(영문) 수원지방법원 2016.7.12. 선고 2015구합70042 판결

1. Of the instant lawsuit, the part regarding the claim for cancellation of the cancellation of the issuance of supply certificates as of September 21, 2015 shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Purport of claim

The disposition taken by the Defendant against the Plaintiff on July 30, 2015 by taking weight as 1.02 on the electric power plant listed in the attached Table 1 list as of July 30, 2015 and the disposition on the confirmation of the application for the issuance of supply certificates as of September 21, 2015, shall be revoked.

Reasons

1. Basic facts

A. On December 26, 2012, the Plaintiff obtained a license for the electric generation business (hereinafter “the instant electric generation business”) from the Governor of Jeollabuk-do with the following contents (hereinafter “the instant first license”).

○ Name of power plant: B

○ Contents of Business: solar power generation

○ Place: Dolsan City C, D

○ Equipment Capacity: 99kW

○ Facility Area: 17,852 square meters

B. On April 2014, the Plaintiff newly constructed a ductal building (hereinafter referred to as “the instant stable”) on the ground level C and E (DD was subject to registration conversion on December 4, 2013). On April 11, 2014, the Plaintiff obtained approval for the use of the instant stable.

C. The Plaintiff filed an application with the Governor of Jeollabuk-do for the change of the location of the instant first permitted power generation business into 9,286 square meters of the building upper part of this company, and the facility size thereof. On September 23, 2014, the Plaintiff obtained permission from the Governor of Jeollabuk-do to change the instant power generation business (hereinafter “instant change permission”).

D. On May 29, 2015, the Defendant underwent a pre-use inspection on the power generation facilities (facilities management number: F; hereinafter referred to as “facilities of this case”) installed for the instant power generation business, and reported the commencement of the instant power generation business around June 2015.

E. On June 26, 2015, the Plaintiff filed an application with the Defendant for the confirmation of facilities subject to the issuance of supply certificates regarding the instant facilities. On July 30, 2015, the Defendant deemed that the instant facilities fall under the case where the existing facilities, such as a building, were not used, and issued a written confirmation of facilities subject to the issuance of supply certificates (Evidence A No. 4) with weight added to 1.0 (hereinafter “the instant facility confirmation”).

F. The Plaintiff began to supply electricity from June 1, 2015 in accordance with the supply contract entered into with the Korea Electric Power Corporation. On September 21, 2015, the Plaintiff applied for the issuance of a supply certificate to the Defendant on September 21, 2015. On September 21, 2015, the Defendant issued a new and renewable energy supply certificate (referring to the unit that grants weight to the new and renewable energy power supply quantity supplied in the facilities subject to the supply certificate) to the Plaintiff on June 21, 2015 (hereinafter referred to as “instant application”). At his/her request, the Defendant issued a confirmation document confirming that the new and renewable energy supply certificate was applied for by multiplying the weight of the equipment in the instant case by the weight of the new and renewable energy supply quantity supplied in the facilities subject to the supply certificate (hereinafter referred to as “instant confirmation”).

G. On September 25, 2015, the Defendant confirmed that the monthly power generation volume of the instant facility was 35,410kWh, and issued a supply certificate to the Plaintiff on September 25, 2015, using the weight of the instant facility as 1.0 and the certified quantity as 36REC. The Defendant issued a supply certificate by applying the weight stipulated in the confirmation of the instant facility to the volume of electric power supplied by the Plaintiff for the pertinent month thereafter at the request of the Plaintiff thereafter.

【Ground of recognition】 Facts without dispute, Gap’s 1 through 5, 10 evidence, Gap’s 12-1 through 12, the purport of the whole pleadings

2. Relevant statutes;

Attached Table 2 shall be as stated in the relevant statutes.

3. Judgment on the defendant's main defense of safety

A. The defendant's main defense

1) The confirmation of the instant facilities is merely an official confirmation of the Defendant, upon the Plaintiff’s request, that the instant facilities are the facilities that enable the issuance of supply certificates, and it is nothing more than an official confirmation of the fact without discretion or determination. Since an operator of the electric generation business, inasmuch as the operator of the electric generation business should initiate the actual power production, but is issued with a supply certificate with weight applied to the relevant amount of power generation, the specific right of the operator of the electric generation business arises at the time of the production by using the relevant facilities. Therefore, the confirmation of the instant facilities does not affect the Plaintiff’s specific rights

2) The confirmation of the instant application is merely the fact that the Plaintiff applied for the issuance of supply certificates by accessing the management system after producing and selling electric power, and does not constitute a disposition that specifically affects the Plaintiff’s rights and obligations.

