(영문) 서울행정법원 2013.9.13. 선고 2013구합53394 판결

The suspension of indication and the suspension of sales made by the Defendant to the Plaintiff on April 11, 2013 (from April 23, 2013 to July 22, 2013) shall be revoked.

Reasons

1. Details of the disposition;

A. Status of the parties

(1) On July 6, 2011, the Plaintiff obtained certification of compliance with the Korean Industrial Standards (KS; hereinafter “KS”) and the criteria for certification examination from the Association pursuant to Article 15(1) of the Industrial Standardization Act with respect to ready-mixed concrete (hereinafter “ ready-mixed”).

(2) Pursuant to Article 40 of the Industrial Standardization Act and Article 32(1) of the Enforcement Decree of the same Act, the Defendant is an institution delegated by the Minister of Trade, Industry and Energy (hereinafter referred to as “the Minister of Trade, Industry and Energy”) with the authority to investigate goods on the market, conduct on-site investigations, remove or suspend certification marks, or suspend sales.

(b) Disposition, etc.;

(1) On January 29, 2013, the Defendant submitted to the Plaintiff a prior notice of disposition that “I would have to take an administrative disposition due to lack of measurement reliability as a result of a survey on goods in the market in accordance with Article 20 of the Industrial Standardization Act, and submitted to the Plaintiff by February 12, 2013.”

(2) On February 25, 2013, the Plaintiff submitted a written opinion to the Defendant on February 25, 2013 that “the three-month period of display suspension and the three-month period of sales suspension are excessive. In consideration of the forty employees working for their livelihood, the Plaintiff requested the reduction of the administrative disposition.”

(3) On March 13, 2013, the Defendant requested a review on the appropriateness of the scheduled administrative disposition (three months of indication suspension and three months of sales suspension) to the Steering Committee of the Administrative Disposition Certification of KS (hereinafter “Steering Committee”). On March 27, 2013, the Defendant was notified of the result of the meeting that “the administrative disposition of the suspension of indication three months and three months of sales suspension is appropriate.”

(4) On April 11, 2013, the Defendant notified the Plaintiff on the result of a regular examination conducted under Article 19 of the Industrial Standardization Act that “the following dispositions shall be taken in accordance with Article 21 of the Industrial Table quasi-Industrial Standardization Act, as it falls short of the criteria for determination as a result of the examination conducted under Article 28 [Attachment 1-2] of the Enforcement Decree of the Industrial Standardization Act (hereinafter “instant disposition”).

1. Items subject to disposition; 2. Details of the disposition and matters subject to disposition: Items subject to disposition, and the period of disposition for suspension of sale by ○○: From April 23, 2013 to July 22, 2013: Failure to pass an examination of products (the degree of measuring trust);

[Ground of recognition] The fact that there is no dispute, Gap 1, 3, 6, 7 (including paper numbers), Eul 4 and 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) As to Article 19 of the Industrial Standardization Act

Although the Defendant issued the instant disposition in accordance with the result of a regular examination under Article 19 of the Industrial Standardization Act, there was no pointed out in the instant disposition on November 17, 201 (a clerical error in November 7, 201) and on November 18, 201 (a clerical error in November 8, 2011). Therefore, the instant disposition was unlawful on the grounds that there was no ground for the instant disposition.

Even if there were intellectual matters, the disposition of this case was in violation of the principle of trust protection.

(2) As to Article 20 of the Industrial Standardization Act

(A) According to Articles 20(1) and 40 of the Industrial Standardization Act, Article 32(1)9 of the Enforcement Decree of the same Act and Article 32(1)9 of the same Decree, the authority to investigate the goods on the market granted to the Minister of Agriculture and Forestry shall be delegated to the Defendant, Article 39 of the Industrial Standardization Act, and Article 26 of the Enforcement Rule of the same Act, upon the request of a person who asserts that the goods on the market do not meet KS, B has the authority to investigate, and the Association has the authority to request exchange, repair, refund, or compensation where it is recognized that the products that do not meet KS are manufactured and sold according to the findings of the investigation, and where it is deemed obvious that the products are not in compliance with KS and are likely to cause considerable damage to many consumers or difficult damage, in consideration of the fact that the Defendant is obligated to directly investigate the goods on the market, and then the instant disposition shall be unlawful.

