2016Nu39407 Revocation of the suspension of operation

A Stock Company

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Park Jong-sik, Attorneys Song-tae, Song-chul, Lee Jong-woo, Counsel for the plaintiff-appellant

Attorney Kim Jong-hwan, Justice Song-sung, Counsel for the plaintiff-appellant

The Minister of Land, Infrastructure and Transport

Law Firm Tae-il, Counsel for defendant-appellant

Attorney Kim Young-young

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Kim Jin-jin, Justice Kim Jin-jin, Justice Shank,

Seoul Administrative Court Decision 2014Guhap74879 decided February 19, 2016

April 5, 2017

May 17, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. On December 5, 2014, the defendant revoked the suspension of the operation of an aircraft against the plaintiff on December 5, 2014.

1. Details of the disposition;

The court's explanation on this part is identical to the relevant part of the judgment of the court of first instance. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Related statutes;

Attached Table 1 shall be as stated in the relevant statutes.

3. Whether procedural defects exist;

The court's explanation on this part is the same as the statement from 3th to 5th 20th 3th 14th 14th 5th 20th 20th 20th 3th 20 of the judgment of the first instance.

4. Whether any grounds for disposition exist;

A. The reasoning of this court’s decision pertaining to this part of Article 115-3(1)45 of the Aviation Act is the same as the entry from 6th to 8th 9th 9th , except that the following is added at the end of 8th 4th 4th 7th 8th 4th 6th 6th 6th 6th 6th 6th 6th 6th 8th 6th 6

[The principle of self-responsibility is the principle that reflects the freedom, flexibility and dignity of human beings, and it is not limited to the civil law or criminal law, but rather the basic principle of modern law, and thus, it is naturally inherent in the rule of law (see, e.g., Constitutional Court en banc Decision 2010Hun-Ma68, Sept. 29, 201). In addition, the same applies to administrative law relations (see, e.g., Constitutional Court en banc Decision 2010Hun-Ma68, Sept. 29, 201). Of course, sanctions against administrative law violations are imposed based on the objective facts of violation of administrative law to achieve administrative purposes, so it does not require the offender’s intentional or negligent act (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). Accordingly, administrative sanctions may not be imposed regardless of whether there is any cause explicitly or gross negligence, as prescribed by the provision of this case).

(b) Whether it falls under the latter part of Article 115-3 (1) 45 of the Aviation Act;

1) Whether the NTSB accident investigation report is used as evidence

국제민간항공조약 제26조에 의하면 항공기 사고의 조사는 사고발생지국의 책임 하에 실시되는데, 같은 조약 제54조에 의하여 국제민간항공기구(ICAO)가 채택한 부속서 13 항공기사고조사(Annex 13 Aircraft Accident and Incident Investigation) 제3.1조는 조사의 목적에 관하여 '사고 및 준사고 조사의 유일한 목적은 사고 및 준사고의 재발방지이다. 이 조사의 목적은 사고의 비난이나 책임을 묻기 위함이 아니다(The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability)'고 규정하고 있고, 제5.4.1조는 권고사항으로 '비난이나 책임을 묻기 위한 사법적 또는 행정적 절차는 이 부속서의 규정 하에서 시행되는 어떠한 조사와도 분리되어, of ICH(Any judicial or administrative proceedings to apportion blame or liability should be separate from any investigation conducted under the provisions of this Annex)'고 규정하고 있다. 또한 헌법 제6조 제1항에 의하면 헌법에 의하여 체결 · 공포된 조약은 국내법과 같은 효력을 가지는데, 대한민국은 1952. 12. 11. 국제민간항공조약에 가입한 후 이에 관한 국회의 동의를 얻었으므로 위 조약은 국내법과 동일한 효력을 지닌다. 이러한 위 조약의 규정 내용 및 그 취지에 비추어 보면 이 사건 사고의 발생지국인 미국의 NTSB가 작성한 사고조사보고서(을 제26호증)는 동일한 사고의 재발 방지를 위하여 사고 수습 과정에서 기술적 조사를 거쳐 일정한 결론을 도출한 것에 불과하므로 사고의 법률상 책임을 묻기 위한 사법적 절차인 이 사건 소송에서 증거로 사용하는 것은 적절하지 않다.