B. Determination

1) As to the claim for revocation of the instant facility confirmation among the instant lawsuit

A) According to Article 12-7(3) of the Act on the Promotion of the Development, Use, and Diffusion of New and Renewable Energy (hereinafter “New and Renewable Energy Act”), a supply certification institution shall issue a supply certificate after confirming the amount and supply period, etc. by type of new and renewable energy upon receipt of an application for the issuance of a supply certificate. In such cases, with respect to new and renewable energy that requires balanced use, distribution, promotion of technological development, etc., a supply certificate may be issued in an amount calculated by multiplying the actual amount of supply by the weight. According to Article 12-7(5) of the same Act, a person who has received a supply certificate may issue a supply certificate in a trading market established by the supply certification institution (amended by Ordinance No. 2015-1 of March 10, 2015; hereinafter “Rules on Issuance of a Supply Certificate”) for the Issuance and Operation of a Supply Certificate and Operation of a Trading Market (hereinafter “Rules on Issuance before its amendment”).

Meanwhile, in order to provide for detailed matters necessary for efficiently operating the mandatory supply system of new and renewable energy according to the delegation of the New and Renewable Energy Act, Article 8 of the Guidelines for Management and Operation of the mandatory supply system of new and renewable energy (hereinafter referred to as the “Guidelines for Operation of the mandatory supply system”) publicly notified by the Ministry of Trade, Industry and Energy provides that a person who intends to obtain a supply certificate must obtain confirmation that the relevant new and renewable energy facilities are subject to the issuance of the supply certificate before the first issuance of the supply certificate shall obtain from the defendant before the issuance of the supply certificate. Article 13(4) of the Rules for Issuance of the supply certificate provides that a person who intends to obtain a supply certificate shall obtain confirmation that the new and renewable energy facilities are subject to the issuance of the supply certificate; whether the facilities fall under the subject matter of the issuance of the supply certificate; whether the facilities fall under the facilities subject to weight; whether the installation type and installation capacity of the supply certificate coincide with the contents of the application (Article 13(4)); the defendant shall register and manage the details thereof in the management system (Article 14(1).).

B) In light of the contents of the above relevant laws and regulations, the guidelines for the operation of the mandatory supply system and the rules for the issuance of supply certificates provided that the Defendant, the supply certification institution prior to the issuance of the supply certificates, has the system for the confirmation of facilities that enable the Defendant, the supply certification institution prior to the issuance of the supply certificates, to verify whether the relevant facilities fall under the facility subject to the issuance of the supply certificates, and the burden to verify the application of the weight thereof is less necessary for the issuance of the supply certificates, the Defendant to check the relevant facilities prior to the initial issuance of the supply certificates and determine whether the relevant facilities are subject to the issuance of the supply certificates, weight, and the details of the application correspond to the actual conditions. In the subsequent stage of the issuance of the supply certificates, the purpose of the following provisions is to promptly process the issuance of the supply certificates after calculating the REC by multiplying only the monthly electric power transaction records provided by

As above, a person who intends to obtain a supply certificate shall first obtain confirmation on the relevant facility before the first issuance of the supply certificate, and only the facilities confirmed as the object of the supply certificate and registered in the management system can obtain the supply certificate after the issuance of the supply certificate at the facility confirmation stage, and only the facilities determined to be subject to weight in the facility confirmation can be subject to the weight at the issuance stage of the supply certificate. In light of such circumstances, the confirmation of the instant facility is not merely an internal procedure in the process of the issuance of the Defendant’s supply certificate, but is subject to the individual and specific regulation of the rights and legal interests of the operator

Therefore, this part of the defendant's main defense is without merit.

