(영문) 서울중앙지방법원 2018.7.13. 선고 2017나63001 판결

The judgment of the first instance is revoked. The Defendants shall pay to each Plaintiff 100,000,000 won with interest of 15% per annum from the day following the delivery of a copy of the instant complaint to the day of complete payment.

Reasons

1. Basic facts

A. Status, etc. of the parties

The Plaintiff, from May 7, 2004 to May 15, 2013, was granted eco-friendly certification from the office of the Gangwon-do National Agricultural Products Quality Management Assistance E (hereinafter referred to as the “E Office”) for the effective period from August 16, 2012 to August 15, 2013, when it was newly constructed and sold pigs on the ground of Gangwon-do, with the trade name of “D”. The Plaintiff obtained eco-friendly certification from around 2007 to the office of the National Agricultural Products Quality Management Service (hereinafter referred to as “E Office”).

B. Plaintiff’s application for renewal of environment-friendly certification and notification of non-conformity with certification

1) On July 22, 2013, the Plaintiff made an application for renewal of eco-friendly certification (hereinafter referred to as “application for renewal”) to the E Office on July 2, 2013, and made feed by purchasing by-products sold in the rice processing plant operated by the farming association corporation within the scope of the gymbol-gun, Hongcheon-gun District (hereinafter referred to as “the rice processing plant within the scope of the gym

2) Defendant B, as an inspector for the application for renewal of this case, visited the Plaintiff’s farm and rice processing site, and visited the Plaintiff’s farm and rice processing site for on-site review. Defendant B confirmed that the rice processing site was set up in the rice processing site within the period of time within the scope of the time, and issued from the employee F a written confirmation that “by-products (i.e., rice), from eco-friendly organic farming and pesticide rice, are sold and processed without separate distinction,” from the employee F.

3) As to the instant application for renewal, Defendant B expressed an inappropriate opinion on the ground that the instant application for renewal is not a substance usable in the organic livestock feed, since the grain by-products of rice processing plants are sold within the scope of time without distinction from organic or agrochemicalless certification, and thus, in accordance with the criteria for certification examination, “it was made as by-products of organic agricultural products, which are conditions for the use of vegetable grain by-products, from among substances in the manufacture of organic petage feed, and was not mixed with other products.”

4) On August 19, 2013, the head of the office G issued a written notice to the Plaintiff on August 19, 2013 that the Plaintiff may file an application for reexamination on the following grounds: (a) the Plaintiff presented the “Enforcement Rule of the Act on the Fostering of Environment-Friendly Agriculture and Fisheries and the Management and Support of Organic Food, Etc. (hereinafter referred to as the “Enforcement Rule of the Environment-Friendly Agriculture and Fisheries Act”), which is a provision on single feed, among substances for manufacturing organic feed of organic livestock products; (b) the Plaintiff’s grain by-products on the ground that they are not usable materials in the organic livestock feed prescribed in the foregoing provision; and (c) notified the Plaintiff that they may file an application for reexamination

5) On August 20, 2013, the Plaintiff filed an application for reexamination with the same content without additional supplement with E Office (hereinafter referred to as “application for reexamination of this case”). On August 22, 2013, the head of E office filed a written application with the Plaintiff, and on August 22, 2013, the head of the E office rendered a disposition of this case on the ground that grain byproducts purchased and used by the Plaintiff in an eco-friendly household factory are mixed with organic agricultural products and non-identical agricultural products, and thus, such products are inappropriate as feed of organic livestock products (hereinafter referred to as “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 4, 6, 8, 9, 21, the purport of the whole pleadings

2. The plaintiff's assertion

A. The argument on the illegality of the instant disposition

1) The assertion on the grounds for disposition

Although the Plaintiff paid organic feed manufactured by purchasing 100% organic by-products at the rice processing site within the period of time within the gymbolization, and raised pigs, the instant disposition was made on the basis of the presumption that agricultural by-products are mixed with agricultural by-products, and the Plaintiff did not have any ground for revocation of eco-friendly certification under Article 24 of the Environment-Friendly Agriculture and Fisheries Act, and thus, the instant disposition was unlawful.

2) argument on the time limit for disposal

The instant disposition was unlawful, since it was a legal act with the completion date, and was conducted on August 15, 2013, which is the Plaintiff’s renewal firearms for environment-friendly certification.

3) Claim of violation of the principle of trust protection

The plaintiff has been engaged in the livestock industry with eco-friendly certification from around 2007 under the same conditions. Thus, the disposition of this case is in violation of the principle of protection of trust.

4) The argument on procedural illegality

The head of the E office should notify the Plaintiff of the processing period in advance (Article 19 of the Administrative Procedures Act), give prior notice to the Plaintiff and give him an opportunity to present his opinion (Article 21 of the same Act). However, the E office failed to comply with the above procedure (Article 24 of the same Act).

