2017Guhap81878 Revocation of approval for a call plan

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[Defendant-Appellant] Plaintiff LLC

[Defendant, Appellant] Haat, Haat, Haat

The Minister of Environment

Government Legal Service Corporation (Law Firm LLC)

Attorney Lee Dong-tae

AB AB Corporation

Attorney Kim Jong-ho, Justice Park Young-ho, Justice Park Young-hoon, Counsel for the defendant-appellant

Attorney Seo-hwan et al.

November 1, 2018

on December 12, 2018, 20

1. All plaintiffs' lawsuits are dismissed.

2. The costs of the lawsuit, including the part resulting from the supplementary participation, are assessed against the plaintiffs.

The defendant's disposition of approval of the correction plan on motor vehicles listed in the attached Table 2 against the defendant's intervenor's intervenor (hereinafter referred to as " participant") on August 30, 2017 shall be revoked.

1. Details of the disposition;

A. Status of the parties

1) The Defendant is granted administrative agencies with authority to conduct various inspections and orders to properly regulate pollutants discharged from automobiles under the Clean Air Conservation Act.

2) The intervenor is carrying on the business of importing and selling vehicles from a German corporation AC (hereinafter referred to as "AC") and AD (hereinafter referred to as "AD").

3) The Plaintiffs are the owners of vehicles listed in the Appendix 1 list produced by AC and AD.

(b) Voluntary establishment of nitrogen oxides reduction devices of AC and orders issued by the defendant to correct defects;

1) In 2009, Korea introduced Euro 5, which is the permissible emission levels of pollutants, such as nitrogen oxides (NOx; hereinafter referred to as “sulfur oxides”) on an automobile using via the European Union in accordance with the Free Trade Agreement between the Republic of Korea, the European Union, and its Member States (hereinafter referred to as the “FTA”), and introduced Euro 6, which is the standard more strengthened than Euro 5 in around 2014 (However, the grace period has been granted for some types of vehicles). Unlike the Republic of Korea or the European Union, the United States adopts permissible emission levels, such as nitrogen oxides, on an automobile using the self light oil called LEV-2. The permissible emission levels of Euro 4 through 6 and LEV-2 are as follows:

A person shall be appointed.

06.

A person shall be appointed.

A person shall be appointed.

20132002007209.201120132015

2) On May 2014, AE organization (AE, its abbreviationd name "AF") raised doubt that an indoor certification (hereinafter referred to as "emission gas test") is normally operated only at the time of indoor certification inspection (hereinafter referred to as "in-house certification inspection; hereinafter referred to as "in-house certification inspection") of engines and electronic control devices (Elecreronic Unit, hereinafter referred to as "EU"), manufactured by AC, and at the time of actual road driving (hereinafter referred to as "in-house voluntary establishment") the operation of nitrogen oxides reduction device was made to stop or to reduce its function (hereinafter referred to as "in this case").

3) On September 18, 2015, the U.S. Federal Environmental Office (U.S. EPA) and the California Air Committee (CARB) confirmed that the instant voluntary creation was made on a light-use vehicle manufactured by AC, and notified AC of the instant voluntary creation in violation of the U.S. laws and regulations.

4) On October 2015, the Defendant conducted occasional inspections under Article 50(1) of the Clean Air Conservation Act and Article 48(1)1 of the Enforcement Decree of the Clean Air Conservation Act on the vehicles, etc. subject to Euro 5, in order to verify whether the instant voluntary creation has been made on the vehicles via AC manufactured, which are sold in Korea.

5) On November 23, 2015, the Defendant confirmed that the instant voluntary establishment was made in Euro 5 AG vehicles, etc. as a result of occasional inspection, and issued an order for correction of defects to remove the instant voluntary establishment from Class 9 of AH engine Euro-5 vehicles (hereinafter “instant vehicle”) produced under the same conditions as the said AG vehicles, etc. on November 23, 2015 (hereinafter “instant order for correction”).

