(영문) 서울고등법원 2011.7.7. 선고 2010누36383 판결

The judgment of the court of first instance is revoked, and the defendant revoked the imposition of KRW 415,872,90 on December 14, 2009 against the plaintiff as a specific communications business operator.

Reasons

1. Details of the disposition;

The court's explanation on this part is identical to the statement in the judgment of the court of first instance, and thus cites it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

A. The plaintiff's assertion

The Plaintiff asserts to the purport that the instant disposition should be revoked on the ground that: (a) the Defendant’s notice on the assessment of the research and development contributions of a telecommunications business operator, which is the basis of the instant disposition, (b) the Defendant’s notice on the assessment of the research and development contributions of a telecommunications business operator (hereinafter “instant notice”; (c) contrary to the former Enforcement Decree of the Framework Act on Telecommunications (hereinafter “Enforcement Decree of the instant case”; and (d) the instant disposition should be revoked on the ground that the sales amount of a key telecommunications business operator would be deducted only from the sales amount of a key telecommunications business operator; and (e) the Plaintiff’s calculation and imposition of the research and development contributions based on the sales amount that has not been deducted in the case of a specific telecommunications business operator, including the Plaintiff, would go beyond the bounds of delegated legislation; and (e) the instant notice goes against the principle of equality as it discriminates between a key telecommunications business operator and a specific telecommunications business operator without any reasonable cause; and (e) the Defendant calculated

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

1) Whether it deviates from the limitation of delegated legislation

A) Determination criteria

In a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of whether the subordinate statute complies with the limits of delegation should be made by comprehensively examining the legislative purpose and content of the pertinent provision, structure of the provision, and relationship with other provisions. In a case where the delegation provision itself clearly states the limits of delegation by using terms with which accurate contents can be identified, whether the delegation provision exceeds the limits of its literal meaning, or whether a new legislation was made beyond the bounds of its literal meaning by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see Supreme Court Decision 2009Du17797, Apr. 29, 2010).

B) Determination

The former Framework Act on Telecommunications provides that a telecommunications business operator may contribute research and development contributions to a key telecommunications business operator, a specific telecommunications business operator, or any other person prescribed by Presidential Decree within a certain scope of sales (Article 12), and the Enforcement Decree of the instant Framework Act provides that “The sales” shall be limited to “the cost for using and paying the telecommunications network of another telecommunications business operator without specifying the offender,” and it may be interpreted that a specific telecommunications business operator, other than a key telecommunications business operator, may also determine sales by deducting the cost of using a network.

However, as examined below, in full view of the following circumstances, namely, the fact that the person who is the principal is unclear in the enforcement decree of this case, whether the person who is the principal is a key telecommunications business operator, and all telecommunications business operators are unclear in the relevant laws and regulations, and the reason for the establishment of the enforcement decree of this case and the contents of the new amendment laws and regulations, etc., it cannot be said that the enforcement decree of this case has been exceeded the limit of delegated legislation, as it is necessary to clarify the interpretation of the provisions of the enforcement decree of this case and to determine the details of the calculation of contributions. (1) The enforcement decree of this case, first, is not clearly defined as the principal of the calculation of sales, so it is unclear as to who is the principal of the calculation of sales, as it is delegated to the public notice of the detailed matters necessary for the calculation and imposition of contributions, thereby clarifying the contents of the enforcement decree of this case.

② Under the former Framework Act on Telecommunications which is the related Acts and subordinate statutes, a telecommunications business operator shall maintain and repair his/her telecommunications equipment to meet the level of technology prescribed by the Presidential Decree (Article 16). The telecommunications business operator is clearly a telecommunications business operator in accordance with the contents of the provisions, but the provisions of the above Acts and subordinate statutes only stipulate that the telecommunications business operator may allow interconnection by entering into an agreement upon receipt of a request from other telecommunications business operators for interconnection of telecommunications equipment and facilities (Article 34(1)). The provisions of the Telecommunications Business Act also stipulate that "a telecommunications business operator may allow interconnection by entering into an agreement upon receipt of a request from other telecommunications business operators (Article 34(1)). Since it is obvious that the telecommunications business operator is only a telecommunications business operator who can connect with the telecommunications business operator, the above provisions are merely a telecommunications business operator, even though they are clearly defined as a telecommunications business operator.

