(영문) 서울행정법원 2020.8.13. 선고 2019구합80527 판결

Seoul High Court Decision 2018Do1568 dated November 20, 2018 confirmed that the Defendant’s new product certification period for the seismic power distribution team (a certification number: B) with the deep power distribution team (a certification number) with the deep power distribution team (a certification number) applied the deep power distribution team was not re-issued by March 1, 2019, and that the new product certification period extended by March 1, 2019 was not extended by the Seoul High Court in the Official Gazette or that it was unlawful for the Defendant or the National Technical Standards Institute to publish the new product certification period on its Internet homepage.

Reasons

1. Facts of recognition;

A. The Plaintiff is a company established for the purpose of selling electric equipment and appliances, electrical construction business, etc.

(b) The National Technical Standards Institute, an affiliated agency of the defendant, established to take charge of the affairs such as the establishment and operation of national standards policies and industrial standardization policies, and support for the establishment of the national standards system, is operating a new product (NEP) certification system and a public institution's compulsory purchase, etc. in accordance with Articles 16 and 17, etc.

C. On January 16, 2015, the Plaintiff applied for the certification of a new product of the earthquake-proof structure team (hereinafter “new product of this case”) to the National Technical Standards Institute of Technology and Standards, which applied the atomic maloman (hereinafter “new product of this case”).

D. On March 20, 2015, the New Excellent Certification Center established a new Excellent Certification Deliberation Committee to deliberate and resolve on whether the new Excellent Products meet the standards for the new Excellent Certification. Accordingly, on March 24, 2015, the Plaintiff issued a certificate from the Defendant to March 23, 2015 with respect to the term of validity of the new Excellent Products from March 24, 2015 to March 23, 2018, and on March 26, 2015, the New Excellent Certification Center notified the Plaintiff that it granted the Plaintiff the qualification to indicate the new Excellent Products and issued the new Excellent Products.

E. On April 3, 2017, the Defendant revoked the certification of the instant new product on the ground that “the Plaintiff submitted false records of commercialization to the Plaintiff, etc.” falls under the case where the Plaintiff obtained the certification of the new product by false or other unlawful means prescribed in Article 16-5(1)1 of the Industrial Technology Innovation Promotion Act (hereinafter “instant disposition of revocation”), and the Defendant announced the fact of the instant disposition of revocation on the national technical standard website of the same day as C public notice to the Ministry of Trade,

F. On April 4, 2017, the Plaintiff filed a lawsuit seeking the revocation of the instant revocation disposition with the Seoul Administrative Court 2017Guhap60628 on April 4, 2017, and filed an application for suspension of execution with the said court 2017010855, and was decided on April 13, 2017 to suspend the execution of the instant revocation disposition until the said court rendered a judgment in the instant case (hereinafter referred to as the "decision to suspend execution on April 13, 2017").

G. On April 17, 2017, the Plaintiff sent to the Defendant a content-certified mail stating that the notice of the instant disposition was deleted or the effect of the said disposition was suspended following the stay of execution on April 17, 2017.

H. On April 21, 2017, the Defendant publicly announced the fact that the execution of the instant disposition was suspended due to the suspension of execution on the website of the National Technical Standard Institute D, as the Ministry of Trade, Industry and Energy announced D.

I. On December 22, 2017, the Seoul Administrative Court rendered a judgment dismissing the Plaintiff’s claim. On January 4, 2018, the Plaintiff appealed and filed an appeal as Seoul High Court 2018Nu306888 on January 4, 2018. On January 25, 2018, the Plaintiff applied for the suspension of execution of the instant disposition as Seoul High Court 2018Da1028, but the said court dismissed the Plaintiff’s application on March 8, 2018.

(j) On October 10, 2018, the Seoul High Court rendered a judgment citing the Plaintiff’s appeal. On October 12, 2018, the Plaintiff filed an application for suspension of execution of the disposition of this case with the above court 2018da1568 on October 12, 2018, and decided on November 20, 2018 that the effect of the said disposition of this case shall be suspended until the judgment of the above court becomes final and conclusive (hereinafter referred to as “decision of suspension of execution as of November 20, 2018”); and “the stay of execution as of April 13, 2017,” respectively, was dismissed by the judgment of the Supreme Court. The above judgment of the appellate court became final and conclusive as of March 14, 2019.

(k) On March 27, 2019, the Plaintiff’s revocation of the instant disposition became final and conclusive in accordance with the Seoul High Court Decision 2018Nu30688 Decided October 10, 2018 and Supreme Court Decision 2018Du63983 Decided March 14, 2019, the period from April 3, 2017 to April 13, 2017 (11 days) where the instant disposition of revocation was issued; ② the period from March 8, 2018 to April 13, 2017 where the application for suspension of execution was rejected during the appellate trial (Seoul High Court Decision 2010No28) and the period from March 20 to November 20, 2018 (258 days); ③ the period from March 14, 2018 to June 13, 2018, the Plaintiff submitted the instant new product to the Plaintiff for the period from 10th 3th 10th 3th 198th 19.

