(영문) 서울행정법원 2012.6.29. 선고 2012구합164 판결

A. On June 2005, the Plaintiff concluded a contract on the radio re-sale business with the ELV Comcom Co., Ltd. (hereinafter referred to as the “Oelcom Co., Ltd.”) and “A specific telecommunications business operator,” as follows, where the Plaintiff resells the radio telephone lines of the common telecommunications business operator.

3. In promoting the radio resale business, the Plaintiff shall pay 30,000 won per line to the ELL to compensate for the expenses incurred in the PCS network leasing, such as the registration of the subscriber’s PCS system, etc. 5. “Billing on behalf of the Plaintiff for the radio re-sale business of the Plaintiff” is limited to the charge claim and collection. 6. The payment of the subscription fees is limited to the Plaintiff, and the ELT shall be supported by the Plaintiff, and the expenses incurred therein may be claimed separately. 8. The Plaintiff shall establish and operate the subscriber protection organization at the Plaintiff’s expense for the management of the subscriber and the resolution of customer civil petitions. The settlement amount that the Plaintiff pays to the Plaintiff on October 10 shall be subject to the following criteria (hereinafter omitted).

B. According to the above contract, ELV vicariously performed the duty to collect telecommunications use fees for the Plaintiff’s subscribers, and paid the remainder (30%) to the Plaintiff after deducting the Plaintiff’s portion belonging to ELV from the total amount collected (70%). The amount collected from the subscribers in the settlement statement was indicated as 'total sales in daily communications', 'GT sales and account sales': LG sales and account sales (other). On April 24, 2009, the Plaintiff submitted sales data for the year 2008, which are the basis for calculating the 2009 research and development charges, to the Chairperson of the Korea Communications Commission, reported only the remainder after deducting the cost for using and paying the telecommunications network of a common telecommunications business operator (hereinafter referred to as 'other cost for using the network') from the sales amount, and was exempted from the duty to pay the research and development charges for the year 209 pursuant to Article 43(3) of the Information and Communications Industry Promotion Act and Article 209 of the Enforcement Decree of the same Act.

D. On May 14, 2010, the Defendant calculated the Plaintiff’s research and development charges for the year 2009 based on the sales amount for which the Plaintiff did not deduct the price for the use of other networks that was deducted as above pursuant to Article 2(1)2 of the Notice on the Calculation and Imposition of Research and Development Charges by Telecommunications Business Operator (hereinafter “Notification”). On May 14, 2010, the Defendant imposed research and development charges for KRW 192,212,970 on the Plaintiff (hereinafter “Disposition”).

E. The Plaintiff appealed and filed an administrative appeal on September 14, 2010, but the Central Administrative Appeals Commission rendered a decision to dismiss it on September 20, 201.

【Ground for recognition】 The fact that there is no dispute, entry of Gap's 1 through 4, the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) According to the purport of the Information and Communications Technology Industry Promotion Act, research and development charges should be calculated on the basis of actual sales. Despite the fact that the above price for the use of other networks is not the Plaintiff’s sales but the sales of Lelcom, the notice of this case, which provided that research and development charges should be calculated on the basis of gross sales in accordance with corporate accounting standards that contain the cost for the use of other networks, is unlawful beyond the scope of delegation by the mother law. Accordingly, the disposition of this case, which

2) In addition, the Plaintiff’s use of the network is subject to the assessment of the charge for the Telecom, given that the Plaintiff’s use of the network is included in the sales of the Telecom, it becomes a result of double imposition of charges for the same telecommunications use fee, and is in violation of the Framework Act on the Management of Charges.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the first argument

A) In a case where a subordinate statute delegates a specific matter to a subordinate statute, determination as to 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, the structure of the provision, and the relationship with other provisions. In light of the delegation provision itself, whether the delegation provision clearly specifies the limits of delegation by using shower words with which its meaning can be accurately known, or whether it exceeds the limits of its literal meaning, or whether it was a new legislation beyond the stage of embodying the delegation by expanding or reducing the scope of the terms used in the delegation provision beyond its meaning (see, e.g., Supreme Court Decision 2009Du17797, Apr. 29, 2010);

B) Article 43 of the Information and Communications Technology Industry Promotion Act provides that research and development charges shall be imposed on the basis of annual sales of a specific telecommunications business operator, and matters necessary for the calculation standards, procedures, etc. of charges, such as the imposition rate and collection limit thereof, shall be determined by Presidential Decree. Accordingly, Article 19(1)2 of the Enforcement Decree of the same Act provides that "Sales" of a specific telecommunications business operator is determined as sales due to a specific telecommunications business operator, and the notice of this case refers to "Sales" under the Enforcement Decree of the same Act by embodying this.

However, the Information and Communications Industry Promotion Act only provides that the calculation of research and development charges shall be based on the "annual sales", and it is difficult to interpret the language itself as the sales amount, which serves as the basis for imposing charges by a specific telecommunications business operator, which deducts the cost of using other networks from the total sales amount, as alleged by the Plaintiff. Moreover, since a specific telecommunications business operated by the Plaintiff does not own a new telecommunications network, but provides a key telecommunications service by using the cost of telecommunications line, etc. of a key telecommunications business operator, the portion of the cost of using other networks paid to a key telecommunications business operator is absolute, and if the majority of the specific telecommunications business operator considers the amount after deducting the cost of using other networks from the total sales amount as the basis for calculating the research and development charges, it shall be deemed that the reduction of the charges under Article 20 of the Enforcement Decree of the Information and Communications Industry Promotion Act (less than 30 billion won in the sales amount of the preceding year) is excluded from the imposition of research and development charges or even if imposition is made, it shall not be deemed that the Plaintiff’s specific telecommunications business operator has no reason.

2) Judgment on the second argument

A) The special category telecommunications business refers to a business that provides telecommunications services to subscribers, etc. using the cost of establishing a telecommunications conference. As such, the price that a special category telecommunications business operator receives by providing telecommunications services to subscribers, etc. falls under sales of a special category telecommunications business operator, and that is, the cost of using a telecommunications conference by a special category telecommunications business operator falls under the cost of profit-making. If deemed from the perspective of a common telecommunications business operator, one’s own line is leased and the price for using a network is received, and thus, sales to a special category telecommunications business operator is made. ELel Telecom also assumes this premise, on the premise of this premise, provides the Plaintiff with a claim for telecommunications usage fee, which is sales of the Plaintiff’s subscriber, and settles the remainder after deducting the user fee, which is sales of the Plaintiff’s subscriber, and the amount recovered from the subscriber, as seen earlier, is written as a “special category sales.”

As above, since the sales revenue of the Plaintiff and ELV is separate from the service provided and constitutes sales of each person, the Plaintiff’s assertion that the same telecommunications charges were doublely imposed is without merit.

3. Conclusion

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