[1] Whether the comparison and analysis of documents related to the production of products constitutes a survey of goods on the market under Article 20(1) of the former Industrial Standardization Act and Article 27(1) of the former Enforcement Decree of the Industrial Standardization Act following the delegation thereof (negative)

[2] Where it is not clear whether the provisions of a subordinate statute conflict with the provisions of a superior statute, but it is possible to interpret the meaning of a subordinate statute as being consistent with the superior law, whether the subordinate statute may declare its invalidation on the ground that the subordinate statute is in violation of the superior law (negative) / Whether the proviso of Article 17 [Attachment 9] 5 and 2 (a) of the former Enforcement Rule of the Industrial Standardization Act has established a new method of a market survey beyond the scope of delegation by the mother law (negative) and its meaning (negative)

[1] Articles 20(1) and 21(1) and (3) of the former Industrial Standardization Act (Amended by Act No. 13737, Jan. 6, 2016); Articles 27(1) and (3), and 28 [Attachment 1-2] of the former Enforcement Decree of the Industrial Standardization Act (Amended by Presidential Decree No. 27807, Jan. 26, 2017; hereinafter “Enforcement Decree”); Article 17 [Attachment 9] of the former Enforcement Rule of the Industrial Standardization Act (Amended by Ordinance of the Ministry of Trade, Industry and Energy No. 216, Sept. 6, 2016); Article 17 [Attachment 9] of the former Enforcement Rule of the Industrial Standardization Act (Amended by Ordinance of the Ministry of Trade, Industry and Energy No. 216, Sept. 6, 2016); and Article 27(1) and (3) of the former Enforcement Decree of the Industrial Standardization Act (Amended by Ordinance of the Ministry of Trade, Industry and Energy; hereinafter “Enforcement Rule”).

① The Industrial Standardization Act clearly separates the “investigation of Goods on the Market” and “field investigation” and prescribes different methods and procedures for the determination of sanctions depending on whether violations have been confirmed through the investigation of goods on the market or whether violations have been confirmed through the investigation of goods on the market. In particular, considering the fact that the investigation of goods on the market provides more strict criteria for disposition in cases where violations have been discovered as a result of the investigation of goods on the market, the scope of the investigation of goods on the market shall not be extended to a disadvantage to the other party to the administrative

(2) Article 27(1) of the Enforcement Decree of the Act stipulates that an investigation of goods on the market shall be conducted by collecting samples from a product. The term “test samples” refers to materials or organisms used in conducting testing, inspection, and analysis in advance, which refer to materials per se subject to investigation. As such, documents related to the production, manufacture, etc. of a product, which is not the component or component of a product, may not be included in the concept of samples.

(3) In cases of ready-mixed products, it is not practically impossible to conduct a survey on goods on the market through the collection of samples.

④ As can be seen, the Industrial Standardization Act clearly prescribes that the investigation of goods on the market shall be conducted by collecting samples from the relevant product. If the examination of documents is deemed to fall under the investigation of goods on the market, it would be practically impossible to distinguish both parties because there is no substantial difference between the investigation of goods on the market and the field investigation.

[2] In a case where it is not clear whether a subordinate statute is in conflict with a superior statute, if it is possible to interpret the meaning of the subordinate statute as consistent with a superior statute by comprehensively taking into account the contents, legislative intent, and history of the relevant statute, it shall not be readily declared invalid on the ground that the subordinate statute is in violation of a superior statute.

Based on these legal principles, in light of the interpretation of the proviso of Article 17 [Attachment 9] 5 and 2(a) of the former Enforcement Rule of the Industrial Standardization Act (amended by Ordinance of the Ministry of Trade, Industry and Energy No. 216, Sept. 6, 2016), the above provision does not establish a new method of investigation of goods in the market beyond the scope of delegation by the mother law, but rather provides that the quality of goods can be examined by comparing and analyzing documents related to the production of goods as an on-site investigation if it is difficult to collect samples from a manufacturing factory.

[1] Articles 20(1) and 21(1) and (3) of the former Industrial Standardization Act (Amended by Act No. 13737, Jan. 6, 2016); Articles 27(1) and (3), and 28 [Attachment 1-2] of the former Enforcement Decree of the Industrial Standardization Act (Amended by Presidential Decree No. 27807, Jan. 26, 2017); Article 17 [Attachment 9] subparagraph 2(a) and 5 of the Enforcement Rule of the former Industrial Standardization Act (Amended by Act No. 216, Sep. 6, 2016); Article 20(1) and (3) of the former Industrial Standardization Act (Amended by Act No. 13737, Jan. 6, 2016); Article 27(1) and (1) of the former Enforcement Decree of the Industrial Standardization Act (Amended by Presidential Decree No. 27816, Jul. 16, 2017>

[2] Supreme Court Decision 2000Du2716 Decided August 24, 2001, Supreme Court Decision 2014Du44502 Decided December 15, 2016 (Gong2017Sang, 144)

Seoul High Court Decision 200Na14446 decided May 1, 200

National Technical Standard Director (Attorney Jeong Jae-chul, Counsel for defendant-appellant)

Seoul High Court Decision 2016Nu75694 decided April 19, 2017

The appeal is dismissed. The costs of appeal are assessed against the defendant.

