(영문) 서울행정법원 2014.8.14. 선고 2013구합27975 판결

2. On November 20, 2013, the Defendant revoked a disposition revoking the certification of an excellent recycled product that the Plaintiff revoked. 3. Of the litigation costs, the part resulting from the participation in the lawsuit is borne by the Intervenor joining the Defendant, and the remainder by the Defendant, respectively.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Defendant is a person who is delegated by the Minister of Trade, Industry and Energy with the authority to establish, revise, and abolish standards for quality standards for superior recyclable products by item, and certification standards for superior recyclable products by item, and the Plaintiff is a person who has obtained certification of superior recyclable products (certification number No. 2012-042 (re)) from the Defendant for printing paper (75g/m) and delivered the main text of authorized books to the Korea Testing Text, etc., which is an incorporated association.

B. Former quality standards (GR M702: 2010) for quality certification of excellent recycled products (GRM 702: 2010) stipulated that “it shall be less than 70% of the chemical pulse development rate and not less than 30% of the implied pulse,” and the Defendant revised the quality standards on November 13, 2012 (GR M702:202: 2012) that “it shall not meet the requirement of 2010 pulse’s public announcement on November 13, 2013 (hereinafter “instant public announcement”) and did not meet the requirement of 10 pulse’s public announcement on the quality of the printed paper (GRM 202: 201: 20).”

[Ground of recognition] The non-contentious facts, Gap evidence Nos. 2, 5, and 22, and the purport of the whole pleadings;

A. The plaintiff's assertion

The quality standards of the printed paper shall be enacted and amended, and the revocation of certification of good recyclable products is the defendant's role, and the defendant's intervenor (hereinafter referred to as the " participant") was entrusted by the defendant with the affairs of document and interview, on-site examination, product examination, post management, etc. related to certification of good recyclable products. Thus, the intervenor has no legal interest in the result of the lawsuit in this case. Accordingly, the application for participation in this case is unlawful.

B. Determination

Even if a participant does not fall under a third party participation as stipulated in Article 16 of the Administrative Litigation Act in an administrative litigation case, a participant's participation is permitted if he/she satisfies the requirements for participation under the Civil Procedure Act and its nature is a co-litigation participation (see, e.g., Supreme Court Decision 2011Du13729, Mar. 28, 2013). Intervention under the Civil Procedure Act can be a person who has an interest in the outcome of a lawsuit. Here, an interest refers to a person who has an interest in the outcome of a lawsuit, not a de facto, economic or emotional interest but a legal interest. This refers to a case where a person who intends to participate in a lawsuit receives res judicata or executory power of the judgment in question, or where the judgment in question does not directly affect the effect of the judgment in question, it refers to cases where the legal status of the person who intends to participate in the lawsuit is determined on the premise of the judgment in question (see, e., Supreme Court Decision 2006Da69653, Feb. 8, 2007).

However, in full view of the provisions of Article 44(1) of the Industrial Technology Innovation Promotion Act, Article 57(1)10 of the Enforcement Decree of the same Act, and Article 20, 21, 22, 25, 27, and 36 of the Certification Guidelines of this case, the intervenor is merely entrusted by the defendant with various examinations, post management, and recommendations for improvement of certified products following the amendment of the Quality Standards of Outstanding Recycled Products, and the legal authority and responsibility related to the amendment of the Quality Standards of Products and the revocation of the certification of the existing certified products in accordance with the Quality Standards, including the notified part, belongs to the defendant. Thus, even if the judgment is rendered to the effect that the disposition in this case is revoked on the ground of the illegality of the notice in this case, the result does not affect the legal status of the intervenor. In addition, if the intervenor's grounds for applying for intervention as above are the same, it is difficult to view that the intervenor has a de facto and economic interest in the outcome of the lawsuit in this case, unlike the foregoing, the intervenor's legal status of this case is determined based on the premise (the amendment).

Therefore, the Intervenor’s application for intervention is unlawful as it does not meet the requirements for intervention.

