[자동차운전면허취소처분취소 ][하집1999-1, 688]
The case holding that the cancellation disposition of a driver's license is unlawful on the basis of the non-measurable drinking water after confirming the final drinking time and measuring 20 minutes after the lapse of 20 minutes, or the water to be suffered by a person; and
The case holding that the revocation of driver's license is unlawful on the grounds that the driver's license is determined to confirm the last time of drinking, measure after 20 minutes of the time of drinking, or make it possible for the person under measurement to be under measurement to be under the influence of alcohol in a case where the person under measurement is measured with remaining alcohol, due to the influence of remaining alcohol, and the driver's license is revoked on the ground that the person under measurement is under the influence of remaining alcohol, and the driver's license is revoked on the basis of the non-measurement measured after the elapse of 20 minutes, or the person under measurement to be under the influence of the person under measurement.
Article 41 and Article 78 (1) 8 of the Road Traffic Act, Article 31 of the Enforcement Decree of the Road Traffic Act, Article 53 (1) (attached Table 16) of the Enforcement Rule of the Road Traffic Act, among the administrative disposition standards for driver's license; 2. Serial number 2 of the individual disposition standards
[Judgment of the court below]
The Commissioner of the Local Police Agency
1. The defendant's revocation of the license granted to the plaintiff on July 14, 1998 shall be revoked.
2. The costs of lawsuit shall be borne by the defendant.
The same shall apply to the order.
1. Details of the disposition;
The following facts are acknowledged in full view of Gap evidence 1 through 3, evidence 7, evidence 8, evidence 6-1 through 6, evidence 1 through 6, Eul evidence 2-1 through 6, Eul evidence 4, 5-1, 2, evidence 1, and evidence 5-2, witness Kim Jong-hun, and testimony of steel and steel respectively.
A. On January 23, 1980 and April 15, 1983, the Plaintiff obtained a license for the motor vehicle driving of Class 1 large vehicles, respectively, and renewed on August 1, 1986, and until now these licenses (license number omitted).
B. The plaintiff, from June 1, 1994 to June 2, 1994, installed convenience facilities such as visual towers, information maps in the apartment complex, galll, bulletin board and gypt, etc. in the apartment complex, and advertised the contents requested by the advertiser in the facilities. The plaintiff mainly finds an apartment management entity and an advertising gypt to install an advertisement of the Seoul Metropolitan area and a local Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun 2,00 after the 20th day after the 4th day after the 20th day after the 4th day after the 20th day after the 1st day after the 2nd day after the 4th day after the 2nd day after the 1st day after the 0th day after the 1st day after the 2nd day after the 1st day after the 2nd day after the 2nd day after the 2nd day after the 2nd day after the 1st day after the m of the Y-day.
C. However, the above non-party, without confirming the final drinking time to the plaintiff, caused the plaintiff to d-400 of alcohol measuring instruments (SD-400, measuring instruments number 00971D): the plaintiff's blood alcohol concentration was 0.102%. On July 14, 1998, the defendant issued a disposition to revoke the above driver's license by applying the serial number 2 of the individual disposition criteria for revocation on February 16, 198, which is based on the above alcohol measuring instruments, to the plaintiff on July 14, 1998.
2. Whether the disposition is lawful;
A. The plaintiff's assertion
As the cause of the claim in this case, it is difficult for the Plaintiff to believe that (1) himself was driving a motor vehicle because he was unable to see the so-called so-called the so-called "motor vehicle" on the day of the control, and (2) his measurement is 0.102%, which does not exceed 0.02% of the legal revocation standards. Therefore, considering the error of measuring devices, it is doubtful whether the Plaintiff's actual blood alcohol level at the time of the measurement at issue reaches 0.1%, and even if it is not so, it is questionable whether the Plaintiff's blood alcohol level at the time of the measurement at issue reaches 0.1%, and (3) even if it is not so, the circumstance and distance of the Plaintiff's driving, the situation of the Plaintiff's company, the Plaintiff's measuring values did not raise, the fact that the Plaintiff did not cause any particular accident due to the above drinking alcohol driving, and the fact that considerable period has elapsed after the revocation of the license, the Defendant asserts that the revocation disposition against the Plaintiff was deviating from the discretionary authority.
(b) Markets:
Therefore, we first examine whether the result of the above alcohol measurement is appropriate. The above alcohol measuring instrument used to measure the degree of the plaintiff's alcohol should have the plaintiff's degree of alcohol so that it can be measured by the degree of alcohol contained in respiratory. Thus, if it is measured under the remaining alcohol content of the measured person, it would result in a high level of alcohol level than the actual blood alcohol concentration due to the influence of remaining alcohol. Thus, the defendant should not take measures to measure the remaining alcohol level of the plaintiff's remaining alcohol level from November 1, 1996 on the premise that the remaining alcohol content requires about 20 minutes, but it is difficult for the plaintiff to take measures to measure the remaining alcohol level from the point of time to the point of time to the point of time without examining the remaining alcohol level of the plaintiff's last 20 minutes. Thus, it is difficult for the plaintiff to take measures to measure the remaining alcohol level from the point of time to the point of time of time to the point of time to the point of time of time to the point of time to which the last 20 minutes of alcohol alcohol remaining in the Gu."
3. Conclusion
Thus, the plaintiff's claim seeking the revocation of the disposition of this case is justified without examining the remaining arguments, and it is so decided as per Disposition by the assent of all participating Justices.
Judge Kim Jong-il (Presiding Judge) Ad hoc