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

1. Case history

According to the reasoning of the judgment below, the following circumstances are revealed.

A. From August 6, 2015 to July 7, 2015, the Defendant secured the Plaintiff’s automatic measurement records of ready-mixed manufactured and sold at the Plaintiff’s ready-mixed manufacturing plant, and inspected the quality test of ready-mixed based on the details recorded in the records (hereinafter “instant investigation”). As a result of the instant quality test, ten products were found in the same and three products were rejected in the product production conformity test.

B. Article 20(1) of the former Industrial Standardization Act (Amended by Act No. 13737, Jan. 6, 2016; hereinafter “Act”); Article 27(1) and (3) of the former Enforcement Decree of the Industrial Standardization Act (Amended by Presidential Decree No. 27807, Jan. 26, 2017; hereinafter “Enforcement Decree”); Article 17 [Attachment Table 9] subparagraph 5 and subparagraph 2(a) (hereinafter “Enforcement Rule”) of the former Enforcement Rule of the Industrial Standardization Act (Amended by Ordinance No. 216, Sep. 6, 2016; hereinafter “Enforcement Rule”); Article 27(1) and (3) of the former Enforcement Decree of the Industrial Standardization Act (Amended by Presidential Decree No. 27807, Dec. 21, 2015; hereinafter “Enforcement Rule”); Article 17 [Attachment Table 9] subparag. 5, 2015>

2. The judgment of the court below

The lower court determined as follows.

A. In order for Article 28 [Attachment 1-2] Item 2 (c) of the Enforcement Decree to be applied, an “survey of goods in the market” on a certified product should be conducted. The survey of this case was conducted by means of document screening instead of collecting samples.

B. The Act and the Enforcement Decree do not have any provision on the basis of the method of document screening to investigate the goods on the market. However, according to the provision of the Enforcement Rule of the instant case, the goods on the market may be investigated by means of document screening.

C. However, Article 20(1) of the Act and Article 27(1) of the Enforcement Decree of the Act stipulate only the method of collecting samples through the method of investigating goods on the market, and Article 27(3) of the Enforcement Decree delegates to the Enforcement Rule only the matters concerning the procedure, method, etc. of “investigation of goods on the market by collecting samples” (hereinafter collectively referred to as “instant provision”). Nevertheless, the instant provision creates a new method of investigating goods on the market by the method of examining documents not presented by the provisions on the mother of this case, rather than the delegated matters.

D. Therefore, the instant provision is null and void since it goes beyond the scope of delegation by the mother law provision. The instant investigation does not constitute a survey on goods on the market, and the instant disposition was unlawful since it did not meet the requirements of disposition prescribed by the relevant law.

3. Judgment of the Supreme Court

A. Interpretation of the relevant statutes

1) Article 20(1) of the Act provides that the Minister of Trade, Industry and Energy may require a public official or certification examiner to conduct a quality test of accredited products sold (hereinafter “investigation into goods in the market”) or investigate the relevant products or services (hereinafter “field investigation”) at the factory or place of business of a person who has obtained certification, as prescribed by Presidential Decree. Article 21(1) and (3) of the Act provides that an order for improvement, removal or suspension of certification marks, suspension of sale, and other necessary measures may be ordered to a person who has obtained certification, if it is deemed that accredited products or certification services fail to meet the Korean Industrial Standards or certification standards as a result of an investigation into goods in the market or on-site investigation. The detailed standards are prescribed by Presidential Decree.

Article 27 (1) and (3) of the Enforcement Decree pursuant to the delegation of Article 20 (1) of the Act provides that "the investigation of goods on the market shall be conducted after collecting samples from among certified goods in circulation: Provided, That where it is difficult to collect samples in the distribution process, samples may be collected from the manufacturing factory of the goods, and matters necessary for the investigation of goods on the market and the procedures, methods, etc. for on-site investigation shall be prescribed by Ordinance of the Ministry of Industry and Energy. Article 17 [Attachment 9] of the Enforcement Rule pursuant to the delegation shall be prescribed by Ordinance of the Ministry of Trade, Industry and Energy. After collecting samples from the manufacturing factory of the applicant and sealing them, the certification examiner shall provide that "the head of a local Small and Medium Business Administration or the head of an official test and inspection agency (hereinafter referred to as "testing and inspection agency") recognized by the international accrediting organization pursuant to Article 23 (2) of the Act shall apply mutatis mutandis to the examination of the quality of the goods on the market by submitting a request for quality test in attached Form 19 (hereinafter referred to the manufacturing and inspection method of the goods).

