2015du39460 The revocation of revocation of the refund of petroleum import charges

Zskex Inc.

The Korea National Oil Corporation

Seoul High Court Decision 2014Du44245 Decided January 22, 2015

October 27, 2016

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined.

1. As to grounds of appeal Nos. 3 and 4

A. The so-called administrative rules, which are issued by a superior administrative agency to a subordinate administrative agency, are generally effective only within the administrative organization, and do not have external binding force. However, if the provisions of statutes are not specified in the administrative rules in the form of administrative rules in which the delegated administrative agency grants the authority to determine specific matters of the statutes and does not specify the procedure or method of exercising the authority to determine the specific matters of the statutes, such administrative rules do not have the general effect of administrative rules as seen above, but have the function to supplement the contents of the statutes in accordance with the provisions of the statutes that grant the authority to supplement the specific matters of the statutes to the administrative agency. Accordingly, such administrative rules have the effect of an external binding law order in combination with those of those regulations, unless they do not go beyond the bounds delegated by the statutes in question (see Supreme Court Decision 2006Du3742, Mar. 27, 2008).

Furthermore, with respect to the interpretation of the Act on Taxes and Charges, it shall not be interpreted as the legal text, unless there are special circumstances, regardless of the requirements for imposition or exemption, nor shall it be interpreted extensively or analogically without reasonable grounds (see Supreme Court Decision 2007Du9884, Oct. 26, 2007, etc.).

B. (1) Article 18(1)1 of the former Petroleum and Petroleum Substitute Fuel Business Act (amended by Act No. 8768 of Dec. 21, 2007 and enforced on June 22, 2008; hereinafter “former Petroleum Business Act”) provides that a charge may be collected from petroleum refining business operators, petroleum exporters or importers, or petroleum retailers who import petroleum products or sell petroleum products (hereinafter “petroleum refining business operators, etc.”) for the stabilization of supply and demand of petroleum, and Article 19 of the former Petroleum and Petroleum Substitute Fuel Business Act provides that where a person subject to the above charge uses or supplies petroleum for the purposes prescribed by the Presidential Decree, the charge collected may be refunded, while Article 19 of the same Act provides that the refund criteria and procedures for the refund and other necessary matters concerning the refund of the refund shall be prescribed by the Presidential Decree (Article 3).

Article 27(1) of the former Enforcement Decree of the Petroleum and Petroleum Substitute Fuel Business Act (amended by Presidential Decree No. 20840, Jun. 20, 2008; hereinafter referred to as the "former Enforcement Decree of the Petroleum Business Act") provides that where a person who has paid dues falls under any of the following subparagraphs, all or part of the dues paid shall be refunded, and subparagraph 1 of the former Enforcement Decree provides that where a petroleum refiner or petroleum exporter exports products prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy from the process of refining petroleum products or petroleum (hereinafter referred to as "reasons 1") and a product prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy, which is produced in the process of refining petroleum products or petroleum, is supplied as raw materials for industry prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy (including the case of supplying petroleum products as raw materials for industry use among by-products), Article 27(1) of the former Enforcement Decree of the Petroleum Business Act provides that 0-1 of the former Enforcement Decree of the Petroleum Business Act shall be delegated by the Minister of 20-1.

In addition, the main sentence of Article 23 (1) shall be calculated by multiplying the quantity of petroleum used for the production of petroleum by the Commissioner of the Korea Customs Service for the reasons of subparagraph 1 (the unit price for the preceding month) X (the unit price for the production of petroleum used for the preceding month) and by the formula (the unit price for the preceding month) (the unit price for the production of petroleum) and the method of calculating the quantity of petroleum used for the production of petroleum by the manufacturer under the annexed Form 24 (1) 1 and (2) the quantity of petroleum used for the production of petroleum by the manufacturer shall be calculated by applying the formula of Article 26 (2) 1 and 2 to the quantity of petroleum used for the calculation of the total quantity of petroleum used for the production of the raw materials for the first time after deducting the quantity of petroleum used for the manufacture of the raw materials for the second time, and the quantity of petroleum used for the manufacture of the raw materials by the manufacturer shall be calculated by applying the formula of Article 26 (1) 1 and 2) the quantity of petroleum to be refunded.

Accordingly, Article 1-2 of the former Act (amended by Presidential Decree No. 2008 - No. 36 of Nov. 3, 2008 and enforced on Nov. 10, 2008; hereinafter referred to as the "former Customs Service Notice") provides for the total quantity of raw materials generated in the normal process of producing export goods (excluding the quantity of raw materials used in the normal process of producing export goods) and "by-products" means goods with economic value generated in addition to export goods during the production process and are sold or used for himself/herself; "the autonomous required quantity" means the total quantity of raw materials generated in the production process of goods calculated by dividing the total quantity of goods by one product for a specific period of time by Article 10 (1) of the Act and Article 11 of the Decree; "the total quantity of raw materials generated in the production process of goods" by two different types; "the total quantity of goods used in the production process of goods for a specific period of time" by two different types; "the total quantity of raw materials required in the production process of goods" by two different types.

