201. Revocation of the disposition of imposition of penalty surcharge

100

Jeonju-si Efficition Automatic

Attorney Park Jae-soo, Counsel for the defendant-appellant 000

Jeonju Market

Litigation performers 000

February 7, 2012

March 20, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant’s disposition of imposing penalty surcharge of KRW 40,00,000 against the Plaintiff on July 1, 201 is revoked.

1. Details of the disposition;

A. From January 5, 2007, the Plaintiff is a person who has run a petroleum selling business under the trade name of "Yansan-dong 00 to 00 gas stations in Jeonju-si, Jeonju-si (hereinafter "the gas station").

B. At around March 15, 2011: around 30, the former North Korea's branch discovered the site where a dump truck No. 00000, a vehicle transited (hereinafter "the instant vehicle") from the gas station in the instant case, was running away on the front-nam truck (hereinafter "the instant vehicle"), and notified the Defendant of the fact on March 24, 201.

C. Accordingly, on April 13, 201, the Defendant issued a disposition of suspension of business for two months by applying Article 39(1)5 of the Petroleum and Petroleum Substitute Fuel Business Act (hereinafter “The Petroleum Business Act”) and Article 43(1)5 of the Enforcement Decree of the same Act to the Plaintiff on the ground that the Plaintiff violated Article 13(3)8 and (4) of the Petroleum Business Act and Article 16 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Knowledge Economy No. 232, Dec. 30, 201; hereinafter the same shall apply) on the ground that he/she sold the Plaintiff’s fuel for a vehicle via lue oil.

D. On June 22, 2011, the Plaintiff filed an administrative appeal with the Jeollabuk-do Administrative Appeals Commission, and the above Council rendered a decision that the disposition of the suspension of business was changed to the imposition of a penalty surcharge in lieu thereof for two months. Accordingly, on July 1, 2011, the Defendant imposed a penalty surcharge of KRW 40,000,000 on the Plaintiff by applying Article 14(1)3 of the Petroleum Business Act and Article 17(1) [Attachment 2] of the Enforcement Rule of the same Act to the Plaintiff (hereinafter “instant disposition”).

【Uncontentious facts, Gap’s evidence Nos. 3, 4, and 5, Eul’s evidence No. 1, Eul’s evidence No. 2-1, 2, Eul’s evidence Nos. 5 and 6, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of the grounds for disposition

However, it was true that the driver of the vehicle in this case oil oil paid to the vehicle in this case, without notifying the owner of the vehicle to the plaintiff or his employee, it was attributable to the mixture of the alcoholic beverage and the alcoholic beverage abandonment of light oil. The plaintiff did not know at the time that 000 oil was paid to the vehicle in this case, and it was not possible to expect that it would be paid to the vehicle in the vehicle due to the alcoholic beverage for delivery, etc., which was installed on the front side of the gas station, rather than the alcoholic beverage for sale of the vehicle placed on the vehicle in this case. Thus, insofar as the plaintiff did not have the awareness that it was sold as fuel for the vehicle in this case, it cannot be deemed that it sold the vehicle via the oil, such as the high-priced oil, to the fuel for the vehicle in this case, and therefore, it was unlawful in the previous disposition of the ship in this case.

2) A deviation from and abuse of discretionary power;

Even if it is recognized that the Plaintiff sold a vehicle as fuel for a vehicle via the oil of domestic light, the Defendant’s imposition of a penalty surcharge of KRW 40,00,000, without reducing the amount of the penalty surcharge at all, is unlawful as it goes beyond the scope of the exercise of discretionary power, in light of the following: (a) there are circumstances that may be considered in light of its circumstances; (b) the degree of violation is minor; and (c) the scale of the gas station of this case is not large.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

1) Determination as to the non-existence of the grounds for disposition

Sanction against violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws and regulations in order to achieve administrative purposes. Thus, barring any special circumstance, such as where a failure to perform the duty of the violator is not caused due to a justifiable reason, etc., it may be imposed on the violator intentionally or by negligence (see Supreme Court Decision 2002Du5177, Sept. 2, 2003, etc.).

