2017Nu1487. Invalidity, etc. of the disposition of refusal to designate an elevator inspection agency

Korea Elevator Research Institute, a foundation

Minister of Public Administration

Daejeon District Court Decision 2017Guhap101927 Decided November 23, 2017

April 12, 2018

May 17, 2018

1. The part concerning the conjunctive claim in the first instance judgment shall be revoked.

2. The plaintiff's conjunctive claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

A. First, it is confirmed that the Defendant’s refusal to designate an elevator inspection agency on July 14, 2016 by the Plaintiff is null and void.

(b) preliminary, revoke the disposition described in paragraph (a) above.

2. Purport of appeal

The same shall apply to the order.

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff sought confirmation of the invalidity of the disposition stated in the claim in the first instance court, and (B) revocation of the above disposition, respectively, against the Defendant. The first instance court dismissed the Plaintiff’s primary claim, and (2) accepted the conjunctive claim, and only the Defendant appealed, the subject of adjudication in this court is limited to the Plaintiff’s conjunctive claim.

2. Details of the disposition;

A. Quotation of the first instance judgment

The reasoning for this Court’s explanation is as stated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, since the reasoning for this Court’s judgment is as stated in Article 1(1) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

B. Parts to be dried or added

1) Parts of dried goods

A) On June 3, 2015, the first instance judgment’s 4th page 11, which read “ June 3, 2015” as “ June 3, 2016.”

B) On June 17, 2016, the first instance judgment’s 4 pages 13, which read “ June 17, 2015” as “ June 17, 2016.”

C) Each description of No. 19 of the first instance judgment’s No. 4, No. 18 of the first instance judgment, “each description of No. 19”, “No. 1, 5, and 8 of the evidence (including, if any, serial numbers; hereinafter the same shall apply)”, shall be read as “each description and image.”

2) Additional parts

가) 제1심판결의 제4면 제4행의 "않았다." 다음에 아래 『』 표시 부분을 추가함.

On December 7, 2015, the Plaintiff requested authoritative interpretation of the "Guidelines for the Operation of the Authorized Agency Recognition System" to the National Technical Standards Institute, and the National Technical Standards Institute sent the following response to the Plaintiff on December 10, 2015.

○ In accordance with Articles 27, 31, and 34 of the Guidelines for the Operation of the Certification System for Authorized Institutions, necessary human resources for the recognition of a testing and inspection institution are quality managers (general, vice-general), technical managers (general, vice-general), and working-level workers. The quality manager can concurrently serve as a technical manager and quality manager for each workplace. Accordingly, in the case of the plaintiff's elevator inspection, at least two working-level workers are required for each workplace. In addition, in the case of the plaintiff's elevator inspection, at least four working-level personnel are required for each workplace. In addition, in the case of an additional question, the certified inspection institution is recognized as an authorized inspection institution and operated as an office for which no sexual report is issued for the remaining three support, and there is no relation with the recognition of the certified inspection institution (non-recognition of a certified inspection institution).

From December 22, 2015 to December 23, 2015, the National Technical Standard Institute evaluated the four offices including the Plaintiff’s main source in relation to the recognition of a public inspection institution. Upon confirmation that all of the three offices other than the main source did not hold a divided unit, the Plaintiff submitted a sales contract, etc. to the National Technical Standard Institute and notified that all three offices will hold a divided unit until March 21, 2016.

On February 19, 2016, the Plaintiff again requested the Ministry of Government Legislation to interpret whether at least four offices established in City/Do meet the requirements of testing and inspection institutions under Article 23 of the Framework Act on National Standards. On February 19, 2016, the Ministry of Government Legislation sent to the Plaintiff that at least four offices established in Cities/Dos meet the requirements of testing and inspection institutions under Article 23 of the respective Framework Act on National Standards in order to be designated as inspection agencies under Article 15 of the Elevator Act amended to the Plaintiff.

B) On the fourth page of the judgment of the court of first instance, “the notice was given.” Following the addition of the following indicated parts:

The results of the on-site inspection conducted by the defendant on June 17, 2016 for each of the plaintiff's offices are as follows:

A person shall be appointed.

A person shall be appointed.

In addition, the result of the defendant's examination of the inspector's manpower submitted by the plaintiff to the defendant on June 3, 2016 is as follows.

A person shall be appointed.

다) 제1심판결의 제4면 제17행의 "하였다." 다음에 아래 『』표시 부분을 추가함.

