(영문) 서울행정법원 2014.10.17. 선고 2014구합1420 판결

A. On June 17, 2013, the Plaintiff filed an application for the certification of a new product on the “compact base for the oil filling” with the Defendant on the ground that the former technology applied only to a large-scale changer (the replacement of the location of the body inside the changer to prevent the loss of electricity) applies to the Defendant on the ground that it is a small-sized changer to remove the loss of circular current current, reduces the loss by removing the loss of circulation current, reduces the production cost and reduces the load of the smoke, thereby reducing the manufacturing cost and small-sized products.

B. On July 10, 2013, the Plaintiff received a final decision of non-acceptance (hereinafter referred to as “instant disposition”) on the ground that the Plaintiff was subject to a decision of conformity assessment at the first document interview conducted on July 10, 2013, and received a decision of non-conformity with new products at the second on-site examination conducted on July 18, 2013, and on August 7, 2013, the Defendant was evaluated to have failed to meet the standards for new products as a result of deliberation by the final Certification Deliberation Committee. The Plaintiff filed an objection on September 3, 2013, but received a decision of non-acceptance from the Defendant on October 8, 2013. Although the Plaintiff filed an administrative appeal on January 10, 2014, the Plaintiff was dismissed by the Central Administrative Appeals Commission on July 15, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 16, 17 (including paper numbers), Eul evidence Nos. 2 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) As to the violation of the duty to present reasons, the instant disposition violated the duty to present reasons under Article 23(1) of the Administrative Procedures Act and Article 12(4) of the Operational Guidelines for the Certification of New Products and the Encouragement of Purchase, etc. (No. 2012-260, hereinafter “Operational Guidelines”) by presenting that “the reason for refusal was that the instant disposition failed to meet the standards for new products as a result of the deliberation,” without any specification.

(2) On-site examinations are conducted to check the product evaluation, quality management system, and other matters only for the products that passed the first document and interview examination. The Plaintiff cannot re-examine the original nature, difficulty, level of technology, economic ripple effect, etc. of the products already deliberated in the document interview examination. Therefore, the Plaintiff could not reverse the deliberation results of the on-site examination by the on-site examination examiners who did not prepare materials related thereto at the time of on-site examination, and the three or five on-site examination examiners who did not have any originality in the Plaintiff’s whole technology based on the body that he/she was brought about by himself/herself. However, at the time, on-site examination members did not perform the examination, such as sampling, product examination, and neglected all the documents issued by the official body. Accordingly, on-site examination is unlawful in the process.

(3) As to the certification of a new product

Considering the fact that the Plaintiff’s manufacture of the main voltage by applying the former technology to a small voltager, and it is recognized that the reduction of loss caused to the Plaintiff and the reduction and lightization of the transformerr, etc. is recognized as excellent product quality, such as receiving utility model registration, and the Plaintiff’s acquisition of comparative data on the specifications and performance of all competitors is impossible, it is unlawful to assess that the Plaintiff’s product does not recognize newness and originality.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(1) The main contents of the Plaintiff’s application are as follows.

○ The description of the product for which the application was filed for the background of the product shall minimize its impact on the leakage, which was not previously applied to the state tension.

Technical application products with the aim of providing new products removing unnecessary power loss by applying new technology that reduces loss, are composed of 2 kinds of co-owners each day in order to provide them with new products removed from unnecessary power loss: (1) the product subject to application is a product with a unique structure in which the former location is limited to 1 place; (2) the product subject to application with a unique structure in which the former location is reduced from the outside part of the day to the outside part of the day; (3) the product subject to application for pilotage of 2) the manufacturer may reduce the circular current from the upper voltage line of the steel type to the upper voltage line of the steel type; (4) the product subject to application for pilotage of 1 to the latter part of the 2) but there is no difference between the former and the latter part of the 1 to the latter part of the 2) the manufacturer at the time of application of the same loss and the latter's new product at the time of 1 to the latter part of the 2) the manufacturer at the time of application for pilotage, but there is no difference between the latter and the latter.

(2) On February 15, 2012, the Plaintiff acquired a utility model right as to “the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the Korean Intellectual Property Office (registration No. 20-0458323), which can reduce the loss of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of

(3) ① On July 10, 2013, the Defendant held a new product certification evaluation committee to conduct an interview with the first examination stage in the Plaintiff’s attendance. The Defendant issued a new product certification evaluation committee and conducted an interview with the first examination stage in the Plaintiff’s presence. After going through the Plaintiff’s presentation and questioning and answers with the examiners, the Defendant issued a new product certification judgment with the assent of seven members among the 12 examiners, excluding one person in charge of technology of the same kind and one user of the developed product, and by three opposing examiners.