Meanwhile, the Plaintiff asserts that the report of fact-finding by the Ministry of Land, Infrastructure and Transport (No. 8) was prepared based on the NTSB accident investigation report without admissibility, and that it cannot be used as evidence. However, according to each evidence No. 8 and 13, the Ministry of Land, Infrastructure and Transport’s report of fact-finding by the Ministry of Land, Infrastructure and Transport, in order to verify the Plaintiff’s violation of the Aviation Act prior to the disposition of the instant case, can be known that the report of fact-finding by the Ministry of Land, Infrastructure and Transport was prepared through its independent process of fact-finding by directly hearing the statements of flight crew or analyzing FDR data. Thus, the use of

2) The background of the instant accident

A) On July 6, 2013, flight crew members of the instant aircraft were classified into a sea route for takeoff and landing segment operations and for cruise segment operations (hereinafter “H captain”) but the takeoff and landing code was composed of H et al., a training captain (hereinafter “training captain,” and “I captain,” and collectively referred to as “the captain of the instant case”). On the other hand, crew members of the aviation route around 09:5 minutes (based on standard time; hereinafter the same shall apply) around 09:5 minutes (based on standard; hereinafter the same shall apply) of the instant air route, around 30 minutes, left about about 1 hour and 30 minutes for the instant air route operation. At the time of training, the training captain performed the duty of operating an aircraft at the left side of the aircraft in the steering room, and carried out the duty of operating the aircraft at the 1string and landing zone from the 1string line to the right side of the instant airport, and played an additional role in the 1string and landing zone from the 1string column.

B) After obtaining permission for access to visibility from 11:21:49 to 28L of the runway, the aircraft of this case was demoted by setting up V/S Mod (Val Sed Mod Mod Mod Mod Mod Mod Mod Mod Mod Mod Mod Mod Mod Mod 11:25:36 Mod Mod Mod 11:25:36 Mod Mad Mod Mod Mod 1: Mad 25: Mad Mod Mod Mod 25: Mad Mod Mod 15: Mad Mod Mod Mod Mod 25: Mad Mod Mod Mod Mod 15: Mad Mod 15: Mad Mod Mod 25: Mad Mad 15: Mad 1650000m Mod Mod Mod 1.

A/T (Autthrotle, Autthrotle, automatic drilling control device) has been changed from SPD Modern to THR Modide (Mods automatically adjusted in order to achieve the choice altitude in FLCH Mod).

D) However, at the time when Pitch Mods were converted to FLCH, the CP entered 3,000 feet, an approach failure in preparation for happiness, and accordingly, A/P (Autopot, automatic flight device) started to increase to 3,000 feet, which led to the rapid shift of drilling, and the number of seasons was small. Unlike his/her own intent he/she had tried to immediately demoted, the training captain changed the 11:26:32 A/P to prevent the rapid change of A/P, and then moved the Pods to the minimum trend, and as a result, A/TPP did not have any awareness of the operation of the aircraft, but did not change the operation of the aircraft to the speed of HLD mother and did not have any awareness of the operation of the aircraft.

E) After establishing the target speed of 11:26:36 MCP as 137 ECP, the training captain set out 11:26:40 'F rights'. According to Article 2.17.2(c) of the Plaintiff's POM (a pilot) (i.e., the navigational assistant), if the F/D (Fl Rights Drr, set up, and visually directed the direction of steering to collect the water at the time of visual approach, such as water, high-level, and defense, etc., the PF and PM seat were all turned back only the F/D location of the p.M, but HD/D location was changed only by the PF/D location, but the HD/D location was changed only by the PFD location, and the HD/D location was removed from the PHD/PD (the time of navigation assistant).

F) The instant aircraft arrived at approximately 11:27:14 high altitude 500 feet with the permission from the control tower 11:27:06, and reached approximately 11:27 p.m. at the time, despite the absence of the state of 1,200 p.m. at the speed, the instant aircraft did not engage in happiness even though it was not in a state of 1,200 p.m., and the captain was "on glidesth" under the purport that there is no problem in the landing at 11:27:19 p.m., the speed of the instant aircraft continued to be less than 137 p.m., the speed of which was lower than 11:27:23 high altitude 31 p.m., which was considerably lower than 31:00 p.m., 31:27 p.m., which was considerably lower than 31:17 p.m., which did not change to 31:210 p.m.

G) Subsequent to 11:27:39, the speed of the instant aircraft became approximately 114 knotss, and the minimum speed of the instant aircraft was 124 feet points at high altitude 124 feet, warning was given pursuant to GPS 4 times (the minimum speed of the landing reference of the instant aircraft was 132 knotss, the minimum speed of the speed of the aircraft was 114 knotss, the actual speed of the aircraft was 107 knotss), and the direction was 11:27:42"peed, which led to an increase in the confitivity by using a Pitch to attempt happiness. As a result, only 11:27:44 A/Td Madddd and converted from a THD to a THDR at a high speed of 124 feet.

