2018Guhap68568 Revocation of approval for a call plan

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

[Defendant-Appellant] Plaintiff LLC

[Defendant-Appellee] Defendant 1 and 3 others

The Minister of Environment

Government Legal Service Corporation (Law Firm LLC)

Attorney Lee Dong-tae

K corporation

Attorney Yu Young-il, Park Young-hoon, and Kim Jong-ho, Counsel for the defendant-appellant

6.6.28 of the closing of argument;

Judgment rendered on August 16, 2019

1. All of the instant lawsuits are dismissed.

2. The costs of the lawsuit, including the part resulting from the supplementary participation, are assessed against the plaintiffs.

The defendant's disposition to approve the call plan for each motor vehicle listed in the separate sheet No. 2 attached to the defendant's intervenor (hereinafter referred to as "participating") against the defendant's intervenor on March 28, 2018 is revoked.

1. Details of the disposition;

A. Status of the parties

1) The Defendant is granted administrative agencies with authority to conduct various inspections and orders to properly regulate pollutants discharged from automobiles under the Clean Air Conservation Act.

2) An intervenor is running a business that imports and sells vehicles from German corporations L (L, hereinafter referred to as “L”) and M (M, hereinafter referred to as “M”).

3) The Plaintiffs are the owners of each transit vehicle listed in the separate sheet of vehicles owned by L and M in the separate sheet of vehicles owned by the Plaintiffs.

(b) Voluntary setting related to L's nitrogen oxide reduction equipment and order to correct defects by the defendant;

1) Around 2009, Korea introduced Euro 5, which is the permissible emission levels, such as nitrogen oxides (NOx; hereinafter referred to as “NOx”) on an automobile used via the European Union, according to the Free Trade Agreement between the Republic of Korea, the European Union, and its Member States (hereinafter referred to as the “FTA”), and introduced Euro 6, which is the standard more strengthened than Euro 5 (However, the grace period has been granted for some types of vehicles). On the other hand, the United States, unlike the Republic of Korea or the European Union, has adopted permissible emission levels, such as nitrogen oxides, on an automobile used via the self transit of the ELV-2. The permissible emission levels of Euro 4 through 6 and LEV-2 are as follows:

A person shall be appointed.

2) On May 2014, an international eco-friendly transportation organization (hereinafter referred to as the "ICT") raised doubt that the engine and electronic control device of a light fuel vehicle manufactured by LA (hereinafter referred to as the "EECU") would normally work at the time of indoor certification (hereinafter referred to as the "discharge gas test"; hereinafter referred to as the "in-house certification test"). At the time of road driving, the international eco-friendly transportation organization (hereinafter referred to as the "voluntary establishment of this case") was in violation of the U.S. Federal Environmental Office (hereinafter referred to as the "U.S.") (hereinafter referred to as the "Voluntary establishment of this case"). At the same time, it was confirmed that the establishment of the CA in this case and the CA25 U.S. On the ground that it violated the laws and regulations of the U.S. Federal Committee of Environmental Administration (hereinafter referred to as the "U.S.").

4) Around October 2015, the Defendant conducted an occasional inspection under Article 50(1) of the Clean Air Conservation Act and Article 48(1)1 of the Enforcement Decree of the Clean Air Conservation Act on the vehicles in the euro 5 applied to Euro 5 in order to verify whether the instant voluntary establishment has been made on the L manufacturing light vehicles sold in Korea.

5) On November 23, 2015, the Defendant confirmed that the instant voluntary creation was made on the vehicles, etc. located in the Euro 5 Euro 5, and issued a correction order to remove the instant 15 types of 15 types of vehicles produced under the same conditions as the said Euro 5 vehicles, etc. (hereinafter “instant correction order”).3) The instant 15 types of vehicles include each transit vehicle listed in attached Table 2, which is the model of the vehicle owned by the Plaintiffs (hereinafter “instant vehicle”).

C. Approval of the defendant's correction plan

1) The Intervenor submitted a correction plan on October 5, 2016 to the Defendant, and submitted supplementary data to the said correction plan on December 27, 2016 (hereinafter referred to as “the correction plan of defect contained in the said correction plan”), and the said correction plan includes the content that the Intervenor voluntarily removed the instant construction by improving the ECU program, while recognizing that separate software that reduces the operation of the exhaust gas reduction device is applied to the instant vehicle, etc. differently from the time of the authentication test in an environment other than the indoor authentication test conditions.

