(영문) 서울행정법원 2014.11.20.선고 2014구합54622 판결

In the first place, on December 27, 2013, the defendant revoked a new approval and disposition of the 14-year voluntary waste charges agreement with respect to the Korean Government Industrial Cooperatives, and the conditional approval of the 14-year conditional renewal of the 14-year voluntary agreement for recovery and recycling of waste plastics against the Korean Association of Agricultural and Fishery Resources.

Preliminaryly, on December 27, 2013, the Defendant revoked the new approval and disposition of the 14-year voluntary waste charges agreement with the Korea PPE Industrial Cooperative on December 27, 2013, and the approval of the renewal of the voluntary agreement for the recovery and recycling of waste plastics for the Plaintiff and the Korea Agricultural and Fisheries Resource Association, respectively.

Reasons

1. Details of the disposition;

A. The Plaintiff is a federation of cooperatives under Article 3(1)3 of the Small Enterprise Cooperatives Act among members of 18 member cooperatives (including two associations) and 1,000 member cooperatives.

(b) Details of the conclusion of a voluntary agreement on polyethylene;

1) The Plaintiff was entrusted by 11 manufacturers of polyethylene (hereinafter referred to as “PE pipe”), a member of a member cooperative, and requested the Defendant to enter into a voluntary agreement with respect to the PE pipe on September 2013, upon being entrusted with the performance of duties related to the Convention, such as voluntary agreements.

2) Upon examining the Plaintiff’s target recycling rate, collection and recycling conditions, etc., the Defendant assessed that the Plaintiff failed to meet the appropriate qualification, and notified the Plaintiff of his/her failure on November 14, 2013. The Plaintiff requested reexamination on November 1, 2013 and 25.

3) The KoreaPE Industrial Cooperative (hereinafter referred to as the “PE Association”) was entrusted by 16 manufacturers among the manufacturers of the PE pipes with the execution of their duties related to the Convention, such as voluntary agreements, and requested the Defendant to enter into a voluntary agreement with respect to the PE on December 2013.

4) Upon the Plaintiff’s request for reexamination and the request for the conclusion of a voluntary agreement with the PE-related cooperative, the Defendant evaluated that both the Plaintiff and the PE-related cooperative failed to meet the criteria for examination as a result of examining the target recycling rate, recovery and recycling conditions, etc. of the Plaintiff and the PE-related cooperative. On December 11, 2013, the Defendant imposed the following conditions upon both the Plaintiff and the PE-related cooperative.

If it is difficult to manage the agreement because it overlaps with each other, it shall be given an opportunity for review to propose a joint implementation plan that is presented by the two organizations that have applied for. However, if it is difficult to manage the agreement, it shall be given an opportunity for review.

5) Accordingly, the PEE Association entrusted some of the pre-existing manufacturers with the same work process in relation to the voluntary agreement only to the Plaintiff, and the total 19 manufacturers of the above PE official manufacturer and the pre-existing PE official manufacturer entrusted with the work process to the PE official association, as a part of the investigation, requested the Defendant to conduct a re-examination on December 17, 2013.

6) On December 27, 2013, the Defendant notified the PE Association of the result of the review that “The PE Association’s joint participation implementation plan was appropriate, recovery and recycling system was established, and passed the final review criteria.” (hereinafter referred to as “the first page”).

1) On November 28, 2013, the Plaintiff entrusted some of the manufacturers of polyethyl farming films (hereinafter referred to as “PE farming films”) to perform the relevant business, including entering into a voluntary agreement, and entered into a voluntary agreement with the Defendant on the PE farming films from around 2008, and requested the Defendant to renew the voluntary agreement on the PE farming films on November 28, 2013, when the period of the aforesaid voluntary agreement was expired.

2) On December 4, 2013, the Defendant assessed that the Plaintiff failed to meet the appropriate qualification upon examining the degree of the Plaintiff’s mandatory recycling rate, conditions of recovery and recycling, etc., and notified the Plaintiff that the contract for voluntary farming films was not renewed.

