(영문) 서울행정법원 2017.9.15. 선고 2017구합56421 판결

A. The Plaintiff, a company producing liquefied petroleum gas containers (LPG containers), obtained certification under the Industrial Standardization Act (standard number: KS B 6211, standard name: KS B’s compulsory liquefied petroleum gas containers, certification number: B, type or name: LP-3, LP-10, etc.) with respect to liquefied petroleum gas containers produced by the Plaintiff around 199.

B. On August 15, 2016, the Defendant purchased heavy containers, replaced and heat processing them, and received a civil petition for the illegal production and sale of approximately 1,500g products as new products. On August 17, 2016, the Defendant received a public notice from the head of Jincheon-gun that the Plaintiff manufactures containers with the same container number.

C. On October 27, 2016, the Defendant conducted a field investigation on the Plaintiff’s factory (hereinafter “the instant field investigation”). As a result, the Defendant determined that the core quality two is inappropriate (i) the temperature is maintained pursuant to the WTA-0501-2 (WTA-0501-2); (ii) the chemical analysis equipment was used as an external certified letter, but it was inappropriate for the Defendant to conduct a field investigation on the Plaintiff’s factory (hereinafter “the instant field investigation”).

D. On February 9, 2017, the Defendant issued a disposition of suspension of certification for one month on the ground that “the core quality of 16 items, including 2 items, among the items to be assessed as a result of the instant field investigation, is inappropriate” (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1 and 2 evidence, the purport of the whole pleadings

2. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

3. Whether the instant disposition is lawful

A. Whether the instant field investigation is lawful

1) Summary of the Plaintiff’s assertion

① The instant on-site investigation did not meet the requirements for the on-site investigation under Article 20(1) of the Industrial Standardization Act (if a consumer organization requests or it is deemed that a large number of consumers may suffer damage or are highly likely to suffer irrecoverable damage due to the deterioration of quality of certified products), and the Defendant did not give notice (a survey plan regarding the date and time of investigation, reasons for investigation, etc. by seven days before the investigation) under the main sentence of Article 20(4) of the Industrial Standardization Act to the Plaintiff.

2) Determination

The fact that the Plaintiff’s certified product is a liquefied petroleum gas container, and the fact that the Defendant produced and sold new containers or manufactured containers with the same container number by purchasing heavy-water containers, or that the instant field investigation was conducted after being informed that the Plaintiff was conducting the instant field investigation is as seen earlier. According to this, the instant investigation satisfies the requirements for a field investigation under Article 20(1) of the Industrial Standardization Act (where it is deemed that a large number of consumers are likely to suffer damage or damage difficult to recover due to the decline in quality of certified products). Furthermore, the purpose of the investigation can not be achieved by destroying evidence, etc. when notifying the Plaintiff of the investigation plan in advance. As such, it falls under the proviso to Article 20(4) of the Industrial Standardization Act, even if the Defendant did not notify the Plaintiff

Furthermore, the defendant's information such as the production of duplicate containers came into an on-site investigation of this case.

Even if the Plaintiff’s certified product is directly linked to the safety and health of the people, and the failure to comply with the temperature standard for heat treatment in the process of manufacturing the product and the procedures for chemical analysis and test are deemed to fall under cases where a large number of consumers are deemed to have suffered damage or are highly likely to suffer irrecoverable damage due to deterioration of quality of the certified product. Thus, even if the investigation was conducted, it shall not be deemed to have abused

(b) the existence of the reasons for the measure;

(i) the existence of any reason beyond the heat treatment temperature standard

A) Summary of the Plaintiff’s assertion

At the time of investigating whether the Defendant complies with the heat treatment temperature standards, the Plaintiff did not meet the heat treatment temperature standards since the Plaintiff suspended the manufacture of the container due to the malfunction of equipment (the chain part of the heat treatment route) and was engaged in towing for the resumption of production after repair.