2) From February 2017, the Defendant confirmed whether the establishment of this case was removed in the course of conducting four repeated indoor inspections, outdoor road driving inspections, etc. on the 15 types of vehicles, etc. from around February 2017, the Defendant approved the instant plan on March 28, 2018 (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, 12, Eul evidence 1 to 3, and 5 evidence 5 (which include each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiffs' assertion

If the Defendant wishes to approve the call plan of this case, the interests of owners of the motor vehicle, such as the Plaintiffs, must be considered. Accordingly, according to the instant disposition, the Defendant must comply with the discretionary limitation to approve the plan that does not undermine the annual expense, performance, and durability of the motor vehicle to be call. However, in examining whether to approve the call plan of this case, the Defendant was carrying out verification procedures without considering various kinds of smoked vehicles included in the instant motor vehicle, and failed to remove nitrogen oxides in excess of the permissible exhaust gas emission standards even if according to the call plan of this case, and without any particular legal basis, the EU Commission published a notice (which would be inconsistent with the EU Commission’s notification that did not lower the acceptable exhaust gas standards, which would be contrary to the existing Act on the Maintenance and Improvement of the Air Environment of the Republic of Korea (EC), and would be contrary to the duty to verify or reduce the performance of the motor vehicle of this case, which would be contrary to the Act on the Maintenance and Improvement of the Standards for Food and Drug of this case).

3. Relevant statutes;

Attached Form 3 is as shown in the relevant statutes.

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

A. The defendant's assertion

The standing to sue in a revocation suit under the Administrative Litigation Act is acknowledged to be a person who has a legal interest in seeking revocation of a disposition, etc. However, the Plaintiffs are not the other party to the instant disposition and have indirect, private, and economic interests, and do not have a legal interest in seeking revocation of the instant disposition. Therefore, the instant lawsuit is unlawful as a lawsuit filed by a person who has no standing to sue.

1) Relevant legal principles

Even if a third party is not the other party of an administrative disposition, if the legal interest protected by the administrative disposition is infringed, he/she is entitled to obtain a decision of propriety by filing a revocation suit.

The term “legal interest” refers to a case where there is an individual, direct, and concrete interest protected by the relevant laws and regulations and relevant laws and regulations, and it does not include a case where a person has a factual and economic interest, such as a general, indirect, and abstract interest commonly held by the general public as a result of public interest protection. In addition, the legal interest protected by the relevant laws and regulations and relevant laws and regulations is a legal interest protected by the express provisions of the relevant laws and regulations based on the relevant disposition, although it is not protected by the relevant laws and regulations, it refers to a legal interest which is clearly protected by the relevant laws and regulations and regulations based on a series of relevant dispositions in order to achieve the administrative purpose of the relevant disposition, and a reasonable interpretation of the relevant laws and regulations and relevant laws and regulations, even if there is no explicit provision that protects the relevant interest clearly, under the relevant laws and regulations, includes the purpose of protecting individual, direct, and specific interest which is not limited to pure public interest protection (see, e.g., Supreme Court Decisions 2003Du2175, Aug. 16, 2004>

2) As seen earlier, a third party, who is not the direct other party to an administrative disposition, can file a lawsuit seeking revocation of the administrative disposition, only when the third party, as seen earlier, is against the interests of the pertinent administrative disposition, and the interests of the third party are legally protected. Thus, inasmuch as there is no profit of the third party, which is infringed upon by the first place of the administrative disposition, there is no room to recognize the standing to sue seeking revocation of the administrative disposition. However, even if the plaintiffs suffered property damage, etc. caused by the creation of the second and second transaction prices of the instant vehicle due to the creation of the instant discretion, this is not the damage caused by the Defendant’s voluntary establishment of the instant vehicle caused by the instant disposition.

