2020 Gohap64804 Action seeking revocation of the revocation of the sanitary and safety standards

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April 30, 2021

May 28, 2021

1. The plaintiff's claim is dismissed.

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

The defendant's disposition revoking the certification of sanitation and safety standards against the plaintiff on May 6, 2020 shall be revoked.

1. Details of the disposition;

A. On December 15, 2015, the Plaintiff received certification of the sanitation and safety standards under Article 14(1) of the Water Supply and Waterworks Installation Act from the head of the Korea Water and Wastewater Works Association delegated by the Defendant with respect to multiple models that he/she manufactured. On October 20, 2016 and January 18, 2018, the Plaintiff obtained additional certification as to a new model, and the details of the final certification model (hereinafter referred to as the “instant product”) specified as the type, class, or title are as listed below.

B. On February 22, 2018, the Plaintiff received a regular inspection conducted under Article 14(6) of the Water Supply and Waterworks Installation Act with respect to the instant products from the Korea Water Quality and Waterworks Accreditation Board delegated by the Defendant, and received a determination that the instant products meet the sanitary and safety standards (the certification period: until December 14, 2019).

C. On November 18, 2019, the Plaintiff filed an application for regular inspection with the Korea Water Quality Certification Board. The increase in the Korea Water Quality Certification Board (hereinafter referred to as “the instant regular inspection”) notified the Plaintiff on March 3, 2020 that “The Plaintiff was found to have failed to pass the regular inspection of the instant product (0.001m/L below 0.01m: 001m/L, 0.07m/L below 0.01m: 0.016m/L) and kel (0.029m/L).”

D. On May 6, 2020 based on the result of the instant regular inspection, the Defendant issued a disposition to revoke the registration of the instant product pursuant to Article 14-2(1) proviso subparagraph 3 of the Water Supply and Waterworks Installation Act (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, and 8, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Of the product of this case, the part in contact with water is "water supply pipe, oil pipe, water tap, etc." (hereinafter referred to as "water tap, etc."). If the plaintiff purchases only the product that passed the sanitary and safety standards for all the above 3 products and assembled them, the defendant does not immediately revoke the certification of the product of this case, but rather "whether the product of this case has a problem in the assembly process of the product of this case", and "whether there are any reason for excessive detection of lead, etc. in the assembly process," it should have been revoked the certification of the product of this case (as the result of the testing conducted by the plaintiff, it is essential that the delivery, etc. was detected in the product of this case, and thus, it should have been revoked the certification of the product of this case as to the water tap, etc.). It is unlawful to revoke the certification of the product of this case against the plaintiff without any reason attributable to the plaintiff (hereinafter referred to as "the product of this case").

2) The Plaintiff, a small business operator due to the instant disposition, was no longer capable of operating the company. The Plaintiff’s design registration and utility model with respect to drinking water owned by the Plaintiff was no longer usable. As such, the private interest infringed on by the instant disposition is much larger than the public interest. Ultimately, the instant disposition that revoked the certification only once for a single regular inspection that can be determined sufficiently appropriate solely with respect to the instant product, is unlawful against the principle of proportionality (hereinafter referred to as “principal”) (hereinafter referred to as “instant disposition”).

3) The proviso of Article 14-2(1)3 of the Water Supply and Waterworks Installation Act (hereinafter “instant provision”) provides that the defendant shall be subject to revocation if a manufacturer fails to meet the regular inspection standards. Notwithstanding the various grounds and the degree of exceeding the regular inspection standards, such as the case where there is no cause attributable to the manufacturer, etc. as in the instant case, the instant provision providing that the pertinent water-use products are subject to revocation of certification on the sole basis of the regular inspection result of a single regular inspection without examining the cause and degree of excess, etc., in violation of the principle of excessive prohibition, and thus, it is unconstitutional that the instant disposition based on the law, which is unconstitutional, is unlawful (hereinafter “principal”).

(b) Fact of recognition;

1) The Plaintiff is an enterprise that manufactures and sells the drinking water at all levels at schools, playgrounds, parks, etc., which is not in contact with water, and manufactures the instant product by purchasing it from other manufacturers to complete at the main body of the drinking water and installing it on the main body of the drinking water.

2) The Plaintiff purchased from another manufacturer, such as ○○○○, Co., Ltd. and used water supply, etc. in the manufacture of the instant product all materials certified as sanitary and safety standards by the Korea Water and Wastewater Works Association.