C. Approval of the defendant's correction plan

1) On January 12, 2017, the intervenor submitted a correction plan to the Defendant (hereinafter “the correction plan of this case”) (hereinafter “the correction plan of this case”). The aforementioned correction method and the letter include the contents that the ECU program will be improved (the removal of this case’s voluntary establishment) if a separate software that reduces the operation of the exhaust gas reduction device differently from the time of the authentication test of the present vehicle in an environment other than the indoor authentication test conditions.

2) From February 2017, the Defendant confirmed whether the instant voluntary establishment has been removed or not while conducting four repeated indoor inspections, outdoor road driving inspections, etc. on the 12 types of vehicles, etc. from around February 2017, the Defendant approved the instant plan for the instant vehicle on August 30, 2017 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 8, Eul evidence Nos. 3 through 11, Eul evidence Nos. 1 through 4 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiffs' assertion

① The Defendant should have conducted the instant disposition by verifying, in accordance with strict standards, whether to remove the instant voluntary establishment; ② whether the ESR works normally at the time of indoor certification inspection and actual road driving; ③ whether the ESR works identical or similar to the ESR works at the time of actual operation of the road driving; ④ whether the air-conditioning cargo is considerably reduced; ⑤ whether the relevant air-conditioning cargo is required to be added or replaced in order to significantly reduce nitrogen oxides emitted in excess of the road driving; ⑤ whether the vehicle’s durability, performance, and expenditure are reduced; and 7 whether the instant order to replace the vehicle is necessary or not, and the instant disposition should have been taken by verifying, in accordance with strict standards, whether the instant order to replace the vehicle was approved or not. However, the Defendant failed to repeat the indoor certification inspection at least five times; and whether the Intervenor’s order to improve the warranty period or to verify, such as the Plaintiff’s failure to perform the instant order to improve the warranty period or its operating condition; and whether the Plaintiff’s order to improve the warranty period or its operating condition.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination as to the defendant's defense prior to the merits

A. The defendant's assertion

The standing to sue in a revocation suit under the Administrative Litigation Act is acknowledged to be a person who has a legal interest in seeking revocation of a disposition, etc. However, the Plaintiffs are merely a third party who is not the other party to the instant disposition and do not have a legal interest in seeking revocation of the instant disposition. Therefore, the instant lawsuit is unlawful as the absence of standing to sue.

B. Determination

1) Whether the plaintiffs have standing to sue seeking revocation of the instant disposition

A) A third party, who is not the other party to an administrative disposition, is entitled to a decision of propriety by filing a revocation lawsuit, if the interests protected by the law are infringed by the pertinent administrative disposition. The legal interests referred to in this context refer to cases where there are individual, direct and specific interests protected by the relevant laws and regulations and relevant laws and regulations, and it does not include cases where a person has a factual and economic interest, such as the general and indirect abstract interests commonly held by the general public as a result of protecting public interest (see, e.g., Supreme Court Decisions 94Nu14230, Jun. 30, 1995; 2006Du330, Mar. 16, 2006).

B) As above, a third party, who is not the direct counter party to an administrative disposition, may institute a lawsuit seeking revocation of the administrative disposition only in cases where the third party's interest is infringed by the pertinent administrative disposition's "interest protected by law." Thus, inasmuch as the third party's interest, which was infringed by an administrative disposition, does not exist at the beginning, there is no room to recognize the third party, who is not the direct counter party to the administrative disposition, to seek revocation of the administrative disposition. Even if the third party's interest, which was infringed by the first party to the administrative disposition, has suffered property damage, etc. which fell in the market price of the vehicle in this case due to the creation of the contract in this case, even if such damage was caused by the voluntary establishment

Furthermore, Article 46(1) of the Clean Air Conservation Act, Article 62 and attached Table 17 of the Enforcement Rule of the Clean Air Conservation Act stipulate "permissible emission levels for pollutants to be observed by a motor vehicle manufacturer," and Article 48(1) of the Clean Air Conservation Act provides that where a motor vehicle manufacturer intends to manufacture a motor vehicle, it shall be certified by the Minister of Environment that the exhaust gas of the motor vehicle can be maintained in compliance with the permissible emission levels for manufactured motor vehicles during the warranty period, and Article 50(7) of the former Clean Air Conservation Act (amended by Act No. 14487, Dec. 27, 2016; hereinafter the same shall apply) and Articles 51 and 55 of the Clean Air Conservation Act order the Defendant to suspend the sale of the motor vehicle manufacturer who has failed to comply with the permissible emission levels of manufactured motor vehicles, and the Plaintiffs’ right to request the Defendant to voluntarily establish and correct defects for the purpose of preventing air pollution caused by air pollution and protecting the environment from voluntary damage to its health and environment, etc., as stipulated in Article 1 of the Clean Air Conservation Act.

