2016Guhap20922 Revocation of the suspension of operation, etc.

Global Logistics Co., Ltd.

Head of Sungju Gun

June 21, 2016

July 19, 2016

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of suspending the operation of a non-compliant vehicle A against the plaintiff on January 5, 2016, recovering fuel subsidies (22,233,640 won) and suspending fuel subsidies for six months shall be revoked.

1. Details of the disposition;

A. On September 25, 2008, the Plaintiff was a corporation with the purpose of cargo transportation services, etc., and obtained permission from the Defendant to increase A vehicle into a chemical transport vehicle (the tank). On May 22, 2009, the Plaintiff replaced the instant vehicle with a general car truck (B).

B. On January 5, 2016, the Defendant rendered a decision to reduce the number of vehicles in violation of Article 3(3), 19(1)2, and 44(3) of the former Trucking Transport Business Act (amended by Act No. 10804, Jun. 15, 201; hereinafter referred to as “ Trucking Transport Business Act”) against the Plaintiff on the ground that the Plaintiff illegally occupied or scrapped the instant vehicle from a special-purpose truck to a general truck, and the period during which the Plaintiff was suspending the operation of the instant vehicle (from January 25, 2016 to March 24, 2016), and the Plaintiff’s decision to recover the subsidy from the date of 20th of the lapse of the extinctive prescription period from the date of receiving the subsidy to April 16, 2015 to the date of 20th of the 16th of the 20th of the 20th of the 20th of the 2016th of the 206th of the 206th of the grace period.

D. Accordingly, on March 16, 2016, the Defendant issued a disposition to the Plaintiff to suspend the operation of violating vehicles (from April 1, 2016 to May 30, 2016), to change the vehicle to chemical tank glass during the suspension period, to recover fuel subsidies (22,23,640 won received from January 1, 201 to April 201), to suspend fuel subsidies for six months (from April 1, 2016 to September 30, 201) (hereinafter referred to as “each of the instant dispositions”), excluding the change to chemical tank glass during the suspension of operation during the suspension period).

E. On May 3, 2016, the Defendant revoked, ex officio, a disposition to change the instant vehicle to the chemical tank glass during the suspension of operation.1) The fact that there is no dispute about the ground for recognition, Gap evidence Nos. 1 through 3, Eul evidence Nos. 3 through 5, and the purport of the entire pleadings.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The detailed processing guidelines for trucking and scrapping business of the Ministry of Land, Transport and Maritime Affairs, which had been applied at the time of the instant report on the scrapping of a truck, did not prohibit the scrapping of a specific-use truck, the supply of which is restricted as in the instant vehicle, as in the instant vehicle, as a general truck. However, on March 23, 2009, after the instant report on the scrapping of a truck was accepted, it was revised and implemented on March 23, 2009, to prohibit the scrapping and scrapping of a general truck, and was conducted after the instant report on the borrowing and lending was accepted. The Plaintiff did not obtain a permit for the alteration of trucking transport business or receive a fuel subsidy by illegal means, but did not know about the details of the said detailed processing guidelines or the process of receiving the instant report on the lending and borrowing of the instant vehicle. Accordingly, each of the instant dispositions that ordered the Plaintiff to suspend the operation of the illegal vehicle,

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) On June 18, 2003, the Plaintiff is a corporation established for trucking cargo transportation services, etc. (2) Article 3(5)1 of the Trucking Transport Act provides that the Minister of Land, Transport and Maritime Affairs (the present Minister of Land, Transport and Maritime Affairs) shall comply with the supply standards publicly notified by type of business in consideration of the demand for the transportation of cargo, and accordingly, the Minister of Land, Transport and Maritime Affairs shall publicly notify “standards for the supply of trucking transportation services” every year. Since 2004, the Minister shall prohibit the new supply of cargo vehicles in principle for trucking transportation services and exceptionally prohibit the special construction of motor vehicles for the transportation of specific cargo under subparagraph 2 of Article 2 [Attachment Table 1] of the Enforcement Rule of the Motor Vehicle Management Act, and the Mayor of Seoul Special Metropolitan City, Metropolitan City Mayors or Do Governors may grant the permission