(B) An investigation of goods on the market may be conducted at the time of risk of damage or irrecoverable damage to a large number of consumers due to a consumer organization’s demand, deterioration of quality of certified products on the market. Therefore, an investigation of goods on the market without satisfying such requirements is conducted without any further investigation, and the instant disposition based on the findings of the investigation is unlawful.

(C) According to the individual criteria of the Enforcement Decree of the Ministry of Trade, Industry and Energy [Attachment 1-2] 2. 2., the criteria for disposition are classified according to the minor and serious defects as set forth in the criteria for examination for certification under Article 17(1) of the Industrial Standardization Act. The notification of the instant disposition is written as the “outstanding of inspection of products”.

Therefore, since the notification of the disposition of this case alone is not sufficient to know the degree of defects, the disposition of this case is unlawful in an unspecified manner.

(3) With respect to deviation from and abuse of discretionary power, the supply of mack sand is not smooth at the time, the Plaintiff experienced difficulties in raising funds due to C’s default, the supplier’s payment of goods, and D’s payment of goods, and the supplier’s prior notification to the supplier that “to supply macks without adding mack sand” is obtained, and the produced macks are not at issue, and there is no problem in the quality of ready-mixed, and there is no same violation prior to the instant disposition, the instant disposition taken solely on the basis that the producer produced macks without adding mack sand (S3) constitutes deviation from and abuse of discretionary authority.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(1) manufacture and supply of ready-mixeds;

(A) In around 2012, the Plaintiff experienced difficulties in raising funds due to C’s default, a supplier, and D’s default on payments for goods.

(B) From November 23, 2012 to December 2012, the Plaintiff supplied approximately 2,300 square meters of ready-mixeds produced by only washing companies, unlike those of 36 private construction works, including new construction of multi-family houses in E-family houses (36 units) and government-funded construction (23 units).

(2) On November 7, 2011, pursuant to Article 19 of the Industrial Standardization Act on November 8, 201, the Defendant issued a periodical examination for certification of KS products to the Plaintiff, and on December 14, 2011, notified the Plaintiff of the result of a regular examination that “the Plaintiff passed a factory examination and product certification level with respect to ready-mixed products as a result of a regular examination.”

(3) Research on goods on the market;

(A) On December 18, 2012, the Defendant was notified by the Busan Regional Land Management Office of the fact that “The Defendant did not comply with the mixing ratio of 70% and 30% of the secondary sand on the residual materials of ready-mixed and delivered the ready-mixed by preparing a false automatic measuring record book even if the washing was used only.”

(B) On December 21, 2012, the Defendant requested on December 21, 2012, B Association to recommend the certification examiners of B Association as a review member of the market goods investigation.

(C) On January 9, 2013, the Association requested the Plaintiff to cooperate with the Plaintiff to conduct a survey on the market in order to verify whether the products are inferior in accordance with Article 20 of the Industrial Standardization Act, etc.

(D) On January 17, 2013 and January 18, 2013, the Defendant’s Researcher F, G, H, and Researcher J confirmed the Plaintiff’s delivery certificates, on-site distribution table, automatic recording paper, and quality control-related documents, and collected samples of ready-mixed and conducted quality tests, such as fair management and entrance tests.

(E) After investigating the goods on the market, H and J prepared a report as follows, and K signed and sealed the Plaintiff’s representative director as a observer.

Summary of the results of examination of a report on examination of factory: Results of evaluation of the management status of six matters, including the general public, such as standardization, in accordance with the relevant KS standards and standards for examination of certification, the management status, such as standardization, process management, etc., is inappropriate to the certification level: 56 points (100 points out): Failure to pass the examination;

In recent 12 months, the average inspection period of the present status of DA from January 2012 to December 2012: The average value on January 2012, 2012: 25.1 (KS standard value: 2101Sang)

The measurement trust also is designed as S2 (Washingers) and S3 (S3 (S3rd sand). However, the sand applied to the field mixing after November 23, 2012 confirms that all S2 and S3 have been mixed as a washing company (refer to the watch table, ready-mixed distribution table, field distribution table, process management entrance examination, raw material entry and delivery status, automatic measurement record sheet, delivery note).The synthetic assembly rate of S3(3) applied in the drilling is approximately 2.35 but 100% on the inspection date. The assembly rate is confirmed as a sand that can not be used in the ready-mixed solely after November 12, 2012.