B. Defendant B’s assertion as to unlawful performance of duties

Although Defendant B provided the feed manufactured by purchasing and raising 100% of organic by-products at the rice processing site within the period of time within the period of time, Defendant B unilaterally visited rice processing site within the period of time to make it clear that the rice processing site is selling without distinction between agricultural chemicals and organic by-products, and made F officials of the rice processing site prepare a false confirmation statement that it is selling without distinction between agricultural chemicals and organic by-products, and expressed inappropriate opinions on the application for renewal of this case.

C. Therefore, since the head of the office and Defendant B, who are the head of the office and the public official under the Defendant’s affiliated administrative agency, perform the above illegal acts in relation to the instant disposition, the Defendants are liable to compensate the Plaintiff for the damages incurred to each of the Plaintiff. As part of the said damages, the Plaintiff first seeks payment of KRW 100

3. Determination on the legitimacy of the instant disposition

(a) Relevant statutes;

It is as shown in the attached Form.

B. Determination of the assertion on the grounds for disposition

1) According to the relevant laws and regulations, 100% organic feed should be paid to livestock to obtain certification of eco-friendly organic livestock products. The single-use feed for manufacturing organic mixed feed should be produced as by-products of agricultural products and not mixed with other products (Article 3. 1 and 5 of the Enforcement Rule of the Environment-Friendly Agriculture and Fisheries Act) and attached Table 1 subparagraph 1.b. (2) of the attached Table 1 of the Enforcement Rule of the Environment-Friendly Agriculture and Fisheries Act. Meanwhile, a person who intends to apply for eco-friendly certification should attach documents proving that he/she is able to use feed among the materials related

2) At the time of the application for renewal and re-examination of this case, the Plaintiff submitted materials for purchasing grain by-products sold by rice processing plants not later than a day before the day of the implementation of the Convention. However, it is insufficient for the Plaintiff to recognize that the grain by-products purchased at the rice processing plant within the time of the implementation of the Act on the Establishment of the Standards for the Renewal and Re-examination as by-products of organic agricultural products by-products of 100%, and there is no other evidence to acknowledge this. Rather, in light of the following circumstances acknowledged by comprehensively taking into account the aforementioned evidence’s content: (a) witness of the first instance court; (b) witness of the first instance court; (c) testimony of the first instance court; and (d) fact-finding with respect to the agricultural partnership association within a period of time within a period of time, it is reasonable to view that the Plaintiff’s grain by-products purchased at the rice processing plant within the scope

(1) Since rice processing sector within the period of time during which rice processing sector is set together as rice of agricultural chemicals without agricultural chemicals, there were two kinds of by-products of rice that is managed and sold, organic farming, and agricultural chemicals-free by-products.

The ratio of organic by-products and non-pesticide-free by-products as of 2013 was 84.24: 15.76

② From sunrise to sunrise, rice processing plant is growing rice of organic farming and pesticide rice without agricultural chemicals in the same Rab (the same day). From around 2013, around the time of the instant disposition, rice products and pesticide-free petroleum were sold after separation from organic farming and pesticide-free agricultural chemicals. However, organic farming by-products and pesticide-free by-products generated after Doing were stored in a quantity of 1 ton from 800 g, not separately, because the unit price of sales was the same.

(3) From December 2013 to December 2013, rice processing plants have been managed and sold by separating organic and agricultural chemicals from by-products.

④ In regard to the meaning of “sale of by-products without distinction between certification and agricultural product by-products” as the witness of the first instance trial, who prepared a confirmation document for visiting rice processing site within the gymth of sunrise and within the gymth of sunrise, the employee of the rice processing site, and prepared a confirmation document for visiting rice processing site within the gymth of sunrise, and testified that “by-products are sold without distinction between certification and certification because they are sold at the same price, and farmers did not have to sell by-products, and farmers did not bring about or did not bring about separate certification.” As to the preparation of the confirmation document, Defendant B testified that “by-products are sold without distinction between certification and certification at the time of questioning of Defendant B, how to treat by-products” is true and correct to the extent they want to be stated in the same content.

⑤ The certification mark (No. 3) of by-products sold by the farming association corporation around August 2013, 2013 is indicated in the item column as "non-organic rice", and the by-products sales day (No. 21) sold by the farming association corporation to the Plaintiff within the period of time within the period of the implementation of the Constitution, is merely indicated in the asset column as "infinite", "infinite", "infinite", "infinite", "infinite", and "infinite" in the size column.

