Law Firm Future, Attorney Park Young-soo

Attorney Lee Jae-chul

2. The costs of lawsuit shall be borne by the Plaintiff.

A. On August 27, 2013, the Plaintiff, while under the influence of alcohol at 0.225% of the blood alcohol concentration on August 27, 2013, driven a C-ho vehicle at the 102-dong underground parking lot (hereinafter “instant apartment”) via the 103-dong ground parking lot in front of the instant apartment management office, again, to the 102-dong underground parking lot.

B. Accordingly, on September 24, 2013, the Defendant issued a disposition to revoke the first-class ordinary license (hereinafter “instant disposition”) to the Plaintiff. The Plaintiff had gone through the entire trial procedure.

【Uncontentious facts, Gap’s evidence Nos. 1, 2, Eul’s evidence Nos. 1 and 12, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Although the Plaintiff was driving under the influence of alcohol, the place where the Plaintiff was driving at the time does not constitute a road under the Road Traffic Act as a parking lot within an apartment complex, and thus, even if the Plaintiff was driving under the influence of alcohol, it does not constitute a ground for revocation of

2) Since the Plaintiff is driving a private taxi, it is necessary to obtain a driver’s license for livelihood. Considering various circumstances, such as the circumstance leading to driving under the influence of alcohol in this case, and the background leading up to driving under the influence of alcohol in this case, and the fact that there was no special history of traffic accident and violation of laws and regulations in addition to speed violations around 2010, the Defendant’s disposition in this case constitutes an unlawful case where it deviates from or abused discretion.

B. Determination

1) Whether a person is a drunk driver on a road as provided by the Road Traffic Act

A) The term "road" under Article 2 subparagraph 1 of the Road Act includes roads under the Road Act, roads under the Toll Road Act (b) and agricultural and fishing villages roads under the Act on the Maintenance and Improvement of Road Systems, where it is practically necessary to secure safe and smooth traffic of many and unspecified persons, or motor vehicles and horses, and where it is necessary to ensure safe and smooth traffic, except for roads under the Road Act, and rural roads under the same Act. The term "road under the same item (d) means the public nature of the road under the general traffic police authority, and only specific persons or persons related thereto, who have a specific building, may use it and independently manage it (see, e.g., Supreme Court Decision 2010Do6579, Sept. 9, 2010).

B) In light of the above legal principles, in full view of the following circumstances acknowledged by adding the whole purport of the pleadings to the respective statements in the evidence Nos. 2 through 4, 7 (including partial heading numbers), and Nos. 7 and 9, it is reasonable to deem the place where the Plaintiff driven the vehicle as a road under the Road Traffic Act with a high need to secure safe and smooth traffic. Therefore, the Plaintiff’s above assertion is without merit.

① The Plaintiff’s drinking driving is not merely a mere moving of a very short distance for parking in the parking zone line, but also a part of the apartment complex that is separated from the parking zone and provided for general vehicle movement.

② The entrance of the apartment complex of this case does not have any blocking for controlling external vehicles, and the manager is permanently stationed and does not control the entry of external vehicles into the apartment complex of this case. Thus, there is no restriction on the entry of external vehicles into the passage of the apartment complex of this case (it is freely possible for external vehicles to enter the passage of the apartment complex of this case, even if there is a case where a banner is posted inside the apartment complex and a warning is attached to an external vehicle, as alleged by the Plaintiff).

③ The passage of the apartment complex in the instant apartment complex starts from the entrance abutting on the general road and is packed in the same form as that of the general road. The yellow central line is marked, and it continues to proceed in the straight line to the vicinity of the entrance of the 102nd underground parking lot, which is the place for drinking-driving by the Plaintiff. As such, an unspecified number of people may easily enter the place for drinking-driving as a general road.

④ In order to ensure the safe passage of many and unspecified persons, such as visitors to the apartment of this case and visitors to the commercial building located at the entrance of the apartment of this case, it is highly necessary to ensure that a general traffic police authority has not been placed in the passage route of the apartment of this case. In fact, the Plaintiff was in contact with other vehicles while driving under the influence of alcohol inside the apartment of this case. The Plaintiff was in contact with the vehicle of this case, and the Plaintiff was found to have driven under the influence of alcohol by a police officer dispatched to the front and rear of the vehicle of this case as a witness’s report.

2) Whether the discretion is deviates or abused

A) Even if the revocation of a driver’s license on the ground of drinking is an administrative agency’s discretionary act, in light of today’s mass means of transportation, and accordingly, the situation where a driver’s license is issued in large quantities, the trend of the increase of traffic accidents caused by drinking driving, and the result thereof, etc., the need for public interest to prevent traffic accidents caused by drinking driving is very large (see, e.g., Supreme Court Decision 97Nu13214, Nov. 14, 197). Therefore, when the revocation of a driver’s license on the ground of drinking driving on the ground of drinking driving, it should be emphasized that the general preventive aspect should be prevented rather than the disadvantage suffered by the parties due to the revocation, unlike the revocation of the ordinary beneficial administrative act.

B) In light of the above legal principles, the Plaintiff was driving in a serious condition of 0.225% of blood alcohol concentration. The instant disposition was conducted in accordance with the criteria for cancellation and suspension of driver’s license pursuant to Article 43 and Article 93(1) of the Road Traffic Act, and there is no reason to deem the above disposition criteria to be unreasonable. Furthermore, it is difficult to recognize that there was an inevitable circumstance that the Plaintiff had no choice but to drive at the time of the instant drinking driving. Thus, it is difficult to view that the public interest to be achieved by the instant disposition is less less than the disadvantage that the Plaintiff would incur. Accordingly, the instant disposition is a legitimate disposition taken within the scope of discretionary authority, and the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.