2) As to the claim for cancellation of confirmation of the instant application among the instant lawsuit

Article 19(1) of the Rules on the Issuance of Supply Certificates provides that a person who intends to obtain a supply certificate shall file an application for the issuance of a supply certificate in accordance with attached Form 7, and that it may be verified in attached Form 8 from the management system, and according to the entries in the evidence No. 5, the instant application certificate can be recognized that it is merely an entry of the details of the Plaintiff’s application in attached Form 8.

In light of these circumstances, the confirmation of the instant application is merely confirming the existence of an application for the issuance of a supply certificate with respect to the power produced and sold by using the instant facilities from the Plaintiff, and it cannot be deemed that it directly affects the Plaintiff’s rights and obligations.

Therefore, the defendant's main defense pointing this out is justified, and the part of the lawsuit in this case's claim for cancellation of the application in this case is unlawful.

4. Determination on the legitimacy of the facility confirmation of this case

A. Summary of the plaintiff's assertion

1) The rule on the issuance of supply certificates stipulates that the above building shall obtain approval for the use of existing facilities, such as a building subject to weight 1.5, before the date of the first permission for electricity generation business. However, since this does not stipulate in the guidelines for the operation of the mandatory supply system, which is a superior law, it is invalid in violation of the limit of delegated legislation or merely is an internal guidelines inside the defendant, and thus, is not effective against the plaintiff. Since the Plaintiff obtained approval for the use of the instant stable around May 2014, the transfer of the instant permission for the change, the Plaintiff is deemed to fall under “the use of existing facilities, such as a building, as set forth in the guidelines for the operation of the mandatory supply system,” and thus, applying weight 1.5 to the instant facilities installed at the instant livestock shed.

2) Unless otherwise, the rules on the issuance of supply certificates, which had been enforced before the Plaintiff obtained the instant permission, did not stipulate that the approval for use of the existing facilities, such as buildings, should be obtained prior to the date of permission for the first electricity generation business. Therefore, the Plaintiff’s trust in constructing the instant stable and installing the instant facilities ought to be protected, i.e., the weight 1.5.

B. Determination

(1) Validity of the Rules on the Issuance of Supply Certificates

A) Article 12-7(3) of the New and Renewable Energy Act provides that a supply certification institution shall issue a supply certificate after verifying the supply amount, supply period, etc. by type of new and renewable energy, and in this case, with respect to new and renewable energy which requires balanced use, distribution, and promotion of technological development, etc., a supply certificate may be issued with the amount calculated by multiplying the actual supply amount by the weight, as prescribed by Presidential Decree. Article 18-9 of the Enforcement Decree of the New and Renewable Energy Act provides that the weight of new and renewable energy in question shall be determined and publicly announced by the Minister of Trade, Industry and Energy in consideration of the impact of the new and renewable energy in question on the environment, technological development and industry revitalization, power generation cost, potential effect on the reduction of greenhouse gas emissions, impact on the stability of demand and supply

According to the delegation, the guidelines for operating the mandatory supply system provides for the weight of the supply certificate in attached Table 3. According to the above attached Table 3, where the capacity of the solar energy power generation facilities is not more than 3,00 km, the weight is 1.0 in the case of construction on the general site, and the weight is 1.5 in the case of construction on the existing facilities such as a building, and the “building” refers to the equipment meeting the detailed standards set by the head of the supply certification institution in order to obtain approval for use of the building before the date of permission for power generation business and to secure compliance with the relevant provisions, such as the Building Act, and ensure stability, etc... In accordance with the delegation, Article 13(4)3 of the Rules on the issuance of supply certificates provides that the issuance of supply certificates shall be issued by ascertaining whether the Defendant falls under the facilities subject to the issuance of supply certificates under the attached Table 1 when the Defendant confirms the facilities subject to the issuance of supply certificates, and the attached Table 1 provides for the standards for the facilities subject to the issuance of supply certificates, and the first approval for the use of the existing facilities.