[Ground of recognition] Each entry of Gap evidence Nos. 9, 10, 11, 15 (including paper numbers), and the purport of the whole pleadings

C. Determination

1) As to the assertion ①

A) Article 14(8) of the Water Supply and Waterworks Installation Act provides that the scope of "materials and products for waterworks" (hereinafter referred to as "materials and products for waterworks") shall be determined by Ordinance of the Ministry of Environment pursuant to paragraph (1). Article 2 [Attachment 1] of the Rules on the Sanitary and Safety Certification, etc. of Materials and Products for waterworks which is enacted by Ordinance of the Ministry of Environment. The scope of "the materials and products for waterworks subject to certification of sanitary and safety standards" includes not only metal pipes (1. A.), non-metallic pipes (1.b. b.), and water tap (2.c. c.) that make use of the above water tap, etc. as in the instant product [3. b. and d. 2. 1 of this case]. In other words, the Act and subordinate statutes include materials and products subject to certification of sanitary and safety standards, such as individual tap water, waterworks, waterworks, waterworks and products.

B) Therefore, even if the instant product, which is a finished product, is not a tap, etc., and is not a finished product, the subject of the instant regular inspection. Thus, even if there are grounds for the detection of the container, etc., as alleged by the Plaintiff, it does not affect the outcome of the instant regular inspection that the instant product itself does not meet the sanitary safety standards and the legality of the instant disposition based thereon. In short, the instant provision, which is the basis of the instant disposition, aims to prevent the distribution of any material or product in the market, from being in compliance with the sanitary safety standards under the Water Supply and Waterworks Installation Act, thereby protecting health of citizens from harmful substances, such as paying, etc., by preventing harmful substances from being in compliance with the sanitary safety standards under the Water Supply and Waterworks Installation Act. As such, the instant provision, which is the basis of the instant disposition, is merely a ground for revoking the certification of the instant product, and does not require a manufacturer’s causes for its failure to meet the regular inspection standards, and thus, does not require a manufacturer’s exemption from the sanitary safety standards, even if it fails to meet the sanitary safety standards.

Therefore, this part of the Plaintiff’s assertion is without merit, since the disposition of this case based on the regular inspection of this case is not erroneous in the misapprehension of facts alleged by the Plaintiff.

2) As to the argument (2)

A) Relevant legal principles

When the administrative act is classified into the so-called binding act, discretionary act, discretionary act, or discretionary discretionary act or discretionary discretionary act with respect to the existence and scope of discretion, the division shall be determined by considering all the circumstances, such as the stay, form, and text of the relevant laws and regulations, the main purpose and characteristics of the administrative sector to which the relevant act belongs, and the individual nature and type of the relevant act. The judicial review of the two classified types shall be based on the method of determining the legitimacy of the judgment made by the administrative agency from its independent standpoint in light of the following conclusion: (a) the court derived a certain conclusion through the fact-finding and the interpretation and application of the relevant laws and regulations in the case of the former; and (b) the determination of whether there is deviation or abuse of discretionary power without drawing the independent judgment based on the discretion of the administrative agency; and (c) the determination of whether there is deviation or abuse of discretionary power is subject to misunderstanding of facts, violation of the principle of proportionality, violation of the principle of proportionality, and denial of the purpose or motive of the relevant act (see, e.g., Supreme Court Decision 2018Du274.

B) Specific determination

The provision of this case, which is the basis for the disposition of this case, provides that "if a person who has obtained certification pursuant to Article 14 of the Water Supply and Waterworks Installation Act, fails to meet the regular inspection standard, the certification shall be revoked." In light of the language and form of the above provision, the revocation of certification pursuant to the provision of this case shall be deemed to be a binding act. In light of the above legal principles, in examining the disposition of this case, whether the violation of the principle of "non-standing", which is a means of examination of deviation or abuse of discretionary power, is not subject to determination. The plaintiff's assertion

3) As to the assertion No. 3

For the following reasons, the instant provision does not violate the excessive prohibition principle under Article 37(2) of the Constitution, and thus cannot be deemed as an unconstitutional provision that infringes on the Plaintiff’s freedom of occupation. This part of the Plaintiff’s assertion is without merit.

