(영문) 서울행정법원 2016.2.18. 선고 2015구합66776 판결

The primary purport of the claim is to confirm that the defendant's disposition of suspension and suspension of sale against the plaintiff on June 15, 2015 is invalid.

Preliminary claim: The defendant's disposition of suspending indication and suspending sales against the plaintiff on June 15, 2015 shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a person who manufactures the same products as indicated below (hereinafter referred to as the “instant products”) at a factory located in the 314-dong, Chang-ro, Seocheon-si (hereinafter referred to as the “instant factory”), and received product certification under the Industrial Standardization Act with respect to the instant products.

A person shall be appointed.

나. 피고는 2014. 8. 1. 서울특별시 품질시험소장으로부터 '2014. 3. 28. 및 2014. 4. 8. 연세로 대중교통전용지구 조성공사 현장에서 원고가 납품한 이 사건 제품의 시료를 채취하여 시험한 결과, 위 제품이 휨 강도 등에 있어 부적합 판정을 받았다'는 사실을 통보받고, 원고를 시판품조사 대상업체로 선정하였다.

C. Accordingly, on November 4, 2014, the Defendant visited the factory of this case and collected samples (hereinafter referred to as “instant samples”) of the instant products produced on July 17, 2014 from the part of broom broom froom (hereinafter referred to as “the instant plastic house”) out of the factory floor plan of attached Table 1 (hereinafter referred to as “the instant plastic house”). The Defendant requested the head of the Korea Construction and Living Environment Examination Institute to conduct a quality test of the instant samples.

라. 그 후 피고는 2014. 12. 12, 한국건설생활환경시험연구원장으로부터 '이 사건 시료에 대한 품질시험을 실시한 결과, 이 사건 제품의 힘 강도가 한국산업표준에 따른 기준치인 4.ON/㎠에 미치지 못하는 평균 3.5N/㎜인 것으로 나타나 불합격 판정되었다'는 사실을 통보받고, 2015. 3. 17. 원고에게 '위와 같은 사유로 표시정지 3개월 및 판매정지 3개월의 처분을 할 예정에 있으니 2015. 4. 10.까지 의견을 제출하라'고 통지하였다.

E. On April 8, 2015, the Plaintiff presented a written opinion to the Defendant on April 8, 2015, and submitted the instant vinyl to the Defendant, and the Defendant asserted that “The instant vinyl was a double-living management unit, and the sample taken from the instant Bash was merely a sales reservation product in the process of double-living, not a sales product.”

F. Accordingly, the Defendant visited the instant factory on May 1, 2015 and additionally obtained the manufacturing process limit of the instant product, and the product inspection report of the instant royalty, etc., and decided to dismiss the Plaintiff’s request for reexamination by submitting the Plaintiff’s opinion and the aforementioned additional data, etc. to the Administrative Disposition Steering Committee held on May 28, 2015, the Defendant issued a disposition of suspending indication for three months and selling them pursuant to Article 21 of the former Industrial Standardization Act (Amended by Act No. 13084, Jan. 28, 2015; hereinafter “former Industrial Standardization Act”) and Article 28 [Attachment 1-2] of the former Enforcement Decree of the Industrial Standardization Act (Amended by Presidential Decree No. 26021, Jan. 6, 2015; hereinafter “former Enforcement Decree”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 4-1, 2, Gap evidence 5-7, Eul evidence 1 through 4, 6, 8, 9, 11, 12, and 15, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that since the subdivision of this case is illegal for the following reasons, it should be invalidated or revoked (preliminary argument).

First, the defendant should investigate the actual sales products in accordance with Article 20 (1) of the former Industrial Standardization Act when conducting an investigation of the goods in the market of this case (hereinafter referred to as the "investigation of this case"). However, the defendant conducted an investigation of the sales reservation products kept in the Yang dong, without disregarding the plaintiff's guidance, which is unlawful in violation of the above provision of the law.

Second, the defendant violated the duty of prior notice under Article 20 (3) of the former Industrial Standardization Act before conducting the investigation of this case.

