In a case where Party A, a local owner of a truck, committed an act stipulated in Article 28 (1) 12 of the Regulations on the Management of Subsidies for Fuel Motor Vehicles, which is announced by the Minister of Land, Infrastructure and Transport, thereby aiding and abetting the crime of ordinary motor vehicle fire, and the head of the competent Gun issued a disposition of recovery of fuel subsidies and suspension of payment of fuel subsidies for six months, the case holding that the above management regulations are unlawful

In a case where Party A, who is a branch owner of a truck, refused or obstructed cargo transport in a collective manner or caused an obstacle to the national logistics system by aiding and abetting the crime of preventing ordinary motor vehicle fire, the case holding that Article 44-2 (1) 5 of the Trucking Transport Business Act (hereinafter “ Trucking Transport Business Act”) stipulates that “where Party A received a subsidy in violation of the matters determined and publicly notified by the Minister of Land, Infrastructure and Transport pursuant to the latter part of Article 43 (2)” is based on the premise of the relationship between the violation and the payment of subsidy; Article 44-2 (1) 1 through 4 and 6 of the Act, which is the ground for suspending payment of subsidy, is also a ground for suspending payment, and Article 28 (1) 12 of the same Act, which is also an "unlawful supply and demand" and Article 44-2 (1) 1 through 4 and 6 of the same Act, the purpose of the above management regulations is clearly distinguishable from the scope of administrative delegation and demand management regulations and its scope.

Trucking Transport Business Act (Amended by Presidential Decree No. 25788, Nov. 28, 2014); Articles 43(2), 44, and 44-2(1)5 of the former Enforcement Decree of the Trucking Transport Business Act (Amended by Presidential Decree No. 25788, Nov. 28, 2014; see current Article 9-13)

Plaintiff (Law Firm Alternative, Attorneys Shin Jae-tae et al., Counsel for the plaintiff-appellant)

Head of Ulsan Metropolitan City Gun;

March 26, 2015

1. On July 29, 2014, the Defendant’s disposition of suspending payment of fuel subsidies and fuel subsidies issued to the Plaintiff for six months shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is an owner of a truck (vehicle number omitted) (hereinafter “instant vehicle”) and a person who enters into an entrustment contract for the instant vehicle with Samyang Korea Transportation Co., Ltd. and engages in cargo transport business.

B. On January 4, 2013, the Plaintiff was sentenced to one year of imprisonment with prison labor and two years of suspended execution (Ulsan District Court 2012Gohap437) due to general car fire prevention assistance (hereinafter “instant criminal act”). The Plaintiff and the Prosecutor appealed both the Plaintiff and the Prosecutor, but the lower judgment was sentenced on May 9, 2013 (Ulsan High Court 2013No47) and the said judgment became final and conclusive as is, on the 22th day of the same month.

The table included in the main text ○○○○○○ Head of the District Department, and around June 18, 2012, in the ○○○○○○○○ Broadcasting Bus parked in the Ulsan-gun ( Address 1 omitted), upon Nonparty 1’s request to rescue the startinger, paint, fire-proof clothes, locks, etc. necessary for committing a crime of fire, purchased on June 20, 2012, 1, 200, 2, 2, 5, etc., 200, at the office of the Ulsan-gun District Branch, located in the Ulsan-gun District, ( Address 2 omitted), the Defendant assisted Nonparty 1 to spread the said goods to Nonparty 1, in collaboration with Nonparty 2, and 2, 300, 100, 2000, 1000, 2000, 2000, 100,000,000).

C. On July 29, 2014, the Defendant recovered fuel subsidies of KRW 20,730 paid to the Plaintiff pursuant to Articles 44 and 44-2 of the Trucking Transport Business Act (hereinafter “ Trucking Transport Business Act”); Article 9-11 of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 25788, Nov. 28, 2014); Articles 28 and 29 of the Regulations on the Management of Trucking Subsidies (hereinafter “instant Management Regulations”); and the Defendant notified the Plaintiff that the payment of fuel subsidies is suspended for six months (from August 10, 2014 to February 9, 2015) (hereinafter collectively referred to as “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 3 (including provisional number), the purport of whole pleadings

2. The legality of disposition.

A. The plaintiff's assertion

1) Regarding suspension of payment of fuel subsidies for six months

A) Article 44-2 of the Trucking Transport Business Act, which is the authorized Act of the instant management regulations, lists oil subsidies in a fraudulent or other unlawful manner to suspend the payment of oil subsidies. However, Article 28(1)12 of the instant management regulations stipulate the prohibition of collective transport refusal or obstruction beyond the scope of delegation, and imposes restrictions on oil subsidies. Thus, it is unconstitutional or unlawful as it goes beyond the scope of delegation, and the instant disposition based on the said provision is unlawful.