B) Determination

At the time of investigating whether the Defendant complied with the heat treatment temperature standards, the fact that the Plaintiff was indicated as 517C in the heat treatment temperature display board at the time of the investigation into the instant site was not dissatisfied with the fact that the Defendant did not object to the lower court’s determination of the heat treatment temperature standard at the time of the investigation into the instant site, is no dispute between the parties. Therefore, barring any special circumstance as asserted by the Plaintiff, it may be deemed that the

On October 24, 2016, the Plaintiff stated that 100 containers 20 km containers 100, 25, and 20km containers 80 km containers were produced. On October 27, 2016, the date of the investigation in this case, 240 units were produced, and 240 units were posted with instructions and special articles. In addition, C asked C to the effect that “at the time of the examination committee’s examination committee’s examination committee’s examination committee’s examination committee’s examination committee’s examination committee’s examination committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee’s inspection committee.

However, in full view of the following facts and circumstances acknowledged by the statement of evidence Nos. 2, 5, and 3, the witness C’s testimony, and the purport of the entire pleadings, it is insufficient to acknowledge that only the above production date statement, the witness C, and D’s testimony was in the process of suspending production as alleged by the Plaintiff and conducting a heating work. Accordingly, the Plaintiff’s assertion cannot be accepted.

① After completion of the investigation, C maintained 625C, while temperature is maintained at 517C, it is deemed inappropriate to be core quality, and signed on a report of inappropriate nature (Evidence 2, No. 3) and on the other hand, it is deemed inappropriate that items 14 of core quality (in the process of a chemical analysis test) and 14 of general quality are inappropriate. The Plaintiff asserted that C signed in the process of a field investigation due to lack of yellow dust. However, C (Membership around July 2015) was in charge of the Plaintiff’s quality management business for more than one year at the time of the instant field investigation, and was in charge of the Plaintiff’s quality management business at the time of the instant field investigation, taking into account that the Plaintiff’s above assertion is difficult to accept.

② The instant field investigation was conducted from 09:00, and the lack of the heat treatment temperature standard was discovered at around 17:00. The instant inappropriate report was completed at around 20:30. The Defendant confirmed the lack of the heat treatment temperature standard and checked the manufacturing of containers to the present employee, but there was no fact that the present employee was not the production of containers (Article 5-2). However, although E, the present employee, who was the present employee, responded to the production (Article 5-2), the Defendant’s written review report (Evidence 3) prepared by the Defendant, stated that he responded to the production.

The Plaintiff did not mention the breakdown, repair, etc. of facilities at the time of the instant on-site investigation.

The plaintiff could not participate in on-site investigations because the executive director, who is a quality control manager, was involved in the education, and C was unable to perform the examination process of the heat treatment channel due to the relation that he/she was responding to the investigation at the office, and therefore failed to disclose the fact at the time of the investigation. However, considering the above time during which the investigation was conducted (which seems to have been sufficiently enough to inform the person in charge of the education) and the failure and repair of heat treatment facilities are matters directly related to the plaintiff's business, it is difficult to accept the plaintiff's assertion.

(3) It is impossible to ascertain whether the Plaintiff complies with the heat treatment conditions even at ordinary times due to a malfunction in the automatic temperature recording system.

(ii) the existence of any ground for non-execution of the chemical analysis test procedure

A) Summary of the Plaintiff’s assertion

According to the Plaintiff’s requirements for acceptance inspection, a chemical component test which has failed to conduct a self-examination is required to be requested one time a year to an external authorized testing institution, but does not stipulate that the test should be requested within one year from the date of the request for the test. The Plaintiff applied for an estimate of the request for a test for the year 2016 before September 8, 2016, and completed the test on November 30, 2016 after which the request for a test was made on November 30, 2016. The Plaintiff satisfied the above requirements for acceptance inspection to be requested once a year.

B) Determination

Article 17(1) of the Industrial Standardization Act and attached Table 8 of Article 13 of the Enforcement Rule of the same Act provide that “The Plaintiff shall request an internal standards and management regulations of an enterprise established by the Plaintiff in accordance with the criteria for the examination for certification under Article 17(1) of the same Act.” Considering that the above criteria are to ensure the stability of a liquefied petroleum gas container, and that the Plaintiff prescribed “not less than once a year without setting the criteria by December 31 of each year” as the criteria for the examination for acquisition, it is reasonable to interpret the above criteria to mean that the Plaintiff requests a reinspection within a period of one year from the date of the immediately preceding request for inspection. However, since the Plaintiff requested a reinspection on September 17, 2015 and the date one year has passed since the request for a reinspection was made (limited to the request for a test made on September 7, 2016), the Plaintiff did not meet the criteria for disposition as well.

4. Conclusion

The claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.