On September 23, 2016, the head of the Gu-U.S. District Office of Daegu Regional Employment and Labor issued a reply to the Defendant on June 3, 2016 on the result of measures taken, such as verification of acquisition of employment insurance, with respect to the inspection personnel submitted by the Plaintiff to the Defendant, and the result is as follows.

- B, C, L, I, E, and H are not having worked a day. The application for the designation of an elevator inspection agency was made first from the purchase of the parts that the list of persons subscribed to employment insurance is urgently needed. Since it is difficult to deem that a false report was made intentionally, but is not actually working, the imposition and disposition of fines for negligence is conducted.-F, J, and G are working for less than one day. A worker who is working for less than 15 hours per week (60 hours per month) which is the criteria for the purchase of employment insurance, and thus, the membership is canceled because he/she is not a person subject to insurance.

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3. Judgment on the plaintiff's conjunctive claim

A. Summary of the Plaintiff’s assertion

The rejection disposition of this case shall be revoked as it is illegal for the following reasons.

1) The instant refusal disposition is unlawful against the binding force of the instant quoted ruling.

2) The Defendant’s disposition of refusal of the instant case was unlawful without delay beyond the treatment period under the Civil Petitions Treatment Act and the Enforcement Decree of the same Act.

3) The Plaintiff is found to have satisfied the standards for designating inspection agencies, such as inspection personnel and inspection facilities, and the instant rejection disposition is unlawful.

4) In the case of the second rejection disposition of this case, the defendant expressed a public opinion that "the plaintiff satisfies the formal requirements of the prosecutor's agency" and infringed the plaintiff's interest by the rejection disposition of this case against the above expression of opinion although the plaintiff did not have any reason attributable to the plaintiff. The rejection disposition of this case is unlawful in violation of the principle of protection of trust.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant refusal disposition is against the binding force of the instant quoted ruling

A) Relevant regulations and legal principles

(1) Article 49(1) of the former Administrative Appeals Act (amended by Act No. 14832, Apr. 18, 2017) provides that "an adjudication citing a request for adjudication shall bind the respondent and other relevant administrative agencies," and Article 49(2) of the same Act provides that "if there is a ruling ordering an administrative agency to refuse a request by a party or to implement a disposition left unattended due to an omission, the administrative agency shall take a disposition without delay in accordance with the purport of the ruling on the previous request, and even if a request for adjudication is accepted, if the administrative agency or related administrative agency takes a position contrary to the purport of the ruling, the relief of the claimant's right cannot be achieved, so that the administrative agency or related administrative agency shall comply with

(2) The binding force of the ruling shall only extend to the judgment on the specific grounds of illegality such as the order of the ruling and the recognition and judgment on the requisite facts that form the premise thereof, i.e., the determination on the previous disposition, even if the previous disposition was revoked by the ruling, it does not conflict with the binding force of the ruling to conduct the previous disposition for reasons different from the previous disposition. Here, whether it is the same reason or not should be determined on the basis of whether it is an unlawful reason as to the previous disposition, and whether it is a reason recognized as identical in the basic factual relations (see, e.g., Supreme Court Decision 2003Du7705, Dec. 9, 200

B) The binding range of the cited ruling of the instant case

Examining the process and contents of the cited ruling in this case, the following circumstances, i.e., ① the Plaintiff filed an appeal with the Defendant on January 6, 2014, adding office and inspector personnel, ② the Defendant held 'Advisory Council on Designation of Agency for Inspection of Elevators' four times, and the contents of the meetings of the Advisory Council were reasonable. ③ The Defendant, on June 27, 2014, deemed that the Plaintiff satisfied the formal requirements as an inspection agency. However, on the ground that it is reasonable to maintain the current system at the present point of time, the instant rejection disposition was rendered by the Plaintiff on the ground that the Plaintiff’s rejection disposition of the second rejection disposition of this case is reasonable for the reason that the Plaintiff’s rejection disposition of the second rejection disposition of this case satisfies the formal requirements of the Prosecutor, and the Central Administrative Appeals Commission, separately from the fact that the Plaintiff’s rejection disposition of the second rejection disposition of this case, should be deemed to be legitimate for the Plaintiff’s rejection of this case’s rejection disposition of the second rejection disposition of the present elevator, and therefore, it is reasonable for the Defendant’s rejection disposition of the present system.