However, if the Defendant did not want the Plaintiffs but forced the Plaintiffs to comply with the instant call plan approved by the instant disposition, or the Plaintiff’s right to request correction of defects is restricted due to the instant disposition, there is room to deem that the instant disposition infringes on the Plaintiffs’ interest due to the instant disposition. However, there is no reasonable provision that forces the Defendant to comply with the instant call plan even in the relevant statutes, such as the Clean Air Conservation Act, etc., and there is no reasonable provision that allows the Defendant to enforce the instant call plan to the Plaintiffs. Moreover, there is no ground provision that the instant disposition may infringe on the Plaintiffs’ right to claim civil damages against the Intervenor or the Intervenor’s right to request correction of defects under Article 52 of the Clean Air Conservation Act.

Ultimately, even if the Defendant approved the instant protocol plan, there is no benefit of the Plaintiffs, which is thereby infringed, so the Plaintiffs cannot be deemed to have standing to sue to seek cancellation of the instant disposition.

2) Judgment on the plaintiffs' assertion

A) In light of the fact that only an automobile which has obtained prior certification under the Clean Air Conservation Act can be sold, the owner of the automobile is legally guaranteed so that only the automobile can be purchased with the prior certification, and the provisions on the method and procedure for the certification and inspection of the manufacturing automobile (No. 3, 2018, No. 2018-129, hereinafter referred to as "the certification announcement of this case") provide that the contents of the prior certification shall be indicated on the automobile, the vehicle which has not received prior certification cannot be duly registered pursuant to Article 9 of the Automobile Management Act, and the owner of the automobile is guaranteed by the law that the prior certification system under the Clean Air Conservation Act protects the legal interest of the owner of the automobile, and thus, the owner of the automobile has the right to request the restoration of the automobile with the certification of his/her automobile.

However, even if Articles 46, 48, and 5 of the Clean Air Conservation Act related to the prior authentication of automobiles constitute the applicable laws or regulations of the disposition of this case, the above provisions apply to automobile manufacturers, not the owner of an automobile. Also, in the C above, it does not guarantee any legal interest for the owner of an automobile to prevent air pollution from causing harm to public health and the environment due to air pollution and to manage and preserve the atmospheric environment in an appropriate and sustainable manner, so that the people can live in a healthy and pleasant environment. Article 33(1) of the Act on the Establishment of an Automobile provides that the owner of an automobile shall display the authentication contents of the automobile under the above provisions, but it does not allow the owner of an automobile to use it permanently by using signs of the automobile inside the engine, so it is not necessary for the owner of an automobile to use it for the purpose of maintaining the permissible emission levels of automobile to be manufactured by the manufacturer of an automobile.

B) In the instant case where the Defendant issued the instant corrective order on the ground of the instant voluntary establishment, the issue that the automatic owner could not pass an occasional inspection without the parts of the instant vehicle and the replacement order for automobiles cannot be resolved. Thus, the Plaintiffs are obliged to act to issue an order for replacement of parts and automobiles pursuant to Article 50(7) of the former Clean Air Conservation Act to the Defendant, and the Plaintiffs, the owner of the automobile, have the right to file an application against them. Accordingly, the Plaintiffs’ parts and the replacement rights of the automobiles stipulated in Article 50(7) of the former Clean Air Conservation Act were infringed due to

However, in light of the contents of Article 50 (7) of the former Clean Air Conservation Act, the above provision cannot be deemed to have been granted to the owner of the automobile, and the plaintiffs' above assertion seems to be premised on the premise that Article 48 of the Clean Air Conservation Act is a provision guaranteeing the interests of the owner of the automobile which can be operated without guaranteeing the normal operation of parts during the exhaust gas guarantee period. As seen above, Article 48 of the Clean Air Conservation Act is not a provision protecting the legal interests of the owner of the automobile, and in this case, the defendant cannot be deemed to bear the duty to act against the owner of the automobile to order the replacement of parts or the replacement of automobiles for the owner of the automobile. Thus, the plaintiffs' above assertion is without merit.

