2018Guhap59281 Requests for revocation of imposition of penalty surcharges

A Stock Company

Attorney Yoon Jin-hun, Counsel for the defendant-appellant

The Minister of Environment

Attorney Lee Jong-hoon et al., Counsel for the defendant

Attorney Lee Dong-tae

5, 2019 5, 31

June 28, 2019

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On December 26, 2017, the Defendant’s imposition of a certain amount of KRW 148,586,790 against the Plaintiff and the imposition of a certain amount of KRW 6,324,150,660 against the Plaintiff shall be revoked.

1. Details of the disposition;

Article 48(1), Article 56(1)1, and (2) of the former Clean Air Conservation Act (amended by Act No. 13874, Jan. 27, 2016; hereinafter the same shall apply); Article 52 of the former Enforcement Decree of the Clean Air Conservation Act (amended by Presidential Decree No. 2850, Dec. 26, 2017; hereinafter the same shall apply); Article 48(1), Article 56(1)1, and (2) of the former Clean Air Conservation Act (amended by Act No. 13874, Jul. 28, 2016; hereinafter the same shall apply); Article 52 of the former Enforcement Decree of the Clean Air Conservation Act (amended by Presidential Decree No. 2850, Dec. 26, 2017; hereinafter the same shall apply) (amended by Act No. 14861, Jul. 16, 2017; hereinafter the same shall apply) (amended by Act No. 1675).

[Ground of recognition] A without dispute, entry of Gap evidence 2, purport of whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) The grounds for illegality regarding the second disposition

A) argument as to the parts subject to alteration

(1) The date of brailleization of D model (hereinafter referred to as “the date of brailleization”) is not subject to the certification of alteration since it does not fall under any of the matters listed in Articles 67(1) and 76 [Attachment 202] of the former Enforcement Rule of the Clean Air Conservation Act (amended by Ordinance of the Ministry of Environment No. 544, Feb. 6, 2014; hereinafter the same shall apply) delegated by Article 48(2) of the former Clean Air Conservation Act.

(2) The twiter of the E model (the structure and form are as shown in attached Form 2; hereinafter referred to as the “twiter”) is not included in the subject of basic certification under the former Enforcement Rule of the Clean Air Conservation Act, which was enforced on January 3, 2014, and thus, it does not constitute the subject of certification for alteration.

(3) The head office (the structure and form are as shown in the annexed Table 2; hereinafter referred to as the "head office") shall not be subject to the alteration certification pursuant to the Enforcement Rule of the Clean Air Conservation Act [Attachment Table 20] and 2 as part of the pipe connecting the head office with the string and the strings.

B) Claim as to the parts subject to report on modification

Article 56 (1) 2 of the former Clean Air Conservation Act is premised on the fulfillment of the obligation of "certification of alteration". Thus, it is impossible to impose a penalty surcharge under Article 56 (1) 2 of the same Act on the ground that the part subject to reporting of alteration under Article 67 (3) of the Enforcement Rule of the Clean Air Conservation Act is excluded from the object of increase in the number of alterations.

C) Claim for the application of legal class action

The defendant has calculated penalty surcharges by applying the same provision to acts prior to the enforcement of Article 56 of the former Clean Air Conservation Act, which is illegal against the principle of non-payment.

2) The deviation and abuse of discretion of each of the dispositions of this case

Considering the contents, circumstances, frequency, possibility of criticism, etc. of the Plaintiff’s violation, each of the dispositions of this case is illegal as a deviation or abuse of discretionary power in violation of the proportionality principle.

B. Relevant statutes

Attached Form 3 shall be as listed in attached Table 3.

C. Determination of illegality regarding 2 disposition

1) Determination as to parts subject to certification of alteration

A) The former Enforcement Rule of the Clean Air Conservation Act [Attachment 20] [Attachment 20] 7, etc. of the Republic of Korea is subject to the certification of modification of the dynamics. In light of the following circumstances that can be recognized by comprehensively taking into account the respective descriptions and arguments of the certificates of Nos. 2, 5, 6, and 9 (including numbers; hereinafter the same shall apply) and the entire purport of the pleading, it is reasonable to view the dynamics of this case as falling under the dynamics of the points. The Plaintiff’s assertion is not correct.