However, even at a point below 100 feet, the aircraft was placed at a point below 100 feet to drive, and the speed of the aircraft of this case was about 11:27:46, while the aircraft of this case was at a point below 103 km, the aircraft of this case operated a separate steering system that warns the actual speed of about 11:27:46, and the aircraft of this case conflict with the embankment of this case 28L runway.

[Ground of recognition] Unsatisfy facts, Eul's entry of evidence Nos. 8, 11, 12, 23, 31 (including the number number; hereinafter the same shall apply), witness E, F, G, witness L of this court, K's testimony, the result of the examination by the court of first instance, the purport of the whole pleadings

3) Whether the captain of this case's negligence is recognized

In light of the following circumstances, the captain of the instant case took measures inappropriate due to the violation of the flight manual or the error of judgment during the landing process of the instant flight or failed to cope with each situation, and the captain of the instant case deemed the accident of the instant case to have occurred due to competition with all negligences by the captain of the instant case.

① The training captain changed Pitch citch citd to FLCH citd with a higher rate in order to rapidly attract 3,000 feet in the MCP. However, if it was intended to promptly lower the level as intended by the training captain, it was confirmed that there was a lower level than 1,900 feet at the time of the training captain, and then changed to FLCH cird. In other words, the training captain used FLCH cird in order to rapidly cut down with the establishment of 3,000 feet, which is 3,000 feet in the MCP. In other words, the training captain did not have been aware in advance that it would have attempted to reduce the forced growth with 3,00 feet, the happy 3,000 feet established by A/P, and that it could not have been forced to change A/P hitd's ability to prevent the unforeseeable A/P increase in the state of A/P.

② 원고의 POM(을 제31호증) 제2.17.2항 다목은 'Both F/D를 Off하고 PM쪽 Flight Directort ON 시킨다'고 정하고 있으므로 이에 따라 시계착륙 전 최저 강하고도 이후에 일단 양쪽 F/D 스위치를 모두 끄는 조작이 요구된다. 그러나 교관기장은 PF석 F/D 스위치만 끄고 PM석 스위치는 끄지 않음으로써 위 운항규범상 절차를 준수하지 않았다. 만일 교관기장이 양쪽 스위치를 모두 껐다면 의도치 않게 HOLD 모드로 전환된 A/T가 다시 SPD 모드로 변경되어 이 사건 항공기는 당시 MCP에 설정되어 있던 137노트의 속도를 유지했을 것이다. 이 사건 사고 당시 J사가 제공한 FCTM(갑 제26호증)에 FID 스위치의 작동 원리 등에 관하여 구체적으로 명시되어 있지 않았고 그로 인하여 비록 이 사건 기장들이 양쪽 F/D 스위치 조작과 A/T 회복의 연관성에 대하여 인식하지 못하고 있었다 하더라도 이 사건 기장들에게 위 운항규범상 절차를 준수하여 양쪽 F/D 스위치를 모두 끌 것을 기대하기 어려웠다고는 할 수 없다.

③ Under VM Section 2.13.6.5(a) of the Plaintiff’s POM Article 2.13.6(c) provides that all Ap proach must be 500 feet, and the conditions of Ap proach are stipulated in the same clause(c) that “If Ap proach is made in an amount not more than 500 feet to 500 feet, Gao-A shall be grounded immediately.” According to the above operation rules, if a visual flight satisfies one of the conditions of A propach at a point not exceeding 500 feet, the aircraft must perform happiness procedures if it fails to meet one of the conditions of the P propach at a point not exceeding 500 feet. The aircraft of this case was made fast and fast to 1,200 feet per minute at a point not exceeding 500 feet, and the operation rate at a point not exceeding 2190 feet is less than 12500 feet per hour at a point not meeting the above operation schedule.

Nevertheless, the captain of this case did not attempt happiness at each point, and thus, set the timing for happiness. In particular, it is possible to recognize that the PAPI's red color, etc. was considerably lower than that of the instant aircraft due to normal activation, even though the captain of this case was unaware of the fact that the captain of this case did not work for A/T, it does not seem impossible to immediately implement happiness according to the above index.

④ Since an aircraft has been demoted at the altitude of 500 feet and down to the runway, it is particularly important to revise and closely operate the flight route without delay so that the aircraft may enter the safe landing location. To this end, it is particularly important to accurately grasp the altitude, speed, and trend of the aircraft by monitoring the meter board from time to time. However, the captain of this case was negligent in monitoring the meter board, and it was impossible for the captain of this case to know that the aircraft did not recognize it, even though it was visually displayed that the aircraft was converted to the FMA (FMA) to the HOD master, and thus, the automatic speed control through A/T was not achieved. In addition, even if A/T continued to reduce the speed of the aircraft after its transition to the HLD master and finally reduced to 103 knots, it was difficult to ascertain that the aircraft at the time of the plane landing was at a low speed and did not have any choice but to observe the basic flight speed, even if it was in the situation of the aircraft at the time of the plane landing.

