2019Guhap62901 Indication Suspension and Revocation of Sales

A Stock Company

Law Firm Hun-Ba, Counsel for the plaintiff-appellant

Attorney Han-soo

President of the National Technical Standards Board

Law Firm Man-woo, Counsel for plaintiff-appellant

Attorney Lee In-hwan

July 25, 2019

September 19, 2019

1. The Defendant’s disposition of suspending indication for three months against the Plaintiff on April 1, 2019 and the disposition of suspending sales (each certified number B and the fixed type PED etc. with respect to products exceeding 10W but not exceeding 30W among those with each certified number B shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Circumstances and details of the disposition;

A. The Plaintiff is a company engaged in the manufacture, wholesale, etc. of lighting fixtures in Ansan-si C. The Defendant is an administrative agency in charge of the affairs of the establishment and operation of national standards policy and industrial standardization, the establishment of the national standards system, the safety and quality management of products, etc.

B. Around August 2018, the Defendant conducted an investigation of the goods on the market (hereinafter referred to as “instant investigation”) among the Plaintiff’s purchased goods and fixed types of PED etc. (hereinafter referred to as “instant products”), and collected two of the instant products supplied to the outside by the Plaintiff as samples (hereinafter referred to as “instant samples”).

C. On April 1, 2019, the Defendant issued a disposition of suspending indication and selling each of the instant products (hereinafter referred to as “each of the instant dispositions”) to the Plaintiff in accordance with Article 21 of the Industrial Standardization Act and Article 28 [Attachment 1-2] of the Enforcement Decree of the Industrial Standardization Act for the following reasons (hereinafter referred to as “each of the instant dispositions”).

○ Grounds for Disposition: Failure to pass product testing and inspection

A person shall be appointed.

A person shall be appointed.

[Ground of recognition] Unsatisfy, Gap's statements in Gap's evidence 1 to 4, 6 and 7, and the purport of whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) Since the investigation of this case’s reason for procedural illegality is a field investigation under Article 20 of the Industrial Standardization Act, the Defendant notified the Plaintiff of the investigation plan, including the date, time, reason, and content of the investigation seven days prior to the investigation of this case. Nevertheless, the Defendant did not notify the above, and thus, each of the dispositions of this case is procedurally unlawful.

2) The substantial grounds for illegality

A) The Defendant’s performance inspection (the input power, input current, station rate, and initial optical wave inspection) must be conducted on the product of this case, which produces performance not exceeding 350 meters A and not exceeding 15W, set on office, and on the product of this case. Nevertheless, the Defendant conducted a performance inspection on both a consortium-1 and a Pin-2, and conducted a performance inspection on the product of this case. Each of the dispositions of this case based on the test results for inappropriate items are not recognized as the grounds for its disposition.

B) ① The result of the inappropriate test of the sample of this case is not a problem of the function or performance of the product of this case, but a matter of negligence in the manufacturing process. ② Each of the dispositions of this case is a serious decrease in the sale of the plaintiff, etc., resulting in the risk of bankruptcy. ③ The plaintiff does not have any sanctions prior to each of the dispositions of this case. Thus, each of the dispositions of this case is in violation of the law of deviation from and abuse of discretion.

(b) Fact of recognition;

1) Purchase goods and fixed LED(KS C 7653)(2) are products not limited to “braces, etc.” but also products including the consortiums. While the consortiums portion itself is subject to KS certification, etc., purchase goods and fixed LED(s)(s)(s)(s)(s)(s)(s)(i.e., parts and consortium parts are subject to KS certification and are all subject to KS certification.

2) After obtaining KS certification for the first time on May 2, 2012, the product of this case was re-certified by the DResearch Institute on September 21, 2018. On April 19, 2017, the E Research Institute certified the terms “matters requiring the safety and performance of the consortiums for the supply of electric source water.” At an internal inspection conducted around September 2018, prior to the supply of the product of this case to the outside, the product of this case was judged to have passed all of the items, such as “influent power,” “influent power,” “influent power,” “influent power,” “influent rate,” and “influent luminous speed,” etc.