3) Upon receipt of an application for renewal of environment-friendly certification, the agency is obligated to renew certification when it satisfies the criteria for certification of organic food, etc. under Article 19(2) of the Environment-Friendly Agriculture and Fisheries Promotion and the Act on the Management and Support of Organic Food, Etc. (hereinafter “environment-friendly Agriculture and Fisheries”). However, as seen earlier, the Plaintiff’s by-products purchased at the rice processing site within the period of time before the day of the day of the suspension of certification does not appear to have submitted “documents proving that it is usable feed” under attached Table 3 of the Enforcement Rule of the Environment-Friendly Agriculture and Fisheries Act in addition to the purchase documents of the rice processing plant within the period of time of the application for renewal and reexamination. Thus, the Plaintiff’s application for renewal and reexamination of the instant disposition is lawful. Therefore, the Plaintiff’s application for renewal of the instant disposition is not deemed unlawful since it does not fall under the grounds for cancellation of certification under Article 24(1) of the Environment-Friendly Agriculture and Fisheries Act. However, the Plaintiff’s refusal to renew the instant disposition constitutes unlawful.

C. Determination as to the assertion on the period of disposition

In the Environment-Friendly Agriculture and Fisheries Act and the Enforcement Rules thereof, a certified business operator shall renew the certification by filing an application for renewal before the expiration of the term of validity (Article 21(2) of the Environment-Friendly Agriculture and Fisheries Act), and the above renewal application shall be accompanied by documents necessary for the application for certification no later than two months prior to the expiration date of the term of validity (Article 16(1) of the Enforcement Rule of the Environment-Friendly Agriculture and Fisheries Act). Since the instant disposition is imposed on the applicant for renewal within the term of validity, the obligation to submit the application is imposed, and it shall not be deemed illegal on the ground that it was made after the expiration date of the term of validity of the environment-friendly agriculture and fisheries. This part of the Plaintiff’s assertion is without merit.

D. Determination on the assertion of violation of the principle of trust protection

Article 24(1) of the Environment-Friendly Agriculture and Fisheries Act provides that the certification already granted may be revoked when it is found that the certification was granted in a false manner or when it falls short of the certification standards even after the certification was granted (Article 24(1)); Article 21(1) and (2) of the Environment-Friendly Agriculture and Fisheries Act provides that the term of validity of certification shall be one year, but shall be renewed every time the application is filed for renewal before the expiration of the term of validity (Article 21(1) and (2)); and Article 21(1) of the Act provides that the certification of eco-friendly organic livestock products is directly related to the health and diet of consumers, and thus strict requirements for the examination and management of such certification are required. In light of the above, even

As seen earlier, the Plaintiff’s application for renewal and reexamination of the instant case cannot be deemed to have satisfied the environment-friendly certification standards set forth in the Environment-Friendly Agriculture and Fisheries Act. Therefore, even if the Plaintiff was expected to obtain environment-friendly certification by 2012 under the same conditions, it is difficult to view the Plaintiff’s application as an expectation or trust worth protection. The Plaintiff’s assertion on this part is without merit.

E. Determination of procedural illegality assertion

1) The instant disposition is not an infringement upon the Plaintiff’s rights and interests since it rejected an application for renewal filed by the Plaintiff on August 2, 2012 due to the expiration of the term, and it does not infringe on the Plaintiff’s rights and interests, given that the environment-friendly certification that took place on August 2, 2012 is not subject to the revocation of the eco-friendly certification itself. In the event that an application is not filed, barring any special circumstance, even if the disposition is not yet subject to the imposition of rights and interests of the parties, it does not directly restrict the rights and interests of the parties, and thus, it cannot be deemed a disposition that restricts the rights and interests of the parties referred to in this context (see Supreme Court Decision 2003Du674, Nov. 28, 2003). Therefore, it cannot be deemed that the Plaintiff did not provide prior notice of the disposition or an opportunity to present opinions.

2) Meanwhile, in full view of the purport of the Plaintiff’s evidence No. 1 evidence and the entire pleadings, Defendant B, after designating the Plaintiff as an investigator on the instant application for renewal, notified the Plaintiff of the schedule of visit by telephone and visited the Plaintiff on-site and conducted a document review on August 7, 2013. Based on the results of the review, it is reasonable to deem that the instant disposition was in compliance with the procedures prescribed in Article 19 of the Administrative Procedures Act and other relevant statutes. Furthermore, the head of the office office issued the instant disposition by stating the reason inappropriate in the document (Evidence No. 6 and 9) against the Plaintiff, and notified the Plaintiff that he/she could file a request for reexamination if any, as seen earlier, the instant disposition also complied with the procedures prescribed in Article 24 of the Administrative Procedures Act.

3) The Plaintiff’s assertion on this part is without merit.

4. Whether Defendant B committed an official offence

The evidence presented by the Plaintiff alone is insufficient to recognize that Defendant B unilaterally visited the rice processing site within the period of time during which he unilaterally visited the rice processing site and caused FF to prepare a false confirmation that he sells agricultural chemicals and by-products without distinction from certification, or that he illegally performed his duties in participating in the investigator’s involvement in the application for renewal of this case. Rather, there is no other evidence to acknowledge this otherwise. Rather, the witness F of the first instance trial testified to the effect that Defendant B did not have a friencing period as to the preparation process of the confirmation. This part of the Plaintiff’s assertion is without merit.

5. Conclusion

The plaintiff's claim of this case shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.