Furthermore, Article 46(1) of the Clean Air Conservation Act, Article 62 of the Enforcement Rule of the Clean Air Conservation Act, and Article 62 [Attachment Table 17] of the Clean Air Conservation Act stipulate "permissible emission levels for pollutants to be observed by a motor vehicle manufacturer," and Article 48(1) of the Clean Air Conservation Act provides that where a motor vehicle manufacturer intends to manufacture a motor vehicle, it shall be certified in advance by the Minister of Environment that the exhaust gas of the motor vehicle can be maintained in conformity with permissible emission levels for manufactured automobiles during the warranty period, and Article 50(7) of the former Clean Air Conservation Act (amended by Act No. 14487, Dec. 27, 2016; hereinafter the same shall apply), Articles 51 and 55 of the Clean Air Conservation Act order the suspension, suspension, replacement, and correction of defects against the motor vehicle manufacturer who fails to comply with permissible emission levels for manufactured automobiles, etc., the rights of the plaintiffs against the motor vehicle manufacturer to request the defendant to voluntarily establish and correct defects for the purpose of preventing air pollution or the environment, as stipulated in Article 1 of the Clean Air Conservation Act, and to prevent damage.

However, if the Defendant’s right to demand correction of exhaust gas-related parts under Article 50(7) of the Clean Air Conservation Act is restricted due to the instant disposition, it may be deemed that the Plaintiffs’ interest is infringed upon due to the instant disposition if the Defendant’s right to demand correction of exhaust gas-related parts against the Intervenor or the Intervenor under Article 52 of the Clean Air Conservation Act is limited. However, there is no ground provision that the Defendant’s right to demand correction of exhaust gas-related parts under Article 52 of the former Clean Air Conservation Act may be infringed upon due to the instant disposition. In addition, there is no ground provision that the Defendant’s right to demand correction of exhaust gas-related parts under Article 50(7) of the former Clean Air Conservation Act does not exist (the right to demand correction of exhaust gas-related parts under Article 52 of the Clean Air Conservation Act is separate from the Defendant’s order to replace exhaust gas-related parts against the Plaintiff’s automobile manufacturer under Article 50(7) of the former Clean Air Conservation Act, and there is no right to demand revocation of the Plaintiff’s right to demand correction of this case’s.

3) Judgment on the plaintiffs' assertion

A) The plaintiffs can only sell an automobile which has obtained prior certification under the Clean Air Conservation Act. Thus, the owner of an automobile is legally guaranteed so that it can purchase only an automobile which has obtained prior certification. The provisions on the method and procedure for the certification and inspection of a manufacturing automobile (Notice No. 2018-129, Aug. 3, 2018; hereinafter referred to as the "Certification Notice of this case") stipulate that the contents of prior certification shall be indicated on an automobile. The vehicle which has not obtained prior certification cannot be duly registered pursuant to Article 9 of the Automobile Management Act, and the owner of an automobile is guaranteed by the law that the automobile normally works for the related parts of the exhaust gas reduction device such as EGR during the exhaust gas guarantee period. Considering the fact that the prior certification system under the Clean Air Conservation Act is aimed at protecting the legal interests of the owner of an automobile, the owner of an automobile has the right to request the restoration of the automobile as the certified vehicle.

However, even if the provisions of Articles 46, 48, and 5 of the Clean Air Conservation Act regarding the plaintiffs' prior certification of automobile parts are applicable laws or regulations to be disposed of, the above provisions only stipulate that the automobile manufacturer shall obtain certification from the defendant, or demand the defendant to obtain certification by directly using the automobile manufacturer, as well as provisions that guarantee the right of the automobile manufacturer to participate in the authentication procedure, such as participation in the authentication test or presentation of opinion, and ② the automobile manufacturer to impose the duty of prior certification on the automobile manufacturer is also not appropriate for preventing danger and injury to public health or environment caused by air pollution and for maintaining the atmospheric environment in an appropriate and sustainable manner by properly regulating the pollutants discharged from the automobile and for protecting the automobile manufacturer's right to use the automobile as stated in Article 33 (1) of the former Clean Air Conservation Act, and thus, it is not appropriate for the automobile manufacturer to use the above provisions to ensure that the automobile manufacturer can use the automobile for the purpose of removing the authentication of the automobile in accordance with the provisions of paragraph 1 of the same Article.

