(영문) 서울고등법원 2015.2.3. 선고 2014누55207 판결

The judgment of the first instance is revoked, and the defendant's order disposition, such as product removal, etc., issued to the plaintiff on September 11, 2013, is revoked.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows: “Annex 70 and Annex 4B” among the judgment of the court of first instance shall be referred to as “Annex 70 and Annex 4,” and the part of the judgment on the legitimacy of the disposition of this case shall be referred to as the part of the judgment of the court of first instance except for the following: therefore, it shall be referred as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The part to be mard;

D. Determination

Article 2 subparag. 13 of the Quality Control and Safety Management of Industrial Products Act provides for an industrial product subject to safety certification (a) and an industrial product subject to safety certification as an industrial product subject to safety control. According to Article 2 subparag. 8 of the same Act, an industrial product subject to safety certification means an industrial product deemed capable of preventing hazards through safety certification among those recognized as highly likely to cause harm to the lives and bodies of consumers, damage to property, or damage to the natural environment due to the structure, quality, method of use, etc., and is prescribed by Ordinance of the Ministry of Trade, Industry and Energy. According to subparagraph 9 of the same Article, an industrial product subject to safety certification refers to an industrial product prescribed by Ordinance of the Ministry of Trade, Industry and Energy, which is deemed capable of preventing harm to consumers only on the basis of a product inspection among those deemed likely to cause harm to consumers due to the structure, quality, method of use, etc.

On the other hand, the above Enforcement Rule was amended by Ordinance of the Ministry of Trade, Industry and Energy No. 23 on August 7, 2013, and the revised provisions of Article 2 of the Addenda are applied to the product released or cleared down after the enforcement of the provision, while converting the date of the portable preliminary period, which was an industrial product subject to safety certification, into an industrial product subject to safety certification. Accordingly, the instant product on which the seal of the portable preliminary period was affixed was converted into an industrial product subject to safety certification from August 7, 20

According to such amendment, not only the Annex of this case initially asserted by the Plaintiff, but also Annex 4 (the date of the date of the preliminary inspection for portable use) in accordance with the safety standards for industrial products subject to safety certification of No. 2009-977 of the notification of the Korea Institute of Technology pursuant to the previous regulations may be applied to August 12, 2013 when the Defendant requested a safety inspection for the product of this case. These annexes provide the same safety requirements, including the internal shock standards, and the provisions of the Annex of this case quoted below are the same contents as those of the corresponding provisions of Annex 4, and thus, the Annex of this case cited in the Annex of this case is deemed to be cited together.

1) Determination as to the assertion relating to resistant shock (section 1)

A) Determination as to the assertion that cutting day and day shall be viewed separately (No. 1-1 note)

이 사건 부속서의 개별 규정과 체계에 비추어 알 수 있는 다음과 같은 사정, 즉 ① 이 사건 부속서는 '1. 적용범위'에서 이 기준은 휴대용 동력 예초기에 부착하여 사용하는 금속재질의 회전 절단날(metal blade for brush cutters)에 대하여 규정하고 있음을, '2. 용어의 정의'에서 날은 풀 등을 깎는 주기능 부위면이고(2.1 날), 날의 수는 주기능 부위면의 수를 말하며, 주기능 부위면의 날부에 뒤집어서 사용할 수 있도록 만든 양날구조라도 하나의 날부로 간주한다(2.2 날의 수)라고 명시하고 있어, 날부는 절단날에 포함되는 개념으로 이해되는 점, ② 이 사건 부속서 '4. 안전요구사항' 중 '4.1 겉모양'에서는 일체형 2도형 절단날은 날부와 끝부의 각도가 둔각(98° 이상)이어야 하며 날부의 끝부분은 중심축으로부터 원을 그렸을 때의 원의 모양과 동일한 둥근 모양을 하여야 한다 (4.1.2)고 정하고 있고, '4.4 치수'에서는 절단날의 길이는 305 mm 이하, 두께는 1.8 mm 이상, 구멍의 지름은 25.4 +0.15 mm이어야 한다고 규정하고 있어, 절단날은 별지 2, 3의 영상에서 보이는 것처럼 날부와 끝부를 포함하는 풀을 베는 금속편의 전체를 의미하는 개념인 점, ③ 이 사건 부속서 '3. 종류'에서는 절단날의 종류로 일체형(single-piece blade), 관절형(multi-piece blade), 둥근톱형(carbide tipped saw), 초 결팁 달린 둥근톱형, 기타 성형 절단날 등으로 구분하면서, 이 사건 제품과 같은 '일체형 절단날'을 회전부와 날부가 한몸(일체형)으로 되어 있거나, 날이 분리되더라도 회전부에 날부가 고정되어 있는 제품이라고 설명하고 있고, '관절형 전단날'을 회전부와 날 부가 1개 이상의 관절(연결핀 또는 리베팅)로 연결된 형태로서 날부가 유연하게 움직이는 제품이라고 설명하고 있는 등 절단날의 구분에 있어 날부의 모양이나 고정형태가 중요한 기준으로 작용하고 있는 점, ④ 이 사건 부속서 '4.6 내충격성' 기준은 '절단날에 금이 가거나 깨어지는 경우' 외에 '날부가 떨어져 나가는 경우' 역시 내충격성 기준에 위배되는 것으로 규정하고 있는데, 날부가 외부의 충격으로 떨어져 나가는 경우란 앞서 본 절단날의 종류 중 관절형 절단날의 경우처럼 날부가 관절로 연결되어 회전부에 붙어있다가 외부의 충격으로 떨어지는 경우에 발생할 수 있는 현상을 주로 염두에 둔 것으로 보이는 점 등을 종합해 보면, 날부에 금이 가기나 깨어지는 경우는 '절단날에 금이 가거나 깨어지는 경우'의 일종에 해당한다고 봄이 상당하고, 달리 위 인정을 뒤집을 만한 증거가 없으므로, 날부에 금이 가거나 깨어지는 경우가 '절단날에 금이 가거나 깨어지는 경우'에 해당하지 않고 '날부가 떨어져 나가는 경우'에도 해당하지 않는다는 원고의 주장은 받아들이기 어렵다.