1. On November 2, 2012, 5, the Plaintiff: (a) produced products using washing yarns which fall short of the standards for entrance in the inspection of ready-mixed factories conducted by the Busan Regional Land Management Office; and (b) supplied them to the L Area Repair Facility renovation Works, etc. for 2012; (c) on November 23, 2012, the details of the above facts were as follows; (d) even though it was impossible to produce and deliver low-mixeds normally due to the lack of low-net sand, the Plaintiff produced and sold all name ready-mixeds at 10% of the assembly rate of 1.12 in the above site; (e) on the same occasion, 200% of the mixed number 8344, the Plaintiff did not follow the order to newly construct and supply aggregate at 20:00 square meters (S3: 40 on assembly rate 1.91); (e.g., 21.25.21.25

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 4, 5, 7 (including paper numbers), Eul evidence Nos. 1, 2, 6, 7, 8, and 10, and the purport of the whole pleadings

D. Determination

(1) As to Article 19 of the Industrial Standardization Act

(A) When an administrative agency takes a disposition under Article 24(1) of the Administrative Procedures Act, it shall ensure the clarity of the content of the disposition and prevent a dispute over the existence or content of the disposition. In light of the purport of the provisions of the Administrative Procedures Act, in principle, if the administrative agency takes a disposition through a document, the administrative agency shall determine which disposition is in accordance with the language and text of the written disposition. However, if there are special circumstances, such as whether the administrative agency made a disposition by reason of a document is unclear, the content of the disposition may be interpreted differently from the language and text of the written disposition, taking into account other circumstances, such as the circumstances surrounding the disposition or the attitude of the other party after the disposition (see Supreme Court Decision 20125985, May 9, 2013).

On April 11, 2013, the fact that the Defendant notified the Plaintiff of the result of a regular examination under Article 19 of the Industrial Standardization Act based on the instant disposition is recognized. However, on December 14, 2011, the Defendant already notified the Plaintiff of the result of the regular examination; ② the Defendant notified the Plaintiff of the pre-disposition that “the Plaintiff is scheduled to take an administrative disposition according to the result of the survey on the goods sold in the market”; ② the Defendant received a written opinion on the scheduled administrative disposition from the Plaintiff; ③ the Defendant revealed that the results of the survey on the goods sold in the market combines ready-mixed only with the washing company; and ③ the Defendant issued the instant disposition, taking into account the fact that the results of the regular examination under Article 19 of the Industrial Standardization Act were written in the notice of the instant disposition, and that the investigation on goods sold in the market pursuant to Article 20(1) of the Industrial Standardization Act was a disposition. Therefore, the Plaintiff’s assertion is without merit.

(b) Principles for the protection of trust;

In general, in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the subject of trust to an individual, second, there should be no reason attributable to the individual as to the legitimacy and trust of the opinion list of the administrative agency, third, the individual should have trusted that the opinion list is well-grounded, and third, the administrative agency should have conducted any act against the above opinion list, and fourth, the administrative agency should have made a disposition contrary to the above opinion list, thereby infringing the individual's interest in trust (see Supreme Court Decision 2006Du10931, Jan. 17, 2008).

In light of the fact that the instant case is a health team, the Defendant’s notice of the result of the Defendant’s regular examination does not constitute any public opinion that is the subject of trust in the administrative disposition according to the result of the survey on the goods in the market, and K, the representative director of the Plaintiff, recognized the fact that K, instead of complying with the mixing Criteria, could have anticipated the possibility of being subject to administrative disposition, such as ordering the removal of marks, cancellation of certification, etc. accordingly, the mere fact that “the Plaintiff believed that there was no particular administrative disposition after the notification of the results of the regular examination,” cannot be said to be subject to the principle of trust protection in the disposition of the instant case.

(2) As to Article 20 of the Industrial Standardization Act

(A) Article 20(1) of the Industrial Standardization Act provides that "the Minister of Agriculture and Forestry may conduct a quality test for accredited products sold as prescribed by Presidential Decree, or investigate (on-site investigation) such products or services at the factory or place of business of a certified person, and may authorize public officials under his/her jurisdiction to conduct a field investigation." Furthermore, the Minister of Agriculture and Forestry delegates his/her authority to the Defendant pursuant to Article 40 of the Industrial Standardization Act and Article 32 of the Enforcement Decree thereof.