(1) The term “distrior” is a device that distributes high voltages generated in the ioncco-days to the ionculator, and the term “distriisisise ion” is a device that directly occupies the high voltages of the ioncco-days without the power distribution device and does not require a separate shot, but performs the function of the shotator equally.

(2) The dominium of this case is a distorymology, which is a distorymology, and carries out the function of transmitting the 'high voltage of a distomology' of a distomology. Even if the device called the ECU is in charge of power distribution control, it is not a "fuel supply device" among exhaust gas-related parts, but a "fuel supply device" is not an 'fuel supply device' among the parts related to exhaust gas, and it does not seem to be completely replaced with the above function of the Mosium of this case

(3) At the time of filing an application for pre-certification, the Plaintiff himself entered the instant in a DNA interview with the escopic device at the time of filing the application for re-certification, and the instant escopic coin is performing the correction procedure pursuant to Article 52(1) of the former Clean Air Conservation Act on the premise that the escopic coin is a part related to exhaust gas. Other car manufacturers or importers are also performing the modification procedure and correction procedure on the premise that the scopic scop

B) The purport of obtaining the instant certification for alteration of exhaust gas-related parts as stipulated in the Enforcement Rule of the Clean Air Conservation Act (Attachment Table 20) is to obtain the re-certification that exhaust gas can be maintained in compliance with the permissible emission levels of manufactured automobiles during the period of guarantee as shown in the initial certification (Article 48, etc. of the former Clean Air Conservation Act). Therefore, it is reasonable to view that if exhaust gas-related parts are not included in the exhaust gas-related parts at the time of the initial certification, if there are parts newly included in the exhaust gas-related parts at the time of the initial certification, the certification for alteration should be obtained. Furthermore, in full view of the purport of the argument in the evidence Nos. 3 and 4, the Plaintiff’s prior certification date on December 23, 2013 and May 12, 2015, the Plaintiff’s assertion that “in the list of absorption devices at the time of the initial certification was not accepted as the Plaintiff’s exhaust gas-related parts [Attachment 20] of the Enforcement Rule at the time of the former Clean Air Conservation Act.

C) In full view of the following circumstances that can be recognized by comprehensively considering the purpose of the entire pleadings in the entries or videos of the head office Nos. 4, 5, and 7 and 8 of the Clocks in this case, it is reasonable to view that the head office of the Clocks in this case falls under the “Clocking” of the Enforcement Rule of the Clean Air Conservation Act [Attachment 20]. The Plaintiff’s assertion on this part is without merit.

(1) The virtue-rating plays a role of mixing and transmitting gases, as the eromatic air inhaled from outside is the eromatic pipe, and it is difficult to interpret that the virtue-rating only means the pipe located between the erosator and the erosator on the basis of the order of entries in [Attachment 20] 9 as alleged by the Plaintiff. The virtue-rating is a part that may affect burning because the eroscopic air enters an engine due to changes in diameter or structure, etc.

(2) The heads of the instant chloros shall have three smoking equipments (the operation and control functions of the exhaust gas-related parts as specified in the [Attachment Table 20] and the operation and control functions of the exhaust gas-related parts as specified in the [Attachment Table 20] of the instant chloros are mixed with the new air through the special smoking equipments in the heads of the above chloros, and the re-circulating exhaust gas, etc. are supplied to the compresseds by mixing them with the new air through the special smoking equipments in the heads of the above chloros. Therefore, the heads of the instant chloros in the instant case constitute a pipe that independently performs the mixed and delivery functions of gases, and it cannot be said that only the operation and control functions of the exhaust gas-related parts as specified in the non-high 2 of the above [Attachment Table 20] are performed, or only parts related to the parts

2) Determination as to whether to impose penalty surcharges on the parts subject to report on modification

In full view of the following circumstances, it is reasonable to view that the manufacture and sale of an automobile using a modified product without any increase in the quantity of exhaust gases due to a change, among important matters under Article 67(3) of the Enforcement Rule of the Clean Air Conservation Act, constitutes “a case where an automobile is manufactured and sold differently from the details certified under Article 48(1) of the former Clean Air Conservation Act” and thus, it is subject to penalty surcharges under Article 56(1)2, etc. of the same Act.

