2019Guhap5786 Demanding revocation of the imposition of a penalty surcharge

A Stock Company

Attorney Kim Yong-sik, Justice Lee Chang-soo, Counsel for the plaintiff-appellant

The Minister of Environment

Government Legal Service Corporation (Law Firm LLC)

Attorney Lee Dong-tae

2020, 6,25

September 8, 2020

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of a penalty surcharge of KRW 534,093,490 against the Plaintiff on December 6, 2018 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a company that imports and sells C brand and D brand cars from Germany corporation's "B" (hereinafter referred to as " Germany's headquarters").

B. On April 25, 2014, the Plaintiff obtained certification under Article 46(1) of the former Clean Air Conservation Act (amended by Act No. 13874, Jan. 1, 2016; hereinafter the same shall apply) regarding E and F model (hereinafter “instant model”) from the President of the National Institute of Environmental Research.

C. On June 22, 2018, the Plaintiff submitted to the Defendant a correction plan for the following contents on the ground that the same defect was reported in 57 out of 1,256 of the instant model sold in 2015.

○ There is a problem of pressure formation in the septic tank valve(Purge Convevel). He arbitrarily changed the rubber inner part from H at the manufacturing chain of septic tank manufacturing and confirmed the part applied to some vehicles while he supplied to us. The septic tank valve supplied with an erroneous design is partially damaged when rubber gets unreasonable power at the time of operation of the valve.The long side of the rubber is damaged.The replacement of the septic tank as a part produced according to the existing design is exchanged with the improvement plan and the defect improvement plan.

D. On October 2, 2018, the Defendant approved the aforementioned correction plan, and on the same day, imported 1,256 vehicles of this case, which applied the purification valve different from the certified details from the date of December 16, 2013 to June 29, 2015, and sold them.” Article 56(1)2 and (2) of the former Clean Air Conservation Act and Article 52 of the former Enforcement Decree of the Clean Air Conservation Act (amended by Presidential Decree No. 28500, Dec. 26, 2017) of the former Clean Air Conservation Act (amended by Presidential Decree No. 28500, Dec. 26, 2017) notified the Plaintiff of the imposition of a penalty surcharge under attached Table 12, based on data such as sales, etc. received from the Plaintiff, imposed a penalty surcharge of KRW 534,093,490 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 8, Eul evidence Nos. 1, 3, and 6 (including virtual numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) The penalty surcharge under Article 56(1)2 of the former Clean Air Conservation Act is a punitive administrative disposition against the violation of the duty to alter or the duty to report alteration. However, the purification tank of the instant model is limited to the installation of the German head office or the Plaintiff’s defective parts that were not intended by the Plaintiff, and the aforementioned alteration is merely subject to the correction of defects, even if a amateur plate, which is a part of the purification valve of the instant model, is different from the time of the certification of exhaust gas, and there is no duty to change or report on change, and there is no reason to impose penalty surcharge under Article 56(1)2 of the former Clean Air Conservation Act on the premise that the purification tank of the instant model can not be imposed.

2) The Plaintiff’s understanding of the supply of a septic tank valve using the changed amateur plate from H company constitutes an area beyond the scope of the Plaintiff’s management and supervision, and thus, it is difficult to expect the Plaintiff, who is not responsible for the above change of the parts, to perform its duty.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the grounds for the disposition are recognized

A) In order for a motor vehicle importer to import a motor vehicle, the former Clean Air Conservation Act must obtain certification from the Minister of Environment that the motor vehicle exhaust gas can be maintained in compliance with the permissible emission levels of manufactured motor vehicles for the warranty period of exhaust gas (Article 48(1)). In order to modify important matters prescribed by Ordinance of the Ministry of Environment among the certified matters (Article 48(2)), the former Clean Air Conservation Act provides that a person who imports and sells a motor vehicle without obtaining certification and a person who imports and sells a motor vehicle different from the certified matters (Article 56(1)). Meanwhile, Article 67(1) of the former Enforcement Rule of the Clean Air Conservation Act (amended by Ordinance of the Ministry of Environment No. 833, Dec. 12, 2019; hereinafter the same shall apply) lists important matters prescribed by Ordinance of the Ministry of Environment. In addition, Article 67(3) of the former Enforcement Rule of the Clean Air Conservation Act (amended by Ordinance of the Ministry of Environment) provides that the change shall be reported to