In a comprehensive examination of the contents of the relevant laws and regulations, there are cases where there is no clear person who commits a crime under the relevant provisions in itself, and where only a common telecommunications business operator is a common telecommunications business operator, the phrase that the telecommunications business operator is a telecommunications business operator is also used.In light of the reasons for the establishment of the provisions of the Enforcement Decree of this case, it is revealed that the prices for using the network are deducted from sales in order to secure transparency and fairness in the imposition of research and development contributions by a common telecommunications business operator and to relieve the burden of research and development contributions by a common telecommunications business operator.

④ In addition, with the enactment of the Information and Communication Industry Promotion Act (Act No. 9708, May 5, 2009), Article 12 of the former Framework Act on Telecommunications was incorporated into Article 43 of the Information and Communication Industry Promotion Act on the imposition of research and development contributions (However, the name was changed to research and development charges), and Article 19 of the Enforcement Decree of the Information and Communication Industry Promotion Act also stipulates that the research and development charges shall be calculated based on the amount calculated by deducting the cost of using other networks from the sales amount among telecommunications business operators

2) Whether the principle of equality is violated

A) Determination criteria

The principle of equality under Article 11(1) of the Constitution does not mean the absolute equality that denies all discriminatory treatments, but it refers to the relative and substantial equality that not only in the application of the law but also in the legislation, it shall not discriminate against the principle of equality only in the case of discrimination without any reasonable grounds. In particular, the preferential measure of the reduction of or exemption from charges is against the principle of equality only when it is recognized that the reduction of or exemption from charges only for a specific person is obviously unreasonable and unfair measure.

B) Determination

The key telecommunications business is a business that installs telecommunications line facilities and provides telecommunications services in consideration of the impact of public interest and national industries, necessity of stable provision of services, etc. by using such facilities and equipment. The key telecommunications business is a business that installs telecommunications facilities and equipment in the business or premises that provides telecommunications services through telecommunications line facilities and equipment of the key telecommunications business (Article 4 of the Telecommunications Business Act) and provides telecommunications services within the Gu (Article 4 of the Telecommunications Business Act). The key telecommunications business can obtain a license from the Korea Communications Commission. The State’s key telecommunications business is obliged to provide interconnection in order to prevent excessive investment in facilities and equipment from being regulated and adjusted to a considerable extent from the perspective of public welfare and to prevent excessive investment in facilities. However, the key telecommunications business is a business that is capable of registration only and used the existing telecommunications network, and the need for regulation or coordination from the perspective of public welfare is relatively low.

In full view of these facts, it is reasonable grounds to allow the deduction of interconnection fees from sales to reduce the burden of a common telecommunications business operator, which is not contrary to the principle of equality.

Therefore, this part of the plaintiff's assertion is groundless.

3) Whether the principle of protection of trust is violated

A) Determination criteria

In order to apply the principle of the protection of trust to the acts of administrative agencies in administrative legal relations, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, the administrative agency should have no reason attributable to the individual when the name of the opinion is well-grounded, and third, the individual should have trusted that the name of the opinion is well-grounded, and third, the administrative agency should have conducted any act contrary to the above opinion list, and fourth, the administrative agency should have made a disposition contrary to the above opinion list, thereby infringing the interest of the individual who trusted that opinion list (see, e.g., Supreme Court Decision 96Nu18380, Sept. 12, 197)

B) Determination

According to the statement No. 7-2 of the evidence No. 7-2, the fact that the defendant refunded the plaintiff's research and development contribution for the year 2005 on December 2006 can be recognized.

However, the above refund is made under the premise that the amount of KRW 39,388,388,388,000, out of the Plaintiff’s sales, is merely an amount to be collected by another business operator, and it cannot be recognized as sales under corporate accounting standards, and the Defendant does not deduct the above amount from the amount as

Therefore, it cannot be deemed that the Defendant, against the Plaintiff, issued a public statement of opinion that the cost of using another network by a specific communications business operator is deducted from the sales amount, which serves as the basis for the calculation of the research and development contribution, and furthermore, there is no evidence to deem that the Plaintiff committed any act, trusting that the said statement of opinion was a public statement even if it

Ultimately, the disposition of this case cannot be deemed to violate the principle of trust protection, and thus, the plaintiff's assertion on this part is groundless.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.