A) The purpose of statutory interpretation ought to be to find a concrete feasibility within the extent that does not undermine legal stability. To that end, the statutory interpretation ought to take precedence over, as far as possible, the ordinary meaning of the language and text used in the law. However, to the extent that it does not go beyond ordinary meaning of the language and text, a systematic and logical interpretation method that takes into account the legislative intent and purpose of the law, history of the enactment and amendment, harmony with the entire legal order, relationship with other Acts and subordinate statutes may be used additionally (see Supreme Court Decision 2014Da223025, Dec. 22, 2017). (B) Article 48 of the former Clean Air Conservation Act provides that, in order for a motor vehicle manufacturer to manufacture a motor vehicle, it shall obtain a certification from the Minister of Environment that the motor vehicle exhaust gas can be maintained in compliance with the permissible emission standards of manufactured motor vehicles during the period of guarantee of exhaust gas (Paragraph (1)), and that in order to modify any important matters prescribed by Ordinance of the Ministry of Environment among the certified matters, it

Article 67 (1) of the Enforcement Rule of the Clean Air Conservation Act, etc. provides for "important matters under Article 48 (2) of the same Act", and Article 67 (3) of the same Act provides for the documents to be submitted at the time of application for certification for alteration, and where matters other than those under each subparagraph of paragraph (1) are modified and matters under paragraph (1) are not increased even though the matters under paragraph (1) are modified, the relevant changed matters shall be reported to the Minister of Environment (in cases of imported automobiles, to the President of the National Institute of Environmental Research) notwithstanding paragraph (2). In such cases, it shall be deemed to have obtained certification for alteration under Article 48 (2)

Even if Article 48(2) of the Enforcement Rule provides for the duty of certification for alteration as a premise to perform the duty of certification under Article 56(1)2, in light of the following circumstances, imposing the duty of certification for alteration shall be construed as imposing the duty of notification for alteration on "where the quantity of exhaust gas does not increase even after changing the matters under Article 67(3) of the Enforcement Rule is changed under paragraph (1) of the same Article, not to be subject to certification for alteration, but to be simplified in the procedure.

(1) Since Article 67(1) of the Enforcement Rule of the Clean Air Conservation Act explicitly states that any of the subparagraphs falls under the important matters stipulated by Ordinance of the Ministry of Environment under Article 48(2) of the Clean Air Conservation Act, in principle, matters under Articles 67(1)8 and 76 [Attachment 20] of the Enforcement Rule of the Clean Air Conservation Act shall be subject

(2) However, Article 67(3) of the Enforcement Rule does not stipulate that "if the quantity of exhaust gas does not increase even after changing the matters under paragraph (1), it shall be excluded from the important matters set forth in paragraph (1)." However, instead of submitting an application for certification of change and relevant documents under paragraph (2), it shall be based on paragraph (2), not on paragraph (1), by requiring the head of the national environment and private teaching institute to report the changed matters.

(3) Although the above paragraph (3) stipulates that "matters other than those under each subparagraph of paragraph (1) and cases where the quantity of exhaust gas does not increase even if the matters under paragraph (1) are modified," the former is a matter of importance prescribed by Ordinance of the Ministry of Environment, and the latter is fully aware that the latter is distinguished from the revised matters under the condition that the increase of exhaust gas does not increase.

C) However, Article 56 (1) 2 of the former Clean Air Conservation Act provides that "a person who manufactures and sells a motor vehicle different from the details certified under Article 48 (1) of the same Act shall be subject to administrative sanctions." Unlike "a person who manufactures a motor vehicle without obtaining certification for alteration under Article 91 (4) of the same Act and Article 48 (2) of the same Act, who manufactures a motor vehicle without obtaining certification for alteration under Article 91 (2) of the same Act, which is subject to criminal punishment provisions, does not explicitly include the obligation for certification for alteration. Thus, the same applies to cases where a person violates the obligation for certification for alteration under Article 67 (1) of the above Enforcement Rule, violates the obligation for notification for alteration

3) Determination as to the assertion on the application of legal principles

According to the evidence evidence No. 2, the defendant calculated a penalty surcharge of subparagraph 2, and applied a maximum of KRW 10 billion to a vehicle which has been sold after July 27, 2016, by applying Article 56 (1) of the former Clean Air Conservation Act (amended by Act No. 13874, Jan. 27, 2016; Act No. 13874, Jul. 28, 2016); and a vehicle which has been sold after July 28, 2016, by applying Article 56 (1) of the former Clean Air Conservation Act. Thus, it is difficult to see that the defendant violated the principle of legal non-payment, and there is no other evidence to acknowledge it.

