[자동차운수사업법위반][공2001.12.1.(143),2506]
Whether a small and medium enterprise cooperative's provision of a private car to a person other than its members for transportation and receipt of money for operation expenses, etc. constitutes "commercial transport" under Article 58 of the former Automobile Transport Business Act (affirmative)
An act of a small and medium enterprise cooperative providing its members with private cars for transportation and receiving expenses, etc. necessary for its operation shall not be deemed an act of commercial transport prohibited under Article 58 of the former Automobile Transport Business Act (amended by Act No. 5448 of Dec. 13, 1997). However, in a case where the association provides its private cars for transportation to a person other than its members and receives funds for operation expenses, etc., it shall be deemed an act of commercial transport prohibited under the above Act, without considering whether it is within the amount available for its business to non-members, and it shall not be deemed an act of commercial transport prohibited under Article 31 (2) of the former Small and Medium Enterprise Cooperatives Act (amended by Act No. 5453 of Dec. 13, 1997). In a case where it does not interfere with the use of its members, it shall not be deemed that it can allow a person other than its members to use its business.
Articles 58 (see current Article 73(1) and 72 subparag. 5 (see current Article 81 subparag. 7 of the Passenger Transport Service Act) of the former Automobile Transport Business Act (amended by Act No. 5448 of Dec. 13, 1997), Article 31(2) of the former Small and Medium Enterprise Cooperatives Act (amended by Act No. 5453 of Dec. 13, 1997)
Defendant Cooperatives
Defendant
Cheongju District Court Decision 9No21 delivered on October 8, 1999
The appeal is dismissed.
An act of a small and medium enterprise cooperative to receive expenses, etc. necessary for its operation while it provides its members with a private car for transportation cannot be deemed as an act of commercial transport prohibited under Article 58 of the former Automobile Transport Business Act (amended by Act No. 5448 of Dec. 13, 1997; hereinafter the same shall apply). However, in a case where a cooperative provides its private car for transportation to a person other than its members and receives money for operation expenses, etc., it cannot be deemed as an act of commercial transport prohibited under the above Act, without examining whether it is within the amount that can allow non-members to use its business, and it does not constitute an act of commercial transport prohibited under Article 31 (2) of the former Small and Medium Enterprise Cooperatives Act (amended by Act No. 5453 of Dec. 13, 1997). In a case where it does not interfere with the use of its members, it shall not be deemed otherwise stipulated that it can allow a person other than its members to use its business.
Examining the evidence duly examined and adopted by the first instance court and the lower court in light of the records, the lower court recognized the fact that the Nonindicted Party, who is an employee of the Defendant Union, provided the private car owned by the Defendant Union to non-members for the purpose of transport between the Seoul and periodically and received a certain amount of money under the name of guard for the same period as indicated in its reasoning, and therefore, it is just to accept the measures of maintaining the first instance court which convicted the Defendant of the instant facts charged on the ground that it falls under Articles 74, 72 subparag. 5 and 58 of the former Automobile Transport Business Act, and there is a somewhat inappropriate point in the reasoning of the lower court, but it does not affect the conclusion that found the Defendant guilty of the instant facts charged. Therefore, the lower court did not err by violating
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Jae-sik (Presiding Justice)