B) As above, the rules on the issuance of supply certificates may stipulate the detailed standards for the facilities subject to the issuance of supply certificates in accordance with the delegation by the guidelines for the operation of the mandatory supply system. In light of the following circumstances, in applying weight to the facilities installed using the existing facilities, such as buildings, the limitation to the above buildings to have obtained approval for use before the first date of permission for the electric generation business, is merely a specification of the provisions of the upper statutes, and thus, it cannot be deemed lawful and valid since it does not exceed the delegation scope of the guidelines for the operation

(1) According to Article 7(1) and (2) of the Electric Utility Act, a person who intends to operate an electric utility business shall obtain permission from the Minister of Trade, Industry and Energy for the Ministry of Trade, Industry and Energy, and even if he/she intends to modify any of the important matters specified by Ordinance of the Ministry of Trade, Industry and Energy among the matters so permitted, he/she shall undergo prior deliberation by the Electrical Affairs Commission,

(2) Article 18-9 of the Enforcement Decree of the New and Renewable Energy Act provides that weight shall be publicly announced by the Minister of Trade, Industry and Energy, taking into account the environment of new and renewable energy, technology development, impact on industrial activation, impact on the reduction of greenhouse gas emissions, and the degree of acceptance of local residents. Accordingly, granting more weight to the use of existing facilities, such as buildings, compared to the cases where attached Table 3 of the Guidelines for Operation of the Mandatory Supply System is installed in general sites, is likely to induce the installation of new and renewable energy power generation facilities by considering the legislative intent of the New and Renewable Energy Act to preserve the environment by promoting environment-friendly conversion of energy structure and reduction of greenhouse gas emissions through activation of new and renewable energy industry. However, in the instant case, compared to the case where a power generation business operator has obtained permission from the beginning to install power generation facilities using existing facilities from the beginning, it is difficult to deem that the impact on the environment is significantly different from the case where the power generation facilities are installed on the site as originally permitted.

(3) In light of the contents of these regulations and the legislative purpose of the Guidelines for Operation of the New and Renewable Energy Act and the Mandatory Supply System, "the use of a building that obtained approval for use prior to the date of permission for the power generation business" under the Guidelines for Operation of the Mandatory Supply System, it is reasonable to interpret "the permission for the power generation business" as only the first permission for the power generation business, and it does not include the revised permission for the modification of the original permission.

2) The legality of weight given in the instant facility verification

As seen in the above facts, the Plaintiff obtained the permission to change the construction of the instant livestock shed in the upper part of the instant livestock shed, which was newly constructed within the same lot number as the installation of the instant facilities on the site. As such, the Plaintiff did not obtain the approval for use for the instant livestock shed as of the time of the initial permission. As such, the instant facilities do not constitute “the use of existing facilities, such as the building that is subject to the weight issuance of the guidelines for operating the mandatory supply system and the rules for issuing supply certificates.” As long as the instant facilities do not fall under “the case of installation on the water surface of the maintenance”, they constitute the case of installation on the general site, and their capacity is more than 100 centimeters, and thus, they ought to be applied with weight 1.0.

Therefore, it is legitimate that the defendant judged the weight of the equipment of this case as 1.0, and the plaintiff's assertion against this is without merit.

3) Whether the principles of trust protection are violated

In general, in administrative legal relations, in order to apply the principle of trust protection to the acts of an administrative agency, first, the administrative agency should name the public opinion that is the subject of trust to the individual, second, there is no reason attributable to the individual's trust that the individual's statement of opinion is justifiable, third, the individual must act in a similar manner as a result of the individual's trust in the name of the administrative agency's statement of opinion, fourth, the administrative agency's disposition that is opposite to that of the opinion statement, thereby causing an infringement on the individual's interests, fifth, if an administrative disposition is taken in accordance with the previous statement of opinion, there is no possibility that it may seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2004Du13592, Feb. 24, 2006).

As acknowledged earlier, the provision on the issuance of supply certificates limits the case where the use of an existing structure, such as a building, is approved prior to the date of the first electric generation business permission. However, even if the Plaintiff’s construction of the instant structure on the site is erroneous as being subject to applying weight to “the case where the Plaintiff alters the permitted contents to install the existing structure, such as a building,” it is merely due to erroneous statutory construction, and there is no evidence that the Plaintiff explicitly expressed the public opinion that the Defendant would grant weight to 1.5 in the event that the Defendant alters the permitted contents. Thus, this part of the Plaintiff’s assertion is without merit.

5. Conclusion

Therefore, the part of the lawsuit of this case concerning the claim for cancellation of confirmation of the motion of this case is unlawful, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.