Meanwhile, Article 28 [Attachment 1-2] [Attachment 1-2] of the Enforcement Decree of the Act on the Delegation of Article 21(3) [Attachment 1-2] provides for the criteria for dispositions in cases where a violation has been confirmed as a result of investigation of goods on the market and where a violation has been confirmed as a result of an on-site investigation, and the criteria for dispositions in cases where a violation has been confirmed as a result of an on

2) Comprehensively taking account of the above provisions, structure, and language and text of the Industrial Standardization Decree, where samples are collected from products to be sold and quality tests are conducted, it constitutes a market goods investigation. It is reasonable to view that comparing and analyzing documents related to the manufacture of products is a method of a field investigation and does not constitute a market goods investigation.

① The Industrial Standardization Act clearly separates the “investigation of Goods on the Market” and “field investigation” and prescribes different methods and procedures for the determination of sanctions depending on whether violations have been confirmed through the investigation of goods on the market or whether violations have been confirmed through the investigation of goods on the market. In particular, considering the fact that the investigation of goods on the market provides more strict criteria for disposition in cases where violations have been discovered as a result of the investigation of goods on the market, the scope of the investigation of goods on the market shall not be extended and interpreted to a disadvantage to the party against whom administrative

(2) Article 27(1) of the Enforcement Decree of the Act stipulates that an investigation of goods on the market shall be conducted by collecting samples from a product. The term “test samples” refers to materials or organisms used for testing, inspection, and analysis in advance, which refer to materials per se subject to investigation. As such, documents related to the production, manufacture, etc. of a product that is not the component of a product or its component may not be included in the concept of samples.

③ In cases of ready-mixed products, it is not practically impossible to conduct a survey on the market price through sample collection. The proviso to Article 27(1) of the Enforcement Decree provides that samples may be collected from a factory manufacturing the products if sample collection is difficult in the course of distribution. The certification examiner shall collect samples from a factory manufacturing the products according to the “standard for examination by item” under subparagraph 2 of attached Table 1 [Attachment Table 8] according to the “standard for examination by item” under subparagraph 2 of attached Table 1 [Attachment Table 8]. [Attachment Table 9] subparagraphs 5 and 2 (b) of Article 17 [Attachment Table 9] of the Enforcement Rule [Attachment 9], and subparagraphs 5 and 2 (b) of the same Article] of the Act provides that, in cases of ready-mixed products, “one sample sample sample can be collected, including one sample sample transport and sample sample transport” (one sample sample transport and one sample sample sample transport and one sample sample sample transport and one sample sample sample sample transport and one sample sample sample sample transport, including one sample sample transport and one sample sample sample sample transport.”

④ As can be seen, the Industrial Standardization Act clearly prescribes that the investigation of goods on the market shall be conducted by collecting samples from the relevant product. If the examination of documents is deemed to fall under the investigation of goods on the market, it would be practically impossible to distinguish both parties because there is no substantial difference between the investigation of goods on the market and the field investigation.

3) In cases where it is not clear whether a subordinate statute conflicts with a superior statute, and where it is possible to interpret the meaning of the subordinate statute as consistent with a superior statute by comprehensively examining the content, legislative purport, and history of the relevant statute, it does not readily declare invalidation on the ground that the subordinate statute violates a superior statute (see, e.g., Supreme Court Decisions 2000Du2716, Aug. 24, 2001; 2014Du4502, Dec. 15, 2016).

Based on these legal principles, examining the provisions of the instant Enforcement Rule in light of the statutory construction as seen earlier, it is reasonable to deem that the instant Enforcement Rule does not create a new method of investigating goods on the market beyond the delegation scope of the mother law, but rather provides that if samples are difficult to collect at a manufacturing factory, it may examine the quality of goods by comparing and analyzing documents related to the production of goods as a field investigation, not as a market investigation.

B. We examine the factual relations of this case in light of the above legal principles.

1) The Defendant determined that there was a defect after collecting samples from the Plaintiff’s ready-mixed manufacturing factory and examining the automatic measurement records, which are documents related to the production of ready-mixed, not conducting a quality test. Thus, the investigation of this case should be deemed not an investigation of goods on the market, but an on-site investigation. Nevertheless, the Defendant deemed the investigation of this case as an investigation of goods on the market and rendered the disposition of this case by applying the disposition standards according to the result of the investigation of goods on the market under Article 28 [Attachment 1-2] 2 of the Enforcement Decree. Thus, the disposition of this case is erroneous by misapprehending the legal nature of the investigation of this case, thereby applying the relevant

2) Although it is inappropriate for the lower court to determine that the instant provision was null and void beyond the scope of delegation under the instant provision of the mother law, the conclusion that the instant disposition based on the premise that the instant investigation constitutes an investigation of goods on the market is justifiable is justifiable.

4. Conclusion

Therefore, the Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Ki-taik (Presiding Justice)