A) The legitimacy of legislative purpose and the suitability of the means

(1) The Water Supply and Waterworks Installation Act prohibits a person who intends to manufacture or import waterworks materials, etc. that have contacted water by setting sanitary safety standards including detection standards for 45 harmful substances, such as lead and mercury, from obtaining certification (Article 14(1)), and undergo regular inspections and occasional inspections after obtaining certification (Article 14(6)). If a person fails to obtain certification or fails to meet the above bio-safety standards as a result of regular inspections or occasional inspections, the Water Supply and Waterworks Installation Act prohibits the manufacture, import, supply, and sale of the pertinent waterworks materials, etc. (Article 14(2)). In addition, the Water Supply and Waterworks Act provides for the revocation of certification of the relevant product without room for discretion if the person fails to meet the sanitary safety standards at regular inspections or occasional inspections (Article 83 subparag. 1-3), that is subject to criminal punishment against a person who manufactured, supplied, or sold the relevant product, etc., and that a person who fails to comply with the order under Article 14(1)1-2 (Article 2).

(2) As above, the Water Supply and Waterworks Installation Act has a mandatory certification system for materials for waterworks in order to strictly observe the sanitary safety standards in the manufacture, sale, etc. of materials for waterworks. Among them, the provisions of this case provide for the grounds for revocation as necessary. In addition, in a case where the Water Supply and Waterworks Installation Act provides for the compulsory certification system for materials for waterworks, etc. for waterworks, and at the same time, in a case where the water supply and Waterworks Installation Act fails to meet the regular inspection standards through the provisions of this case (i.e., in a case where the water supply and Waterworks Installation Act fails to meet the sanitary safety standards), the said certification is required to prevent the manufacture and distribution of materials for waterworks, etc. for waterworks from being manufactured and distributed in advance, ensure the sanitary safety of materials for waterworks, etc. for waterworks, thereby establishing the foundation for safe supply of tap water to the public by preventing the secondary pollution of tap water

In addition, in the event that a regular inspection is judged inappropriate to achieve the above legislative purpose, it is an appropriate means to cancel the certification of materials, etc. for the purpose of the regular inspection.

(B) the minimum of infringement and the balance of legal interests;

(1) Due to the characteristics of water supply materials, etc., users directly sprinke or contact the water generated from the relevant materials, etc., and thus, if any harmful substance is contained in water that passed through the materials, etc., it directly affects consumers or users’ body. 45 hazardous substances constituting the sanitary safety standards are adversely affected human body. Accordingly, it is known that the 'payment' is strong enough that 10% of water intake can be absorption into the human body, and that it might cause a decrisymymar disorder by being sprised in the form of human acid lead to a sensitive response to the total population of 10 to 20%, such as chronic dyspys, diseases such as chronic dyspys, etc., and where it can occur in the event of a long-term dyspopic disease or spys, etc., and that it can be known that it might occur between pulmonary diseases and pulmonary diseases, etc.

However, if there is room to maintain the certification without immediately cancelling the certification for the materials, etc. for waterworks which failed to meet the sanitary safety standards, it would be impossible to promptly and originally block the distribution of materials, etc. for waterworks which produce more than the standard value of such harmful substances. In other words, considering the specific content of adverse effects that hazardous substances affect the human body, in particular, such health hazards are very difficult or de facto impossible to recover if damage has already occurred, it is determined that sanctions such as 'voluntary cancellation' are not sufficient to achieve such public interest purpose ( even if the certification is maintained, the plaintiff argues that even if the defendant maintains the certification, it can sufficiently block the distribution of the materials, etc. for waterworks which fall short of the sanitary safety standards, by making recommendations or orders such as collecting materials, etc. which are judged inappropriate in the said occasional inspection, the above assertion does not seem to require prompt revocation of the certification of materials, etc. which are determined inappropriate in the Water Supply and Waterworks Installation Act, and thus, it is not necessary to promptly prevent the distribution of materials, etc. which are determined inappropriate in the regular inspection.

Meanwhile, Article 14-2 (2) 1 of the Water Supply and Waterworks Installation Act provides that "where the certification is revoked due to a failure to meet the regular inspection standards, it shall not be applied for certification within six months from the date the certification is revoked." However, if the relevant product is not the product, the application for new certification for the same business operator's new product is not limited (the Plaintiff also applied for new certification without any restriction). Therefore, it is difficult to see that the restriction on freedom of occupation due to the instant provision is excessive to the extent that the essence of the restriction is infringed, it does not violate the minimum principle of infringement.

(2) In addition, considering the importance of the public interest to be protected under the instant provision, even if the existing certification of manufacturers and distributors of waterworks, such as the Plaintiff, is revoked due to the instant provision, and the manufacture and sale of the pertinent waterworks materials are restricted, such restriction cannot be deemed as more serious than the public interest, and thus, the instant provision is deemed to have satisfied the balance of the legal interest.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.