On the other hand, among the reasons for the ruling of the acceptance of this case, the part of the "the defendant's assertion that the plaintiff has the binding force of the ruling is recognized as having been a prosecutor's agency." The part of the "the second rejection disposition of this case is not a violation of the law." However, the part of the "the defendant cannot refuse the designation of the plaintiff on the grounds that the maintenance of the current system is reasonable."

C) Whether the instant refusal disposition is against the binding force of the instant quoted ruling

As seen earlier, the instant refusal disposition is identical to the grounds for determining the illegality of the instant quoted ruling based on the relevant laws and regulations after the instant quoted ruling is based on the same factual basis. This is based on the grounds that the instant rejection disposition was rendered on the grounds of the lack of inspection personnel (false, lack of qualifications, double employment), the failure to confirm part of the inspection facilities, and the failure to confirm the part of the inspection facilities, etc., and it cannot be deemed that the Defendant did not follow the purport of the instant quoted ruling. Accordingly, the instant rejection disposition does not go against the binding force of the instant quoted ruling. This part of the Plaintiff

2) Whether the discretion of the instant refusal disposition is deviating from and abused

The Defendant’s appointment of an elevator inspection agency constitutes an administrative agency’s discretionary act. As the Plaintiff asserts, it is difficult to recognize the Plaintiff’s assertion in light of the circumstances acknowledged by taking into account the aforementioned facts and the overall purport of the arguments, as seen below, in relation to whether the instant rejection disposition deviatess from or is illegal as it is alleged by the Defendant, and it does not constitute an unlawful act of deviating from or abusing discretion against the principle of proportionality or the principle of equality. The Plaintiff’s assertion on this part is also unacceptable.

A) Whether the civil petition treatment period is complied with

First of all, the defendant issued the instant refusal disposition on July 14, 2016 after the instant quoted ruling was made on February 13, 2015. We examine whether the defendant did not comply with the civil petition processing period.

The application for designation of an elevator inspection agency filed by the Plaintiff constitutes a statutory civil petition under Article 2(1)(a)(i) of the Civil Petitions Treatment Act. According to Article 17(1) of the same Act, the head of an administrative agency, in the case of a statutory civil petition, shall determine and publicly announce in advance the processing period required from the receipt of a statutory civil petition to the completion of treatment. The elevator law does not specify the processing period for the application for the designation of an elevator inspection agency. Of course, even if the processing period for the application for the designation of an elevator is not specified in the related Acts and subordinate statutes, it is reasonable to view that the Defendant should promptly examine whether the Plaintiff satisfies the requirements for the designation of the inspection agency within a reasonable period of time. However, considering the above facts and the overall purport of arguments, the Defendant need to review whether the Plaintiff satisfies the requirements under the relevant Acts and subordinate statutes of the Ministry of Government Legislation even if the ruling on the acceptance of the instant case was made, and the Defendant’s response to the request made by the inspection agency to determine whether the above requirements were revised after the first rejection disposition.

B) Whether the Plaintiff satisfies all the requirements to designate an elevator inspection agency

(1) Next, with regard to whether the plaintiff satisfies all the requirements for designation of an elevator inspection agency such as inspection personnel and inspection equipment, first of all, the purpose of the elevator law is to secure the safety of elevator facilities and to protect elevator users by efficiently managing the elevator by prescribing matters such as installation, repair, etc. of elevators, ② Article 15(2) of the Elevator Act and Article 22 of the Enforcement Rule of the same Act set the criteria to be designated as an elevator inspection agency; ③ Article 21-2 of the Enforcement Rule of the above Act sets the documents to be submitted for application for designation of an elevator inspection agency; ③ Article 15-2(1)2 of the Elevator Act sets the documents to be submitted for application for designation of an elevator inspection agency; ③ If an inspection agency designated as an inspection agency fails to meet the criteria for designation of an inspection agency, the defendant shall revoke the designation or suspend its business for a fixed period of not more than six months, and it is reasonable to view that the inspection agency designated as an inspection agency shall meet all the criteria for designation under Article 15(2) of the Elevator Act.

(2) As seen earlier, in full view of the results of the on-site inspection conducted by the Defendant on June 17, 2016 and the Plaintiff’s office, and the following circumstances, the Plaintiff at the time recognized that all the requirements for the office, inspection personnel, and inspection facilities were not satisfied.