D. Determination as to whether each of the dispositions of this case deviates from or abused discretionary power

In full view of the following circumstances, it is insufficient to deem that the disadvantages suffered by the Plaintiff compared to the public interest to be achieved by each disposition of this case are enormous and that the Plaintiff deviatess from and abused discretion in violation of the principle of proportionality, and there is no other sufficient evidence to acknowledge otherwise.

1) It is highly necessary to maintain a strict certification system with respect to automobiles emitting air pollutants in order to prevent air pollution from causing harm to people and the environment, and manage and preserve the atmospheric environment in a proper and sustainable manner, thereby enabling all citizens to live in a healthy and comfortable environment.

2) The Plaintiff asserts that the illegality of the Plaintiff’s act of violation is low, such as intentional or planned, and the failure to report partial changes did not actually result in environmental pollution, and most cases completed correction. However, each of the dispositions of this case, regardless of whether environmental pollution resulted, is a sanction for importing and selling a motor vehicle differently from the certified contents, and the modification of the certification procedure can be simplified only when it is confirmed that the quantity of exhaust gas does not increase. However, the Plaintiff did not report the modification, even if the head office did not properly notify the Plaintiff of the change of the parts, it is difficult to deem that the Plaintiff has justifiable reasons for the Plaintiff’s failure to properly perform the certification duty. (4) In light of the circumstances such as the fact that the sales profit gained by importing and selling a motor vehicle prior to the Plaintiff’s performance of the certification of modification and reporting obligation appears to be considerable, it is difficult to deem that the Plaintiff’s illegality has to be mitigated to the extent that the Plaintiff’s penalty surcharge is insufficient.

3) In the case of partial violation of the duty to report, Article 56 of the current Clean Air Conservation Act provides that a penalty surcharge shall be imposed in consideration of the degree of increase and decrease of exhaust gas emissions, and the Enforcement Decree of the same Act [Attachment 12] lowers the coefficient of increased imposition to 0.3. However, even under the current Act and subordinate statutes, the level of sanctions for non-performance of the duty to report changes has not been lowered, and the level of sanctions for non-performance of the duty to report changes has been significantly increased, and the level of sanctions for non-performance of the duty to report is more strengthened. Therefore, it is difficult to conclude that there is a need to reduce a penalty surcharge even under the current Act and subordinate statutes, which were in force at the time of the instant disposition, on the ground that the current Act and subordinate statutes are relatively less and less severe

3. Conclusion

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

For the transfer of judge;

Judges Lee Lee Jae-chul

Judge Powers Governing Authority

1) Article 56(1) of the Clean Air Conservation Act (amended by Act No. 13874, Jan. 27, 2016; July 28, 2016; and Article 56(1) of the Clean Air Conservation Act (amended by Act No. 13874) that has entered into force

10 billion won was adjusted upward by the Defendant. On or before July 27, 2016, the upper limit of 1 billion won for vehicles sold and finished, and after July 28, 2016, the upper limit of 1 billion won for vehicles sold and sold.

In addition, the upper limit of 10 billion won was respectively applied to vehicles, the sale of which has been continued.

2) Article 67(1) of the Enforcement Rule of the Clean Air Conservation Act provides for important matters stipulated by Ordinance of the Ministry of Environment under Article 48(2) of the Clean Air Conservation Act

In subparagraph 8, the term "gas-related parts" as publicly notified by the Minister of Environment, and the above term "gas-related parts" are Article 76 of the Enforcement Rule of the same Act.

The provisions of attached Table 20 are set forth in [Attachment 20].

(iii)in accordance with Article 46 of that Act, imports are included in production;

4) In the event of failure to report the change, the penalty surcharge was revised from 3/100.5 to 5/100.3 of sales x the upper limit was 50 billion to 10 billion won.

It has increased to KRW 00.0 billion.

5) In the event of failure to comply with the revised certification obligation, the penalty surcharge was revised from 3/100 x 0.5 x 5/100 x 1, and the upper limit was 50 billion to 10 billion won.

The number of members has increased.