3) However, the replacement of a vehicle, etc., the age of which expires for a truck with another vehicle (Article 57 of the Trucking Transport Business Act) is subject to a change of minor permitted matters pursuant to the proviso to Article 3(3) of the Trucking Transport Business Act, and the trucking transport business association of each City/Do is entrusted by the Minister of Land, Transport and Maritime Affairs with the authority to accept a report on change of permitted matters due to the replacement and scrapping of a truck (Article 64(1) of the Trucking Transport Business Act and Article 15(1)1 of the Enforcement Decree of the same Act) and is in charge of issuing a notice of

4) The vehicles, such as the instant vehicles, were special-purpose trucks permitted to be supplied until December 31, 2008. However, according to the Ministry of Land, Transport and Maritime Affairs Notice No. 2008-782 of the Ministry of Land, Transport and Maritime Affairs (No. 2008-782 of the Ministry of Land, Transport and Maritime Affairs), which came into force on December 24, 2008, the vehicles were changed to the special-purpose trucks, the supply of which was restricted as of January 1, 2009.

5) The detailed treatment guidelines for truck scrapping business, which are the business process guidelines publicly notified by the Ministry of Land, Transport and Maritime Affairs on March 19, 2009 (hereinafter referred to as the "detailed treatment guidelines of this case"), provide that vehicles for the transport of chemical substance quality may not be leased with special-purpose trucks with general-type, dump type and bareboat-type trucks with the exception of the relevant usage, and the detailed treatment guidelines of this case were implemented on March 23, 2009.

【Ground of recognition】 The fact that there has been no dispute, entry of Gap Nos. 4 and 5, the purport of the whole pleadings

D. Determination

1) Whether the Plaintiff received the modified license in an unlawful manner

A) Article 19(1)2 of the Trucking Transport Business Act provides that “Where a trucking business operator obtains permission for change in accordance with Article 3(3) by improper means, the Minister of Land, Transport and Maritime Affairs may revoke permission.” The term “where permission for change has been obtained by improper means” refers to where permission for change has been obtained by committing an act deemed unfair by social norms, such as fraud, deception, concealment, etc. without meeting the requirements for permission for change (see, e.g., Supreme Court Decision 2014Du9226, Nov. 27, 2014);

B) According to Article 3(1), (3), and (5) of the Trucking Transport Business Act, a person who intends to operate a trucking transport business shall obtain permission from the Minister of Land, Infrastructure and Transport, as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, and any person who intends to modify permitted matters shall also obtain permission for modification. The permission for modification shall also be granted in cases involving permission for or increase in the number of existing vehicles. The criteria for the permission for modification are required to meet the supply standards publicly announced by the Minister of Land, Infrastructure and Transport in consideration of the transport demand of cargo by type of business. However, as seen earlier, the aforementioned notification is prohibited as a matter of principle since 2004, and a new supply is exceptionally granted in cases of trucking transport business using a specific-use truck. This is intended to prevent increase in trucking transport business in excess of the number of existing vehicles, except for a specific-use trucking truck that is permitted to supply due to excessive supply of trucking transport business. Article 2 [Attachment 1] [Attachment 2] of the Enforcement Rule of the Motor Vehicle Management Act is dividedd into a specific-type or model.

In full view of the legislative form, content, purport, etc. of such statutes and public notice, Article 3(3) of the Trucking Transport Business Act shall be strictly prohibited in order to eliminate imbalances caused by excessive supply of trucking transport business after having been placed as the permission of the Minister of Land, Transport and Maritime Affairs in principle. However, in the case of scraping, it shall be construed that only the case where the increase of a general cargo vehicle, which is the permission of the Minister of Land, Infrastructure and Transport, is not permitted by the Minister of Land, Infrastructure and Transport, such as replacing the vehicle whose age has expired to another vehicle (see, e.g., Supreme Court Decisions 2014Du37153, Aug. 28, 2014; 2013Nu50151, May 1, 2014).

As above, prohibiting the scrapping of a large-use truck with a general truck, etc., the supply of which is limited, is in violation of the criteria for permission publicly notified by the Minister of Land, Infrastructure and Transport pursuant to Article 3(5)1 of the Trucking Transport and Article 3 of the Trucking Transport Act and the delegation thereof, and thus, it does not mean that there is no provision on delegation to the effect that the Ministry of Land, Infrastructure and Transport may prescribe the restriction on the scrapping of a large-use truck with the same purpose only as a truck in the former Enforcement Rule of the Trucking Transport Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 430, Dec.

