(영문) 대법원 2017.4.26.선고 2013두6541 판결

The part of the lower judgment against the Defendant regarding KRW 4,593,484,720 shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The plaintiff's appeal and the defendant's remaining appeals are all dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Plaintiff’s ground of appeal

A. Whether the instant disposition is lawful

1) Article 18(1)1 of the former Petroleum Business Act (amended by Act No. 7240 of Oct. 22, 2004; hereinafter “former Petroleum Business Act”) provides that surcharges may be collected from petroleum refiners, petroleum exporters or importers, or petroleum retailers who import petroleum or sell petroleum products (hereinafter “petroleum refiners, etc.”) to stabilize the supply and demand of petroleum, and Article 19 of the former Petroleum Business Act provides that surcharges may be refunded in cases where a person subject to surcharges uses or supplies petroleum for the purpose prescribed by the Presidential Decree; and Article 19 of the same Act provides that surcharges collected may be refunded in cases where a person subject to surcharges uses or supplies petroleum for the purpose prescribed by the Presidential Decree (Article 7(1)); the criteria and procedures for refund and other matters necessary for refund (Article 18(3)).

Article 27 (1) of the former Enforcement Decree of the Petroleum Business Act (amended by Presidential Decree No. 18726, Feb. 28, 2005; hereinafter "former Enforcement Decree of the Petroleum Business Act") provides that where a person who has paid dues falls under any of the following subparagraphs, all or part of the dues paid shall be refunded, and Article 27 (3) of the former Enforcement Decree of the Petroleum Business Act provides that "where heavy oil, liquefied natural gas, and liquefied petroleum gas are supplied to an operator of the electric utility business under Article 2 (3) of the Electric Utility Act for general electricity business or electricity generation business (hereinafter "reasons for refund under subparagraph 3"), subparagraph 5 provides that "where he manufactures petroleum products under Article 23 (2) 4 domestically and publicly notified by the Minister of Commerce, Industry and Energy (hereinafter "reasons for refund") and Article 27 (4) provides that the subject, scope, method, and other necessary matters shall be determined and publicly notified by the Minister of Commerce, Industry and Energy.

Article 30 of the Notice on the Collection, Deferment of Collection, and Refund of Petroleum Import and Sales Dues as determined by the Minister of Commerce, Industry and Energy upon delegation of the former Petroleum Business Decree (hereinafter “Notice”) provides that additional charges shall be imposed on the amount unfairly excessively excessively excessive. 2) The lower court determined that, on the premise that the instant disposition in the holding of the lower court was a disposition based on the right to recover unfair refund, the former Petroleum Business Act and the former Enforcement Decree of the Petroleum Business Act did not directly stipulate matters concerning the redemption of refund erroneously refunded, but the matters concerning restitution of refund fall under “other matters necessary for refund” under Article 19(3) of the former Petroleum Business Act and Article 27(4) of the former Enforcement Decree of the former Enforcement Decree of the Petroleum Business Act and Article 30 of the former Enforcement Decree of the Petroleum Business Act cannot be said to have been enacted without the delegation of the parent law, and the instant disposition cannot be deemed to have violated the principle of statutory reservation.

3) First, we examine whether Article 30 of the instant notice is based on delegation of the mother law as the provision on restitution of unfair refund money.

Although the former Enforcement Decree of the Petroleum Business Act and the former Enforcement Decree of the Petroleum Business Act stipulate the amount of dues and the amount of refund, there is no explicit statutory basis as to whether the refund can be recovered on the ground that the refund was erroneously made with respect to the amount of refund refund. It is difficult to view that the term “other matters necessary for refund” under Article 19(3) of the former Petroleum Business Act and Article 27(4) of the former Enforcement Decree of the Petroleum Business Act includes the amount of refund refund.

Nevertheless, the lower court determined that Article 30 of the Notice was based on delegation of the parent law as a provision on the recovery of excess refund money. In so doing, the lower court erred by misapprehending Article 19(3) of the former Petroleum Business Act and Article 27(4) of the Enforcement Decree of the former Enforcement Decree of the Petroleum Business Act.

4) Furthermore, we examine whether the instant disposition is null and void in violation of the principle of statutory reservation. (A) The revocation of an administrative act is a separate administrative disposition extinguishing its validity retroactively on the ground that there is an illegal or unreasonable defect that has been established once, on the ground that it constitutes a valid administrative act (see, e.g., Supreme Court Decision 2012Du11959, Oct. 27, 2014). If there is a defect in the relevant act, the disposition agency that has performed an administrative act may revoke it on its own without any separate legal basis (see, e.g., Supreme Court Decision 2003Du4669, May 25, 2006).