② An evaluation committee member A and B, who participated in the first document interview, visited the Plaintiff on July 7, 2013, 18, and the second on-site examination (e.g., document review results, quality assurance system examination, and sampling) with C separately appointed for the inspection and evaluation of quality assurance system. However, the evaluation committee members presented inappropriate opinions for the following reasons.

In the case of 100KVA, products less than those subject to the application are less than those subject to the application.In the case of 100 KV, there are products less than those subject to the application. The determination is not possible in the case of the remaining 100 KV products. Although the other method is used by the existing method, it is impossible to verify the results improved in terms of loss, weight, and volume.In the case of the existing method, it is determined as differentiated technology. In the case of 100KVK, the applicant may differently appear in accordance with the design method, and the objective comparative data with respect to the pre-development products and non-exclusive products could not be confirmed based on the same standard.

③ On August 7, 2013, the Defendant held a Committee for the Evaluation of Certification of New Products to make a final determination to determine the lack of certification of new products for the following reasons:

The applicant product is recognized to have applied a new electric technology in terms of loss, weight, and volume in the case of 10KVA, although it is recognized to have applied a new electric technology as a result of the on-site inspection that it was passed by the Evaluation Committee (Voting Committee members: 7: 7: opposite: 3: 10 : 10 : 3) by applying the electric technology to the 100 KVA in the on-site voltage period.

No more than 10 KVA can be confirmed only with improved parts. (A product less than 100 KVA is not determined due to lack of data) The applied product is evaluated as a non-conformity with the NEP certification through on-site examination as the ground and requirements indicating new technology and new products are insufficient.

(4) On September 3, 2013, the Plaintiff submitted a written objection stating that “The pre-developed method developed by the Plaintiff is a pre-developed method as a project for supporting technological innovation of small and medium enterprises by making sure the problems of the pre-existing method to be improved,” and that “the pre-developed method as a project for supporting technological innovation of small and medium enterprises cannot be certified due to size of less than other products” with respect to the fact that “the pre-developed method by the Plaintiff is a pre-developed method as a project for supporting technological innovation of small and medium enterprises.”

(5) On September 16, 2013, the Korea Electric Power Corporation and the Korea Electric Power Research Institute submitted the present data on product performance of the main transformer (hereinafter referred to as “10KVA”) as follows.

The Korea Electric Power Corporation’s Answer Data

A person shall be appointed.

Data on replies to the Korea Electrical Research Institute.

A person shall be appointed.

(6) On July 23, 2014, A, an examiner, made a statement in this Court as follows:

Plaintiff Products are the only product used by the Korea Electric Power Corporation, and are 30 or more companies.

Since there are many cases, it is difficult for the Korea Electric Power Corporation to conduct an on-site examination. The first evaluation committee and the on-site examination of the products are related continuously. There was no objective data proving that the performance of the products is excellent as compared to other products. At that time, there was no data showing that there was a lot of loss in the Plaintiff’s application, but there was no data indicating that the product would be lower than all other products. Since the product would be more excellent than that of other products, it cannot be seen as excellent products. Economic feasibility should also be recognized even if it was passed by the applicant because it was no more than that of other new products than the Plaintiff’s products. It was said that the Plaintiff’s new products could not be identified on the ground that there was no high-tech product than that of other products. The subsequent document examination would accord with the effect that the Plaintiff’s new products could not be identified on the ground that there was no high-tech product more than that of other products than the Plaintiff’s products.

[Ground of Recognition] Facts without dispute, Gap's statements, Gap's testimony, and the purport of whole pleadings, Gap's statements, Gap's statements, Gap's statements, Gap's statements, Gap's statements, 8, 9, 11, 12, 13, 15, 18 through 21, 30, Eul's statements (including additional numbers), Eul's statements, and Gap's statements and the purport of whole pleadings

D. Determination

(1) On the violation of the duty to present reasons

(A) Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall present the basis and reason for a disposition to the parties when it takes a disposition. The purpose of the provision is to exclude the arbitrary decision of the administrative agency and allow the parties to properly cope with the administrative remedy procedure. Thus, in full view of the contents stated in the written disposition, relevant Acts and subordinate statutes, and the overall process up to the relevant disposition, in a case where it is sufficiently possible to find out which basis and reason the parties to the disposition were made at the time of the disposition, and where it is deemed that there was no particular hindrance to moving into the administrative remedy procedure, it cannot be said that the disposition is unlawful due to such failure, even if the basis and reason for the disposition are not specified in the written disposition (see Supreme Court Decision 2007Du20348, Dec. 10,

(B) In light of the fact that the instant disposition is indicated as follows: (a) the health team and the instant disposition “the Plaintiff was deemed to have failed to meet the standards for new product certification; (b) the Plaintiff was pointed out that “the objective data supporting the excellence of the product at the time of the on-site examination is lacking, and the Plaintiff’s prior art is not recognized to have originality; and (c) the Plaintiff appears to have sufficiently recognized the grounds for rejection of new product certification through questioning and answers with examiners at the time of document, interview and on-site examination; and (c) the Plaintiff, upon raising an objection to the instant disposition, is sufficiently aware of the grounds for disposition of the instant disposition, cannot be deemed to have violated the Defendant’s duty of presentation of reasons.