3) One of the samples of this case was set off office, on-line-1, on-line, on-line-2, on-line, and the other was set up in office both pin-1 and pin-2.

4) The Defendant collected the sample of this case and conducted a test thereof. The test result is as follows.

○ In relation to the "marks on whether an ordinary inflammable surface is affixed", the items of "unqualified" shall be 26.1% of the display value (0.065A) with respect to the items of "unqualified input electric current", and the items of "unqualified ○○" in relation to the items of "unqualified input electric current" shall be 26.1% of the display value (0.065A) and the items of "unqualified 0,88" in relation to the items of "unqualified ○○ beginning speed" shall be 73% of the rated speed, all of the remaining test items have passed.

5) In the event of establishing a consortium pin-1 and pin-2 on office, the product of this case shows 250 metersA, 11W, 350 metersA, 15W, 350 meters or less, 15W, 450 metersA, 19W, 500-1 and 21W, when establishing a Pin-2 on office, and when establishing a Pin-2 on office, 450 meters, 19W, 500 A, 21W, or less.

6) On March 8, 2019, the Plaintiff requested the D Research Institute to inspect the instant product. On office, the pin-1 of the consortium, as a result of the examination on the instant product established on the date of on-board, the pin-2 of the consortium obtained a numerical value that meets all the standards for passing the test.

[Reasons for Recognition] Facts without dispute, Gap evidence 5, 8 through 10, 12, 13, Eul evidence 2 and 4 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings and arguments

(c) judgment;

1) Whether each of the dispositions of this case is procedurally unlawful

The investigation of this case is not a "on-site investigation under Article 20 (1) of the Industrial Standardization Act" or "investigation under Article 20 (2) of the Industrial Standardization Act" but a "on-site investigation under Article 20 (1) of the Industrial Standardization Act". Therefore, the main text of Article 20 (4) of the Industrial Standardization Act, which provides that "the investigation of this case shall be notified to the person subject to the investigation of the investigation plan, such as date and time, reason, and details of the investigation by no later than seven days prior to the investigation," does not apply to the investigation of this case. This part of the Plaintiff'

2) Whether the grounds for each disposition of this case are recognized

In full view of the facts acknowledged earlier, considering the following circumstances, the sample of this case is deemed to fall under “where a certified product under Article 21(1) of the Industrial Standardization Act does not meet the Korean Industrial Standards or the criteria for examination for certification,” and each of the reasons for disposition of this case is recognized. This part of the Plaintiff’s assertion is without merit.

A) Determination as to the items of ‘in-fluoral power', ‘in-fluoral current', ‘in-fluoral rate', and ‘in-fluoral electric power'.

(1) The instant product obtained KS certification in entirety with the Plaintiff, etc. Therefore, each of the instant disposition grounds are satisfied even in a case where the consortium part of the instant sample does not meet the Korean Industrial Standards or the criteria for the examination of certification.

(2) If all of the samples of this case were set off off office, on-line-1, on-line-2, (the actual process was set up only as to one sample). The sample seems to have not been determined in conformity with the test requirement as follows: 350 meters A, 15W performance; and 350 meters as a result of the Defendant’s examination; 350 meters A, 15W; and 15W as a result of the Defendant’s examination.

(3) However, it is difficult to expect that consumers of the product of this case are aware of the product of this case without prior knowledge that there occurs a difference in the delivery performance of the product of this case in accordance with the establishment of a consortium pin. Thus, it is reasonable to deem the situation of the consortium pin as matters within the scope of quality control. ② Korean Industrial Standards provides that the product of this case shall undergo a type test, and furthermore, the Korean Industrial Standards provides that the sample of the type test of this case shall be "tests submitted by the manufacturer for the purpose of type test" (see subparagraph 2, 7). Since the survey of the type test of this case is a replacement of the product after-sales management procedure on the premise of the market distribution of the certified product of the product of this case, it is assumed that the defendant should test whether the sample conforms to the Korean Industrial Standards or the criteria for examination. In light of the fact that the defendant's collection of samples and the sample 1, pin 2 cannot be viewed as being in conformity with the Korean Industrial Standards or the criteria for examination for correction.