4) Whether the Plaintiff breached his/her duty of due care for appointment and supervision

A) The meaning of "violation of the duty of considerable attention to appointment and supervision" of the provision of this case refers to one of the causes for an air transportation business entity to order the suspension of operation of an aircraft by neglecting the duty of considerable attention to the appointment and supervision of the air transportation business entity. In this context, the term "act of neglecting the duty of considerable attention to the appointment and supervision" refers to a case where a person neglects the duty of due diligence to the extent of general and objective requirements for appointment and supervision in light of the contents of the text and the relationship with the relevant provisions, etc., and where there exists a substantial causal relationship between the breach of the duty of due care and the result of the breach of the duty of considerable attention. In addition, it is reasonable to deem that the degree of the above duty of care borne by the air transportation business entity refers to "the duty of due care to the extent of avoiding it by predicting the risk of an accident that may normally occur by air workers."

On the other hand, the plaintiff asserts that "reasonable duty of care" in the latter part of the provision of this case should be deemed to mean " duty of care equivalent to intention or gross negligence" as in the former part. However, the latter part of the provision of this case stipulates the liability of an air transportation business entity for an accident caused by an air transportation business entity. Since the latter part of the provision of this case is separate from the former part of the provision on the liability of an accident caused by an air transportation business entity, there is no reasonable ground to interpret that the degree of the duty of care is equivalent to that of the former part of the provision of this case (in a case where the provision of gross negligence is provided, "it is remarkably difficult to say", while "reasonable" in the provision of this case can be directly ' duty of care', it refers to the existence of proximate causal relationship between the violation of the duty of care as an normative assessment factor and the result). Therefore, the plaintiff's above assertion is without merit.

B) Whether the pilot violated his/her duty of due care for the convenience of the pilot

According to the following circumstances, as a whole, the evidence Nos. 9 and Nos. 4, 8, 11, 12, 32, and 34, the Plaintiff neglected to exercise due care in relation to the provision of the pilot convenience by posting the H training captain, who first performs his/her duty as a bridge captain, at the airport of this case, as a special airport, and neglecting to exercise due care in relation to the provision of the pilot convenience. It is reasonable to deem that the accident of this case occurred.

① The instant airport is classified as “Class B airport,” which is part of the criteria for determining airport rating under each item of Article 11 subparag. 2 of the Plaintiff’s Guidelines for Flight and Airport Rating Management (No. 9-3), and it is known in the aviation industry that it is a structural dangerous airport. At the time of the instant accident, H training captain took charge of the role of PF, which the H training captain, serves as the main engine of the aircraft at the time of the instant accident, and PM which is capable of monitoring the operation of the aircraft. H training captain operated the instant aircraft. The instant aircraft was the first flight of the instant aircraft, which is the type of the aircraft, and entered the instant airport, was 10 years after the instant aircraft was operated with another type of aircraft, and only 10 years have passed since the instant aircraft was operated with the instant airport. It is difficult for the H training captain to deem it appropriate in light of such training captain’s flight experience and the flight experience of the captain and the degree of difficulty of the instruction captain’s instruction captain in the instant airport.

② On the other hand, the Plaintiff asserts that the above guidelines for flight crew and airport grade management are subject to the Defendant’s management and supervision, and that the pilot’s convenience pursuant to the above guidelines cannot be deemed inappropriate. However, in light of Article 105 and 135 of the above guidelines, Article 116(1) of the former Aviation Act, and Article 283 subparag. 1 of the former Enforcement Rule of the Aviation Act, the above guidelines for flight crew and airport grade management do not seem to be subject to the Defendant’s authorization (the Defendant was a special case after the accident in this case)

In the inspection, although the above flight crew and airport grade management guidelines were notified to supplement the above flight crew and airport grade management guidelines, this constitutes an inspection conducted beyond the ordinary inspection scope to clarify the cause of the accident of this case, and the defendant seems to fall under the plaintiff's internal norms before the above inspection. Thus, the plaintiff himself/herself bears an obligation to operate appropriate flight guidelines to prevent accidents. Even if the plaintiff's flight guidelines were implemented with the defendant's approval, such flight guidelines shall be the minimum standard to comply with the formation of flight guidelines. The air transportation business operator has a duty to care to provide the pilot convenience, considering individual factors, such as the flight experience and difficulty of the airport for safe flight, the flight experience of the training captain, the role of the training captain to supplement the training captain, and the role of the training captain is emphasized, so the plaintiff's ability to cope with other accidents can not be found to be significantly different from that of the training captain and the flight engineer's experience, despite the possibility of other accidents.