In addition, the former Enforcement Rule of the Clean Air Conservation Act provides that a person who intends to obtain certification of exhaust gas of imported automobiles shall submit a detailed plan required for certification, a confirmation certificate of manufacturer or contract between manufacturer and importer of guarantee of exhaust gas, etc. to the President of the National Institute of Environmental Research along with an application for certification (Article 64(1)), and that the Minister of Environment or the President of the National Institute of Environmental Research shall review the technical feasibility of the structure, performance, durability, etc. of exhaust gas-related parts and the results of certification tests, such as exhaust gas testing verifying the degree of change of exhaust gas during the warranty period, durability tests, etc., which are conducted by the vehicle manufacturer (including a foreign manufacturer or importer in the case of import) in accordance with the method and procedure of certification tests publicly notified by the Minister of Environment with his/her own human resources and equipment, and shall report the results of the tests without delay (Article

Accordingly, Article 7(6) [Attachment 10] of the former Regulations on the Method, Procedure, etc. for Certification and Inspection of Manufactured Motor Vehicles (amended by the Ministry of Environment No. 2016-82, Apr. 25, 2016) provides for detailed methods of certification of exhaust gases to examine technical feasibility of the structure, performance, durability, etc. of exhaust gas-related parts, technical review of the composition of exhaust gas system, and bropia without external emission of gas, review of whether it exceeds the permissible emission standards of manufactured motor vehicles during the durability test period, whether it is possible to maintain the permissible emission standards of manufactured motor vehicles within the warranty period of exhaust gas, and Article 9(1) [Attachment 13] of the former Rules on the Clean Air Conservation Act (amended by the Ministry of Environment Notice No. 2016-82, Apr. 25, 2016) provides for a purification valve as one of fuel proof gas-related parts.

B) According to the purport of the Plaintiff’s written evidence Nos. 6, 7, and 3 and 4 as to the instant model and the entire pleadings, it is recognized that the Plaintiff submitted a written confirmation of the head office of Germany stating five years or 80,000 km for the warranty period of the septic tank, which is a part related to exhaust gas as specified in the Enforcement Rule of the former Clean Air Conservation Act, along with the result of the German head office’s self-examination conducted by the Minister of Environment to obtain certification of exhaust gas from the instant model and the detailed plan necessary for certification of facilities and human resources as well as the detailed plan required for certification, along with the result of the examination conducted by the Minister of Environment.

According to this, since a vehicle to which the septic tank of the changed specifications applied among the instant model changed falls under the case where the exhaust gas-related parts of the former Enforcement Rule of the Clean Air Conservation Act (Attachment Table 20) are different in terms of the details of certification of exhaust gas related to the instant model, it is not possible to maintain the results of the review as to the structure, performance, durability, etc. of exhaust gas-related parts at the time of certification, technical feasibility of the structure of exhaust gas-related parts, technical defect of the exhaust gas system, whether it exceeds the permissible emission standards of manufactured automobiles during the durability test period, and whether it is possible to maintain the permissible emission standards of manufactured automobiles within the warranty period of exhaust gas. Therefore, the Plaintiff’s sale of a vehicle to which the changed components apply constitutes “the case where a vehicle is imported and sold differently from

C) Sanction against a violation of administrative regulations is a sanction against the objective fact that is a violation of administrative regulations to achieve administrative purposes, and thus, barring any special circumstance, such as where a failure to perform the duty of the violator is not caused due to a justifiable reason, etc., the sanction may be imposed even if there is no intention or negligence on the violator (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

The plaintiff argued to the effect that since the plaintiff intended or did not recognize the change of the amateur plate, which is a component of the septic tank valve, it shall not be subject to the certification of alteration or report of alteration, it shall not be subject to a penalty surcharge. However, Article 56 (1) 2 of the former Clean Air Conservation Act imposes a penalty surcharge on an objective violation that imported and sold a motor vehicle different from the certified content, and the plaintiff's assertion merely does not have an intention to commit the violation.

2) Whether there exists a justifiable reason

In light of the fact that an automobile importer has a duty not to import or sell a motor vehicle different from the details of the certification by examining whether it was manufactured in the same manner as the details of the certification, etc., and that it was not a result of failing to fulfill its responsibility to compensate for the change of the exhaust gas-related parts, the mere fact that the Plaintiff asserts that there is a justifiable reason that it is not attributable to his/her duty.

3. Conclusion

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

The presiding judge, appointed judge and appointed judge

Judges Jin-be

Judges Chak-young

1) According to Article 46(1) of the former Clean Air Conservation Act, “production” under the former Clean Air Conservation Act includes “import”.