2019Guhap51604 Revocation of Disposition not to grant import permission and sales plan approval for specific substances

A

Law Firm Hyeong, Attorney Kim Jong-soo

Attorney Lee Dong-hwan

The Minister of Trade, Industry

Law Firm Man-woo, Counsel for plaintiff-appellant

Attorney Lee In-hwan

October 24, 2019

November 12, 2019

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of refusal to import and sell specific substances against the plaintiff on December 31, 2018 is revoked.

1. Details of the disposition;

A. The Plaintiff is a business operator engaged in the wholesale and retail business of freezing and pression gas, etc. with the trade name of “B”.

B. On November 2017, the Plaintiff filed an application with the Defendant for permission for import and approval of sales plans for specific substances under Article 2 subparag. 1 of the Act on the Control, etc. of Manufacture of Specific Substances for the Protection of the ozone layer (hereinafter referred to as “the Act”), Article 2(1) [Attachment 1] of the Enforcement Decree of the same Act, and Article 2(1) [Attachment 1] of the Enforcement Decree of the same Act.

C. On October 19, 2012 and 31, the Defendant decided that the second control material for which the Plaintiff applied for import permission was the case where the base quantity (the import performance in 2019-2010) for import permission for the import of specific substances within the base limit in Korea (No. 2019-487 of the Ministry of Knowledge Economy notification), based on the review of the 58th Adjustment Council on the Supply and Demand of Specific Substances (No. 2018, Dec. 20, 2018), the Plaintiff applied for the approval of import and sales plan for specific substances in 2019, on the ground that the Plaintiff did not become a person subject to import permission due to lack of standard quantity, and that the Plaintiff does not become a person subject to import approval for the said application (hereinafter referred to as “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) Absence of legal basis for the disposition

Article 11(1) and (2) of the Act provides only the case where the standard limit for calculating the amount of consumption in accordance with Article 3(1) is met as the standard for permission for import. Nevertheless, the Defendant arbitrarily prepared the standard for the subject of permission for import without any legal basis and made the instant disposition.

(ii) the deviation and abuse of discretionary power;

On October 19, 2012, in order to regulate the manufacture and import permission of specific substances in the Supply and Demand Coordination Council, the Defendant established the standards for the import permission of specific substances from 2009 to 2010, and applied the said standards up to the present day. The said standards are thoroughly prevented from entering the new company’s market and excessively protect the existing company’s interests. Thus, the instant disposition based on the said standards cannot be deemed a reasonable standard. Thus, it is unlawful to deem that the instant disposition based on the said standards was an abuse of discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In order to enforce the Vienna Convention for the Protection of the ozone layer and the Montreal Protocol on Substances that Destroye the ozone layer (hereinafter referred to as the “Protocol”), the Act was established for the purpose of regulating the manufacture, use, etc. of specific substances, facilitating the development and use of alternative substances, and efficiently promoting the suppression of emissions and the rationalization of use, etc. of specific substances (Article 1). The former part of Article 11(1) of the Act provides that “any person who intends to import specific substances shall obtain permission from the Minister of Trade, Industry and Energy, as prescribed by Ordinance of the Ministry of Trade, Industry and Energy.” The former part of Article 11(2) provides that “The Minister of Trade, Industry and Energy may grant permission or permission for modification only when specific substances for which he/she intends to obtain permission or permission for modification under paragraph (1) conforms to the standard limit

Article 3(1) of the Act provides that "The Minister of Trade, Industry and Energy and the Minister of Environment shall determine and publicly announce the standard limits on the quantity of production and the quantity of consumption of specific substances to be observed by Korea in order to implement the Protocol," and Article 17 provides that "the Minister of Industry and Commerce and the Minister of Environment and the Minister of Environment shall establish and publicly announce guidelines to prevent the emission of specific substances and to promote the rationalization of the use of specific substances, if deemed necessary for the implementation of the Vienna Convention and the Protocol for the Protection of the Errors".

On the other hand, Article 11 of the Enforcement Decree of the ozone layer Protection Act stipulates that the Supply and Demand Coordination Council for Specific Substances shall be established in the Ministry of Trade, Industry and Energy to deliberate on the standards for production and consumption calculation of specific substances. On October 19, 2012, the Supply and Demand Coordination Council for Specific Substances opened the 48th Council on the 19th 19th 201 and passed a resolution on the standards for production and consumption consumption of specific substances, and ② the guidelines for manufacturing and import licensing of specific substances for the reduction of specific substances (hereinafter referred to as the "the 48th resolution"). Among them, the main contents of the guidelines related

(1) In order to facilitate the manufacture and import of specific substances subject to the permission for import, where limited alternative substances have been manufactured or imported in 2009 and 2010, and where there is a standard quantity to facilitate the use of such substances, and to restrict new entry, many countries, including the permitted EU and Australia, etc., within the limits of annual standards, such permission for specific substances shall be limited to manufacturers who have a standard quantity even at the time of the first reduction, and where there is no application for permission for the manufacture, import, and permission for specific substances for two consecutive years even if there is a standard quantity.

허가 대상자에서 제외됨② 특정물질의 제조 및 수입허가 수량○ 특정물질의 제조 및 수입허가, 판매계획의 수량은 허가를 신청한 자의 전년도 허가 수량에 해당연도의 감축을 적용하여 산정- 2013년도 특정물질의 제조 및 수입허가, 판매계획의 수량은 허가대상자별 기준수량으로 정함* 2013년도 특정물질의 제조 및 수입허가, 판매계획은 2012.11.15일까지 신청을 받아, 2012.12월중 특정물질 수급조정심의회 개최 의결을 통해 결정할 계획|또한, 특정물질의 혼합물인 경우 특정물질의 종류별 함유량(%)을 적용하여 허가 수량을 산정○ 신청이 없는 등 기준한도에서 허가하고 남은 수량은 물질의 종류에 관계없이 오존파괴지수로 환산한 업체별 기준수량 비율에 따라 배정

According to the 48th resolution, the production volume and consumption limit of specific substances (HFC) (No. 2012-487, Ministry of Knowledge Economy No. 201, Oct. 26, 2012) (hereinafter referred to as "public notice of this case") were implemented.

The instant public notice sets the annual average reduction rate based on the annual average reduction rate calculated on the basis of the ceiling on the base limit on the previous year’s production and consumption of specific substances in 2013, 2015, 2020, 2025, and 2030 pursuant to the Protocol, from 2013 to 2030. According to this, the annual production and consumption of specific substances gradually reduces the production and consumption of specific substances from 2013 to 2030, thereby making all the production and consumption of specific substances zero in 2030.

2) According to the above facts, the instant disposition was made on the ground that the Plaintiff had no record of importing the instant specific substance in 209 and 2010 in accordance with the guidelines for permission for import prescribed in Article 48. However, in light of the above language, structure and purport of the Act, etc., the following circumstances, i.e., (i) the Act on the Protection of the ozone layer regulates the manufacture and use of specific substances which mainly cause the destruction of the ozone layer to enforce the Vienna Convention and the Protocol, and its main purpose is to restrain the emission of specific substances. (ii) Article 11(2) of the Act provides that permission shall be granted only in cases where it conforms to the standards for calculating the consumption volume of specific substances to obtain permission for import, and does not provide for specific requirements, and thus, it is difficult to consider that the Plaintiff’s 10-year government has a broad discretion to determine whether to obtain permission for the import of specific substances within the scope of the legislative purport of the Act on the Protection of the ozone layer and its new content.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, appointed judge and appointed judge

Judges Kim Gin-sung

Judges Chak-young

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.