[1] The purpose of Article 5(1) [Attachment 1] of the former Enforcement Decree of the Trucking Transport Business Act’s Article 5(1) [Attachment 1]’s Article 5(1) [Attachment 2] and Article 5 subparag. 4 of the former Enforcement Decree of the Trucking Transport Business Act’s Article 5(1) [Attachment 1]’s Article 5(1) [Attachment 1]’s Article 5(2) and subparag. 4 of the same Act

[2] Whether a penalty surcharge may be imposed, in lieu of the disposition of business suspension, on the type of an offense for which a penalty surcharge may be imposed in lieu of the disposition of business suspension pursuant to the delegation of Article 21(2) of the Trucking Transport Business Act and on the type of offense for which the penalty surcharge may be imposed in lieu of the disposition of business suspension (negative)

[1] Article 5(1) [Attachment 1] [Attachment 2] and Article 5(1)4 of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 27782, Jan. 10, 2017; hereinafter “former Enforcement Decree”) purporting to further punish a person who repeatedly commits the same act of violation even though he/she was subject to a disciplinary measure according to the frequency of such act of violation. In full view of the purport of the system and the language of [Attachment 1] and Article 5(4) of the former Enforcement Decree of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 27782, Jan. 10, 2017; hereinafter “former Enforcement Decree”), to apply “the criteria for aggravated disposition according to the frequency of the act of violation,” it should be deemed sufficient if the previous disposition of violation was conducted within one year from the date of the disciplinary measure, and it does not necessarily need to be deemed that the previous disposition of violation was conducted in accordance with the contents of the disciplinary guidelines specified in [Attachment 1] 2].

[2] In principle, where a trucking transport business operator commits a violation falling under the grounds for business suspension under each subparagraph of Article 19(1) of the Trucking Transport Business Act (hereinafter “ Trucking Transport Business Act”), a trucking transport business operator shall be subject to the disposition of business suspension pursuant to Article 19(1) of the Trucking Transport Business Act. However, the legislators allow a trucking transport business operator to impose a penalty surcharge in lieu of the disposition of business suspension in cases where the disposition of business suspension is likely to cause inconvenience to users of the transport business or impair public interests, as prescribed by Presidential Decree. As such, the legislators do not simply delegate the duty of specifying “standards for calculation of penalty surcharges” in the Presidential Decree, but rather delegate the duty of embodying “type of a violation” that may be imposed in lieu of the disposition of business suspension. Therefore, it is not permissible to impose a penalty surcharge in lieu of the disposition of business suspension for the type of a violation that is not listed in the “type of a violation subject to the penalty surcharge and the amount of the penalty surcharge.”

[1] Article 19(1) of the Trucking Transport Business Act, Article 5(1) [Attachment 1] of the former Enforcement Decree of the Trucking Transport Business Act (Amended by Presidential Decree No. 27782, Jan. 10, 2017) / [2] Articles 19(1), 21(1) and (2) of the Trucking Transport Business Act, Article 7(1) [Attachment 2] of the former Enforcement Decree of the Trucking Transport Business Act (Amended by Presidential Decree No. 27782, Jan. 10, 2017)

[1] Supreme Court Decision 2014Du2157 Decided June 12, 2014 (Gong2014Ha, 1416)

K Total Logistics Co., Ltd. (Law Firm Support, Attorney Lee Ha-hoon, Counsel for defendant-appellant)

The head of Seocho-gu (Attorney Park Jong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2017Nu44352 decided November 9, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Case summary and key issue

A. According to the reasoning of the lower judgment, the following facts are revealed.

1) The Plaintiff is a trucking transport business operator who runs a general trucking transport business. In order to change a special-purpose truck to a general truck, the Plaintiff must obtain the permission for the scrapping. However, from April 5, 2013 to August 21, 2013, the Plaintiff only reported the scrapping of the truck on 22 occasions, as shown in the first instance judgment (attached Form 1) (hereinafter “instant vehicle”).

2) On September 2, 2015, the head of ○○○○○, which has jurisdiction over the location of the Plaintiff’s head office, operated the instant vehicle as a general truck without obtaining permission for scrapping the Plaintiff on behalf of the Plaintiff (hereinafter “the primary violation”), and imposed a penalty surcharge of KRW 20 million in lieu of the disposition to stop the operation of a non-compliant vehicle (60 days) based on Articles 3(3), 19(1)2, and 21(1) of the Trucking Transport Business Act (hereinafter “the Trucking Transport Business Act”).