3) On December 16, 2013, when the Plaintiff submitted an application for reexamination independently on December 16, 2013, the following day, the Plaintiff filed an application for reexamination with the Korea Association of Agricultural and Fisheries Resources (hereinafter “Korea Association of Fisheries Resources”) which is an incorporated association on December 17, 2013, by supplementing an application to constitute a joint consortium with the Defendant. On December 27, 2013, the Defendant issued an application for reexamination to the Defendant on December 27, 2013, as a result of reviewing the adequacy of the system for recovery and re-use to the Plaintiff and the Korea Association of Fisheries Resources, and attached the following conditions (hereinafter “instant notification”).

There shall be no problem of re-entrustment provided for in the guidelines for the operation of the Convention with respect to the matters for which two organizations of the same item form a joint consortium, and a temporary agreement shall be concluded for one year on conditional terms (at the time of application for the renewal of the future).

[Reasons for Recognition] Facts without dispute, Gap's testimony, Gap's testimony, Gap's evidence 1 to 8, 11, Eul's evidence 1 (including each number), the purport of the whole pleadings

2. Whether the lawsuit in this case is lawful

A. The defendant's main defense

1) The absence of eligible eligibility

The notice No. 1 of this case constitutes a "de facto notification" that notifies the selected parties of the conclusion of an agreement in the process of concluding a voluntary agreement by the Defendant, and the notice No. 2 of this case constitutes a "de facto notification" that determines whether to renew the agreement and notify the other party of the conclusion of the agreement during the renewal of a voluntary agreement previously concluded by the Defendant, and thus, is not a disposition subject to appeal litigation.

(2) Non-existence of standing to sue

A) The Plaintiff did not have any direct and specific interest in relation to the instant notice No. 1 that is protected by the relevant law. Voluntary agreements are concluded between the Plaintiff and the Defendant. The Plaintiff does not directly manufacture the PE official, but rather enter into an agreement on behalf of the producers performing the above obligations, which are members of the Plaintiff, on behalf of the Plaintiff, and if the PE official manufacturers join the Plaintiff as members, it does not constitute a party to the agreement, and neither the Plaintiff nor the PE official association are in competition with the manufacturers nor are they in a relationship with the Defendant. (b) The instant notice No. 2 contains a common consensus by dividing the matters in charge of the Plaintiff and the Korea Association of Agricultural and Fisheries Resources and the Korea Association of Fisheries and constitutes a common consensus. Accordingly, it cannot be viewed that the legal interest is not recognized based on the “Guidelines for the Voluntary Operation of Plast Wastes (hereinafter referred to as the “Operation Guidelines”). Furthermore, according to Article 14(2) of the Operational Guidelines, the Defendant can only make a decision on whether to renew the agreement through examination and not.

(b) Provisions of relevant Acts and subordinate statutes concerning the voluntary agreement system;

1) According to Article 12(1) and (2)2 of the Act on the Promotion of Saving and Recycling of Resources (hereinafter “Act”) and Article 10(1)6 and attached Table 5 of the Enforcement Decree of the same Act, the Defendant may impose and collect expenses incurred in the disposal of wastes (hereinafter “waste charges”) on and from manufacturers of plastic materials containers (hereinafter “products”) in order to restrain the generation of wastes and prevent the waste of resources. However, in the case of products manufactured by manufacturers who concluded a voluntary agreement on the collection and recycling with the Defendant and implemented such agreement, the aforementioned waste charges shall not be imposed, and Article 34-8(1) and (2) of the Recycling Promotion Act provides that the Defendant may enter into an agreement with the persons discharging wastes, recycling business operators, manufacturers, etc., or organizations comprised thereof (hereinafter “voluntary agreement”) so that matters necessary for the objectives, methods, implementation procedures, etc. of voluntary agreements may be delegated to the Minister of Environment.

Accordingly, Article 25-2 of the Enforcement Rule of the Recycling Promotion Act allows a person who has entered into a voluntary agreement to submit or cooperate with materials related to preventing the generation of wastes and achieving the goals of recycling, and to confirm whether the matters provided for in the voluntary agreement are implemented.