C) The Plaintiffs did not comply with the instant call plan approved by the instant disposition.

As an order to suspend operation under Article 70-2 of the Clean Air Conservation Act and a criminal punishment under Article 92 subparagraph 12 of the Clean Air Conservation Act, this case’s call scheme shall be deemed to be enforced.

Article 70 (1) through (3) of the Clean Air Conservation Act provides that "the defendant, etc. may order an owner of an automobile to improve the exhaust gas in excess of the permissible emission levels for automobiles, etc. as a result of occasional inspections of automobiles in operation under Article 61, unless it is intentionally or negligently conducted, unless otherwise by intention or negligence, an owner of an automobile who has received an improvement order shall undergo an inspection for confirmation within the period prescribed by Ordinance of the Ministry of Environment." Article 70-2 (1) provides that "the defendant, etc., who has received an improvement order under Article 70 (1) may issue an order to suspend the operation of the relevant automobile within a prescribed period not exceeding ten days if the owner of an automobile fails to undergo an inspection for confirmation under Article 70 (2) within the period prescribed by Ordinance of the Ministry of Environment." Article 92 subparagraph 12 of the Clean Air Conservation Act provides that "a person who has received an order to suspend the operation under Article 70-2 and who fails to comply with this order shall be punished by a fine not exceeding 3 million won for the above the permissible emission levels for automobiles in this case." Thus, there is room for the plaintiffs to interpret the above 202.

However, since the current emission levels for automobiles using light oil are set only on the basis of the occasional inspection of automobiles in operation, and the permissible emission levels for nitrogen oxides are not set, even if nitrogen oxides is emitted excessively in the instant vehicle, it is impossible for the Defendant to issue an improvement order under Article 70(1) of the Clean Air Conservation Act to the Plaintiffs. Therefore, even if the Plaintiffs do not comply with the instant plan, it is also impossible for the Plaintiffs to issue an order to suspend operation under Article 70-2 of the Clean Air Conservation Act and criminal punishment under Article 92 subparag. 12 of the same Act. Therefore, the Plaintiffs’ assertion that the instant plan is enforced under each of the

D) The Plaintiffs are arguing to the effect that the Defendant’s amendment of the permissible emission levels of running cars at any time could include the permissible emission levels of nitrogen oxides for running cars, such as the instant vehicle, etc., and that the order to suspend operation under Article 70-2 of the Clean Air Conservation Act and the risk of criminal punishment under Article 92 subparag. 12 of the same Act should be considered to have been embodied.

However, the defendant, who is comprehensively entrusted with the authority to set permissible emission levels for manufactured automobiles and permissible emission levels for running cars under Articles 46 and 57 of the Clean Air Conservation Act, comprehensively set the permissible emission levels for nitrogen oxides in the permissible emission levels for manufactured automobiles and imposes an obligation on the motor vehicle manufacturer to observe the permissible emission levels for nitrogen oxides until the expiration of the exhaust gas guarantee period, while the occasional inspection standards for automobiles used in light of the emission levels for light oil can be seen as a legislative decision that failure to impose an obligation to observe the permissible emission standards for nitrogen oxides on the motor vehicle used in light of the standards for the permissible emission of nitrogen oxides, not the motor vehicle owner, to vest in the motor vehicle manufacturer who is mainly responsible for the emission of pollutants, not the motor vehicle owner. The above legislative decision of the defendant cannot be deemed to have been embodied in the risk of infringing the legal interest of the plaintiffs. Thus, the plaintiffs asserted that the above plaintiffs' assertion is without merit.