3) On February 23, 2016, and February 25, 2016, the head of ○○○○ issued a prior notice to the Plaintiff to reduce the number of vehicles in violation of the second violation of Article 5(1) [Attachment 1] of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 27782, Jan. 10, 2017; hereinafter “former Enforcement Decree”) in cases where the Plaintiff ceased operating the instant vehicle by illegally increasing the number of ordinary trucks and fails to comply with the procedure for replacing the instant vehicle to the original special purpose truck again within three months. The Defendant gave prior notice to the Plaintiff on March 24, 2016, of the same purport.

4) On June 13, 2016, the Plaintiff did not comply with the advance notice, and the Defendant continued to operate 20 vehicles among the instant vehicles illegally increased without obtaining permission for change from the Plaintiff, as a general truck (excluding 2 vehicles whose period of scrapping of the vehicle in front 22 vehicles of the first 22 vehicles of the first 22 vehicles of the first 22 vehicles) (hereinafter “the second violation”), on the ground that the vehicle continues to operate as a general truck (hereinafter “the second violation”), the Defendant issued a reduction of 20 vehicles for violating vehicles based on the sanction criteria under Articles 3(3) and 19(1)2 of the Truck Act, and attached Table 1 of the former Enforcement Decree (hereinafter “instant disposition”).

B. The key issue of the instant case is whether the instant disposition complies with the criteria for aggravated disposition according to the frequency of violations under the former Enforcement Decree [Attachment 1].

2. Relevant provisions and legal principles

A. (1) Article 19(1)2 and (3) of the Trucking Transport Act provides that where a trucking business operator changes matters to be permitted without obtaining permission for such change, the Minister of Land, Infrastructure and Transport may revoke the permission or order the suspension of all or part of the business or the reduction of the number of vehicles for a fixed period not exceeding six months, and the criteria and procedures for imposing sanctions and other necessary matters pertaining thereto shall be prescribed by Presidential Decree. According to the delegation, subparagraph 2 of the former Enforcement Decree [Attachment 1] of the Sanctions Guidelines provides that “where permission for change is changed without obtaining permission for change or obtaining permission for change pursuant to Article 3(3) of the Act by illegal means” (60 days), “measures to reduce the number of vehicles in violation” in the second violation, and “permission” in the third violation of Article 4 subparag. 1 of the former Enforcement Decree provides that “The criteria for administrative disposition following the frequency of violations shall apply to cases where a violation is discovered within one year from the date an administrative disposition was issued.”

2) The purpose of the former Enforcement Decree [Attachment 1] subparags. 2 and 4 of the Act is to further punish a person who repeatedly commits the same offense even though the person was subject to a sanction for such offense (see Supreme Court Decision 2014Du2157, Jun. 12, 2014). In full view of the purport of the system and the language of subparag. 4 of the former Enforcement Decree [Attachment Table 1] and the former Enforcement Decree, “in order to apply the aggravated measure according to the frequency of the offense,” it should be deemed sufficient if the previous offense was committed, and if the same offense has been discovered again within one year from the date of the relevant sanction, even if the previous measure was taken, and the type of the previous measure should not be deemed to have been taken in accordance with the content of the disposition stipulated in subparag. 2 of the former Enforcement Decree [Attachment 1].

B. 1) Article 21(1) and (2) of the Trucking Transport Act provides that the Minister of Land, Infrastructure and Transport may impose and collect a penalty surcharge not exceeding 20 million won in lieu of a disposition to suspend trucking transport business, if a trucking business operator is required to take a disposition to suspend his/her business because he/she falls under any subparagraph of Article 19(1) and if the disposition to suspend his/her business is likely to cause serious inconvenience to users of the relevant trucking transport business or impair public interests, and accordingly, the penalty surcharge shall be imposed and collected in lieu of the disposition to suspend his/her business, as prescribed by Presidential Decree, and the amount of the penalty surcharge imposed pursuant to Article 21(1) and (3) of the former Enforcement Decree of the Trucking Transport Business Act shall be prescribed by Presidential Decree. The first sentence of Article 7(1) of the former Enforcement Decree of the Act provides that "the types of offenses subject to the imposition of a penalty surcharge and the amount of the penalty surcharge shall be as specified in [Attachment 2]."

