jae-Un

Judges Yellow-nam