③ Unlike the Plaintiff’s guidelines, the captain’s CPM (No. 34, LINE CHCEST PEUL) provides that the captain’s POE shall take charge of LIP (LR) with experience of at least three assistant drivers, at least six months after the appointment of LCPs (LL) or LIPs (LIPs) with experience of at least three assistant drivers, and that the captain shall take charge of at least six months after the appointment of LIPs. In the event of the captain’s initial performance of his/her duties, the captain shall perform the POE duties on the additional note, and the POE on the special public port shall perform its duties after 50% of the progress of the POE. The captain was the first flight officer, who was unable to take charge of the POE’s operation during the 29th class session, and thus, the POE’s first flight instruction was able to take place during the 29th class session.

④ As seen earlier, the instant aircraft did not have a speed of 122 knotss at high altitude 219 feet, and 15 knotss at a rate of 900 feet per minute, and PAPI changed to four colors, such as red. However, even though the instant aircraft became aware of such low speed, the captain of the instant aircraft was merely called “low” to the Hallout captain, and the instant aircraft was placed at an appropriate time of happiness because he did not voluntarily attempt, and the H training captain was not aware of the need to supplement shock power without properly monitoring the instrument board, thereby resulting in the instant accident. Such delay is inappropriate to see that the instant pilot’s behavior occurred due to the lack of flight experience in the training captain, lack of teaching experience in the instruction captain, and the instant pilot’s inappropriate performance of duties.

C) Whether the pilot violates his/her duty of due care on the pilot education

In light of the following circumstances, it is difficult to deem that the instant accident occurred due to the Plaintiff’s violation of the Plaintiff’s duty of care concerning the Plaintiff’s pilot education, on the following grounds: (a) the instant accident and the details of the instant pilot’s negligence; (b) the Plaintiff provided sufficient education, training, etc. to the captain, who is an employee of the first instance court, with sufficient education, training, etc. to prevent an aircraft accident; and (c) such insufficient education, training, etc. were led to the negligence of the captain at the time of operating the instant aircraft; and (d) it is reasonable to deem that the instant accident occurred due to the Plaintiff’s violation of the Plaintiff’s duty of care concerning the Plaintiff’s pilot education.

(1) As to the education on automatic power control devices

In light of the following circumstances, the facts and evidence as seen earlier and the statements in Gap evidence Nos. 35, 103, 120 through 123, when considering the overall purport of the arguments, it is difficult to view that the plaintiff knew or could have known the fact that the plaintiff would be converted into the PED Mod, and that the plaintiff could not expect that the plaintiff would actively investigate and educate the pilots, as it is difficult to recognize the violation of the plaintiff's duty of care as to this part, since it is difficult to accept the defendant's argument.

① The FCOM, a manufacturer of the instant aircraft, provided by J to the Plaintiff at the time of the instant accident, did not clearly describe the correlation between the drilling operation in FLCH Mods and the A/THHHD Modrid conversion. Accordingly, the U.S. NTSB recommended J to review the complicated automation system logic after the instant accident occurred, and to clarify the explanation of the application of HOLD Modr automatic application and the real speed prevention system in the manual. Accordingly, J required to revise the FLCOM’s part on A/T drilling operation as indicated below to add the content to A/T HHD Mods if TNds were forced to drive from FLCHds to force them.

A person shall be appointed.

A person shall be appointed.

② Although it is described as ‘IDLE - Before the amendment,' ‘IDLE - Before the amendment, it is described as ‘IDLE if A/T moves an HLD mondde to IDE, but it is not an explanation on the case where A/T automatically moves an HLD mond to IDDE. However, it is not an explanation on the case where A/T moves an HLD mond to IDE.

In addition, it is also described that A/T does not operate when automatically demoted to FCOMM using FLCH Modds before the amendment, and even if it was stated that A/T is able not to function as a precautionary function due to the operation of FLCH Mods in the course of lectures to VNAV(s) Moddds, it is difficult to infer that A/T will be converted into HLD Mods in the event of forced operation of FLCH Mods in the event of the instant accident, based on the above contents.

In particular, this is more so in that the system which is converted into the HLD master in the above situation is an extremely exceptional design method that cannot be found in other aircraft types.

