[Report file] 'Fake gas emissions' BMW wins the Ministry of Environment, is it true?

On July 2, media reports reported that BMW, the plaintiff's side, won the second trial following the first trial in an administrative lawsuit against the Ministry of Environment for 'cancellation of fines'. It is understandable that the media reported BMW's 'victory' or 'de facto victory' as a ruling was issued to cancel the disposition of 58.4 billion won, which is more than 90% of the 62.8 billion won fined originally imposed by the Ministry of Environment. However, there are people who raise questions after hearing this report. To cancel the 90% penalty is whether the case of 'forgery of BMW emission test report' that the media reported loudly a few years ago is not true. It is questionable whether there was a big problem with the results of the investigation by the Ministry of Environment at the time.

In fact, it is not. In September 2019, the Supreme Court confirmed the conviction of BMW's forgery of test reports through indictment by the prosecution. From 2011 to 2015, former and current BMW executives were sentenced to six months in prison and one year of probation for falsifying emission-related certification documents and falsifying test reports. A fine of 14.5 billion won was also imposed. In the previous criminal trial in the first instance, employees who had directly participated in counterfeiting were even arrested in court. In the course of the trial, testimonies from BMW executives revealed that they had submitted forged test reports of other models to advance the certification period. Therefore, it should be said that the problem of forgery of BMW certification documents has been clearly revealed as an immovable fact.

So, what happened to the administrative lawsuit brought by BMW apart from the criminal trial? The main purpose of the first and second trial judgments in the administrative litigation that BMW actually won is not that the fine itself was wrong, but rather that the Ministry of Environment made the wrong choice among the various disposition clauses. Let's take a closer look at those regulations. There are two punishment clauses related to vehicle certification under the Air Quality Conservation Act. Article 56 Paragraph 1, Item 1 applies to 'a vehicle is manufactured and sold without certification,' and Item 2 is applied to "a vehicle manufactured and sold differently from the details of certification." The penalty surcharge of KRW 62.8 billion imposed by the Ministry of Environment is divided into two parts, the part 1 and the part 2 applied above. The fine of 58.4 billion won was a penalty surcharge for 80,000 vehicles of 28 car models accused of forgery of certification documents (regulation 1), and the remaining 4.4 billion won was a penalty surcharge for 4,600 cars of 3 car models for non-compliance with the change certification ( Rule 2).

Among them, the key issue in the litigation process is the 58.4 billion won penalty in accordance with Rule 1. The Ministry of Environment argues that if BMW's certification is revoked due to false certification, it is the same as not getting certification, and it is right to apply the No. 1 non-certification rule. It seems that regulation 1 has a higher fine than regulation 2, and the fact that it allows for intensive disposition may have played a role. It was a time when public opinion criticized for manipulating exhaust gas by automobile manufacturers after Volkswagen Dieselgate was boiling. However, the Seoul Administrative Court and the Seoul High Court both stated in the first and second trials, "In subparagraph 1, it is only stipulated that the certification is not obtained, but it does not stipulate that there should be no defects in the certification, and it The fact that it has also been formally certified is acknowledged,” he said. In addition, the court said, "Even if the certification is revoked and the legal effect is lost, the objective fact that the certification was obtained does not disappear, so it cannot be treated the same as if the certification was not obtained from the beginning." It was considered illegal and should be revoked. He continued, "There is room to see that the act subject to the disposition falls under the case of manufacturing and selling a vehicle differently from the certification of 'No. 2'." In other words, it should have applied the 2nd rule rather than the 1st rule, but the Ministry of Environment did not apply the rule incorrectly. However, the court draws a line, saying, "However, as the Ministry of Environment made No. 1 a reason for disposition, it cannot be the subject of this lawsuit."

Considering the context surrounding criminal and administrative litigation, it can be seen that some of BMW's 'wins' do not imply immunity from counterfeiting emission certifications. The Ministry of Environment is now considering whether to take the case to the Supreme Court. Will this case be over if the Ministry of Environment abandons the re-appeal or if the Supreme Court makes the same decision and the cancellation of the 58.4 billion won fine is confirmed? Most likely not.

This is because the Ministry of Environment is reviewing a plan to reimpose a new fine on BMW. In a phone call with a reporter, an official from the Ministry of Environment reviewed the plan to impose a new penalty by re-applying No. 2 'manufacturing differently from certified content' rule instead of No. 1 if the current trial is confirmed according to the results of the 1st and 2nd trials said he was doing it. It is known that the legal review related to the reimposition of fines has already been completed. In the legal review, the issue is the issue of unilateralism. This is because it is an attempt to re-dispose of a case that was once dispositioned by the court. However, as a result of the review, it is known that it has been concluded that there is no problem in reimposing a penalty surcharge as it applies to criminal trials and does not apply to administrative litigation such as this one. When Rule 2 is applied, the new fine is known to be 45.5 billion won.

There is also a realistic reason for the Ministry of Environment to try to reimpose the fine, such as evasion of responsibility. As the court ruling revealed that the Ministry of Environment applied an absurd rule to BMW's penalty surcharge, it is difficult to avoid the arrows of criticism if the penalty is not reimposed. This is because the government itself created an excuse for BMW to escape the fine by applying the absurd punishment clause of the Ministry of Environment, despite the fact that the forgery of a world-class car maker's emission test report was found to be true.

There is no disagreement that BMW, which tried to conduct business by forgery of test reports in violation of domestic regulations, should be held strictly responsible. However, it is that the Ministry of Environment provided the cause that made the problem even more twisted by taking advantage of public opinion and applying the regulations hastily. It is the Ministry of Environment's responsibility to properly address this twisted problem.