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본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
대법원 1989. 7. 25. 선고 88누461 판결
[석유판매업허가취소처분취소등][공1989.9.15.(856),1304]
Main Issues

(a) Whether mixing gasoline with gasoline or light oil constitutes pseudo petroleum products (affirmative);

(b) proof of the recognition of pseudo petroleum products in violation of Article 22(2) of the Petroleum Business Act;

Summary of Judgment

(a)a pseudo petroleum product prescribed in Article 22, paragraph 2, of the Petroleum Business Act includes mixture of high-point substances, such as oil or light oil, into normal gasoline;

(b) In a violation of Article 22(2) of the Petroleum Business Act, where gasoline sold under the possession control of a petroleum retailer is found to be a pseudo petroleum product, a petroleum retailer shall be deemed to have sold pseudo petroleum products with the knowledge that it was a pseudo petroleum product, and the fact that there was a special circumstance that it was not known that it was a pseudo petroleum product, barring special circumstances.

[Reference Provisions]

(a)Article 22(2) of the Petroleum Business Act;

Reference Cases

A. Supreme Court Decision 87Nu962 delivered on December 6, 198, Supreme Court Decision 88Nu5136 delivered on February 14, 1989

Plaintiff-Appellee

[Plaintiff-Appellant] Park Hun-chul et al., Counsel for plaintiff-appellant

Defendant-Appellant

Head of Daegu Metropolitan City/Metropolitan City

Judgment of the lower court

Daegu High Court Decision 87Gu174 delivered on March 2, 1988

Notes

The judgment below is reversed, and the case is remanded to the Daegu High Court.

Due to this reason

We examine the Defendant’s grounds of appeal.

1. According to the reasoning of the judgment below, under the premise that the mixture of other petroleum products does not constitute the manufacture of pseudo petroleum products under Article 22(2) of the Petroleum Business Act, the court below held that the gasoline sold by the plaintiff in this case does not constitute a pseudo petroleum product under Article 22(2) of the same Act since it is a product with high-end substance, such as petroleum products, light oil, light oil, heavy oil, etc. less than the standard value by mixing the normal gasoline, and thus does not constitute a pseudo petroleum product under Article 22(2) of the same Act. However, even if gasoline sold by the plaintiff falls under the above pseudo petroleum product, if a petroleum retailer sells it without knowing that it constitutes the above pseudo petroleum product, it shall not be deemed a violation of Article 22(2) of the same Act. In this case, the court below held that there is no evidence to acknowledge that the plaintiff mixed other petroleum products or petrochemicals with the normal gasoline or sold the gasoline with the knowledge that it was below the standard value of gasoline.

2. However, pseudo petroleum products under Article 22 (2) of the Petroleum Business Act include mixture of high-point petroleum products, such as light oil and light oil (see Supreme Court Decision 87Nu962 delivered on December 6, 198). Thus, the judgment of the court below that the gasoline sold by the plaintiff was not pseudo petroleum products shall be deemed to fall under the interpretation of the Petroleum Business Act.

3. In addition, Article 22(2) of the Petroleum Business Act provides that anyone shall not produce or sell pseudo petroleum products for the purpose of selling them, and keep, load, or transport them with the knowledge that pseudo petroleum products are pseudo petroleum products for the purpose of selling them. Thus, it is the time of original judgment that the act is aware of pseudo petroleum products. However, in a case where gasoline sold under the Plaintiff’s possession and management is found to be pseudo petroleum products, the Plaintiff shall be deemed to have sold pseudo petroleum products with the knowledge that it is pseudo petroleum products, and the fact that there was a special circumstance that the Plaintiff did not recognize pseudo

Nevertheless, the court below did not err by misapprehending the burden of proof regarding the recognition of prohibited violation of Article 22 (2) of the Petroleum Business Act on the ground that the court below did not have any evidence to acknowledge that the plaintiff sold pseudo petroleum products with knowledge that they were pseudo petroleum products.

4. Therefore, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)