④ Meanwhile, the Defendant’s transfer of the instant accident based on N’s certificate (No. 28)

From now to the point of view that the state of the HOLD application of A/T, which is at issue through the FCOM prior to the amendment provided by J, has been understood and educated its pilots. However, N is not only an academic specialist belonging to M in competition with the Plaintiff, but also an academic specialist belonging to M in competition with the Plaintiff, it is difficult to believe the contents of the above certification as it is, and there is no other evidence consistent with the above assertion.

(2) One of the main factors of the instant accident is that the captain of the instant case is unable to take a normal landing and attempted to take happiness. Article 2.1.1(1) of the Plaintiff’s POM (Evidence B No. 31) provides that “Missed Apach (Causes A-A) and operation of an aircraft shall be determined by the captain of the instant accident under the title “Missed Apach (Causes A-A),” and that “Misssed Ap proach” in paragraph (a) shall be determined by the captain of the instant accident: Provided, That where the additional captain is performing his/her PF duties, he/she may be conducted in conjunction with the additional captain if he/she is performing his/her duties, and Article 4.1.2(a) of the Plaintiff’s FOM (Evidence B) provides that “The captain has the ultimate authority to operate an aircraft during the course of performing his/her duties.” In full view of these provisions, the captain’s authority to perform his/her duties in the PIC direction of the captain may be determined by the PIC commander.

However, the captain stated in the letter of opinion on the notice of the cancellation of certification of qualification as an aircrew member (Evidence B No. 11) that "at 200 feet "at 200 feet gave advice that the speed is lower than the appropriate speed, and that PM was happy because he did not immediately do so." The training captain stated that "the captain of this case stated that "the captain of this case is the other party" in the letter of opinion submission (Evidence B No. 12) on the prior notice of the suspension of the validity of certification of qualification as an aircrew member, which seems to have been alerted, that it was impossible to prevent collision, that is, the happiness was delayed, because it was not known that the captain of this case was the other party, and that the captain of this case thought that the captain of this case was the other party of the happiness, regardless of whether the contents of each of the above crimes are clearly stated, the captain of this case could not receive sufficient education on this part.

(3) As to the standard navigation procedures, the standard currency procedures, the Autom response training

In light of the following circumstances, the Plaintiff’s breach of duty of care as to this part is presumed to be presumed in light of the overall purport of the facts and evidence duly admitted as seen earlier.

① The Plaintiff’s POM (No. 31) provides that “Both F/D shall be ON only with the PMF holder,” and accordingly, it is required to operate both F/D positions once and after the lowest level of vision prior to visual landing. However, the COM’s failure to comply with the procedures prescribed in the above flight regulations, and thereby, the automatic drilling power control device, which has been converted into HOLD master, has lost the opportunity to change the automatic drilling system to SPD.

② The captain of the instant case failed to properly implement the standard monetary procedure during the landing process of the instant flight. The standard monetary procedure is a matter that requires strict management by conducting training and examination through three regular trainings (including LOFT training) and one examination process. In particular, according to the Plaintiff’s POM and standard monetary procedure, the Plaintiff’s POM and standard monetary procedure does not constitute a AP proach to the extent that the instant aircraft was not an 50 feet, and thus, the captain of the instant case violated the instant provision, but the captain of the instant case violated the instant provision.

③ In other words, if the plane captain complied with the Plaintiff’s POM and operated the instant aircraft, it could prevent the instant accident. The Plaintiff asserted that the Plaintiff provided the Plaintiff’s standard navigation procedures, standard navigation procedures, etc. with respect to the Plaintiff’s POM, and that it was similar to the provisions of other airlines, and thus, the Plaintiff fulfilled its duty to provide education. However, it is essential to comply with the flight manual in light of the characteristics of the aircraft accident that is easy to lead to a large number of accidents involving small scale of human lives. Unless there are special circumstances that the instant pilot’s violation of the flight manual is due to the Plaintiff’s intention or gross negligence, it shall be evaluated as due to insufficient education and failure to monitor the compliance of the flight manual by its employees.

④ The issue of error in the Autilization System function of an aircraft is likely to occur at any time, and where such situation occurs, the pilot’s passive operation of the aircraft and taking prompt and appropriate measures is required to be sufficiently prepared. In the case of the instant accident, the mechanical defect, such as the error in the Autilization System, is not caused, and the instant accident follows the conclusion that the captain of the instant case is not aware that the Autilization System does not work normally, and the case results from the late recognition without being aware that the aircraft captain of the instant case does not work normally. However, in such circumstances, education and training should be conducted to check other external visual signal or information on the instrument, etc. so that appropriate measures can be promptly taken.

