(영문) 서울고등법원 2015.2.4. 선고 2014누61936 판결

On November 20, 2013, the defendant revoked the revocation of certification of excellent recycled products granted to the plaintiff on November 20, 2013.

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for this Court’s reasoning is as follows: (a) the Defendant’s argument that the instant case ought to be addressed by this Court is consistent with the reasoning of the first instance judgment, except for addition under the following: (b) Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Determination as to the assertion that the notice of this case did not violate the principle of proportionality

A. The defendant's argument

The certification system of excellent recycled products is not a compulsory certification that does not obtain the relevant certification, but a voluntary certification system that provides incentives for products with at least a certain level to achieve policy objectives. Therefore, the defendant who has the authority to set standards for certification of excellent recycled products pursuant to the relevant Acts and subordinate statutes should be deemed to have a considerable wide range of reflusing the establishment of standards in order to achieve the policy objective of expanding the demand basis of recycled products and promoting the development of recycling technology. Furthermore, once recycled products are produced, it is practically impossible to verify whether the relevant products have the actual composition of recycled products. Therefore, it is the most reliable and effective means to ensure that the Ministry of Education, Science and Technology should use the relevant products as the textbook site. Considering the fact that it is not only the legal effect of certification of excellent recycled products itself, but also the necessity of the certification of excellent recycled products to use them as the textbook site, as well as the importance of the textbook site in the Plaintiff’s total sales, and thus, it should also be deemed that the part of the implementation of the certification system is not legitimate, but also is also legitimate.

B. Determination

In full view of all the circumstances duly admitted in the first instance judgment as cited by this court, the result of each fact-finding conducted in the trial and the fact-finding conducted in the first instance court, together with the facts duly admitted in the first instance court as well as in all the following circumstances acknowledged by the entire purport of the pleadings, even if considering the above circumstances alleged by the Defendant, it is deemed that the notified part of this case violated the principle of proportionality because it does not meet the suitability of means, the minimum degree of damage and the balance of legal interests, and thus, it is difficult to say otherwise. In other words, it is difficult to view that the excellent recycling product certification system in the printing paper, etc. for the first instance court is the policy purpose of promoting the first abolition, and therefore, it is the most important part to ensure that it is the most important part, and therefore, it is difficult to view that the compliance with the implied pul mixing ratio is not naturally guaranteed by being equipped with an implied facility in the factory, and it is possible to verify it only by comparing it with the printing paper that has been continuously injected and produced after the installation of the facility.

It is clear that the promotion of the development and commercialization of recycling technology is also an important policy purpose, and therefore, it cannot be said that the demand for the adequate capacity for the certification of good recyclable products is unreasonable. However, the demand for the installation of facilities in a factory such as a control facility is an excessive restriction exceeding a reasonable scope. In particular, if it is forced to install a new implied facility even in a case where an affiliated company, such as the Plaintiff, etc., is already installed at an affiliated company in the close place, such demand is more excessive restriction than a reasonable scope.

③ The size of the market for the print paper for recycling is not only a large volume, but also a cost of at least 30 billion won and at least 15 months for the purpose of installing a new implied facility in an individual factory. In other words, the fact that each factory must be equipped with an implied facility for the purpose of obtaining certification of excellent recycled products is an excessive burden on the Plaintiff, etc. and it is also questionable whether this is an economic reasonable measure.

④ The Defendant asserts that the company’s trust in the notified portion of the instant case and the company’s confidence should be protected. However, the first reference committee related to the amendment of the instant public notice has been held since 2010, and Korea District Co., Ltd. had already started from 2002 to 2013 (12.1 billion won after 2010), and the Jeon Pin Co., Ltd had engaged in the investment in facilities (6.6 billion won after 2010) in total from 2001 to 2013, so it is difficult for the said company to view that the said investment was made solely based on the trust in the instant public notice portion. Rather, since the said company appears to have compared the purchase and transportation costs of soft and the installation costs of implied facilities, it is difficult to determine that the public notice of this case had been made in particular from a long-term reasonable point of view.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.