[1] The meaning of "providing or leasing a private truck for cargo transport with compensation" subject to the punishment under subparagraph 4 of Article 48 and Article 39 of the former Trucking Transport Business Act

[2] In a case where the defendants were prosecuted for violating the former Trucking Transport Business Act by leasing private-use trucks at a cost, the case holding that the court below erred in interpreting and applying the above provision in the judgment below which acquitted the defendants on the ground that the above act of leasing constitutes the subject of punishment under subparagraph 4 of Article 48 and Article 39 of the same Act, although the above act of leasing constitutes an object of punishment

[1] Article 48 subparagraph 4 of the former Trucking Transport Business Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter “the Act”) provides that “[t]he purpose of the Act is to contribute to the promotion of public welfare by facilitating smooth transportation of cargo (Article 1 of the Act); “[t]he term “trucking transport business” means only trucking transport business, freight forwarding business, and franchise transport business (Article 2(2) of the Act). As such, the term “trucking transport business” does not include not include the scope of automobiles that can be used for rent-a-car business; “[t] the purpose of the Trucking Transport Business Act that facilitate transportation of cargo and enhances public welfare; and “[t]he act of providing or distorting domestic logistics markets in order to achieve this purpose; “[t]he act of providing or leasing cargo for money to a cargo transport business operator under Article 30 of the Passenger Transport Service Act and Article 67 of the Enforcement Rule of the same Act should be construed as “an act of providing or distortizing the aforementioned legal system and policy related to the above provision.”

[2] In a case where the defendants leased their private-use trucks at a cost and charged with violation of the former Trucking Transport Business Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter the "Act"), the case holding that the court below erred in the misapprehension of the above penal provision on the ground that the defendants provided or leased their private-use trucks for the purpose of transportation of cargo at a cost, on the ground that the "act of providing or leasing them for the purpose of transportation of cargo", which is subject to punishment under Articles 48 subparagraph 4 and 39 of the Act, refers to "act of providing or leasing them for the purpose of transportation of cargo at a cost" and "act of leasing them for the purpose of transportation of cargo at a cost," and that the above penal provision is not different from its concept, but it does not seem that the defendants' act of leasing a private-use truck at a cost is not applicable even if it is interpreted that the above provision does not apply to the above act of transportation of cargo at a cost due to violation of Article 39 of the Act.

[1] Articles 1, 2(2), 39 (see current Article 56), and 48 subparag. 4 (see current Article 67 subparag. 5) of the former Trucking Transport Business Act (Amended by Act No. 8852, Feb. 29, 2008); Article 49 of the former Enforcement Rule of the Trucking Transport Business Act (Amended by Ordinance of the Ministry of Construction and Transportation No. 548, Feb. 1, 2007); Article 30 of the Passenger Transport Service Act; Article 67 of the Enforcement Rule of the Passenger Transport Service Act / [2] Articles 39 (see current Article 56), 48 subparag. 4 (see current Article 67 subparag. 5), and 49 (1) of the former Trucking Transport Business Act (Amended by Act No. 8852, Feb. 29, 2008)

Defendant 1 and one other

Prosecutor

Law Firm Barun, Attorneys Park Jae-sik et al.

Cheongju District Court Decision 2008No221 Decided July 3, 2008

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

The grounds of appeal are examined.

1. Article 39 of the former Trucking Transport Business Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter “the Act”) provides that “the owner or user of a private-use truck shall not provide or lease his/her private-use truck for the purpose of cargo transport with compensation (including expenses necessary for the operation of the truck in question): Provided, That this shall not apply to a case which falls under any cause prescribed by the Ordinance of the Ministry of Construction and Transportation and for which permission is obtained from the Mayor/Do Governor.” Article 48 Subparag. 4 provides that “a person who provides or leases his/her private-use truck for the purpose of cargo transport with compensation in violation of the provisions of Article 39.” Meanwhile, Article 49 of the Enforcement Rule of the Act provides that “Where it is necessary to urgently increase the supply of transport capacity due to a natural disaster, calamity, or any other similar emergency (Article 1); “Where the supply of transport capacity to temporarily replace it, such as a motor vehicle for business, railroad, etc., is urgently needed (Article 3).”

2. In light of the fact that the provisions of Articles 39 and 48 subparag. 4 of the Act are the main purpose of prohibiting the act of cargo transport for consideration and do not intend to prohibit the act of private-use truck owner itself, but the act of leasing private-use truck itself is guaranteed by Article 23 of the Constitution of the Republic of Korea as to the guarantee of property rights and Article 15 of the Constitution as to freedom of occupation. Therefore, the above provisions must be strictly interpreted, in order to prevent the owner, etc. of private-use truck from avoiding various regulations by illegally engaging in the act of illegally using the motor vehicle, etc., the court below presumed that it is reasonable to view that the above provisions are "the act of private-use truck owner, etc. providing the cargo transport for consideration" or "the act of indirectly participating in the cargo transport for consideration," and on the premise that it is reasonable to view that the above provision is a provision prohibiting the owner, etc. of private-use truck from indirectly participating in the cargo transport for reasons of violation of Article 39 of the Act as providing or leasing the cargo for consideration or rent for consideration to the defendants.

3. However, we cannot accept the above judgment of the court below.

The purpose of the Trucking Transport Business Act is to contribute to the promotion of public welfare by facilitating smooth transportation of cargo (Article 1 of the Act); the term "trucking transport business" refers only to trucking transport business, freight forwarding business, and franchise trucking business (Article 2(2) of the Act). As such, the term "trucking transport business" does not include trucking transport business, but does not include the scope of automobiles that can be used for rent-a-car business; in Article 30 of the Passenger Transport Service Act and Article 67 of the Enforcement Rule thereof, the trucking transport business is not included in the scope of automobiles that can be used for rent-a-car business; the purpose of the Trucking Transport Business Act of promoting smooth transportation of cargo and promotion of public welfare; and the purport of the above provisions to prevent the sound development of the domestic logistics transport market in order to achieve this purpose; mutual relationship with the relevant laws, and legislative policies related to the trucking transport business, the term "act of providing or leasing a private truck for money" subject to the punishment of the instant case refers to "act of providing a private truck for cargo transport business with compensation."

In addition, when the concept of a certain law is different and it is possible to interpret within the framework of its language, the interpretation consistent with the Constitution should be selected to form a uniform legal order with the highest law, and the interpretation that will result in unconstitutional consequences should be excluded, and the interpretation that will result in unconstitutionality is a general legal doctrine of the Constitution. However, Article 48 subparagraph 4 and Article 39 of the Act, which is the instant penal provision, do not differ from the concept of the relevant provision, and even if the method of statutory interpretation is applied within the framework of its language, it is not possible to interpret that the Defendants’ act does not constitute the instant penal provision (see Supreme Court Decisions 2004Do4045, Nov. 25, 2004; 2004Do7488, Nov. 27, 2005, etc.).

Therefore, as recognized by the court below, although the act of leasing of a truck for private use by the defendants constitutes a violation under Article 39 of the Act, the court below's judgment otherwise erred by misapprehending the interpretation and application of Article 48 subparagraph 4 and Article 39 of the Act, which affected the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)