2) Meanwhile, the Defendant prepared the instant operational guidelines to determine matters necessary for the conclusion and operation of the voluntary agreement on the recovery and recycling of plastic wastes under the foregoing Recycling Promotion Act. According to such guidelines, if a person who intends to enter into a voluntary agreement requests the Defendant to enter into an agreement with the Defendant, attaching various evidentiary materials, the Defendant shall examine the target recycling rate, the conditions of recovery and recycling, etc., and then enter into a voluntary agreement with a business operator deemed to have adequate qualifications. The period of voluntary agreement shall be three years, but if the Defendant considers it necessary at the request of the business operator, the person who entered into the agreement shall request the renewal of the agreement with the Defendant, along with a performance report and evidentiary materials, and the Defendant shall not request the renewal of the agreement with the evaluated business operator as having adequate qualifications after examining the degree of achievement of the mandatory recycling rate, recovery and recycling conditions (see Articles 3, 4, 6, and 14 of the instant operating guidelines, i.e., a manufacturer who enters into the agreement with the Defendant on voluntary recovery and recycling, i.e., a business operator to collect and recycle the agreement.

(Articles 8 and 8 Section 8 Section 2) of the Operating Guidelines of this case;

C. Determination

1) Whether to recognize the eligibility for the notice Nos. 1 and 2

In principle, an administrative disposition, which is the object of an appeal litigation, refers to an administrative agency’s act of public law that directly affects the rights and obligations of the general public by ordering the establishment of rights or the burden of obligations under Acts and subordinate statutes or causing other legal effects on a specific matter. Meanwhile, whether an administrative agency’s act may be the object of an appeal litigation cannot be determined abstractly or generally. In specific cases, an administrative disposition is an act that directly affects the rights and obligations of the public as a law enforcement with respect to a specific fact conducted by an administrative agency as a public authority. Considering the content and purport of the relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the attitude of the administrative agency and interested parties related to the pertinent act, it shall be determined individually in light of the above legal principles (see Supreme Court Decision 2010Du3541, Sept. 27, 2012).

As a result, it is an act that directly affects the rights and obligations of PE Association and PE Government Manufacturers, such as entering into a voluntary agreement and exemption from waste charges. Therefore, it is subject to appeal litigation.

applicable to an administrative disposition.

Next, the notice of this case 2 is an act of directly affecting the rights and obligations of the plaintiff and the Korea Association of Agricultural and Fishery Resources and the Korea Association of Agricultural and Fishery Resources established a joint consortium with respect to the request for voluntary renewal of the agreement that had concluded a voluntary agreement with respect to the duties related to the PE farming films upon entrustment of the duties related to the agreement by each PE farming film manufacturer and recycling business operator, and the defendant decided to renew the voluntary agreement after examining whether the rate of mandatory recycling has been achieved, the conditions of recovery and recycling, etc. in accordance with Article 32-8 of the Resources Conservation Act and Article 14 of the Operational Guidelines of this case, and assessing whether the pertinent qualifications have been met. Thus, the notice of this case is an act of directly affecting the rights and obligations of the plaintiff and the Korea Association of Agricultural and Fishery Resources and the PE farming film manufacturers, as well as the 1 notice of this case

(2) Whether to recognize standing to sue

A) As seen earlier, whether the plaintiff has standing to sue revocation of the first notification of this case to the plaintiff, the first notification of this case is about the PE Association, not the plaintiff, and whether the plaintiff has standing to sue revocation.

Even a third party who is not the direct counter-party to an administrative disposition has a legal interest in seeking revocation of the administrative disposition, standing to sue in a revocation lawsuit shall be recognized, but the legal interest here refers to the direct and specific interest protected by the laws and regulations that form the basis of the disposition in question, and does not include indirect, factual, or economic interest. On the other hand, there are several persons who have applied for a beneficial administrative disposition

When a disposition of permission, etc. against one party is bound to be decided by non-permission, etc. against the other party, a person who was not subject to a disposition of permission, etc. is standing to sue to seek revocation of the relevant disposition even though he/she is not the other party to the disposition of permission, etc. (see, e.g., Supreme Court Decisions 93Nu8139, Jul. 27, 1993; 2009Du8359, Dec. 10, 2009). In relation to this case, the health department, as to the request for the conclusion of the Plaintiff’s voluntary agreement, determined that the Plaintiff was unable to meet the appropriate qualification, and finally rejected on December 11, 2013, the Defendant decided that the request for the conclusion of the Plaintiff’s voluntary agreement was not completed due to the first notification that was made by the Plaintiff thereafter.