⑤ Even if the Plaintiff had operated education and training programs according to the standards prescribed by relevant Acts and subordinate statutes under the strict supervision and supervision of the Ministry of Land, Infrastructure and Transport and there was no case where the Plaintiff was found to have explicitly failed to observe the relevant regulations, it is important to determine whether the Plaintiff had actually performed appropriate education and training for its pilots. Therefore, such circumstance alone cannot be deemed as having completed the performance of

5) Sub-decisions

Therefore, although it is not recognized that the Plaintiff violated the duty of care in the education of automatic drilling devices among the grounds alleged by the Defendant, it is deemed that the instant accident occurred due to the Plaintiff’s neglect of duty of care in relation to the appointment and supervision of the captain in the instant case, and thus, it constitutes grounds for suspension of operation under the latter part of Article 115-3(1)45 of the Aviation Act.

C. The reasoning of this court’s judgment on this part as to whether Article 115-3(1)40 of the Aviation Act falls under Article 115-3(1) is the same as that of the judgment of the court of first instance from 22 to 20 acts, and thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of

5. Whether the discretionary authority is deviates or abused;

A. The plaintiff's assertion

1) ① The fact that J Cos provided insufficient manuals for the automation system B is the core cause of the instant accident, the Defendant did not take into account the fault of Js in rendering the instant disposition at all, and ② the Defendant did not recognize two of the three disposition grounds for the instant disposition in the first instance trial. The instant disposition constitutes an illegal disposition that deviates from and abused discretion due to errors in fact-finding, which is the basis of exercising discretion.

2) Article 115-3(1) of the former Aviation Act, which is the law based on the instant disposition, only provides for the revocation of the certification of operation or the suspension of operation of an aircraft, and does not provide for the suspension of operation of an aircraft. The instant disposition that issued a disposition of the suspension of operation of an aircraft by designating the subject of the disposition of the suspension of operation of an aircraft as a whole of an aircraft operating a specific route constitutes an illegal disposition that deviates from

B. Determination

1) Even if the criteria for a punitive administrative disposition are prescribed in the form of a Ordinance, it has no effect to externally bind citizens or courts since it is nothing more than setting the administrative agency's internal rules for handling affairs, and whether such disposition is legitimate or not must be determined in accordance with the contents and purport of the relevant laws and regulations, not only the above criteria for disposition, but also the above criteria for disposition. Thus, it cannot be deemed legitimate as soon as it conforms to the above criteria for disposition. However, the above criteria for disposition does not in itself conform with the Constitution or laws, or unless there are reasonable grounds to believe that the disposition is remarkably unreasonable in light of the contents and purport of the relevant laws and regulations, it shall not be determined that the pre-paid administrative disposition goes beyond the scope of discretionary authority or is abuse of discretionary authority (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20,

In addition, even if some of the grounds for dispositions are lawful, where the legitimacy of the disposition is recognized as the grounds for other dispositions, such dispositions cannot be deemed unlawful (see, e.g., Supreme Court Decisions 96Nu1184, May 9, 1997; 2001Du7138, Feb. 5, 2002; 2003Du1264, Mar. 25, 2004).

2) There is no dispute between the parties that the Defendant rendered the instant disposition on the premise that the instant accident was caused solely by the Plaintiff’s fault. However, even if the Plaintiff’s negligence contributed not only to the Plaintiff’s fault but also to the Plaintiff’s fault as alleged by the J company, the Plaintiff asserted that the J company recognized the Plaintiff’s negligence on the ground that the Plaintiff jointly and severally agreed with the victims of the instant accident. However, whether the J company recognized the Plaintiff’s negligence is subject to the Confidentiality Convention between the Plaintiff and the J company, and the fact-finding is not affected by this court’s judgment, and thus, this court did not find the fact-finding, as seen earlier. In light of the content of the J company’s fault, the Plaintiff’s negligence and the Plaintiff’s duty of care to appoint and supervise the Plaintiff’s pilots were the primary cause of the instant accident. Accordingly, the Plaintiff’s assertion that the Defendant did not take into account the Plaintiff’s discretionary authority or the Plaintiff’s assertion that part of the Plaintiff’s negligence was an abuse of discretion as to the Plaintiff’s grounds for appeal.

① The Plaintiff’s act subject to sanctions constitutes an act that violates Article 115-3 subparag. 45 of the Aviation Act, and thus, the criteria for sanctions against such act constitute 60 days (in addition to 3 persons killed and wounded in death, 29 persons killed and wounded in death and 3.0 billion won) of the suspension of operation of an aircraft prescribed in subparagraph 8 (f) of Article 281-3(1) [Attachment Table 56] of the former Enforcement Rule of the Aviation Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 146, Nov. 28, 2014), and 30 days (in addition to 14 persons killed and wounded in death and 13.9 billion won) of the suspension of operation of an aircraft prescribed in subparagraph 8 (a) through (q) of the same subparagraph. Thus, the disposition of this case is within the scope of the disposition prescribed by the above Enforcement Rule.