B) Determination as to the assertion that the right to the end of the day does not fall under the case where the gold is golded or broken (Article 1-2).

살피건대, 앞서 인정한 사실들에 변론 전체의 취지를 더하여 알 수 있는 다음과 같은 사정, 즉 ①) 사전적 의미에서, '금'은 '접거나 긋거나 한 자국' 또는 '갈라지지 않고 터지기만 한 흔적'으로, '깨어지다'는 '단단한 물건이 부딪치어 쪼개지거나 갈라지다.'라고 정의되고 있고, '균열'은 '거북의 등에 있는 무늬처럼 갈라져 터짐'이라고 정의하고 있는데, '금이 가거나 깨어짐'이 '균열'과 개념상 명확히 분리되는 개념이라고 보기는 어려운 점, ② 경북대공학설계기술원, 안동대학교 I 교수와 구미대학교 J 교수가 취성파괴와 연성파괴의 개념을 기준으로 연성파괴로 일어나는 균열은 공학적으로 '금이나 깨어짐'과는 구별되어야 한다는 견해를 밝히고 있으나, 이러한 공학적 견해는 앞서 본 사전적 의미에 비추어 '금'에 한정되는 것으로 보일 뿐 '깨어짐'에 관한 공학적 견해에까지 적용되는 것으로 보기는 곤란한 점[이 사건 부속서와 관련이 있는 국제기술표준인 'ISO 11806'은 내충격성(impact)에 관하여 "Cutting attachment, excluding flexible cutting lines, shall not break or crack when ---"의 표현을 사용하고 있다.

③ In light of the above, the president of the Research Institute has expressed his opinion that it is difficult to limit the "gold" to engineering meaning even if part of the day is cut due to the salutic transformation after the examination, such phenomenon occurred in the actual re-examination, and even if the "gold" was defined as a salutic destruction, it is difficult to limit the "gold" to engineering meaning. In light of the above fact, it is reasonable to view that the "gold salute" also falls under the case where the "gold salute" or the "salute salute salute salute salute salute salute salute salute salute salute salute salute salute sale salute salute sale salute sale sale sale sale sale s.

2) Determination of illegality of the request procedure for safety inspection (section 2)

Article 9(1)1 of the Framework Act on Product Safety provides that where products distributed in the market are products subject to safety control under the Quality Control and Safety Management of Industrial Products Act, safety inspections on the relevant products may be conducted to verify whether they are harmful, and Article 9(3) provides that detailed matters such as the methods and procedures of safety inspections, details of investigations, and the storage of the results thereof shall be prescribed by Presidential Decree. Accordingly, Article 4(1) of the Enforcement Decree of the Framework Act on Product Safety provides that an institution or organization that has issued safety certification shall not request a test, inspection, etc. on the relevant products, but the proviso provides that an institution or organization that has issued safety certification shall not request a test, inspection, etc. on the relevant products. The proviso to Article 4(1) of the Enforcement Decree of the Framework Act on Product Safety provides that the former institution that has issued safety certification shall not request a safety certification to the institution that has issued safety certification by presenting the results of the previous inspection or conducting a formal investigation, etc., and thus, it is understood that the institution is not able to enhance credibility and credibility of public interests.