Furthermore, Article 2-14 of the former Customs Service Notice 2-14 provides that where it is difficult to distinguish the raw materials that have caused by-products from the whole raw materials required in the manufacturing process of the product, by-products shall be deemed to have generated by-products. Paragraph (2) provides that "the deduction rate by-products" shall be "the deduction rate by-products: (a) the price of the product produced in the relevant process that produces by-products; (b) the price of the total raw materials required in the relevant process that generates by-products; (c) the price of the relevant raw materials that cause by-products; and (d) the price of the relevant by-products: Provided, That where it is difficult to calculate the price A; (b) if it is difficult to calculate by-products; (c) the price of the raw materials that have occurred by-products under paragraph (4) shall be determined as the by-products generation rate; and (d) the refund rate by-products shall be applied to the deduction rate by-products under paragraph (2)."

C. Comprehensively taking account of the contents, form, purport, etc. of the relevant laws and regulations as seen earlier, each of the provisions of the former Public Notice and the former Public Notice of the Korea Customs Service shall be based on delegation of the former Public Notice of the Petroleum Business Act that provides that the Minister shall determine and publicly notify the refund standards or the subject, size, and method of refund, and shall be deemed to have the effect as an external binding legal order, combined with the content of the relevant laws and regulations.

Furthermore, when collecting charges from a petroleum refiner, etc., but refunding part of charges under the former Petroleum Business Act, thereby setting the amount of charges to be finally borne by a petroleum refiner, etc.. In light of the substance of imposing and refunding oil refunds, the legal doctrine on the interpretation of the Act on the Interpretation of the Taxes and Charges shall be applied in interpreting the provisions on the basis of calculating refunds, such as the subject, size, and method of refund. Therefore, the provisions on the former Public Notice of the Child Register and the former Public Notice of the Customs Service, which set the basis for calculating refund, shall be interpreted and applied as a matter of principle, and shall not be extensively interpreted or analogically interpreted without reasonable grounds.

(1) Regarding the methods of treating fuel gas:

(A) First of all, fuel gases are not included in "loss cap" that is generated in the normal process of producing export goods in accordance with the former Customs Service notice, but as "by-products" that have economic value generated incidental to the export goods other than the export goods and are sold or used for himself/herself, since waste gas generated in the air due to the previous crude oil refining process goes through the minimum stabilization for burning through separate processing by the Plaintiff. Thus, it is reasonable to view it as "by-products" that are manufactured for sale or actually commercialized for the purpose of sale, and can not be sold to third parties.

(B) However, in addition to the language, history, purport, etc. of the relevant regulations and notifications, ① December 29, 2008

The notice of the Ministry of Health and Welfare provides that fuel gas is included in by-products. However, the former notice of the Ministry of Health and Welfare and the former notice of the Korea Customs Service, which applied to the period subject to the disposition of the instant case, did not clearly stipulate the method of treating "fuel gas" in calculating the refund amount; ② The former notice of the Minister of Health and Welfare, first of all, stipulates that Article 21 is subject to refund with regard to the refund of dues, and Article 23 provides that "the amount of petroleum used as a raw material for the production of petroleum products subject to refund" under Article 26 (1) shall be calculated by applying "the autonomous required amount by the notice of the Korea Customs Service"; ③ Article 2-14 (Management by-products) of the former notice of the Korea Customs Service calculates "the amount of refund for the raw material for which by-products were generated" (in calculating the refund amount prior to the deduction of by-products - the deduction rate) - (Article 26 (1) 4).

The method of calculating "by-products" (paragraph 2) and "by-products" (paragraph 3), and the method of determining "the price of by-products necessary for calculating the percentage of by-products" (paragraph 1), and "the price of by-products necessary for calculating the percentage of by-products (paragraph 3), etc. The provisions of Article 2-14 are difficult to be deemed to determine "the autonomous required amount by the public notice of the Korea Customs Service, which is used in the public notice of the former Industrial Community Service," and (4) even if it is necessary to apply by-products of Article 2-14 of the former Public notice of the Korea Customs Service as alleged by the defendant, applying "the by-products generation ratio (the standard of value)" to "the by-products generation ratio (the standard of quantity)" is the same as the "products" itself, and thus, it is not reasonable to apply the provision of Article 2-1 of the former Public Notice of the Korea Customs Service to "the prices of by-products with economic value generated in the process of manufacturing by-products" and thus, it does not conform to the concept of by-1.

(2) As to the method of treating hydrogens, it is reasonable to grasp it as by-products, not by-products, in light of various circumstances, namely, ① the Plaintiff’s use of the above hydrogen for desulfuring purposes in the crude oil refining process; ② the hydrogen is the product sold in the market; ③ the hydrogen is incidental to the Nap decomposition process.