B) Articles 28(1)12 and 29(1) and (2) of the instant Management Regulations aim at achieving administrative purposes of preventing and preventing collective transport refusal, interference, and acts that interfere with the national logistics system by using administrative means, such as recovery, suspension, etc. of oil subsidies. However, the instant disposition based on such administrative means and administrative purposes is against the principle of suitability (the principle of proportionality) due to no reasonable relevance between such administrative means and administrative purposes, and the instant disposition based on the said provisions is also unlawful.

C) The Plaintiff was punished for aiding and abetting not directly committing a fire-prevention but aiding and abetting. The Plaintiff’s above act cannot be deemed as a collective refusal, interference with, or aiding and abetting the goods transport under Article 28(1)12 of the instant management regulations, even if it can be seen as an act of aiding and abetting and abetting the State’s logistics system. Thus, the Plaintiff’s disposition of this case on the ground of the instant management regulations is unlawful.

D) As a result of the investigation into a cargo-related annual fire-prevention case, which is the cause of the instant disposition, 22 persons were indicted, 8 of them were detained, 2 of them were indicted, and the remainder was not detained, or suspended for prosecution. However, regardless of the aforementioned detention or prosecution, some of them were subject to an administrative disposition, such as not being subject to an administrative disposition, and in particular, it is inconsistent with the principle of equity to impose the instant disposition on the Plaintiff who was prosecuted for non-detained without any administrative disposition.

2) Regarding the recovery disposition of fuel subsidies

Article 44-2(1)3 of the Trucking Transport Business Act, which the Defendant cited as the basis for the disposition of recovery of fuel subsidies, is not the ground for the instant disposition, and even if recognized, there is no evidence to acknowledge that the main oil with limited liability was not used for the cargo transport business on June 26, 2012, and thus, the Defendant’s disposition on this part is unlawful.

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

C. Determination

1) Determination on the disposition of suspending payment of fuel subsidies for six months

A) Article 43(2) of the Trucking Transport Business Act provides that the Mayor, etc. may subsidize all or part of the amount equivalent to the increase of a certain amount of tax imposed on oil for the trucking business operator, etc. The Minister of Land, Infrastructure and Transport shall determine and publicly notify the matters necessary for the payment, payment method, application document, procedure, etc. of subsidies. Article 44-2(1) provides that where the trucking business operator, etc. falls under any of the following subparagraphs, he/she shall suspend the payment of subsidies pursuant to Article 43(2), as prescribed by Presidential Decree. Article 43(2)5 provides that “Where he/she receives subsidies in violation of the matters determined and publicly notified by the Minister of Land, Infrastructure and Transport pursuant to the latter part of Article 43(2)” and Article 28(1) of the Management Regulations enacted by delegation of Article 43(2) of the same Act provides that the trucking business operator, etc. shall not suspend or interfere with any of the following acts, and that Article 29(2) of the same Act provides that the trucking authority shall take measures to reduce the amount of subsidies.

Meanwhile, in a case where a provision of a statute grants authority to determine the specific matters of the statute to a specific administrative agency and does not specify the procedure or method of exercising its authority, and thus an administrative agency specifically determines the matters to be the contents of the statute in the form of a public notice, which is an administrative rule, the public notice shall have effect as an external binding legal order, unless it goes beyond the bounds of delegation under the pertinent statute. In addition, in a case where a subordinate statute was delegated to a certain matter in relation to a certain matter, the determination of whether the subordinate statute complies with the limits of delegation must comprehensively take into account the legislative purpose and contents of the relevant provision, the contents of the provision, the structure of the provision, and the relationship with other provisions. Even though the delegation itself clearly states the limits of delegation by using terms with which the meaning can be accurately known, whether the delegation itself goes beyond the limits of the literal meaning of the terms used in the delegation provision, and whether a new legislation was made beyond the stage of embodying the delegation by expanding or reducing the scope of the terms used in the delegation (see, e.g., Supreme Court Decision 2009Du797).

