2013Nu32894. Suspension of indications to certified enterprises with Korean Industrial Standards and

Revocation of Sales Suspension

A Limited Liability Company A

Director of the Ministry of Trade, Industry and Energy

Seoul Administrative Court Decision 2012Guhap30936 decided December 5, 2013

October 17, 2014

November 21, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

3. The Defendant’s disposition suspending and suspending the Korea Industrial Standards for three months from July 11, 2012 to October 10, 2012 against the Plaintiff shall be suspended until the instant judgment becomes final and conclusive.

1. Purport of claim

The defendant's disposition of suspending and selling Korean Industrial Standards for three months from July 2, 2012 to October 10, 2012 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the reasons for the judgment of the first instance;

The reasoning of the judgment by the court concerning this case is as follows, except for the addition of the following 2.3 to the reasoning column for the judgment of the court of first instance, and therefore, it is consistent with Article 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

2. Details of the judgment added;

A. The defendant's assertion

The Plaintiff, by double management of the automatic measuring recording book (violation of the degree of measuring reliability), puts cement in the ratio lower than the raw material mixing ratio agreed with the purchaser, and thereby, the strength of concrete manufactured by the Plaintiff has to be weak than when the ratio of the agreement is complied with.

At the time of the instant investigation, there was a serious defect that does not conform to the Korean Industrial Standards for the Plaintiff’s concrete product, and thus, the instant disposition is legitimate disposition in accordance with the administrative disposition standards under the Enforcement Decree of the former Industrial Standardization

B. Determination

According to the result of the appraisal by a trial appraiser (hereinafter referred to as "court appraisal"), it is recognized that the ratio of the mortar cement among the raw materials of ready-mixed concrete is lowered, and the high ratio of the ancient slurg cement is higher, and the strength of products is reduced.

However, in full view of the following circumstances, the Plaintiff’s concrete product at the time of the instant field investigation cannot be deemed as having a serious defect that does not conform to the Korean Industrial Standards, and thus, the instant disposition was unlawful.

① Korean Industrial Standards for ready-mixed concrete (hereinafter referred to as the “instant standards”) are quality factors, and include strengths, slots, slots, sludge, air quantity, and salt content, and does not include the composite ratio of concrete as quality element. However, the producer determines basic matters, such as cement type, strawing, and re-sprinking, which guarantee the strength of chemical name, and satisfies the quality of concrete mixing, and at the request of the purchaser, submit the composite list before the delivery of the mixed list.

② In order to pass a quality test for robbery in accordance with the instant standards, the intensity measured as a result of the test shall be at least 85% of the intensity designated by the purchaser, and the average value measured as a result of the three-time test shall not be less than the intensity.

③ According to the theory on the standard of this case, the re-order guaranteeing the intensity is generally 28 days, and in a case where, due to the nature of the construction work, it is necessary to re-order the criteria for robbery, the purchaser is required to designate the re-order. However, the supply contract at which the Defendant is in violation of the Plaintiff’s measurement reliability was set as 28 days which guarantees the intensity of the name. (4) On April 5, 2012, the Defendant collected the Plaintiff’s samples while conducting a field investigation into the Plaintiff’s factory, and requested the Korea Agency for Construction and Living Environment Examination to send its samples to the robbery. At the time of the above request, the Defendant set the date of the robbery test as 28 days after the date of collection of samples, and the Plaintiff’s products were determined as passed as a result of the robbery test.

⑤ Meanwhile, the court’s appraisal shows that the strength of ready-mixed concrete, which falls under the category of 1 to 5 days, is measured, and that the Plaintiff’s product satisfies strength in accordance with the standard of this case as of 28th anniversary of the re-satisfying that the Plaintiff’s product satisfies strength as of the 28th anniversary of the re-satisfying test (the Defendant’s assertion that the sample taken at the time of the above robbery test cannot be believed to be identical to the actual delivery because the Plaintiff voluntarily submitted it. However, there is no proof that the sample taken at the time of the above robbery test is different from the actual delivery of the sample, and the sample used in the court’s appraisal is also submitted by the Plaintiff. Thus, the Defendant’s argument is not accepted). (6) Even if the producer manufactures a product different from the composite ratio presented to the purchaser, the quality standards such as the strength of name can be satisfied. In this case, even if the producer misleads the purchaser as if the unit price is more needed, it is difficult to view any defect in the former Enforcement Decree.

7. The Seoul Central District Prosecutors' Office discovered concrete producers who did not observe the mixing ratio presented to the purchaser similar to the plaintiff and prosecuted them as a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud). The results of the robbery test conducted by the Ministry of Land, Transport and Maritime Affairs with respect to the products of an enterprise for which the Ministry of Land, Transport and Maritime Affairs was exposed in the course of the investigation, and it is

At the time of the instant on-site investigation, the Defendant issued a pass decision as a result of a quality test on slot and air quantity, and there is no evidence to deem that the Plaintiff’s product does not meet the standards of this case on the remaining quality items.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed, and it is so decided as per Disposition. Meanwhile, even though the court rendered a judgment revoking the disposition of this case, if the above disposition is executed, it is necessary to prevent it as it could cause irrecoverable damage to the plaintiff and it is necessary to prevent it. It is recognized that such suspension of execution is likely to seriously affect public welfare, and there is no other evidence that such suspension of execution would otherwise affect public welfare, the execution of the above disposition shall be suspended ex officio

The presiding judge, the senior judge;

Judges Nown Korea

Judge Lee Ro-man