The reason for refund under Article 27 (1) 3 of the former Enforcement Decree of the Petroleum Business Act is that when a person who paid the dues supplies heavy oil to an operator of the electric utility business under Article 2 of the Electric Utility Act for general electricity business or power generation business, the charges shall be refunded in whole or in part. The former Electric Utility Act (wholly amended by Act No. 6283, Dec. 23, 200; hereinafter referred to as the “former Electric Utility Act”).

Article 2 (1) of the "operator of the electricity business" refers to a general electricity business operator and an operator of the electricity generation business, and the "general electricity business" here refers to the business that supplies electricity to meet the general demand by generating electricity or purchasing electricity generated by another person, and the "operator of the electricity generation business" refers to the business the main purpose of which is to generate electricity and supply it to the general operator of the electricity business.

Meanwhile, according to Article 48(1) of the former Integrated Energy Supply Act (amended by Act No. 6283, Dec. 23, 2000; hereinafter referred to as the "former Integrated Energy Supply Act"), when a license or a modified license for an integrated energy business under Article 9 with respect to the supply of electricity has been granted, it shall be deemed that a license for an electricity generation business under the former Electric Utility Act has been granted.

B) According to the reasoning of the judgment of the first instance as cited by the court below and the records, the plaintiff obtained an integrated energy supply business license from the Minister of Commerce, Industry and Energy on December 11, 2000 pursuant to Article 9 of the former Integrated Energy Supply Act. The plaintiff stated 'he' column as to 'he', while 'he' as to 'the supply area', 'the 'the electricity' is public column. On June 21, 2001, 'the electricity supply area' was reissued as 'self-consumption' column. On July 20, 2001, the plaintiff imported from the plaintiff on July 20, 200, and supplied 'the oil 'the oil 'the oil 'the oil 'the oil 'the oil 'the oil 'the oil 'the oil 'the oil 'the plaintiff applied for the refund of subparagraph 3' to the defendant from August 20 to 3084.

The fact that the Plaintiff paid KRW 18,842,57,410 for the portion of oil imported and refined heavy oil used in the Ulsan Petroleum Chemical Complex (hereinafter “instant refund disposition”), and the Board of Audit and Inspection demanded the Defendant to recover the above refund on the grounds that the Plaintiff’s audit on the Ministry of Commerce, Industry and Energy around the end of March 2004 on the grounds that “the instant refund disposition does not meet the requirements for refund No. 3 and is unreasonable.” The Defendant issued the instant disposition against the Plaintiff on October 30, 2006 on the grounds that the Board of Audit and Inspection demanded the restitution of the above refund, on the grounds that it was a disposition that the Plaintiff demanded the restitution of the unfair refund.

C) Examining the grounds and circumstances of the instant refund disposition and the instant disposition in light of the legal principles and statutes as seen earlier, it is determined as follows. (1) The Plaintiff cannot be deemed to have obtained an integrated energy supply business license under the former Integrated Energy Supply Act with respect to the supply of electricity. In the event that the Plaintiff uses the entire quantity of electricity produced while running an integrated energy business, it does not constitute a “general electricity business” or “electric generation business” under the former Electric Utility Act, and even if the Plaintiff used heavy oil in the Ulsan Petroleum Chemical Complex, which is an integrated energy business place, it does not constitute “the case where the electricity supplier, who is the reason for refund, uses heavy oil for the general electricity business or the electric generation business,” and thus, the instant refund disposition based on the premise that it falls under the grounds for refund under subparagraph 3, is unlawful.

(2) The instant disposition constitutes an unlawful disposition revoking the instant refund disposition on the ground that it was conducted without any grounds for refund, and thus, the Defendant who made the instant refund disposition may revoke the instant refund disposition on his own on the ground of the defect in the instant refund disposition, even if there is no separate legal basis.

D) Ultimately, the instant disposition cannot be deemed to have violated the principle of statutory reservation. Thus, it is justifiable in the conclusion that the lower court determined that Article 30 of the instant notice was based on delegation of the parent law as a provision on restitution of unfair refunds. However, it is justifiable in its conclusion that the instant disposition did not violate the principle of statutory reservation. In so doing, it did not err by misapprehending the legal doctrine on the principle of statutory reservation, contrary to what is alleged in the grounds of appeal.

B. The lower court determined that it is reasonable to calculate the amount of domestic production in accordance with Article 27(1)5 of the former Enforcement Decree of the Petroleum Business Act, on the ground that it is reasonable to deduct the amount of domestic production from the amount of goods supplied to integrated energy facilities pursuant to Article 24(4) of the former Enforcement Decree of the Petroleum Business Act, on the following grounds: (a) the Plaintiff produced low sulfur miter oil from August 2001 to February 2, 2004 and supplied part of them to the Plaintiff’s integrated energy facilities; and (b) the Plaintiff supplied low sulfur miter oil produced or imported for the same period; (c) the Plaintiff supplied low sulfur miter oil to the Plaintiff’s integrated energy facilities; (d) the Plaintiff could not clearly know the amount of goods supplied to the Plaintiff during the low sulfur miter oil supplied; and (e) the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence under Article 24(1)5 of the former Enforcement Decree of the Petroleum Business Act or by failing to exhaust all necessary deliberations in light of logical and empirical rules.