3. Whether the lawsuit in this case is lawful

A. The defendant's main defense

The Plaintiff filed a lawsuit in this case seeking the cancellation of the notified part of this case, but amended the purport of the claim to seek the cancellation of the disposition of this case. Since the notified part of this case and the disposition of this case are not identical to the basic of the claim, the above modification of the purport of claim is unlawful, and the Plaintiff should have filed a separate lawsuit and sought the cancellation of the disposition of this case. The period of filing a lawsuit was 90 days from the time when the disposition was already made. Accordingly, the lawsuit

B. Determination

Any modification of an action provided for in Articles 21 and 22 of the Administrative Litigation Act shall be specially recognized in accordance with the provisions of such Act.

Since it is not a rejection of the modification of a lawsuit under the Civil Procedure Act, the plaintiff in an administrative litigation may alter the purport or cause of the claim to the extent that it does not change the foundation of the claim pursuant to Article 235 of the Civil Procedure Act applied mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act (see Supreme Court Decision 9Du9407, Nov. 1, 199; 26,

The plaintiff filed the lawsuit of this case claiming the illegality of the notified part of this case and seeking the revocation thereof, because it is likely that the plaintiff could not obtain certification of superior recycled products due to the failure to meet the quality standards stipulated in the notified part of this case. However, the defendant subsequently revoked the plaintiff's certification of superior recycled products based on the notified part of this case, and the purport of this case's disposition was modified to claim the revocation of the disposition of this case by asserting the illegality of the notified part of this case and the illegality of the disposition of this case. It is difficult to see that the correction of the purport of this case's disposition is a case of modification based on the same ground of claim. It is difficult to see that the disposition of this case is based on the notified part of this case, and it is closely related between the subject matter of the lawsuit before and after the alteration, and the purport of the claim of this case's lawsuit of this case, which

Therefore, the defendant's defense of the above principal safety is without merit.

4. Whether the instant disposition is lawful

A. The plaintiff's assertion

The notice of this case provides that "the possession of an implied facility in the factory, unrelated to the improvement of quality or eco-friendliness," as the requirement for excellent recycling products. This is null and void because it deviates from the scope of delegation by the superior law, the Act on the Promotion of Saving and Recycling of Resources, the Enforcement Rules of the same Act, the Industrial Technology Innovation Promotion Act, and the Enforcement Decree of the same Act. Therefore, the disposition of this case based on the notice of this case is unlawful. In addition, the defendant did not give the plaintiff an opportunity to present his opinion prior to the disposition of this case, and thus, the disposition of this case is unlawful as it violates Article 21 (1) of the Administrative Procedures Act, and the disposition of this case is unlawful as it uses an implied facility held by the Daejeon Daejeon Factory, the affiliate of the plaintiff, which is 180 meters away from it, and this is unlawful as it is also unlawful in view of the specific circumstances such as "the possession of an implied facility in the factory", the cost and time required for the installation of a slope facility, the plaintiff's damage caused by the disposition of this case.

(b) Related statutes;

It is as shown in the attached Form.

1) A paper company certified as excellent recyclable products from the Defendant with respect to a printing paper (75g/metres) for recycling (75g/metres) shall have an implied facility within the factory itself, as follows: (a) a paper company certified as excellent recyclable products by the Defendant shall be the Plaintiff, Han Jin-si; (b) a Korea Dispute Settlement Bank Co., Ltd.; (c) a Bank of Bankruptcy Co., Ltd.; (d) a Co., Ltd. in the Bank of Korea; (e) a Bank of Bankruptcy Co., Ltd.; and (e) the KABP Co., Ltd.; and (e) a KBP Co., Ltd. in the KBP as of the year 201

A person shall be appointed.

2) Around June 2009, the Plaintiff obtained certification of outstanding recyclable products from the Defendant on the print paper (75g/metres) for recycling (75g/metres). The Defendant thereafter performed follow-up management, such as regular post management and special post management, with respect to the Plaintiff pursuant to Article 24 of the Certification Guidelines, and as a result, the part relating to the instant case is as follows.

[Report on September 16, 201, the field examination of the special post management site] The use ratio of the implied pulp in domestic production compared to the total product weight meets the quality standards of the excellent recycled products, but it is necessary to reconstruct the overall quality control system for the stabilization of quality by re-establishing the mixed expenses recently.In the case of the printing site (75g/metres), the production of the excellent recycled products using recyclable materials more than 30% of the quality in accordance with the Good Recycled Product Certification Standards, but in the case of the printing site (120g/metres), the production of the excellent recycled products using less than 30% of the quality in the case of the printing site (120g/metres).