(B) However, considering the following circumstances that can be known in light of Article 25(1) of the former Public Notice by the Busan District Court, which provides for the calculation method of "charge refund rate" for the reasons in subparagraph 2, i.e., ① application of surcharges exchange rate to 200, i.e., fuel-sale product out of the net input volume of raw materials, i.e., fuel-sale and specific by-products for other purposes can not be seen as being used for industrial raw materials, so it can be seen as excluding the corresponding portion from calculation of the net input volume, ii) it is difficult to view that the Plaintiff is not a person who sells petroleum by-products for the purpose of calculating the rate of surcharge refund rate under Article 25(1) of the former Public Notice by the Busan District Court, i.e., the sale and self-consumption of by-products and other by-products for different purposes, but it is difficult to regard that the Plaintiff can be viewed as a person who sells by-products of petroleum for different purposes other than by-products from 4 kinds.

D. After recognizing the facts as stated in its holding, the lower court determined that the Defendant’s disposition rejecting the Plaintiff’s application for refund on a different premise was unlawful on the ground that (1) arbitrarily calculating the required amount and the amount of petroleum subject to refund, such as the Defendant’s calculation method, without any clear legal basis, is against the legal principle of surcharges or the principle of clarity; (2) as to hydrogen, it is difficult to regard the entry of the column of by-products in the material water index, which is submitted in the process of calculating the rate of refund of surcharges, as an exemplary provision, and the calculation of the rate of refund of surcharges is also contrary to the legal principle of surcharges and the principle of clarity.

In light of the aforementioned legal principles and records, such determination by the court below is just, and contrary to the allegations in the grounds of appeal Nos. 3 and 4, the court below did not err by misapprehending the legal principles on the application of the former Petroleum Business Decree, the former Forest Service Notice, and the former Customs Service Notice Regulations, thereby affecting the conclusion of the judgment

2. Examining the ground of appeal No. 2 in light of the aforementioned legal principles, where the application for refund filed by a petroleum refiner, etc. satisfies the requirements for refund under the former Petroleum Business Act, the former Forest Service Notice, and the former Korea Customs Service Notice, the Defendant shall refund the amount calculated pursuant to the above provision, and the Defendant shall not refuse such application without good cause.

In the same purport, the lower court is justifiable to have determined that the instant disposition was unlawful on the ground that the Plaintiff’s application for refund satisfies statutory requirements for refund. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the legality

3. Regarding ground of appeal No. 1

A. The reasoning of a written judgment is sufficient to indicate the judgment on the party’s assertion and other means of offence and defense to the extent that it can be recognized that the text is justifiable (Article 208(2) of the Civil Procedure Act). Therefore, it is not necessary to determine all allegations by the parties or methods of offence and defense. Even if a specific judgment on a party’s assertion is not indicated in the reasoning of the judgment, if it is possible to find the assertion or rejection in light of the overall purport of the reasoning of the judgment, it cannot be deemed an omission of the judgment. Even if the judgment was not actually rendered, it cannot be said that there was an omission of judgment if there was no influence on the conclusion of the judgment (see, e.g., Supreme Court Decision 2015Da231894, Jan. 14, 2016)

B. Comprehensively taking account of the adopted evidence, the lower court: (i) The Plaintiff from January 1, 2008 to December 2, 2008 to the Defendant.

31. In calculating “self-required” as stated in the notice issued by the Korea Customs Service among the first and the first production process, when filing an application for refund during the key period (hereinafter referred to as “the key period”), the Defendant: (a) calculated the self-required amount by including the fuel gas in the total quantity of products; (b) calculated the charge refund rate by including hydrogen in the “by-products”; and (c) calculated the charge refund rate by applying the same to the “in calculating the charge refund rate; (b) subsequently, on December 21, 2012, the Plaintiff calculated the self-required amount without including the “products produced by-products”; and (b) calculated the charge rate without including the hydrogen in the “by-products”; and (c) calculated the amount of petroleum required for manufacturing petroleum products subject to refund by-products; and (d) considered the amount calculated based on the rate calculated based on the above formula as “by-products” and determined that the Defendant’s application for refund was unlawful on the ground that the Defendant’s application for refund was not in violation of the foregoing paragraph.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court deemed that the Plaintiff’s application for refund satisfies the requirements for refund as stipulated in the laws and regulations, and thus, deemed that the instant disposition rejecting the application for refund on the premise of a different calculation method was unlawful, and such judgment of the lower court should be deemed as indicating the parties’ assertion and other methods of attack and defense to the extent that it can be recognized that the main text of the application is justifiable. Therefore, the lower court did not err

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin-chul

Justices Kim Yong-deok

Justices Kim Gin-young

Chief Justice Lee Ki-taik