Third, it goes against the provisions of Article 27-2 of the Administrative Procedures Act to collect only the manufacturing process, etc. by visiting the factory of this case formally without disregarding the request of the plaintiff for reexamination.

Fourth, even though the test procedure for the product of this case was completed on December 12, 2014, the disposition of this case was taken after the lapse of the period from December to March of 2015, which was 12, the defendant, the non-water season, and the plaintiff, the living enterprise, suffered a fatal shooting. Article 28 [Attachment Table 1-2] 1 (d) of the former Enforcement Decree of the Industrial Standardization Act provides that the period of suspension of display and sale may be reduced to 1/2. The plaintiff conducts a thorough inspection of the product of this case, and even in 2014, the plaintiff conducted a 88 test for the product of this case 38 on the site including the product of this case, and the disposition of this case constitutes deviation and abuse of discretionary power.

B. Relevant statutes

Attached Form 2 is as listed in the relevant statutes.

1) Whether the collection of the sample of this case is lawful

First of all, the following facts are recognized in full view of the statements and images of Eul, Eul evidence Nos. 3, 11, 17, Eul evidence No. 18-1, 2-2, and witness Gap's testimony.

On November 4, 2014, B belonging to the National Technical Standard Institute and A (the above two certification examiners) belonging to the Korea Construction and Living Environment Examination Institute (the above two certification examiners) visited the factory of this case for the investigation of this case. At the time, D, in his hand, asked D about the scope of the product of this case to C, was located in the vicinity of the factory floor of this case (attached Form 1).

○ The certification examiner collected samples from the instant product that was kept in custody in the instant vinyl. At the time, the said product was in the state of completion of plastic bags for each arms, and was composed of approximately KRW 360 block (for the instant vinyl, approximately KRW 360 block was set up, and the floor was set up in the instant vinyl) and the inspection tag in the shape of the Stick was attached on the instant vinyl packing, and the said inspection chart included the Korean Industrial Standards (KS) mark (KS), the manufacturing date ( July 17, 2014) and the production log number (140717) of the instant log, and the producer and tallyman were affixed their seals.

As the certification examiner collected samples in the instant vinyl, D requested that “I would have taken samples from a prepared sample because of the preparation of a separate sample,” but D refused this, and D signed a written confirmation (Evidence No. 3) such as collecting samples.

○○ The vinyls alleged by the Plaintiff as the shot site in the market and the vinyls of this case were rarely different in appearance, and the accrediting examiner was not found at the time of the instant investigation.

○ On March 14, 2014, the Defendant collected samples from the instant vinyl house even at the time of investigating goods in the market, and at the time, the Plaintiff did not raise any objection.

According to the product inspection report obtained by the Defendant from the factory of this case on May 1, 2015, the Plaintiff stated that 43,950 of the relevant log products passed all of its power strength, etc. as a result of the Plaintiff’s self-inspection of the instant logs from August 12, 2014 to the instant logs.

In addition to the statements in Eul evidence Nos. 13 and 14 in the above facts, it is difficult to believe that the plaintiff's assertion that the above product still was in existence for more than 3 months since the date of the investigation of this case was 28 days in light of the fact that the two production periods of other cement or concrete products are ordinarily 28 days. Rather, in the above cases, it is difficult to expect that it would be difficult to expect the effect of the two production, and there is no reason to view that the non-compliant products not entered in the product inspection report of this case were separately located in the factory of this case, and that there is no indication that it could be distinguished from the non-compliant goods among the products belonging to the same set, the plaintiff's assertion that the "management operation operation operation operation" after the vinyl of this case had been indicated in the "management operation operation operation" of the sample of this case, as alleged in the attached Form No. 1, the plaintiff's sample of this case can not be seen as being legitimate at the time of the investigation of the removal of the mobile product of this case.

The plaintiff's assertion against this is without merit.