2. As to the Defendant’s ground of appeal

A. The court below held that the above part of the disposition of this case on the premise that the extinctive prescription is valid since the extinctive prescription of the right to recover was completed pursuant to Article 96 (1) of the former Budget and Accounts Act (amended by Act No. 8050, Oct. 4, 2006) with respect to KRW 4,593, 484, and 720 of the total amount of the refund amount paid before October 30, 201, which was five years retroactively from the date of the disposition of this case, among the right to recover unfair refund, which became the basis of the disposition of this case.

2) However, as long as a refund disposition is not revoked, the refund paid according to the refund disposition shall not, in principle, be deemed profit without legal grounds. Meanwhile, there is no provision to recover refund paid erroneously from the time of refund under the former Petroleum Business Act and the former Enforcement Decree of the Petroleum Business Act.

Therefore, at the time when the instant refund disposition was not revoked, it is reasonable to view that the Defendant’s right to claim refund or to recover refund against the Plaintiff is not constituted, barring any special circumstance.

3) Nevertheless, the lower court determined that the instant disposition was unlawful on the premise that there existed a right to recover an unjust refund from the time of refund, and that the instant disposition was a disposition based on the right to recover the unjust refund, with the lapse of extinctive prescription of KRW 4,593,484,720, among the right to recover the unjust refund, and that the instant disposition corresponding

In so doing, the lower court erred by misapprehending the legal doctrine on the fairness of administrative act and extinctive prescription under the former Budget and Accounts Act, etc., which affected the conclusion of the judgment. The ground of appeal assigning this error

B. Article 21(5)2 of the Notice of this case concerning the grounds for refund No. 2 subparag. 5 of the Reasons for Appeal No. 5 provides that “Where domestic production oil oil, yellow oil, mits, mits, mits, and mits are supplied to a widther for the purpose of integrated energy supply to a group that has obtained an integrated energy supply business license under Article 9 of the Integrated Energy Supply Act”

Meanwhile, Article 21(5)2 of the Notice of this case is in accordance with delegation of the former Petroleum Business Act that stipulates that “B shall be determined and publicly announced by the Minister of Foreign Affairs, such as the criteria for refund or the subject, size, and method of refund.” As such, it has the effect as an external binding legal order in supplementing the content of the relevant statutory provisions. A group of dues collected from a petroleum refining business operator, etc., but a part of the dues are refunded as prescribed by the former Petroleum Business Act, and thus, the amount of dues finally borne by the petroleum refining business operator, etc. is determined. In light of the substance of imposing and refunding the oil refund, the legal principle on the interpretation of the Act on the Standards for Calculation of Refund, such as the subject, size, and method of refund, should be applied. Accordingly, in interpreting the provision of Article 21(5)2 of the Notice of this case that sets the subject of refund of dues, the provision of Article 21(5)2 of the Notice of this case, which sets the subject of refund of dues, shall be interpreted and applied in principle, and shall not be interpreted or analogically interpreted without reasonable grounds (see

27. Supreme Court Decision 2014Du12017 Decided 27.

2) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the text and text of Article 21(5)2 of the Notice, the lower court is justifiable in rejecting the Defendant’s assertion that the Plaintiff’s oil supply to the Plaintiff’s integrated energy facilities should be excluded from the amount of refund, among oil oil, sulfur, mit, and miter oil supplied by the Plaintiff. In so doing, the lower court did not err by misapprehending the legal doctrine on Article 27(1)5 of the former Enforcement Decree of the Petroleum Business Act and Article 21(5)2 of the Notice of this case, and contrary to the binding force of the judgment of remand, etc.

C. Ground of appeal Nos. 3 and 4

Examining the reasoning of the judgment below in light of the evidence duly admitted, it is justifiable for the court below to calculate the amount of refund under subparagraph 5 after recognizing the fact that the Plaintiff produced oil from August 2001 to February 2, 2004, which was based on the evidence in its reasoning, supplied the quantity listed in the column of "the current status of supply and refund of oil in the Republic of Korea" in the judgment of the court below, i.e., oil oil oil, sulfur mits, and oil supply from August 2001 to February 2, 2004. There is no error in the misapprehension of the principle of free evaluation of evidence against logical and empirical rules while failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Of the part of the lower judgment against the Defendant, the part of KRW 4,593, 484, 720 (the part related to extinctive prescription) of the lower judgment is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal and the Defendant’s remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.