Lee Jong-sung (Attorney Park Jong-sung et al., Counsel for the plaintiff-appellant)

Head of Daegu Metropolitan City/Metropolitan City

October 25, 1989

Supreme Court Decision 88Nu4461 Delivered on July 25, 1989

The disposition taken by the defendant against the plaintiff on June 15, 1987 to revoke the permission shall be revoked.

All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

The plaintiff 1 to 8 evidence Nos. 1 to 8 (Evidence Nos. 1 to 4, 7 to 5 and 2-4 of No. 1 to 8, and evidence Nos. 8 to 1 to 7 of the Enforcement Decree of the Petroleum Business Act, and the plaintiff 2 to 5 of No. 17 of the evidence No. 17 (Evidence No. 17-5 to 3 of the evidence No. 17), No. 1 to 3 of the plaintiff 2 to 8 of the same Enforcement Decree of the Petroleum Business Act, and No. 1 to 3 of the same Act, No. 1 to 3 of the same Act, No. 1 to 8 of the Enforcement Decree of the Petroleum Business Act, and No. 1 to 3 of the same Act, the plaintiff 2 of the same Enforcement Decree of the Petroleum Business Act to whom No. 1 to 8 of the same Act had been cancelled, and the plaintiff 3 of the same Act to whom No. 1 to 9 of the plaintiff 1 to 7 of the same aggregate No. 1 to 1 to 9 of the plaintiff

The plaintiff asserts that the thudio value of gasoline can vary according to the adjustmental work, or according to season, and that it can be less than 2 times due to measurement error, it cannot be readily concluded as similar gasoline just by its fact. The plaintiff only sold studio as it is supplied by static oil and its agency, and there is no act that lowers the studio value by mixing studio non-point petroleum products. However, the plaintiff violated Article 22 of the Petroleum Business Act and the defendant's disposition of revoking the permission for petroleum sales business was unlawful.

In light of the whole purport of the oral argument and the statement of evidence Nos. 6 and 7, which are acknowledged as being genuine by the purport of the oral argument, the thothoth value refers to the value assessed by assessing the meltness of fuel of gasoline-resistant combustion engines (unexplosion-type engines). When quality inspection, it can be known that the permissible error of the re-detailed level is from 85 to 0.9, 90 to 0.7, and there is no counter-proof evidence to deem that the thoth value of gasoline can be different by static or season. Thus, the argument that the ordinary gasoline sold by the Plaintiff is not a similar product is groundless.

In addition, in order to punish the act of manufacturing, selling, storing, and transporting pseudo petroleum products in light of the purport of Article 22 of the Petroleum Business Act, it must be recognized by the relevant actor as being pseudo petroleum products. However, inasmuch as the gasoline, which the Plaintiff possessed and managed as a pseudo petroleum product, is found to be pseudo petroleum product, the Plaintiff, barring special circumstances, shall be presumed to have sold it with the knowledge of the fact. The Plaintiff, barring special circumstances, is insufficient to reverse the presumption on the ground that the statement of No. 16-2 of the evidence No. 16-2 of the Petroleum Business (the grounds for non-prosecution disposition without charge against suspicion of selling pseudo petroleum products) alone is insufficient to reverse the presumption, and there is no other evidence to reverse it. Accordingly, we cannot accept the allegation that

In other words, the plaintiff asserts that the revocation of the permission itself for the petroleum selling business for one-time violations is too harsh, so this case's disposition is erroneous in the abuse of discretionary power.

According to Article 13(3)6, Article 13(1)10, and Article 22 of the Petroleum Business Act, when a person who has obtained permission for a petroleum selling business commits an act of selling pseudo petroleum products, etc., the permission may be revoked, or an administrative disposition ordering the suspension of business for a fixed period of not more than six months may be taken. Such a disciplinary disposition is deemed to be an act of the administrative agency's binding discretionary power, and thus, in order to revoke permission for a petroleum selling business accordingly, the necessity of public interest needs to be justified by comparing the degree of infringement by the act of violation and the degree of disadvantage suffered by the parties to the disposition of revocation, considering the content and degree of the violation.

However, according to Article 9-2(1) of the Enforcement Rule of the Petroleum Business Act (amended by Presidential Decree No. 1988, Sep. 10, 198) which provides the criteria for the administrative disposition of a petroleum retailer on the 3. 1. 1. Of the administrative disposition criteria of the attached Table 1 of Article 9-2(1) of the Enforcement Rule of the Petroleum Business Act (amended by Presidential Decree No. 1988, Sep. 10, 198), when a person produces or sells similar gasoline or stores, loads, or transports similar gasoline with the knowledge that it is for sale purposes, he/she shall revoke the permission for the petroleum retailer only once. However, the provisions on the administrative disposition criteria of the attached Table 1 of the above Table cannot be deemed to have the nature of the law because it set the criteria for exercising authority inside the administrative agency, and therefore, it shall not be binding upon the administrative agency's discretion or binding upon the general public (the above provision was amended on September 10, 1988; six months after the suspension of business

In the case of this case, the plaintiff's first violation since he obtained permission for petroleum selling business on December 27, 1984, and the violation of this case's violation, etc., and the deterioration in the value of rooftop due to mixing of high-point petroleum products such as light oil and light oil seems to be due to neglect of management rather than intentional act for profit, and the plaintiff's property loss, etc., which will be suffered due to cancellation of permission are too severe, the disposition of this case's cancellation of permission for petroleum selling business, which is the largest sanction for the reason of one violation, is too harsh, and its discretionary power is excessive (the defendant is Kim Jae-ho, the actual owner of the facilities of the plaintiff's oil station, and the plaintiff's actual violation of this case's permission for the plaintiff's sale of light of the evidence of this case's 1984, which is the first violation of this case's 6th day before and after the issuance of permission for the plaintiff's 1's business, the plaintiff's new violation of this case's name and 6th day after the cancellation of permission.

Therefore, since the disposition of this case is illegal in this point, the plaintiff's claim seeking its revocation is justified, and the total costs of the lawsuit are assessed against the defendant who has lost, and it is so decided as per Disposition.

November 29, 1989

Judges Song Jin-hun (Presiding Judge)

[Attachment Form Omission (Tax Calculation Statement)]