However, in light of the contents of Article 50 (7) of the former Clean Air Conservation Act, the above provision cannot be deemed to have been granted to the owner of the automobile, and the plaintiffs' above assertion seems to be premised on the premise that Article 48 of the Clean Air Conservation Act is a provision guaranteeing the interests of the owner of the automobile which can be operated without guaranteeing the normal operation of parts during the exhaust gas guarantee period. As seen above, Article 48 of the Clean Air Conservation Act is not a provision protecting the legal interests of the owner of the automobile, and in this case, the defendant cannot be deemed to bear the duty to act against the owner of the automobile to order the replacement of parts or the replacement of automobiles for the owner of the automobile. Thus, the plaintiffs' above assertion is without merit.

C) The Plaintiffs asserted that, in the event that the instant call scheme approved by the instant disposition is not complied with, the order to suspend operation under Article 70-2 of the Clean Air Conservation Act and criminal punishment under Article 92 subparagraph 12 of the Clean Air Conservation Act should be enforced.

Article 70 (1) through (3) of the Clean Air Conservation Act provides that "the defendant, etc. may order an owner of an automobile to improve the exhaust gas in excess of the permissible emission levels for automobiles, etc. as a result of occasional inspections of automobiles in operation in accordance with Article 61, unless there is intention or negligence, unless it is done intentionally or by negligence, an owner of an automobile who has received an improvement order shall undergo an inspection for confirmation within the period prescribed by Ordinance of the Ministry of Environment." Article 70-2 (1) provides that "the defendant, etc. may issue an order to suspend the operation of the automobile concerned within a prescribed period not exceeding ten days if the owner of an automobile who has received an improvement order under Article 70 (1) fails to undergo an inspection for confirmation under Article 70 (2) within the period prescribed by Ordinance of the Ministry of Environment." Article 92 subparagraph 12 of the Clean Air Conservation Act provides that "a person who fails to comply with an order to suspend operation under Article 70-2 shall be punished by a fine not exceeding 3 million won." Thus, it is likely that the plaintiffs may not comply with the above order to suspend emission order.

However, since the current permissible emission levels of running cars are set only as the annual permissible emission levels based on the occasional inspection of running cars and do not set the permissible emission levels of nitrogen oxides, even if nitrogen oxides is emitted excessively in the instant vehicle, it is impossible for the Defendant to issue an improvement order under Article 70(1) of the Clean Air Conservation Act to the Plaintiffs. Therefore, even if the Plaintiffs do not comply with the instant order, it is also impossible for the Plaintiffs to issue a corrective order under Article 70-2 of the Clean Air Conservation Act and criminal punishment under Article 92 subparag. 12 of the same Act. Therefore, the Plaintiffs’ assertion that the instant plan is enforced under each of the above provisions, and there is no reason to believe that the Plaintiffs might include nitrogen oxides permissible emission levels for running cars, such as the instant vehicle, etc. by the Defendant at any time. Accordingly, the Plaintiffs’ assertion that the order to suspend operation under Article 70-2 of the Clean Air Conservation Act and the risk of criminal punishment under Article 92 subparag. 12 of the same Act is embodied.

However, it is a legislative decision that the obligation to observe the permissible emission standards of nitrogen oxides is to vest only in a motor vehicle manufacturer who is not an owner of a motor vehicle, but is in the primary responsibility for the emission of pollutants, and that the legislative decision of the defendant, which is comprehensively entrusted by the defendant with the authority to establish the permissible emission standards of nitrogen oxides in light of Articles 46 and 57 of the Clean Air Conservation Act, imposes on the motor vehicle manufacturer an obligation to observe the permissible emission standards of nitrogen oxides by the expiration of the permissible emission standards of permissible emission standards of manufactured motor vehicles, while the motor vehicle manufacturer is obliged to observe the permissible emission standards of manufactured motor vehicles, among the permissible emission standards of manufactured motor vehicles, the standards for occasional inspections of motor vehicles in light of the permissible emission standards of manufactured motor vehicles are not set by the permissible emission standards of nitrogen oxides, and thus, it cannot be deemed that the legal interest of the plaintiffs

E) The Plaintiffs asserts that the head of local government, such as the Seoul Special Metropolitan City Mayor, etc., may impose unfavorable measures, such as prohibition of operation, against the Plaintiffs who did not comply with the instant recall plan.