B) The following circumstances revealed by the relevant laws and regulations, namely, ① Article 44-2(1)5 of the Trucking Transport Business Act defines “cases of receiving subsidies in violation of the matters determined and publicly notified by the Minister of Land, Infrastructure and Transport pursuant to the latter part of Article 43(2)” as grounds for suspending payment of subsidies on the ground that “cases of receiving subsidies in violation of the matters determined and publicly notified by the Minister of Land, Infrastructure and Transport pursuant to the latter part of Article 43(2) is premised on the relationship between the violation and the payment of subsidies; ② Article 44-2(1)1 through 4 and 6 of the same Act as grounds for suspending payment of subsidies are also related to “illegal receipt”; ③ The instant management regulations also classify the purpose into “where the standards, methods, and procedures necessary to pay fuel subsidies to trucks,” and “where the scope of the fraudulent receipt of fuel subsidies and procedures for administrative sanctions are clearly established, the instant provision is not related to the illegal receipt of subsidies, and further, Article 29(2) of the Administrative Sanctions Act provides that the instant provision constitutes a provision of Article 28(2).

C) Ultimately, without examining the remaining arguments of the Plaintiff, the suspension of payment of fuel subsidies for the six-month period of this case based on the instant provision is unlawful.

2) Determination on the disposition of return of fuel subsidies

A) According to the statements in Gap evidence Nos. 2 and Eul evidence Nos. 1 through 3 (including paper numbers), since the defendant interfered with illegal transportation, such as fire prevention of vehicles, etc. when the plaintiff refused to transport ○○○ Group, it constitutes a case where the plaintiff collectively refused or obstructed transportation of cargo under Article 28 (1) 12 of the Management Rules, or caused an obstacle to the national logistics system, thereby causing an obstacle to the national logistics system. Therefore, the plaintiff's oil cost subsidies for the oil cost for the truck company located on June 26, 2012 were received by illegal means in accordance with Article 29 (1) of the Management Rules and disposed of. However, since Article 28 (1) 12 of the Management Rules of this case was illegal in violation of Article 28 (1) 12 of the Management Rules beyond the limit of delegated legislation, it is also unlawful on the premise that the plaintiff's act constitutes the above provision.

B) On June 26, 2012, the Defendant: (a) provided KRW 100,540 oil from a truck company in the city around June 26, 201 and received KRW 20,732 subsidies from the Defendant; and (b) did not use such oil for the trucking transport business; (c) accordingly, the Defendant’s act of violating Article 44-2(1)3 of the Trucking Transport Business Act and the Defendant’s disposition of restitution of the said subsidy is justifiable.

However, in an appeal litigation seeking the revocation of an administrative disposition, the agency may add or change other reasons only to the extent that the original reason and basic factual relations are recognized to be identical, and the existence of such basic factual relations is determined based on whether the basic social factual relations are identical in that of the specific facts prior to the legal evaluation of the grounds for disposition. As such, it cannot be said that the initial reason for an addition or alteration exists at the time of the disposition or the parties knew of such fact (see Supreme Court Decision 2009Du15586, Nov. 26, 2009).

As seen earlier, the Defendant’s ground for disposition was the Plaintiff’s aiding and abetting the Plaintiff’s act of refusing the transport of ○○ Group and obstructing the transport thereof. Upon the instant lawsuit, the Defendant asserted on June 26, 2012 that the Plaintiff did not use oil with limited liability for trucking transport business, which differs from the facts that used as the ground for the instant disposition at the time of the instant disposition as the ground for the instant disposition. Accordingly, the Defendant cannot assert a separate fact from the facts that considered as the ground for the instant disposition in the instant lawsuit.

Furthermore, according to the evidence evidence No. 1, the plaintiff was punished as an aiding and abetting the crime of ordinary car fire prevention on June 20, 2012 with respect to the act of aiding and abetting the act of aiding and abetting the act of preventing the fire of a motor vehicle by taking a stoper, etc. to Nonparty 1, etc. on June 20, 2012, and the above evidence alone is hard to recognize that the plaintiff oil oiling on June 26, 2012 and used it for any purpose other than transport service, and there is no other evidence to acknowledge it otherwise.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Lee Jae-soo (Presiding Judge)