② In light of the causes and scale of damage of the instant accident, compared to the cases of sanctions stated in the attached Table 5, as to the Defendant’s violation of the Aviation Act related to other aircraft accidents, the instant disposition is not deemed particularly more severe than the cases of sanctions stated in the attached Table 5.

③ There have occurred several accidents, such as the Plaintiff’s Schedule of Disciplinary Measures on Aircraft Accidents, and even after the accident in this case, access failure and happiness occurred in the airport landing process of this case. There is a need for effective sanctions to prevent further occurrence of repeated aircraft accidents. In the case of a penalty surcharge for the instant accident, the amount of the penalty surcharge is considerably minor compared to income equivalent to 45 days for the suspension of operation (around 20 billion won) and it is difficult to expect effectiveness of sanctions.

④ The Plaintiff asserts that the Plaintiff’s action against a disciplinary measure may adversely affect the aviation safety system by taking advantage of safety information, such as non-cooperation and distortion of investigation into the cause of the accident, and the occurrence of the lack of seats in the air route of this case. The Plaintiff’s loss of the Plaintiff’s slots and airport facilities, causing severe inconvenience to users, etc., thereby undermining the public interest. Thus, the instant measure of suspension of operation violates Article 115-4(1) of the Aviation Act (hereinafter “the Plaintiff may impose a penalty surcharge not exceeding 10 billion won in lieu of the measure of suspension of operation of an aircraft, in cases where the suspension of operation is likely to cause serious inconvenience to users, etc. or undermine public interest.” Such circumstances asserted by the Plaintiff are already reviewed and considered at the stage of the disposition of this case, and in light of the contents of the review, it is difficult to view that the inconvenience of passengers, etc. caused by the instant disposition is considerably more than that of the safety and prevention of the aviation accident.

⑤ In light of the fact that the case of the suspension of operation of an overseas airline, such as the attached Form 6’s case of overseas disposal, was proved to have continuously and structural safety, maintenance, and training problems in the airline, and thus the prohibition of operation was imposed, the Plaintiff asserts that the disposition in this case is highly likely to fall. However, considering the fact that the above overseas disposal cases were prohibited not only from partial routes, it is difficult to conclude that the Plaintiff is likely to be considered the same as the above overseas disposal cases, and even if the overseas delivery falls to a certain extent, it cannot be deemed that the disposition in this case is unduly excessive.

6) While rendering the instant disposition, the Defendant considered both the increase or decrease factors of sanctions for each of the above matters based on the detailed criteria, such as the importance of routes, degree of negligence, recent existence of accidents, degree of harm to human lives and property, actual conditions to cope with airline accidents, and effort to improve safety. The Defendant concluded that the suit was equal. However, the period of the instant disposition was set by reducing 1/2 of the suspension period of operation under the Enforcement Rule (the same shall apply only to the case of violation of subparagraph 45 above), and the time and termination period of the disposal period so that the Plaintiff may choose a period of less than six months within the extent of damage.

3) Article 115-3 of the former Aviation Act lists subparagraphs 1 through 46 due to the revocation of certification for operation of an aircraft or the suspension of operation of an aircraft (Provided, That subparagraphs 1, 37, and 46 are applicable to the grounds for revocation of certification for operation of an aircraft), and subparagraphs 2 through 13, as well as the grounds for violation of the safe operation regulations, which do not fall under physical factors, such as subparagraphs 16 through 45, also stipulate the grounds for the suspension of operation of a specific aircraft. With respect to the grounds for defects in the aircraft itself, the disposition of the suspension of operation of the specific aircraft alone can remove the risks, but in the case of reasons other than physical factors, the order of the suspension of operation of only a specific aircraft cannot be an appropriate measure.

Therefore, in order to achieve the legislative purpose of Article 115-3(1) of the Aviation Act, "maintenance of the safe operation system", it should be interpreted as including "disposition of suspension of operation of an aircraft operating on a specific route". The amendment of Article 115-2(7) of the former Aviation Act to add the suspension of operation of an aircraft in addition to the suspension of operation of an aircraft is to confirm the necessity of the suspension of operation of the aircraft and to clarify the necessity of the suspension of operation of the aircraft, and it does not seem to have created a new disposal form on the premise that the suspension of operation of the aircraft could not be possible before the amendment. The plaintiff's assertion on this part is without merit.

6. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.

Summary Judge of the presiding judge;

Judges Park Jae-woo

Judgment of the Supreme Court