[고압가스안전관리법위반·화물자동차운수사업법위반][공2006.1.1.(241),69]
Whether it can be punished as an accomplice for a violation of Article 48 subparagraph 4 or Article 39 of the former Trucking Transport Business Act, which prohibits an owner of a private-use truck from engaging in commercial transport for consideration, or an owner of a private-use truck from engaging in commercial transport (negative)
In case where the owner of a private-use truck engages in the act of transporting cargo with compensation under subparagraph 4 of Article 48 and Article 39 of the former Trucking Transport Business Act (amended by Act No. 6731 of Aug. 26, 2002), and the owner of a private-use truck, the existence of the other party's act of receiving services, such as payment of compensation to the owner of the private-use truck and transportation of cargo, is essential. Therefore, there is a other party's act of receiving services, such as the transportation of cargo by making payment to the owner of the private-use truck. Thus, it is naturally anticipated that the crime of private-use truck owner is established as a matter of course, and unless there is any provision separately punishing the other party's act which is not indispensable for the establishment of the above crime, the other party's act of receiving services by making payment to the owner of the private-use truck and entrusting transportation cannot be punished for the other party's own-use truck's own act of transporting cargo with compensation in relation to the owner of the private-use truck.
Articles 39 and 48 subparag. 4 of the former Trucking Transport Business Act (amended by Act No. 6731 of Aug. 26, 2002)
Supreme Court Decision 2002Do1696 Decided July 22, 2002 (Gong2002Ha, 2100) Supreme Court Decision 2004Do3994 Decided October 28, 2004 (Gong2004Ha, 1991)
Defendant
Prosecutor
Daejeon District Court Decision 2004No1121 Delivered on December 2, 2004
The appeal is dismissed.
In light of the legislative intent of the former Trucking Transport Business Act (amended by Act No. 6731 of Aug. 26, 2002; hereinafter referred to as the "Act"), an act punished by Article 48 subparag. 4 and Article 39 of the former Trucking Transport Business Act (amended by Act No. 6731 of Aug. 26, 2002; hereinafter referred to as the "Act"), where the owner of a private-use truck engages in the act of transporting cargo for consideration, there is a need for the existence of the other party to the act of receiving services, such as payment of consideration to the owner of the private-use truck, and therefore, there is an act of the other party to receive services, such as transportation of cargo for consideration, by requesting payment to the owner of the private-use truck, and by requesting provision of transportation of cargo for consideration, in relation to the owner of the private-use truck, even if one falls under a public offering, teachers, or assistant under the general provisions of the Criminal Act, the other party's act of transportation for consideration cannot be punished as the owner.
The court below's decision that the defendant cannot be punished as an accomplice for a violation of the Trucking Transport Business Act due to an act of private-use trucking transport of the non-indicted as a counter-party to the act of private-use trucking, is justified in light of the records and the above legal principles, and there is no violation of the rules of evidence and any misapprehension of legal principles as to the interpretation of the prohibition of private-use truck owners
In addition, since the defendant is only the other party to the act of private-use trucking transport, it cannot be deemed that the defendant provided a private-use truck for the purpose of transporting cargo for a fee through the non-indicted's user's qualification, the defendant cannot be punished as a joint penal provision under Article 49 of the Act. The decision of the court below to the same purport is justifiable, and there is no illegality in the misapprehension of legal principles as to the interpretation of the joint penal provision under Article 49 of the
Therefore, the appeal is dismissed. It is so decided as per Disposition.
Justices Yang Sung-tae (Presiding Justice)