The Recycling Promotion Act and the operating guidelines of this case related to the voluntary agreement system provide that the defendant shall enter into an agreement only with persons with appropriate qualifications after examining the target recycling rate, the conditions of recovery and recycling among those who requested the defendant to enter into a voluntary agreement. The number of business operators who may be exempted from waste charges by entering into a voluntary agreement for each item of plastic products or the number of organizations performing the obligations that may be the other party to the agreement are not determined by the voluntary agreement (the relevant Acts and subordinate statutes are scheduled in the form of a principle to enter into a voluntary agreement with manufacturers of plastic products who are the other party to the imposition and collection of waste charges, and allow the manufacturers to enter into an agreement with the non-performance organizations of the entrusted agreement for the efficient operation of the agreement. Generally, multiple manufacturers exist for each item of plastic products. If there are multiple organizations entrusted with the affairs related to the agreement, it is not reasonable to deem that the defendant can be exempted from the waste charges only for the specific manufacturers entrusted with the affairs by entering into a voluntary agreement only with one of them, and it is not reasonable to deem that the defendant immediately concluded the agreement with the Plaintiff through the instant agreement.

B) Whether the Plaintiff is eligible to seek revocation of the instant second notice, the Plaintiff primarily sought revocation of the part of the instant second notice to the Korea Association of Agricultural and Fisheries Resources, and preliminaryly sought revocation of the entirety of the instant second notice.

First, as seen in the above, the plaintiff unilaterally requested the renewal of the voluntary agreement on PE farming films, but is notified by the defendant that the plaintiff would not renew the agreement as a result of the examination on the propriety of the collection and recycling system of the plaintiff, etc., the plaintiff would constitute a joint consortium with the Korea Association of Agricultural and Fishery Resources and the defendant to enter into a voluntary agreement. The defendant also assessed that the joint consortium comprised of the plaintiff and the Korea Association of Agricultural and Fisheries Resources and the Korea Association of Fisheries and Fisheries have an adequate qualification as a result of the evaluation on the appropriateness of the recovery and recycling system of the above joint consortium, and approved the renewal of the voluntary agreement for the above joint consortium, as argued by the plaintiff. Thus, the plaintiff can not seek the cancellation separately from the notice of this case's second agreement on the Korea Association of Agricultural and Fishery Resources.

Next, as to the ancillary claim, since the notice of this case 2 is an administrative disposition that is beneficial to the above joint consortium with the approval for the renewal of the voluntary agreement on the PE farming films of the plaintiff and the Korea Association of Agricultural and Fisheries Resources, the notice of this case 2 is an administrative disposition that is beneficial to the above joint consortium. Thus, it cannot be said that there is a legal interest in dispute over the notice of this case 2 in the qualification of a part of the above joint consortium member, who is subject to the above joint consortium (the "Korea Association of Agricultural and Fisheries Resources" alleged by the plaintiff, is not directly generated from the second notice of this case, but can not be deemed as a direct and specific interest protected by the applicable law of notice of this case. Further, if the manufacturer of PE farming films who entrusted the business affairs to the plaintiff, requests renewal of the agreement with the plaintiff and the Korea Association of Agricultural and Fishery Resources, it cannot be deemed that the voluntary disposal of products related to the system of voluntary agreement and the operation guidelines of this case are limited to the voluntary renewal of the agreement with the plaintiff and the Korea Association.

In the case where the notice No. 2 of this case is revoked, the defendant argued to the purport that there is a legal interest in seeking revocation of the notice No. 2 of this case since the plaintiff had a duty to renew a voluntary agreement with the plaintiff after conducting a reexamination on December 16, 2013 upon the request of a separate review conducted by the plaintiff on his/her own on the part of December 16, 2013. However, the plaintiff filed a request for reexamination to the effect that the renewal of a voluntary agreement with the plaintiff on December 16, 2013, but changed the contents of the request for renewal of a voluntary agreement with the Korea Association of Agricultural and Fisheries Resources for Agricultural and Fisheries Resources (hereinafter referred to as the "Korea Association of Rural Community") to the extent that the notice No. 2 of this case is revoked, and therefore there is no obligation to conduct a separate review

3. Conclusion

Ultimately, since the lawsuit of this case is unlawful, it is decided to dismiss all of them. It is so decided as per Disposition.