(A) With respect to whether an elevator inspection agency's office meets the requirements for testing and inspection, in light of the amendment history of the Enforcement Rule of the Elevator Act concerning the interpretation of Article 15 (2) 3 and 6 of the same Act and the criteria for designation of an elevator inspection agency, the role of office, etc., not only the agency's principal office but also the office as a testing and inspection agency under the Framework Act on National Standards, and each office of the plaintiff did not meet such requirements as the result of the on-site

(B) As to whether the requirements for inspection personnel and equipment are met, ① the amendment history of the Elevator Act and the Enforcement Rule of the same Act, and the relevant provisions at the time of the instant refusal disposition (as seen in the determination of the main claim of the first instance judgment, as examined in the determination of the first instance judgment), the Enforcement Rule of the Elevator Act (amended by Ordinance of the Prime Minister No. 1285, Jun. 17, 2016; effective July 1, 2016; amended by Ordinance of the Prime Minister No. 347, Feb. 23, 2013; the requirements prescribed in the Enforcement Rule of the Elevator Act, which was enforced on the same day, were strengthened) shall be based on at least 24 inspectors (at least four offices for each region; at least six inspectors who have satisfied certain qualifications for each office, were presented as the result of the above on-site inspection, and the Plaintiff failed to meet the requirements for dual inspection personnel or to complete some of the training facilities under the Busan Elevator Act.

(3) The following circumstances, which are considered in full view of the evidence and the purport of the entire pleadings as seen earlier, are: (i) the instant rejection disposition does not go against the binding force of the instant quoted ruling; (ii) although the Defendant used an expression that “the Plaintiff satisfies the formal requirements as an inspection agency at the time of the instant second rejection disposition,” it is merely the purport that “the documents submitted by the Plaintiff are deemed to meet the requirements under the law and subordinate statutes; (iii) the Defendant should make a detailed examination as to whether the Plaintiff actually satisfies the requirements under the law after the instant quoted ruling; and (iv) it appears that the Plaintiff was unable to employ the inspection personnel or maintain the inspection facilities and offices continuously due to unstable legal relations surrounding the designation of the elevator inspection agency; however, it appears that the elevator law is more unfavorable for the Plaintiff due to the instant rejection disposition, and thus, it cannot be said that the public interest, which is subject to the legislative purpose of the Elevator Act, such as securing the safety of elevator facilities and protecting its users, and that the Plaintiff did not deviate from or abuse the discretionary authority.

C) Whether the principles of trust protection are violated

Since the plaintiff alleged that the rejection disposition of this case is unlawful because it violates the principle of trust protection, in general, in administrative legal relations, in order to apply the principle of trust protection to an administrative agency's act, ① the public opinion that is the object of trust to an individual must be given to the administrative agency, ② the public opinion that is the object of trust to the individual, ② the public opinion that is the object of trust to the individual, ② the individual's trust that the individual's statement of opinion is justified does not cause it to the individual, ③ the individual should have conducted any act in trust and corresponding thereto, ④ the administrative agency's disposition contrary to the above opinion list, thereby infringing the individual's interest in trust, and ⑤ the administrative agency's disposition in accordance with the above opinion list is not likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2004Du13592, Feb. 24, 2006).

Based on the above legal principles, the following circumstances, i.e., (i) it is difficult to recognize that the Defendant, while making the second rejection disposition against the Plaintiff, based on the circumstances alleged by the Plaintiff and the evidence submitted by the Plaintiff, ordered a public opinion statement to the effect that the Plaintiff actually satisfied the standards for the designation of an elevator inspection agency. (ii) Even if the Plaintiff acquired such trust, it is merely a simple expectation, not a trust that should be legally protected, and the Plaintiff was aware that it did not meet the standards for the designation of an elevator inspection agency at the time of the instant rejection disposition. In light of the results of the on-site inspection, it is difficult to deem that the Plaintiff was not responsible for the Plaintiff. (iii) On the other hand, the public interest to be achieved by the Defendant through the instant rejection disposition cannot be deemed to violate the principle for the protection of new trust. This part of the Plaintiff’s assertion also is without merit.

4. Conclusion

Therefore, the plaintiff's conjunctive claim shall be dismissed for lack of its reasoning. Accordingly, the part concerning the conjunctive claim among the judgment of the first instance which accepted the defendant's appeal and concluded otherwise shall be revoked, and the plaintiff's conjunctive claim shall be dismissed. It is so decided as per Disposition.

Allowable judges of the presiding judge

Judges Gim Hong-s

Judges

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.