(l) On April 16, 2019, the Defendant issued a public notice to the effect that the term of validity of the instant new product certification was changed from March 24, 2015 to March 3, 2019 in accordance with Article 12 of the Enforcement Decree of the Industrial Technology Innovation Promotion Act and the Operating Guidelines for the Certification of New Products (NEP) Certification and Encouragement of Purchase, etc., upon the final judgment of administrative litigation becomes final and conclusive on the website of the National Technical Standards Institute, and issued a new product certificate as stated in March 24, 2015 to March 3, 2019 to the Plaintiff on the same day.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4 through 9 (including branch numbers, if any; hereinafter the same shall apply), Eul evidence Nos. 1 and 3, and the purport of the whole pleadings

2. The plaintiff's assertion

Article 12(1) of the Operational Guidelines for Certification of New Products (NEP) and Promotion of Purchase (hereinafter “Operational Guidelines”) provides that if the term of validity is extended, a new product shall be issued reflecting the term of validity, and Article 12(3) of the Operational Guidelines shall be publicly announced on the website in the event a new product is issued on November 20, 2018. Thus, the Defendant has a legal obligation to reissue a new product that reflects the term of validity extended by a decision to suspend execution as of November 20, 2018 and publicly notify the extension of the term of validity. In addition, Article 23(6) of the Administrative Litigation Act provides that Article 30(1) of the Administrative Litigation Act shall apply mutatis mutandis to the decision to suspend execution regardless of the Plaintiff’s request, and the Defendant is obligated to take subsequent measures in accordance with the purport of the decision to suspend execution, regardless of the Defendant’s request. Notwithstanding the fact that the term of validity of certification of the new product in this case was extended by November 20, 2018.

3. Determination on the legitimacy of the instant lawsuit

A. The defendant's main defense

1) The purport of the instant claim alone cannot be solely stated in the decision of stay of execution dated November 20, 2018, to determine whether to reissue a new product certificate and to publicly announce any content. Therefore, the purport of the instant claim is not specified.

2) The Plaintiff did not request the Defendant to reissue a new product certificate, the validity period of which is extended following the stay of execution on November 20, 2018, and publicly announce the extension of the validity period.

3) Even if the Plaintiff filed an application with the Defendant for re-issuance of a new product and public announcement of the extension of its validity upon the decision to suspend execution dated November 20, 2018, the Plaintiff does not have the right to apply for such application under the relevant law and regulations, and the notification does not constitute an administrative disposition.

4) On April 16, 2019, the Defendant issued a new product certificate, the effective period of which is extended by March 3, 2019, to the Plaintiff, and publicly announced the fact that the effective period is extended on the National Technical Standards website, and there is no omission.

B. Determination

1) Whether the purport of the claim is unspecified

A) The purport of the claim is to specify its contents and scope so that it can be clearly identified, and whether an objection is specified is an ex officio examination. Therefore, in cases where the purport of the claim is not specified, the court shall ex officio order the correction, regardless of whether the defendant raises an objection, and dismiss the lawsuit if the defendant does not comply with it (see, e.g., Supreme Court Decision 2007Da53785, Nov. 1, 2009).

B) In light of the aforementioned legal principles, the Plaintiff filed the instant lawsuit, stating that “the period of validity of the certification of a new product that has been extended without re-issuance of the certificate of the new product of this case on November 20, 2018 shall be confirmed to be illegal if the Defendant publicly announced the validity of the certification in the Official Gazette or failed to do so on the Internet homepage of the Defendant or the National Technical Standard Institute.” However, the Defendant did not reissue the certificate of the extension of the validity of the certification of the new product of this case by no later than March 1, 2019 according to the decision to suspend execution as of November 20, 2018, and did not reissue the certificate of the extension of the validity of the certification of the new product of this case on the Official Gazette or on the Internet homepage of the Defendant or the National Technical Standards Institute.” Accordingly, it is reasonable to deem the Defendant’s specific defense to clearly recognize the contents and scope of the instant lawsuit as unlawful.

2) Whether an application is filed for re-issuance of a new product following a decision to suspend execution on November 20, 2018

A) A lawsuit for confirmation of illegality of omission under Article 4 subparagraph 3 of the Administrative Litigation Act is a system with the purpose of removing a passive illegal state, which is to promptly respond to an administrative agency's response, by confirming that the omission is illegal, in a case where an administrative agency does not have a legal response obligation to respond to a passive disposition, such as accepting, rejecting, rejecting, or rejecting an application based on the party's legal or sound right within a reasonable period of time. Such a lawsuit can be brought only by a person who has a legal interest in seeking confirmation of illegality of omission. Accordingly, a response by an administrative agency that the plaintiff seeks must be pertaining to a disposition under Article 2 (1) 1 of the Administrative Litigation Act. Thus, even if a party fails to file an application with an administrative agency for any administrative act, or even if a party files such application, the party does not have a legal or sound right to demand the administrative agency to perform such administrative act, or the administrative agency issues a rejection disposition against a party's request, the lawsuit is unlawful as it does not require a standing to sue, or is unlawful as it is unlawful (see Supreme Court Decision 95Da 195.

B) In light of the aforementioned legal principles, there is no evidence to acknowledge that the Plaintiff filed an application with the Defendant to the effect that, after having received a stay of execution as of November 20, 2018, the Plaintiff filed an application for the extension of the term of validity after re-issuance of a new product certificate the term of validity of which has been extended according to the said stay of execution, and that the extension of the term of validity has been publicly notified. Thus, the Plaintiff’s claim for the confirmation of illegality

(2) The defendant's assertion of opinion that the term of validity of the certification of the new excellent product of this case is extended by April 10, 2019 to the National Technical Standards Institute on March 27, 2019 is not the purport of requesting the extension of the term of validity of the certification of the new excellent product of this case according to the decision to suspend execution dated November 20, 2018, but as the judgment on the merits became final and conclusive, the extension of the term of validity of the certification of the new excellent product of this case is different from the contents of the application. In addition, it cannot be deemed that the defendant issued the new excellent certificate extended by the term of validity on April 16, 2019 to the National Technical Standards Institute and publicly announced the fact that the term of validity is extended on March 3, 2019 on the homepage of the National Technical Standards Institute. This part of the defendant's defense of this part is justified

C. Sub-decision

Therefore, the instant lawsuit cannot be deemed to have a standing to sue against the Plaintiff, or to have an illegal omission subject to an appeal litigation. Therefore, it is unlawful without having to review the remainder of the Defendant’s main defense.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.