Attorney Kim Sung-hoon, Counsel for the defendant-appellant

A. The Plaintiff has purchased a cargo transport service provider via B, etc. (hereinafter “B”), a petroleum retailer, etc.

B. On August 8, 2018, the Defendant issued an order to return oil tax subsidies (hereinafter “instant disposition”) to the Plaintiff for the following reasons.

1. On 1, 2015, 10, 5-11, 12.12. He purchased an oil tax subsidy from an oil supplier B, and received from our office for the inland cargo transportation services, but it was confirmed that most of the results of the investigation into the Military Coast Guard and the Heavy Tax Station have been in non-data transaction, and it was confirmed that light oil supplied by the same company until March 31, 2018 is non-taxable oil (non-taxable oil).2. The oil tax subsidy is all or part of the amount equivalent to the increase of the tax amount imposed on the oil used by the domestic cargo supplier on his vessel in accordance with Article 41(2) of the Marine Transportation Act (L 345.54 won per L 36.3.57). The oil tax subsidy is not subject to the 285th 9th 6th 6th 7th 86th 7th 86th 7th 198 7th 208 7th 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff was aware of the petroleum retailer registered with the relevant agency B in a normal manner, the Plaintiff purchased the oil sold by B at the taxable oil price with the knowledge that the oil was, as a matter of course, taxable inducement. In collusion with B, the Plaintiff did not request or receive the Defendant’s subsidy by fraud or other improper means. Nevertheless, the Defendant’s disposition ordering the Plaintiff

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

1) Relevant legal principles

Article 41 (2) of the Marine Transportation Act provides that "the Government may subsidize all or part of the amount equivalent to the increase of the amount of oil to be imposed on the vessel of a coastal cargo transport business operator (hereinafter referred to as "oil tax subsidy")." Article 41-2 (2) provides that "the Minister of Maritime Affairs and Fisheries shall order a maritime transport business operator who has received a subsidy or loan under Articles 38 (1) and 41 (1) by fraud or other improper means to return the subsidy, loan and oil tax subsidy to the coastal cargo transport business operator who has received the oil tax subsidy under Article 38 (2) and the marine transport business operator who has received the oil tax subsidy under Article 38 (2) by fraud or other improper means, and shall recover the subsidy, loan and oil tax subsidy in the same manner as delinquent national

In light of the language and text of Article 41-2(2) of the Marine Transportation Act, the Minister of Oceans and Fisheries shall interpret that an order shall be issued to return oil tax subsidies paid by a provider of coastal cargo transportation services by fraud or other improper means, and shall not be construed as an order to return oil tax subsidies paid by a provider of coastal cargo transportation services in a normal manner, other than the oil tax subsidies paid by fraud or other improper means (see Supreme Court Decision 2011Du3388, Dec. 12,

On the other hand, in an administrative litigation to which the provisions of the Civil Procedure Act apply mutatis mutandis, the burden of proof is, in principle, allocated among the parties in accordance with the general principles of civil procedure, and according to the nature of the appeal litigation, the defendant, who is the disposition agency that claims the lawfulness of the pertinent disposition, bears the burden of proof as to the legal ground (see, e.g., Supreme Court Decision 8

2) Determination

Examining the following circumstances in light of the above facts and the aforementioned evidence, which can be acknowledged by adding the purport of the entire pleadings to the statements in Gap evidence Nos. 3, 5, and 8, there is insufficient evidence to acknowledge that the plaintiff received oil without material in collusion with Eul and received oil from the defendant in collusion with Eul, and there is no other evidence to acknowledge otherwise. Accordingly, the prior disposition of this case on a different premise should be revoked since it is unlawful.

A) On December 27, 2018, D, the representative director of C and the actual operator, was indicted for violating the Petroleum and Petroleum Substitute Business Act, which sold or stored a total of 376,600 liters of petroleum products that failed to meet the quality standards for the Plaintiff through 12 times from February 28, 2017 to November 29, 2017. On the other hand, the Plaintiff was not prosecuted for having conspired or aided with C and D in relation to the facts charged.

B) On December 27, 2018, D, the representative director of B and C, and the actual operator of D, the above court

Around January 3, 2016, the injured party supplied the total sum of 150,00 liters oil to the Plaintiff in the inner wall of 50,000 Kambag-si, Youngnam-gun, Samnam-gun, Samnam-gun, which had been distributed in normal route, as if the injured party were oil distributed in normal route, and the fuel oil supply certificate containing false fuel ingredients, such as sulfur ingredients and ion points, was dried, received KRW 119,856,00 in return, and acquired it by fraud. From that time until September 26, 2017, the sum of non-data total of 1,706,50 won was supplied from that time to September 26, 2017, and received KRW 1,327,047,300 in total from that time, was also charged as the charge, and the Plaintiff was also prosecuted as the victim of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes.

C) The “Guidance on Report of Corporate Tax by Busan Regional Tax Office” (Evidence 7) states that “purchase is less than 67% of the publicly notified price of the E Association with respect to the market price of non-data maritime oil.” The Plaintiff purchased via B at a price higher than the publicly notified price of the E Association during the period from October 2015 to April 2017 and from October 2017. From April 2017 to September 2017, the Plaintiff purchased via B at a price lower than the publicly notified price of the E Association from April 2017 to November 2017, and the Plaintiff purchased via B at a price lower than 4.29 to May 72 from December 2012.

D) Although the Defendant alleged that the Plaintiff was aware that the transit supplied from B was not normal, it is insufficient to view that the Plaintiff was aware that the transit supplied from B was oilless, and there is no other evidence to prove otherwise.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

Judges Hwang Young-ju

Judge Kim Gin-han

A person shall be appointed.