According to the records, the re-appellant may recognize the fact that the non-party 1, who is a passenger who is engaged in driving the call truck (vehicle number omitted) of the motor vehicle (hereinafter referred to as the "motor vehicle of this case") and who possessed only a small bank around 04:50 on June 8, 2003 at the Seocho-si ( Address omitted) in front of the private house of this case, is operating on board the motor vehicle of this case.

2. The judgment of the court below

The court below maintained the first instance court's decision on the ground that the re-appellant's act of transporting passengers holding only a small bank for the instant automobiles constitutes "any act that seriously undermines the order of freight carriage" prohibited under Article 10 (1) of the Trucking Transport Business Act (amended by Act No. 6731, Aug. 26, 2002; hereinafter referred to as the "cargo Transport Business Act"), which is a provision on the freight trucking business operator's compliance.

3. Judgment of the Supreme Court

However, we cannot accept the above decision of the court below for the following reasons.

헌법재판소는 2004. 12. 16. 재항고인 등이 청구한 2003헌마226, 270, 298, 299호 헌법소원 심판사건에서, 밴형화물자동차의 구조를 정원 3인 이하로 하도록 한 화물운수법 시행규칙(2001. 11. 30. 건설교통부령 제304호로 개정된 것) 제3조 후단 제2호(이하 '정원제한조항'이라 한다), 밴형화물자동차가 승객과 화물을 동시에 운송할 경우 승객(화주) 1인당 화물중량 40㎏ 이상이거나 화물용적 80,000㎤ 이상일 것으로 한 화물운수법 제2조 제3호 후문, 화물운수법 시행규칙(2003. 2. 27. 건설교통부령 제352호로 개정된 것) 제3조의2 제1항 , 제2항(이하 '화물제한조항'이라 한다)은 2001. 11. 30. 전에 화물자동차운송사업의 등록을 한 6인승 밴형화물자동차운송사업자에게 적용되는 한 헌법에 위반된다는 취지의 한정위헌 결정을 하였고, 한편 위 각 제한조항들이 신설되기 전에는 승차정원이나 화물의 중량·부피에 대한 특별한 규제가 없었던 것으로 보인다.

Therefore, as the re-appellant, in the case of the bareboat trucking transport business operator registered before November 30, 201, the application of the above bareboat trucking transport business operator is excluded by the above unconstitutional decision, and it is reasonable to view that passengers can transport cargo simultaneously with passengers without any specific restriction, notwithstanding the above bareboat limit provisions.

In addition, even if the re-appellant transported passengers by the instant vehicle without a license or registration, such act does not constitute a violation of the Passenger Transport Service Act (see Supreme Court en banc Decision 2004Do1228, Nov. 18, 2004).

Nevertheless, the court below determined that the act of transporting the above non-party 1 to the automobile of this case constitutes an act that substantially undermines the order of cargo transport under Article 10 (1) of the Cargo Transport Act, is erroneous in the misapprehension of legal principles as to the matters to be observed by the freight transport business operator under the Freight Transport Act, which affected the conclusion

4. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon (Presiding Justice)