In light of the above legal principles, in addition to the purport of the argument as to this case, Gap evidence Nos. 8, Eul evidence Nos. 2-1, and Eul evidence Nos. 2-2 and 2, it is acknowledged that the plaintiff provided oil to his dump truck, which is a vehicle for transit, at the oil station operated by the plaintiff, and the plaintiff received the oil payment from 000. According to the above facts, it is reasonable to deem that the plaintiff sold the automobile via oil, etc. as fuel. Even if the plaintiff did not know that he directly paid oil to the vehicle of this case, even if the plaintiff did not recognize that he directly paid oil to the vehicle of this case, the plaintiff did not perform an act prohibited by the Petroleum Business Act as a business operator of the gas station of this case, so long as the plaintiff violated his duty, it is difficult to view that the plaintiff violated his duty, and thus, the plaintiff did not have any justifiable reason to believe that the plaintiff violated his duty to sell the vehicle of this case without any justifiable reason. The plaintiff's disposal of the fuel of this case is justified.

2) Determination on deviation and abuse of discretionary power

In determining whether a punitive administrative disposition is unlawful by deviating from or abusing the scope of discretion under the social norms, the content of the offense as the grounds for the disposition, the public interest to be achieved by the relevant disposition, and all other circumstances pertaining thereto, must be objectively examined to determine by comparing and comparing the intent of infringement on public interest and disadvantage to be suffered by an individual (see Supreme Court Decision 9Du1519, Sept. 24, 2002, etc.).

According to Article 39(1)5, Article 13(3)8, Article 14(1)3, and Article 43(1)5 of the Enforcement Decree of the Petroleum Business Act, where a petroleum retailer sells oil, etc. as fuel of an automobile and commits an act of violating Article 39 of the Petroleum Business Act by selling it as fuel of an automobile, a penalty surcharge of not more than 2 billion won may be imposed in lieu of a disposition of business suspension. According to Article 17 of the Enforcement Rule of the same Act [Attachment 2] 17 of the same Act [Attachment 2] 17 of the same Act, a penalty surcharge of not more than 40,00,00 won may be imposed in lieu of a disposition of business suspension to a petroleum retailer operating a gas station. The Plaintiff’s act conforms to the disposition standards under the related Acts and subordinate statutes, such as the price of light oil compared to the price of light oil, and the Plaintiff’s act may cause unfair concerns about the supply of and demand for petroleum products and the price of environmental oil, thereby causing confusion and stability.

In light of the fact that it is necessary for the public interest to regulate the Plaintiff’s act against the purport of the Petroleum Business Act with a view to contributing to the development of the national economy and the improvement of the people’s lives by securing B, considering various circumstances cited by the Plaintiff, it cannot be deemed that the public interest to achieve the instant disposition is less light than the disadvantage that the Plaintiff would incur, and thus, it cannot be deemed that the instant disposition deviates from or abused the scope of discretion. Accordingly, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

shall be ruled.

Judges Kim Jong-hwan

Judges Yoon Dok-gi

Judges Kim Jong-young

Relevant statutes

Petroleum and Petroleum Substitute Fuel Business Act

Article 13 (Revocation, etc. of Registration)

(1) Where any petroleum refiner falls under any of the following subparagraphs, the Minister of Knowledge Economy may revoke his/her registration or order the relevant petroleum refiner to close his/her place of business (limited to a reported business operator; hereafter the same shall apply in this Article) or suspend all or part of his/her business for a fixed period not exceeding six months: Provided, That in cases falling under any of subparagraph 1 or 3 through 5, the Minister of Knowledge Economy shall revoke his/her registration or order the closure of his/her place of

14. Where he/she violates the prohibition against acts provided for in Article 39.

(3) Where a petroleum retailer falls under any of the following subparagraphs, the Minister of Knowledge Economy, a Mayor/Do Governor, or the head of a Si/Gun/Gu may revoke the registration of the relevant petroleum retailer, or order the relevant petroleum retailer to close his/her place of business or suspend all or part of his/her business for a fixed period not exceeding six months: Provided, That in cases falling under any of subparagraphs 1, 4 through 6 and 9, the registration thereof shall be revoked or an order to close his/her place of business shall be issued:

8. Where he/she falls under any of paragraph (1) 7 through 14.

(4) Criteria for disposition by violation under paragraphs (1) through (3) shall be prescribed by Ordinance of the Ministry of Knowledge Economy.