(4) Meanwhile, the Plaintiff’s employees appeared at the Defendant’s administrative disposition management committee where each of the dispositions of this case was decided, and stated that “two products were collected as a sample sample, one of which is normal products and the remainder is collected in the deep location because it was impossible to conduct an inspection during the shipment,” and recognized that one of the samples of this case does not meet the Korean Industrial Standards or the criteria for examination.

B) Determination as to the items of "labeled items"

Korean Industrial Standards provides that "The Korean Industrial Standards shall clearly and solid display the mark "on the instant product in such a way as not to be easily erased at a place where it is easily visible (see evidence 2, 8, 9 pages)." In the case of the sample of this case, the sample of this case can be recognized as not in compliance with the Korean Industrial Standards or the criteria for examination, even in relation to the subject of the "mark", unless there is any evidence to deem that the above mark was indicated on the sample of this case.

3) Whether each of the dispositions of this case deviates from and abused discretion

In light of the following circumstances that can be seen in addition to the purport of the entire pleadings, each of the dispositions of this case is erroneous in the determination of the test results of the items such as ‘scopic power', ‘sopic current', ‘sopic current', ‘sopic rate' and ‘sopic opic opic opic opic opic opic opic opic opic opics

A) In this case, Article 28 [Attachment 1-2] of the Enforcement Decree of the Industrial Standardization Act, which is the basis for the defendant's discretionary power, provides that "where the result of an investigation of goods on the market does not meet the Korean Industrial Standards under Article 12 (1) of the Act, and constitutes minor defects, such as violation of the Korean Industrial Standards under Article 17 (1) of the Act," the first violation shall be based on "improvement order", and "where the result of the investigation of goods on the market shows that the degree of failure to meet the Korean Industrial Standards under Article 12 (1) of the Act falls under serious defects, such as quality or performance defects under the Korean Industrial Standards under Article 17 (1) of the Act," the first violation shall be based on "three months of the suspension of indication and three months of the suspension of sale".

B) However, (1) after obtaining KS certification on May 2, 2012, the product of this case was re-certified by the D Research Institute on September 21, 2018; (3) on April 19, 2017, the EResearch Institute's "Requirements for the safety and performance of air conditioners"; (4) on the internal product inspection immediately before the investigation of this case, the product of this case met all the Korean Industrial Standards; and (2) on the other hand, the number of samples of this case is limited to two; (4) one of them was properly set; and (3) even if some of the products of this case were supplied to consumers by mistake, the product of this case can not be seen as having changed the test performance of the product of this case into the test performance of this case; and (4) the test performance of this case can not be seen as having been changed into the test performance of this case.

C) The Plaintiff did not engage in a violation of the Industrial Standardization Act before each of the instant dispositions, and did not have been subject to sanctions by the Defendant. Therefore, in accordance with Article 28 [Attachment 1-2] of the Enforcement Decree of the Industrial Standardization Act, the “improvement order” was issued to the Plaintiff, who caused minor defects.

Nevertheless, the defendant issued each of the dispositions of this case ordering the suspension of display and sales for three months on the product of this case, so it is judged that each of the dispositions of this case violated the principle of proportionality.

D. Sub-committee

Each disposition of this case is unlawful by deviating from and abusing discretionary power.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

Judges of the presiding judge, Hong-soo

Judges Kim Gin-han

Judges Lee Jae-in

1) It refers to an accompanying circuit necessary to connect the LoED, etc. to all the resources;

2) Among them, “10W to 30W products of this case” are products of this case.

3) However, according to the images of Gap evidence 5-3, it can be known that the signs of "general combustible surface attachment (see evidence 2 No. 16 pages)" are written on the back of the main body of the product of this case, but the above images are not data on the samples of this case.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.