2) Whether prior notification procedures under Article 20(3) of the former Industrial Standardization Act are complied with

The main text of Article 20(3) of the former Industrial Standardization Act provides that "The Minister of Trade, Industry and Energy shall notify the person subject to investigation of the investigation of the date and time, reason, details, etc. of the investigation seven days prior to the investigation in the case of an on-site investigation pursuant to paragraph (1)." However, the proviso of the same Article provides that "However, in cases of urgency or prior notification, it is deemed that the purpose of the investigation cannot be achieved due to the destruction of evidence, etc.

In this case, as seen earlier, the Defendant received the notification from the head of the Seoul Special Metropolitan City Quality Center that there was a problem in the force strength, etc. of the instant product supplied by the Plaintiff, and conducted the instant investigation to verify the fact, and comprehensively taking account of the overall purport of the pleadings on the video of the evidence No. 17 of this case, it is recognized that the instant product is stored in a plastic bag for each arms, and that it is easy for the Defendant to transport the said goods on a two-lane. In such a case, if the Defendant should be given prior notice even in advance, it would be difficult to ensure the effectiveness of the investigation by transporting or destroying defective goods to another place in preparation for the investigation by the Plaintiff.

Therefore, there is no error in the defendant's measures that omitted the prior notification procedure pursuant to the proviso of Article 20 (3) of the former Industrial Standardization Act. The plaintiff's assertion contrary to this is without merit.

3) Whether the opinion under Article 27-2 of the Administrative Procedures Act was reflected

Article 27-2 of the Administrative Procedures Act provides that " When rendering dispositions, administrative agencies shall reflect the opinions submitted by the parties if deemed that there are reasonable grounds."

However, in this case, the plaintiff's request for re-inspection is based on the premise that the defendant did not lawfully collect samples from among the actual sales products, and the defendant again collects samples from among the market goods, and the collection procedure of samples in this case is legitimate as mentioned in paragraph 1).

Therefore, this part of the plaintiff's assertion is without merit, since the requirement of "a case where the opinion submitted by the party is deemed to have a substantial reason" under Article 27-2 of the Administrative Procedures Act is not satisfied.

4) Whether it constitutes a deviation or abuse of discretionary power

Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the offense committed as the grounds for the disposition, the public interest purpose to be achieved by the relevant disposition, and all the relevant circumstances (see Supreme Court Decision 2007Du6946, Sept. 20, 2007).

위 법리에 비추어 이 사건을 보건내, 갑 제3호증, 을 제16호증의 각 기재에 변론 전체의 취지를 종합하면, 원고가 2013년 10월에도 서울 은평구 관내 보도유지보수공사 현장에 납품한 이 사건 제품의 휨 강도 등에 대하여 부적합 판정을 받은 사실, 원고가 앞서 본 연세로 대중교통전용지구 조성공사 현장 납품 건에 대하여 2014. 9. 18. 시정조치 이행을 마친 사실이 인정되고, 위와 같이 원고가 제조한 이 사건 제품의 휨 강도가 재차 부적합 판정을 받고, 시정조치 이행을 완료한 지 2개월도 지나지 않은 시점에 실시된 이 사건 조사에서 이 사건 제품의 강도가 다시 문제된 점, 이로 인하여 한국산업표준 인증제품에 대한 소비자들의 신뢰가 훼손될 우려가 크고, 더욱이 이 사건 제품의 품질은 보행자 등의 안전과도 직결되어 있는 점, 이 사건 시료의 휨

As seen earlier, the intensity was measured by average 3.5N/mm. This is based on the deposit money corresponding to serious defects in accordance with the classification of the criteria for certification examination of the product of this case. In this case, the criteria for disposal under Article 21 of the former Industrial Standardization Act and Article 28 [Attachment 1-2] 2(e) of the former Enforcement Decree of the Industrial Standardization Act are consistent with the disposition of this case for three months of indication suspension and three months of sales suspension. Considering all the circumstances asserted by the Plaintiff, the disposition of this case does not seem to have exceeded and abused the scope of discretionary power.

Therefore, the other plaintiff's assertion is without merit.

3. Conclusion

Therefore, all of the plaintiff's main claim and ancillary claim are dismissed, and it is so decided as per Disposition.