It is recognized that the instant case was a health team, B Association, etc. requesting the Plaintiff to cooperate with the Plaintiff in the investigation of goods in the market, and that H and Research Institute J after the investigation of goods in the market, etc. However, the process of conducting the investigation of goods in the market is that: (i) the Defendant was notified by the Busan Regional Land Management Agency of the violation of the Plaintiff’s KS display criteria; (ii) requested the recommendation of the investigator of goods in the market to conduct the investigation of goods in the market; (iii) the Defendant’s participation in the investigation of goods in the market; (iv) the Defendant’s research officer was participating in the investigation of goods in the market with the KS certification examiner, etc.; and (v) the nature of the goods in the market: the investigation of goods in the market was focused on ascertaining the facts, such as the defects of goods in the ready market, etc. through the quality control-related documents, and accordingly, the investigation of goods in the market was conducted by the Defendant’s KS certification examiner, etc. in consideration of the fact that the report was prepared.

(B) Article 20(1) of the Industrial Standardization of the requirements to conduct a survey on goods on the market provides that "if requested by a consumer organization or if it is deemed that a large number of consumers have suffered damage or are highly likely to suffer irrecoverable damage due to the deterioration of quality of certified products or certified services," the requirements to conduct a survey on goods on the market.

In light of the following facts: (a) the Defendant: (b) was notified by the Busan Regional Land Management Office that “the Plaintiff did not comply with the mixing ratio with respect to the residual materials of ready-mixed; (c) prepared a false automatic measurement record book and supplied ready-mixed”; (b) the ready-mixed has a significant impact on the safety of a building as a material constituting the framework of the building; and (c) the supply of ready-mixed which failed to comply with the mixing ratio may clearly recognize that there is a requirement for implementation as stipulated in Article 20 of the Industrial Standardization Act, in view of the fact that the structural safety problem of the building may occur due to the supply of ready-mixed, and is likely to cause many consumers damage or difficult damage.

The defendant notified the plaintiff of the disposition in this case, although he did not disclose the degree of defects set forth in the criteria for certification examination under Article 17 (1) of the Industrial Standardization Act while notifying the plaintiff of the disposition in this case, the defendant notified the disposition in this case pursuant to Article 21 of the Industrial Standardization Act because the result of the examination under Article 28 [Attachment 1-2] of the Enforcement Decree of the same Act does not meet the criteria for determination, together with the fact that the reason for disposition in this case is stated as the "product inspection failure", ② according to the classification of defects based on the result of the product test in the "KS certification criteria", the monitoring and the automatic measurement record book are classified as "serious defect", and the other cases where the error in the automatic measurement record book deviates from the whole or violates the degree of other measurement credibility", ③ According to Article 28 [Attachment 1-2] of the Enforcement Decree of the same Act, if the result of the market product inspection falls under one time, the plaintiff can not be seen as a violation of Article 28 (Attachment 1-2).

(3) As to the deviation and abuse of discretionary power

(A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms should be determined by comparing the degree of infringement of public interest and the disadvantage suffered by an individual due to the disposition, by objectively examining the content of the violation as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances (see Supreme Court Decision 2005Du11982, Feb. 9, 2006).

(B) We look at this case’s health stand, ① the nature of disposition standards: Article 28 [Attachment Table 1-2] of the Enforcement Decree of the same Act, which is the basis of the disposition of this case, is prescribed by the Presidential Decree in the form of the provision on delegation provisions under Article 21(2) of the Industrial Standardization Act. Thus, it constitutes an order of laws and regulations that are externally difficult to detain citizens or courts (see Supreme Court Decision 97Nu15418, Dec. 26, 1997). ② The types of offenses are not in compliance with the mixed standards, ② the act of double management of automatic measurement records, etc. is a serious violation of the certification trial standards. ③ The use of low quality : the public interest is threatening the structural safety of buildings; the infringement of consumer confidence in the KSS-certified products; ④ The Plaintiff’s disadvantage is not the production and sale of products during that period; the Plaintiff’s disposition is not subject to the disposition of this case’s exclusion from the marking of the products produced by the company; and ⑤ the disposition of this case’s exclusion from sale after the disposition of this case’s discretion.

subsection (b) of this section.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.