However, since there is no ground provision that the head of the Seoul Special Metropolitan City Mayor and the head of the local government may impose disadvantageous measures such as prohibition of operation on an owner of an automobile on the ground that he did not comply with the correction plan of defects, the plaintiffs' assertion also does not need to be further examined (the first height is the case where the head of the local government has recently issued an order to suspend operation on an owner of an automobile with respect to the fire accident of an AI vehicle, and in this case, the plaintiffs may be ordered to suspend operation. However, the above order to suspend operation is a limited condition that the Minister of Land, Infrastructure and Transport requests the head of the local government to issue an order to suspend operation under paragraph (1) along with the inspection order under Article 37 of the Automobile Management Act with the order to suspend operation under paragraph (2) in accordance with Article 37 of the Motor Vehicle Management Act. Thus, the facts and basis of the disposition of this case completely differ from the order to suspend operation. Accordingly, the fact that the order to suspend operation on the plaintiffs can not be viewed as a means of non-compliance with this case or there is a legal interest in seeking the cancellation of this case).

3) Sub-determination

Ultimately, there is no standing to sue seeking revocation of the instant disposition, and the Plaintiffs’ lawsuit is unlawful.

5. Conclusion

Therefore, since the plaintiffs' lawsuit is unlawful, it is decided to dismiss all of them. It is so decided as per Disposition.

The presiding judge, Yoon-sung

Judge Kang Dong-hun

Judges Kim Gin-sung

1) The nitrogen oxides reduction device is largely classified into the recirculating device of exhaust gas (Exaus Glass (hereinafter referred to as "EGR"), the selective promotion exchange device (SCR), and the nitrogen oxide storage and removal device (LNT).

2) Voluntary establishment is a component so as to reduce the function of the exhaust gas-related component differently from the test wear of exhaust gas under the general conditions of operation and use.

Function suspension, delay, and alteration component parts (establishment of functions through the reduction of variables, such as temperature, vehicle speed, engine transmission, transformation speed, and nitrocal pressure)

B means [the main sentence of Article 2 subparagraph 19 of the former Regulations on the Method, Procedure, etc. for Certification and Inspection of Motor Vehicles (No. 2016-197, Oct. 14, 2016)]

3) The law based on which the order to correct the defects was issued (No. 3) is the basis for the order to correct the defects (Article 51(4) and (6) of the Clean Air Conservation Act, the Clean Air Conservation Act

Article 75 of the Enforcement Rule. However, in this case, the defendant's law based on the defect correction order is stipulated in the old Clean Air Conservation Act.

Article 50(7) of the Clean Air Conservation Act (Amended by Act No. 14487, Dec. 27, 2016); Provided, That Article 51(7) of the Clean Air Conservation Act; Article 51(6) of the Clean Air Conservation Act; air environment

It shows that Article 75 of the Enforcement Rules of the Conservation Act only applies mutatis mutandis to the procedural contents.

4) The Clean Air Conservation Act recognizes the right of an owner of an automobile to demand the defendant to take measures such as correction of defects against the motor vehicle manufacturer.

In lieu of not doing so, an owner of an automobile within the gas guarantee period of Article 52 shall normally have parts related to exhaust gases prescribed by Ordinance of the Ministry of Environment.

In case of not maintaining capacity, it may require the motor vehicle manufacturer to correct the defect, and the owner of the motor vehicle can also demand the motor vehicle to avoid the defect.

The right to demand an automobile manufacturer who is not a high-priced automobile to correct the defective parts related to exhaust gas directly.

5) Article 57 of the Clean Air Conservation Act and Article 78 of the Enforcement Rule of the Clean Air Conservation Act and attached Table 21 are set forth.

6) Irregular inspection, regular inspection, and regular inspection of automobiles being manufactured or in operation pursuant to Articles 50(1) and 51(1) of the Clean Air Conservation Act;

Inspection for confirmation of defects may be conducted, and each inspection is not conducted under Article 50(7) of the former Clean Air Conservation Act and Article 51(4) of the Clean Air Conservation Act.

Sanctions, such as suspension of sale, may be imposed on the manufacturer of the passing vehicle.