In 1050 [Report on the Field Examination of Special Post Management on November 15, 201] ○ Daejeon Factory Sculp can be supplied to the port factory and the Plaintiff, and the Plaintiff requires additional supply. However, at present, supply is impossible (it is possible to supply up to two times at the time of installation of deculp system).It is necessary to supplement the automatic output to prove use of at least 30% of the exculpulp pulp pulp culp culp 30%. It is not necessary to keep an implied pulp culp purchase tax invoice and quality performance report in the field verification without storing on-site verification price [Report on the On-site Examination Results on June 11, 201 and June 15, 2012] The result of the examination of the examination of the exculp culp 30% pulp cul cul culp mn product in combination with the Plaintiff's implied pul cul 30% of the final products.

A person shall be appointed.

3) From November 5, 2012 to November 8, 2012, the Defendant, including the Plaintiff, conducted a special post management of the site supply company for curriculum books for the year 2013 (Daehan), forest-free developmentP; (State); (1) the Bank of Bank of Korea, the Plaintiff, and the Han-gu Bank]. On November 19, 2012, the Defendant reported the following results of post management.

A person shall be appointed.

4) A witness who participated in the amendment of the instant public notice by the Defendant testified in this Court that “When installing an implied facility in the factory in question, he can confirm and know the purchase documents of pulse and notice.”

[Ground of recognition] Facts without dispute, Eul's entry in the evidence Nos. 22 through 25, 27 (including each number if there are several numbers), witness B's testimony and the purport of the whole pleadings

D. Determination

1) Whether the notice of this case deviates from the delegation scope of superior laws and regulations

A) We examine the legal basis of the public notice portion of this case. Article 1 of the Recycling Promotion Act provides that "the purpose of this Act is to contribute to the preservation of the environment and the sound development of the national economy by circularly using resources, such as controling the generation of wastes and facilitating recycling," Article 3 of the same Act provides that "the Minister of Trade, Industry and Energy may determine the standards and quality standards for each item of recycled products after consultation with the Minister of Environment." Article 15 (2) 6 of the Industrial Technology Innovation Promotion Act, Article 17 (1) 3 and 17 (2) of the Enforcement Decree of the same Act provides that "the Minister of Trade, Industry and Energy shall determine and publicly notify detailed matters necessary to certify recycled products and quality produced by commercializing developed technologies," and Article 57 (1) 10 of the Enforcement Decree of the same Act provides that "the Minister of Technical Standards (hereinafter referred to as the "Defendant") shall delegate his/her authority to certify and support recycled products." Accordingly, Article 1 of the Certification Guidelines of this case provides the Good Quality Standards for the establishment and abolition of Products Standards."

B) Comprehensively taking account of these provisions, the Minister of Trade, Industry and Energy has the authority to certify recycled products to conform to the purpose of the circular use of resources, such as the control of waste generation and facilitation of recycling. The Defendant has the authority to establish and revise quality standards, which serve as the basis for classifying quality among recycled products and eco-friendly products, and to conduct certification for excellent recycled products meeting the above quality standards. Since specific quality requirements, manufacturing methods, etc. to fall under excellent recycled products are flexible and specialized matters that may vary individually and specifically depending on the characteristics, etc. of the relevant products, the above authority of the Defendant includes the authority to determine the specific and detailed contents of whether they are manufactured through any process using any material and equipment, and products with quality such as any structure, color, strength, etc., are considered as excellent recycled products. However, in the case of printed products, those manufactured by using "dispacted goods, which are used at least 30% of raw materials or white paper used at least 20% of disuse standards by weight, Article 29 subparag. 2, 201 [Attachment 3] of the relevant Act.

C) With respect to the quality standard of printed paper products among recycled products, the notice of this case provides that "at least 30% of it shall be owned by the defendant who has the authority to establish standards for the examination of quality of outstanding recycled products in accordance with the delegation of the Recycling Promotion Act, the Industrial Technology Innovation Promotion Act, and the certification guidelines of this case shall be one of the certification requirements and specify the specific contents. Thus, the existence of such contents alone, separate from the legitimacy of the contents, cannot be deemed to be contrary to the purport of each of the above provisions or exceeding the delegated limit.

D) Therefore, the Plaintiff’s assertion on this part is without merit.