In the instant case, according to the amendment of the Enforcement Rule of the Quality Control and Safety Management of Industrial Products Act, the instant product was converted into an industrial product subject to voluntary safety certification from August 7, 2013, and thus, safety inspection shall be conducted pursuant to the previous regulations for the product released after obtaining safety certification prior to August 7, 2013, but the Defendant’s request to the Institute for safety inspection may be deemed to violate the procedures under the Enforcement Decree related to the daily response. However, as seen earlier, the regulations separating safety certification institutions and safety inspection institutions are not aimed at promoting the private interests of the Plaintiff and the Plaintiff’s legal interest is not infringed by such procedural violation, and rather, the Plaintiff’s legal interest cannot be said to have been infringed by the said procedural violation. Rather, the researcher’s opposition to the previous safety certification does not satisfy the shock standards as a result of the research conducted by the Institute, and there is no other data to reverse the said recognition.

Therefore, there is no reason for the first instance Plaintiff’s assertion on different premise (the Plaintiff’s assertion that it was unlawful to take the first instance period of this case as the basis of safety investigation rather than Annex 70 according to the amendment of the above Enforcement Rule, but not Annex 4 as the basis of safety investigation, the Defendant did not specify Annex 70 as the basis of the disposition, and even if the Defendant became the basis of the disposition by specifying Annex 70 as the basis of the disposition, even if the Defendant added Annex 4 as the basis of the preliminary disposition without changing the facts in the trial, without changing the facts, and the safety standard of the investigation was not substantially different in the safety requirements, including the shock criteria, and thus, it is difficult to accept the Plaintiff’s above assertion).

3) Determination as to the assertion that the risk was not verified (section 3)

In addition to the aforementioned facts, Article 11(1)1 of the Framework Act on Product Safety provides that the product may be ordered to collect, etc. if the risk of the product is confirmed as a result of safety inspection, which serves as the basis for the disposition of this case. Such risk is so-called indefinite concept that it is difficult to determine whether the product of this case is dangerous by holding a Product Safety Advisory Committee at the meeting of the Government, academic circles, legal circles, and civil organizations as well as members of the Product Safety Advisory Committee, based on their special experience and expertise. The defendant presented opinions that even if the product of this case falls under dynamic destruction as alleged by the plaintiff, there is a possibility of additional shock and danger to consumers even if it falls under the product of this case, and that some of the product of this case is likely to cause harm to consumers, such as ex officio re-testing or collecting opinions from the plaintiff and researchers, etc.

Therefore, this part of the prior plaintiff's assertion is without merit on different premises.

4) Determination as to Section 4

In light of the following circumstances, if the facts acknowledged earlier reveal the overall purport of the pleading, i.e., ① some of the cutting day is left away due to the lack of shockness on the first day of the towing, etc. due to the lack of internal shockness, etc., it is a fatal hazard to the lives and bodies of consumers, and there is a serious damage such as real name or partial cutting of body, etc. due to the preliminary accident, and ② as seen earlier, the product of this case is likely to cause harm to the lives and bodies of consumers due to its failure to meet the internal shock standards, as seen earlier;

(3) As alleged by the Plaintiff, even if the product of this case was made with external shock and shock, part of the day of cutting is likely to keep away from the day of cutting, as seen earlier, and it cannot be deemed that the safety of the product of this case was satisfied since the occurrence of a smoke destruction phenomenon occurring in other products passing through safety inspection; 4) consumers using a towing machine have shocked on the cutting day, and even if it was damaged on the cutting day, they are likely to use the product of this case without immediately checking it; and 5) the Plaintiff suffered enormous damages due to the Plaintiff’s input of time and expenses to develop the product of this case. However, even if the product of this case is directly related to the safety of consumers’ life and body, it is difficult to allow the Plaintiff to sell the product of this case as it is, even if it is anticipated that the Plaintiff’s damage would occur, and even if the disposition of this case was made, it is more likely that the Plaintiff would have suffered excessive damage to consumers by taking account of the fact that the product of this case was developed and sold by the market of this case.

Therefore, this part of the Plaintiff’s assertion that the instant disposition was unlawful by deviating from or abusing discretion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed, and the judgment of the court of first instance with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.