2) Generally, the exceptional provisions should be interpreted strictly, and the exceptional provisions should not be interpreted extensively if the interpretation of the exceptional provisions is unclear (see, e.g., Supreme Court Decision 2011Du2705, Jun. 24, 2011). In principle, where a trucking business operator commits a violation falling under the grounds for business suspension under each subparagraph of Article 19(1) of the Trucking Transport Business Act, a trucking business operator shall be subject to the disposition of business suspension pursuant to Article 19(1) of the Trucking Transport Business Act. However, the legislators allow a trucking business operator to impose a penalty surcharge in lieu of the disposition of business suspension, as prescribed by Presidential Decree, in cases where the disposition of business suspension is likely to cause inconvenience to users of the trucking transport business or undermine public interest. As such, the legislators does not simply delegate the duty of specifying the “standards for calculation of penalty surcharges” in the Presidential Decree, but also delegate the duty of specifying the “type of a violation” that may impose a penalty surcharge in lieu of the disposition of business suspension.

3) Meanwhile, in a case where there is room for dispute over the interpretation of a legal relationship or fact-finding, where the legal principle that the provision of the law is not clearly revealed, it shall not be deemed null and void as it is merely a misunderstanding of the fact of the disposition requirements, even if an administrative agency took an administrative disposition by wrong interpretation of the relevant provisions, and it cannot be said that the defect is evident (see Supreme Court Decision 95Da46722 delivered on May 9, 197, etc.).

3. Determination as to the instant case

A. We examine the above facts in light of the above legal principles.

1) Although the act of operating a special-purpose truck without obtaining permission for change in violation of Article 3(3) of the Trucking Transport Act constitutes grounds for business suspension under Article 19(1)2 of the Trucking Transport Act, it is not allowed to impose a penalty surcharge in lieu of business suspension pursuant to Article 21(1) of the former Enforcement Decree, since it is not listed in attached Table 2 of the Enforcement Decree of the Trucking Transport Act. However, it is difficult to conclude that there was no room for dispute over the interpretation of the relevant legal principles as at the time of the first disposition of a penalty surcharge, it is difficult to conclude that there was no room for dispute over the interpretation of the said legal principles. The first disposition of a penalty surcharge is unlawful,

2) On September 2, 2015, the Plaintiff actually committed the primary violation and was subject to the primary penalty surcharge by the head of ○○○○○○ on the sanction against the Plaintiff. Nevertheless, the Plaintiff was found to have committed a secondary violation continuously operating a vehicle illegally increased within one year from the date of the primary penalty surcharge, and was given a demand for correction and a prior notice on at least two occasions, but did not correct it. As such, on June 13, 2016, the Plaintiff was subject to the instant disposition to reduce the number of vehicles in violation on the ground of the secondary violation from the Defendant.

3) Although 00 head of ○○○○, by misunderstanding the relevant legal principles, it was erroneous for the Plaintiff to impose the first penalty surcharge in excess of the content of the disposition specified in subparagraph 2 of the former Enforcement Decree [Attachment Table 1] for the first offense, which is more influence than the content of the disposition specified in subparagraph 2 of the sanctions criteria, the Plaintiff’s disposition of this case, which was conducted by the Defendant for the second offense without correcting the second offense, is in accordance with the criteria for aggravated disposition by frequency of violations under subparagraph 2 of the former Enforcement Decree.

4) As long as the Defendant issued the instant disposition pursuant to subparagraph 2 of the former Enforcement Decree [Attachment 1] of the Sanctions Criteria, it cannot be deemed that the instant disposition was a deviation or abuse of discretion, unless there exist reasonable grounds to believe that the standard was in violation of superior statutes or that the result of the application thereof was significantly unreasonable in light of the content and purport of the relevant statutes.

B. Nevertheless, the lower court determined that the Defendant may take measures to reduce the number of vehicles in the event of the second violation pursuant to subparagraph 2 of the former Enforcement Decree [Attachment Table 1] of the Punishment Criteria for the second violation only in cases where the Defendant imposed a disposition to suspend the business of vehicles in the event of the first violation (60 days) in accordance with subparagraph 2 of the former Enforcement Decree of the Punishment Criteria for the second violation. In so doing, the lower court erred by misapprehending the legal doctrine on the criteria for aggravated disposition according to the number of

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Noh Jeong-hee (Presiding Justice)