2) Whether the notice part of this case violates the principle of proportionality

A) According to the delegation of the relevant laws and regulations, the notice of this case aims to realize the quality standards of printing paper among the excellent recycled products, and to accomplish the purpose of the public notice of this case by certifying and supporting products with a heavy weight of at least 30% of raw materials, which are more environment-friendly and quality-equal products, and ultimately, by providing that the public notice of this case shall be equipped with an implied equipment in the relevant factory for the purpose of compelling compliance with the textile development ratio, which is the requirement for certification of excellent recycled products. Therefore, the purpose of the public notice of this case is justifiable (the evidence submitted by the plaintiff alone is insufficient to recognize that the part of the public notice of this case gives a unilateral convenience to the designated entity which already owns an implied facility, or that it unfairly leaves away from the designated entity which did not possess an implied facility as the plaintiff's assertion, and there is no other evidence to acknowledge this otherwise).

B) However, the following circumstances that can be recognized through the aforementioned facts and the purport of the entire pleadings, i.e., (i) even if a person has an implied facility in the factory, the combined ratio of the recycled printing paper is, like in the case of the production of the printing paper using an implied pulp purchased from the outside, can only be confirmed by comparing the quantity of the inputd express pulp and the printing paper. (ii) The instant public notice section merely requires an implied disposal of domestic waste by using an implied facility owned in the factory, but does not separately stipulate how it goes through an implied disposal process, and it is questionable as to how it would be done by using an implied facility in the factory. In light of the fact that it is difficult to view that it is difficult to say that the wasteing pulp is produced in high quality compared to the implied pulp purchased from the outside or the quality of the printed paper is improved, it is questionable as to whether the wasteing enterprise must be equipped with the aforementioned implied facility within the factory.

C) In addition, considering the following circumstances as well as the overall purport of the pleading as seen earlier, (i) it does not appear that the Defendant would be able to produce the printed and recycled paper (75g/m square) in the process of obtaining the certification of excellent recycled products; (ii) it does not appear that the Defendant would be able to produce the printed and recycled paper in the process of obtaining the certification of excellent recycling products; and (iii) the Defendant would be able to produce the printed and recycled paper in the process of obtaining the certification of excellent quality by using the printed and recycled paper without the implied equipment itself; and (iv) if it is determined that the Defendant would be adequate to use the printed and recycled paper as the result of the follow-up management, such as the quantity of implied pulse used, and quality of printed and recycled paper, the Defendant would be able to produce the printed and recycled paper in the process of confirming the possibility of using the printed and recycled paper, and (iv) the Defendant would be able to produce the printed and recycled paper in the process of obtaining the certification of outstanding pul products, including the express purchase agreement, the transaction sheet, the agreement, and the pul paper.

If so, the purpose of this case is to achieve the announcement part of this case is to achieve sufficient goals without requiring the subcontractor to have an implied facility at the factory. Thus, the announcement part of this case goes against the minimum degree of damage.

D) Also, considering the following circumstances that can be seen by comprehensively considering the purport of the witness C’s testimony and argument as a whole, the Defendant appears not to require the subcontractor to install an implied facility in the factory in case of any recycled site other than the printing paper and the electronic reproduction paper of this case, and the Defendant’s need to be equipped with an implied facility within the factory in order to obtain certification for excellent recycled products, which violates the legal interests of the Plaintiff, including the Plaintiff, etc., and also violates the balance of the legal interests of the company, such as the Plaintiff, etc., because it is difficult for the subcontractor to obtain certification for excellent recycled products (which corresponds to the majority of the manufacturers who obtained certification for the recycling paper (75g/m) and their authorized textbooks and EBS teaching material amount to 70% in total, in order to install an implied facility within the factory in question (the market share of the Plaintiff’s authorized textbooks and EBS material).

E) If so, the notice of this case is against the principle of proportionality.

(3) Sub-decisions

Therefore, the disposition of this case based on the notice of this case is unlawful without examining the remainder of the plaintiff's remaining arguments.

5. Conclusion

Ultimately, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges

The presiding judge shall be appointed by a judge.

Judges' Branch Office Counter

Judges Domination

Note tin

1) Pursuant to Article 37(1) of the former Government Organization Act (Amended by Act No. 12114, Dec. 24, 2013); and Article 3 of the Addenda, effective March 23, 2013

The Minister of Trade, Industry and Energy succeeded to the affairs of the Food Economy Director.