Therefore, a person who intends to operate a trucking transport business shall obtain permission for change from the Minister of Land, Infrastructure and Transport under Article 3 (3) of the Trucking Transport Business Act, instead of reporting a change under Article 2 (4) of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 23372, Dec. 13, 201) in the case of the replacement or scrapping that brings about an increase in the number of trucks with limited supply as well as the simple increase in the number of trucks, the supply of which is restricted. However, it is reasonable to view that the Plaintiff’s allegation in this part of this case constitutes “cases where permission for change under Article 3 (3) of the Trucking Transport Business Act has been obtained by illegal means” under Article 19 (1) 2 of the Trucking Transport Business Act.

2) Whether the Plaintiff received the fuel subsidy by "illegal means"

A) Article 44(3) of the Trucking Transport Business Act provides that a fuel subsidy is to be recovered through an order to return the fuel subsidy in cases where the fuel subsidy is granted “a fraudulent or unlawful manner”. Here, “false or unlawful means” refers to an act that makes it possible to unlawfully receive the fuel subsidy and an act that is found fraudulent and illegal by social norms (see, e.g., Supreme Court Decision 2005Do2652, Oct. 7, 2005). Furthermore, considering that the purpose of the Trucking Transport Business Act to contribute to the promotion of public welfare by efficiently managing and effectively fostering trucking transport business and promoting smooth transport of cargo, the fuel subsidy is to be distributed in proportion to the quantity of oil used to trucking service providers in proportion to the quantity of oil used within budgetary limits in order to lower the burden of trucking service providers on a personal basis, the object of the grant of the fuel subsidy is limited to vehicles duly registered for trucking transport business (see, e.g., Supreme Court Decision 2009Du6087, Jul. 23, 2009).

B) In light of the above legal principles, the building or scrapping of this case constitutes the building or scrapping that causes an increase in the number of general trucks, the supply of which is restricted, and thus, it is subject to the permission of change pursuant to Article 3(3) of the Trucking Transport Business Act. However, unless the Plaintiff obtained the permission of change, the vehicle of this case cannot be deemed to be a motor vehicle registered for the purpose of trucking transport business lawfully. Therefore, it is reasonable to deem that the Plaintiff received fuel subsidy 22,23,640 after the building or scrapping of this case was issued by a false or unjust method as stipulated in Article 44(3) of the Trucking Transport Business Act. Therefore, this part of the Plaintiff’s assertion is without merit.

3) Whether the plaintiff's intention or negligence was intentional or negligent

A) Sanction against a violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws to achieve the administrative objective, and thus, barring special circumstances, such as where a breach of duties is not attributable to the offender’s failure to perform his/her duties, it may be imposed even if there is no intentional or negligent act on the violator (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003);

B) Regarding the instant case, as seen earlier, the Plaintiff did not obtain permission to change the instant vehicle, and as such, changed the permission illegally by means of making a large-scale and scrapping report only to a general truck without obtaining permission to change the said vehicle, the Plaintiff is bound to take administrative responsibility for the Plaintiff, and there is no other justifiable reason not attributable to the Plaintiff’s failure to perform his/her duties.

Rather, the above facts and the following circumstances revealed by the evidence as seen earlier, i.e., the Plaintiff operated a truck transport business for about six years until the time of the repair and scrapping of the instant vehicles, and the vehicle for transporting chemicals, such as the instant vehicle, is a special-purpose truck that is allowed to be supplied until December 31, 2008, and is not allowed to scrap the instant vehicle with a general truck. In accordance with the supply standard of this case, the Plaintiff changed from January 1, 2009, the date of the report on the repair and scrapping of the instant vehicle, which was changed to a special-purpose truck with limited supply. In light of the following circumstances, it is reasonable to view that the detailed processing guidelines of this case, stating that the removal and scrapping of the instant vehicle from the vehicle for transporting chemicals, was not allowed as a general-type truck at the time of the report on the repair and scrapping of the instant vehicle, was implemented on March 23, 2009, which was two months before the date of the report on the repair and scrapping of the instant vehicle.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge, judge, 00

Judges Presiding Justice

Judges Excursion Ship Co.

1) During the period of the suspension of operation, the Plaintiff filed a lawsuit seeking revocation of the change of the chemical tank to the chemical tank.

(n) was made.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.