Article 14 (Penalty Surcharges)

(1) Where any petroleum refiner, petroleum exporter or importer, or petroleum retailer falls under any of the following subparagraphs, the Minister of Knowledge Economy, a Mayor/Do Governor, or the head of a Si/Gun/Gu may impose a penalty surcharge under this subparagraph in lieu of a disposition of business suspension under Article 13:

3. Where a petroleum retailer falls under Article 13 (3) 2, 3 or 8.

(4) The amount of penalty surcharges depending on the type and degree of violation subject to the imposition of penalty surcharges under paragraph (1), methods of calculating penalty surcharges under paragraphs (2) and (3), and other necessary matters shall be prescribed by Ordinance of the Ministry of Knowledge Economy.

Article 39 (Prohibition of Act)

(1) No petroleum refiner, petroleum exporter or importer, petroleum retailer, petroleum stockpiling agent, or alternative fuel manufacturer, etc. shall commit any of the following acts:

5. Other acts undermining the sound distribution order of petroleum and alternative fuels, which are prescribed by Presidential Decree.

(3) No one shall use light oil, secondary fuel oil, bane, bio-carbon, solvents, lubric oil, base oil, light oil for ship, and oil intermediate products as fuel for automobiles defined in subparagraph 1 of Article 2 of the Automobile Management Act and vehicles and machinery prescribed by Presidential Decree.

Enforcement Decree of the Petroleum and Petroleum Substitute Fuel Business Act

Article 43 (Act of Undermining Distribution Order of Petroleum and Alternative Fuel)

(1) "Acts prescribed by Presidential Decree" in Article 39 (1) 5 of the Act means the following acts:

5. Selling light oil, secondary fuel oil, bane, bio-carbon, solvents, lubric oil, base oil, light oil for ships, and petroleum intermediate products as fuel for automobiles under subparagraph 1 of Article 2 of the Automobile Management Act and vehicles and machinery (limited to those using gasoline or light oil as fuel) under subparagraphs 1 through 3 of Article 2 of the Enforcement Decree of the same Act;

m. Enforcement Rule of the Petroleum and Petroleum Substitute Fuel Business Act (amended by Ordinance of the Ministry of Knowledge Economy No. 232 on December 30, 201)

Article 16 (Criteria for Administrative Dispositions against Petroleum Substitute Business Operators, etc.)

Criteria for administrative dispositions under Article 13 (4) of the Act shall be as specified in attached Table 1.

[Attachment 1] Criteria for Administrative Disposition (Related to Articles 16 and 42(1))

1. General standards:

(d) The administrative disposition authority may reduce the period of suspension of operation for any of the following reasons, such as the motive, content, frequency, and degree of the violation, by up to 1/2 of the relevant administrative disposition guidelines:

1) An offense is deemed to have been caused by minor negligence or error, not by intention or gross negligence.

2) If the content and degree of the violation are insignificant and it is deemed that the damage caused by the violation is insignificant.

3) Where a violator first committed the pertinent violation, and it is recognized that the petroleum refining business, petroleum export-import business, petroleum retail business, petroleum retail business, alternative fuel manufacture and export-import business, or petroleum substitute fuel retail business has been exemplary for at least five years; 2. Individual standards

(a) Criteria for taking administrative dispositions against petroleum refining business operators;

(c) Criteria for dispositions against petroleum retailers;

A person shall be appointed.

Article 17 (Standards for Imposition and Calculation of Penalty Surcharges on Petroleum Substitute Business Operators, etc.)

(1) Criteria for imposing penalty surcharges and criteria for calculating penalty surcharges under Article 14 of the Act shall be as specified in attached Table 2.

(2) The Minister of Knowledge Economy, a Mayor/Do Governor or the head of a Si/Gun/Gu may increase or decrease a penalty surcharge by up to one half of the amount of the penalty surcharge under paragraph (1) by promoting the scale of business, the degree of violation and the frequency of violation, etc.: Provided, That even in cases of increase, the total amount of the penalty surcharge shall not exceed the amount prescribed in Article 14 (1) through (3) of the Act.

[Attachment 2] Criteria and Criteria for Imposition of Penalty Surcharges (Related to Articles 17 (1) and 42 (2))

1. The amount of penalty surcharges for each violation subject to the imposition of penalty surcharges under Article 14 (1) of the Act;

A person shall be appointed.