However, since there is no ground provision that the head of the Seoul Special Metropolitan City Mayor and the head of the local government may impose disadvantageous measures such as the prohibition of operation on an owner of an automobile for reasons that he did not comply with the correction plan of defects, the plaintiffs' assertion also does not need to be further examined (the plaintiffs alleged that in this case there is a case where the head of the local government has recently issued an order to suspend operation to an owner of an automobile with respect to the recent BMW vehicle fire accident, the plaintiffs may be ordered to suspend operation, but the above order to suspend operation is argued that there is a possibility that the plaintiffs may receive an order to suspend operation. However, the above order to suspend operation is a limited and conditional order to suspend operation which the Minister of Land, Infrastructure and Transport requests the head of the local government to issue an order to suspend operation under paragraph (1) along with the checkup order under Article 37 of the Automobile Management Act with the order to suspend operation under paragraph (2). Thus, the facts and the relevant statutes completely differ from the above order to suspend operation. Accordingly, the plaintiffs can not be deemed to have any legal interest in seeking the cancellation of the disposition in this case).

5. Conclusion

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

The presiding judge, deputy judge;

Judges Lee Jae-Un

Judges Yellow-nam

1) The nitrogen oxides reduction device is very large for the relarlar of exhaust gas (hereinafter referred to as “EGR”) and the selective evaculation device.

The term "SCR" is classified as the "LNT" and the "scR" as the "LNT" and the "LNT" as the "Lean Nx Trap, abbreviated name".

2) Voluntary establishment is a component so as to reduce the function of the exhaust gas-related component differently from the test wear of exhaust gas under the general conditions of operation and use.

Function suspension, delay, and alteration component parts (establishment of functions through the reduction of variables, such as temperature, vehicle speed, engine transmission, transformation speed, and nitrocal pressure)

Section 2 subparagraph 19 of Article 2 of the Regulations on the Method, Procedure, etc. for Certification and Inspection of Gu Manufactured Motor Vehicles (Public Notice of Ministry of Environment No. 2016-197 October 14, 2016)

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3) The law based on which the order to correct the defects was issued (No. 1-3) is the basis for the order to correct the defects (Article 51(4), (6), and (3) of the Clean Air Conservation Act.

Article 75 of the Rules provides that "Article 75 of the Rules" is stipulated, however, in this court, the laws and regulations based on the order to correct defects are stipulated in the old Clean Air Conservation Act.

27. Article 50(7) of the Clean Air Conservation Act (amended by Act No. 14487); Article 51(4) and (6) of the Clean Air Conservation Act; the implementation of the Clean Air Conservation Act;

The position that Article 75 of the Rules only applies mutatis mutandis to the procedural content (the defendant's 10 pages, etc. of the preparatory document dated November 6, 2018);

4) Approval of a recall plan for the said 15 model shall be granted three times in total (the first: January 12, 2017; the second: August 30, 2017; the third: March 28, 2018);

The disposition of this case was the last measure taken by the defendant among the measures taken by the defendant.

5) The Clean Air Conservation Act recognizes the right of an owner of an automobile to demand the defendant to take measures such as correction of defects against the motor vehicle manufacturer.

In lieu of not doing so, an owner of an automobile within the gas guarantee period of Article 52 shall normally have parts related to exhaust gases prescribed by Ordinance of the Ministry of Environment.

In case of not maintaining capacity, it may demand the automobile manufacturer to correct the defect, and the automobile owner may demand the automobile manufacturer to correct the defect.

The right to demand an automobile manufacturer who is not a high-priced automobile to correct the defective parts related to exhaust gas directly.

6) Article 57 of the Clean Air Conservation Act and Article 78 and attached Table 21 of the Enforcement Rule of the Clean Air Conservation Act are set forth.

7) Irregular inspection, regular inspection, and regular inspection of automobiles being manufactured or in operation pursuant to Articles 50(1) and 51(1) of the Clean Air Conservation Act;

Inspection for confirmation of defects may be conducted, and each inspection is not conducted under Article 50(7) of the former Clean Air Conservation Act and Article 51(4) of the Clean Air Conservation Act.

Sanctions, such as suspension of sale, may be imposed on the manufacturer of the passing vehicle.