(2) As to the illegality of on-site examination procedures

(A) According to Articles 16 and 44 of the "Industrial Technology Innovation Promotion Act", Articles 18, 18-5, 19, and 57 of the Enforcement Decree of the same Act, and Article 2-5 of the Enforcement Rule of the same Act, the Minister of Trade, Industry and Energy may certify a product with excellent performance and quality as a new product, among the products completed by applying the first technology developed in Korea or an innovative improved technology as a core technology, which has a substantial economic and technological ripple effect. A person who intends to obtain new product certification shall submit to the President of the National Technical Standards Institute an application for new product certification, accompanied by specified documents. A new product certification shall be a new technology that has been developed in Korea for the first time and has been innovatively improved the existing technology; 2. The performance and quality of the applied product shall be superior to those of other products of the same kind; 3.4. It shall be possible to build and operate a quality management system in which products with the same quality can be continuously manufactured; 4. It shall not infringe intellectual property rights; 5.6.

The purpose of this new product certification system is to support the expansion of markets and the promotion of technology development by the government through the evaluation of new technology developed for the first time in Korea or products developed by applying corresponding technology.

(B) Meanwhile, Article 4(1), (2), and (3) of the Operational Guidelines provides that "the Director of the National Technical Standards Institute shall conduct a document interview, on-site examination, product examination, and comprehensive examination to conduct an examination for certification, and shall be conducted as a new product only if the application meets the standards for certification of a new product under Article 19(1) of the Enforcement Decree." Furthermore, Article 5 of the Operational Guidelines provides that "the examination of documents" means "the examination of documents and interview with the applicant about the uniqueness, difficulty, technical level, economic ripple effect, etc. of technology development and products through the examination of application documents and the interview with the applicant." Article 6 provides that "on-site examination" means "the verification of the results of document review" and "the examination of whether a new product can be continuously manufactured at the domestic or foreign factory manufacturing the applied product or at the place where the applied product is installed" shall be conducted by the Certification Evaluation Committee, and "the results of on-site examination" shall be comprised of members of the Certification Evaluation Committee in accordance with Article 15.

(C) Each of the above provisions is a health team, ① each of the process for the certification of a new product constitutes a series of process for final judgment. Since on-site examination includes the results of the examination of documents, it is reasonable to deem that on-site examination is an extension of the first document interview. ② At the on-site examination stage, the validity of the results of the first document interview and the fact-finding process can be independently determined through questioning or requesting the applicant to submit necessary materials, ③ on-site examination itself does not determine whether the new product is certified or not, ③ on-site examination itself is not immediately determined, and the certification is determined through the final examination by the final examination by the final examination by the final certification deliberation committee. (4) Since on-site examination cannot be deemed to reverse the results of the on-site examination; (5) In light of the fact that the burden of proof is deemed to exist to the Plaintiff; (4) as a result of the on-site examination on-site examination on the performance of the products applying for certification; and (5) in the case that the Plaintiff asserts that the results of the on-site examination cannot be seen to the final examination.

(3) As to the certification of a new product

(A) The certification system of a new product is aimed at promoting innovation of industrial technology and strengthening industrial competitiveness by inspiring private enterprises and individuals to develop new products. It is intended to form and operate an evaluation committee comprised of experts to examine new products. This is to ensure professionalism and objectivity in examination and evaluation. The examination of certification requirements is not illegal unless it deviates from the scope of discretion determination, such as erroneous or significant unfairness of factual basis, in light of the characteristics that the examination of certification requirements requires high technical judgment.

(B) According to the Korea Electric Power Corporation's 3rdhand 1, 1, 1, 2, and 3 [Attachment 2] of the Enforcement Decree of the Korea Electric Power Corporation's 3rdhand 1, 1, 3rdhand 1, 3rdhand 1, and 1, 5 of the Korea Electric Power Corporation's 3rdhand 1, 3rdhand 1, and 5 of the Korea Electric Power Corporation's 3rdhand 1, 3rdhand 1, and 9 of the Korea Electric Power Corporation's 1,3rd 1, 5 of the Korea Electric Power Corporation's 3rdhand 1, and 5 of the Korea Electric Power Corporation's 1, 5th 4th rdhand 1, 5th 10 of the Korea Electric Power Corporation's 3rdhand 1, 5th 20 of the Korea Electric Power Corporation's present 3rd 3rd 3rd 2, 196 of the Korea Electric Power Corporation's present 3rd 3rd 1,

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.