[1] Requirements for the application of Article 86 of the former Road Act, and the standard for determining whether a corporation neglected its duty of due care or management and supervision in a specific case

[2] The case holding that the judgment of the court below which punished Gap's affiliated corporation under Article 86 of the former Road Act on the ground that Gap's act constitutes a violation of Article 83 (1) 3 of the former Road Act, is erroneous in the misapprehension of legal principles as to the liability of the business owner under the two punishment provisions, or in the incomplete hearing

[1] Article 83 (1) 3 of the former Road Act (wholly amended by Act No. 8976 of Mar. 21, 2008) provides that, in addition to punishing a person who fails to comply with a request by the management agency to submit relevant documents to confirm whether the vehicle has violated restrictions on operation without justifiable grounds, Article 86 of the same Act provides that, where an agent, employee, or other worker of a corporation commits a violation in connection with the business of the corporation, the corporation shall also be punished. In light of the principle of self-responsibility, it is reasonable to deem that the above two punishment provisions apply only when the corporation neglects its duty of due care or supervision in relation to the business of the violation. In specific cases, the issue of whether a corporation neglected its duty of considerable attention or supervision shall be determined by comprehensively taking into account all the circumstances related to the violation in question, namely, the legislative purport of the Act in question, the degree of infringement of legal interests anticipated to violate punishment provisions, the intent of preparing both punishment provisions as to the violation, as well as the specific nature of the violation and the degree of damage or result actually caused by the violation, the corporation, the possibility of supervision or supervision.

[2] The case holding that the judgment of the court below which punished Gap pursuant to Article 86 of the former Road Act without examining the contents of the duty of care of the corporation Gap and the violation of the duty of care and the duty of care of the corporation Gap, was erroneous in the misapprehension of legal principles as to the liability of the business owner of the two punishment provisions, or incomplete deliberation, on the ground that Gap's act constitutes a violation of Article 83 (1) 3 of the former Road Act (wholly amended by Act No. 8976 of Mar. 21, 2008) since it was demanded by the road management agency to suspend the violation of the restriction on the height of the vehicle by the employees of the road management agency after measuring the vehicle with the restricted height

[1] Articles 54(4) (see current Article 59(4)), 83(1)3 (see current Article 9(1)5), and 86 (see current Article 100(1)) of the former Road Act (wholly amended by Act No. 8976, Mar. 21, 2008) / [2] Articles 54(4) (see current Article 59(4)), 83(1)3 (see current Article 98(1)5), and 86 (see current Article 100(1)) of the former Road Act (wholly amended by Act No. 8976, Mar. 21, 2008)

[1] [2] Constitutional Court en banc Order 2008Hun-Ga16 decided July 30, 2009 (Hun-Gong154, 1409) en banc Order 2008Hun-Ga17 decided July 30, 2009 (Hun-Ga154, 1418)

Defendant 1 and one other

Defendants

Daejeon District Court Decision 2009No796 Decided June 17, 2009

The part of the judgment of the court below regarding Defendant 2 corporation is reversed, and that part of the case is remanded to the Daejeon District Court Panel Division. Defendant 1’s appeal is dismissed.

1. The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below, based on the evidence duly adopted and examined, found the fact that Defendant 1's vehicle was measured by a vehicle with a height exceeding the limit, and the road management authority requested Defendant 1 to suspend the restriction on the height of the vehicle, but Defendant 1 did not stop, and recognized the fact that Defendant 1 passed through the inspection station as it is. The ground of appeal on this point is that the court below erred fact-finding by violating the rules of evidence.

However, since the fact finding and the selection and evaluation of evidence conducted as a premise thereof do not exceed the bounds of the principle of free evaluation of evidence, they belong to the exclusive authority of the fact-finding court, and in this case where it is not possible to find out the grounds that the court below did not go beyond the above limit in light of the reasoning of the judgment below and the records, the above appeal is merely to criticize matters falling under the exclusive authority of the court below, and thus it cannot be justified

2. Defendant 2 Co., Ltd. (hereinafter “Defendant Co., Ltd.”) will live ex officio with respect to the liability under both punishment provisions.

Article 83 (1) 3 of the former Road Act (wholly amended by Act No. 8976 of Mar. 21, 2008; hereinafter the same) provides a double punishment provision which punishs an agent, employee, or other worker of a corporation, in addition to punishing a person who fails to comply with a request by the management agency to submit relevant documents to verify whether the vehicle has violated the restriction on operation without justifiable grounds.

In light of the principle of self-responsibility, it is reasonable to deem that the above two punishment provisions apply only to a case where a corporation neglects its duty of due care or management and supervision in relation to the business of violation. In a specific case, whether a corporation neglects its duty of due care or management and supervision shall be determined by comprehensively taking into account all the circumstances related to the violation in question, namely, the legislative purport of the relevant law, the degree of infringement of legal interests anticipated to violate the penal provision, the purport of preparing both punishment provisions concerning the violation, as well as the specific form of the violation and the degree of damage or result actually caused thereby, the scale of the business of the corporation, the possibility of supervision or supervision over the offender, and the measures actually

In this case, considering the following factors: (a) Defendant 1’s act of violation was measured by a vehicle with a height exceeding the limit on the driving vehicle and then passed the inspection station despite the road management authority’s demand for suspension to verify whether the restriction on the height of the vehicle was violated; (b) the degree of infringement of legal interests arising from such act of violation or the legislative intent of the former Road Act stipulating that the corporation, other than the violator, etc., should punish the Defendant company pursuant to the above punishment provision: (c) the size, such as the number of employees of the Defendant company; (d) direction and supervision of the employees of the Defendant company; (e) whether the ordinary Defendant company conducted compliance education such as ensuring that the employees comply with the pertinent public official’s legitimate instruction or demand; and (e) whether it was necessary to give due attention to, or thoroughly supervise and supervise the Defendant 1 by predicting the above act of violation; and (e) whether it was necessary to examine whether the Defendant company faithfully fulfilled such duty.

Nevertheless, solely on the ground that Defendant 1’s act constitutes a violation of the former Road Act, the lower court did not examine whether Defendant Company’s duty of care was violated or not and punished Defendant Company pursuant to the above double punishment provision. In so doing, the lower court erred by misapprehending the legal doctrine on the liability of the employer under the former Road Act, or by failing to exhaust all necessary deliberations, and thereby adversely affecting the judgment.

3. Conclusion

Therefore, the part of the judgment below against the defendant company is reversed and the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 1's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)