Whether an existing trucking business operator's replacement of an entrusted trucking transport business with another vehicle after obtaining a permit for trucking transport business under Article 3 (2) of the Addenda of the Trucking Transport Business Act (amended by January 20, 2004) constitutes a "vehicle scrapping for a trucking transport business" subject to the alteration report under the proviso to Article 3 (3) of the former Trucking Transport Business Act and Article 2 (4) of the Enforcement Decree of the same Act (negative)

Article 3(1) and (3) of the former Trucking Transport Business Act (Amended by Act No. 8852, Feb. 29, 2008); Article 3(2) and Article 5(1) of the former Trucking Transport Business Act (Amended by Act No. 8979, Mar. 21, 2008); Article 2 subparag. 4 of the Enforcement Decree of the Trucking Transport Business Act (Amended by Act No. 8979, Jan. 20, 2004);

2. The term "standard goods distribution" means goods distribution under Article 10 of the Commercial Act.

Gyeongnam-do Trucking Transport Business Association (Attorney Lee Jong-soo, Counsel for defendant-appellant)

Busan High Court (Chowon) Decision 2011Nu504 decided November 10, 2011

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

The grounds of appeal are examined.

1. Article 3(1) of the Trucking Transport Business Act (hereinafter “ Trucking Transport Business Act”) provides that “any person who intends to operate trucking transport business shall obtain permission from the Minister of Construction and Transportation under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation,” and Article 3(3) of the same Act provides that any person who intends to operate trucking transport business shall obtain permission from the Minister of Construction and Transportation under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation.” Article 3(5)1 of the same Act provides that any person who intends to modify the permitted matters shall meet the supply standards publicly announced by the Minister of Construction and Transportation for each type of business, taking into account the transport demand of the cargo by the Minister of Construction and Transportation as the basis of permission. This is to resolve imbalance

In addition, Article 5 (1) of the Addenda of this Act provides that "any person who has registered a trucking transport business with the Mayor/Do Governor at the time this Act enters into force shall be deemed to have obtained permission from the Minister of Construction and Transportation, notwithstanding the provisions of Article 3 (1)." Article 3 (2) of the Addenda of this Act (hereinafter "the Addenda of this case") provides that "any person who has completed registration prior to the enforcement of the amended Act shall be deemed to have obtained permission from the Minister of Construction and Transportation pursuant to the amended Act." Article 3 (2) of the Addenda of this Act provides that "any person who intends to operate a trucking transport business with a trucking transport business from December 31, 204, among those who are entrusted with trucking transport business with a trucking transport business under title trust with a person who operates the trucking transport business at the time of the enforcement of this Act, may apply for permission from the Minister of Construction and Transportation, and the Minister of Construction and Transportation, upon receipt of an application for permission, may grant permission to the person who has filed an application for permission for permission for permission for the transport business, even before January 20, 20.

In the instant supplementary provisions, the recognition of the special cases concerning the existing entrusted owner operators as above is based on the fact that the external rights and duties related to the trucking transport business are attributed to the trucking business operator, but economic profits and losses related to the trucking transport business are attributed to the entrusted owner operator, and thus, the entrusted owner operator has more substantial interests than the trucking business operator in relation to the performance of the transport business.

Considering the above contents and purport of the provisions as well as the legislative purpose of the amended Act that seeks to resolve imbalances caused by excessive supply of trucking transport business, the existing transport business entity registered prior to the enforcement of the above amended Act may continue to operate the transport business without obtaining permission under the amended Act. However, if the existing trucking business entity terminates the entrustment contract, etc. and obtains permission for the transport business in accordance with the provisions of the Addenda of this case, the number of existing transport business entities’ permission should be reduced accordingly.

In addition, the "vehicle scrapping of a truck" subject to a report on change under the proviso of Article 3 (3) of the Trucking Transport Business Act and Article 2 (4) of the Enforcement Decree of the same Act refers to the replacement of a vehicle used for trucking transport business within the scope of the number of vehicles permitted by the competent authorities. As seen earlier, where an existing entrusted owner operator obtains permission for trucking transport business pursuant to the provisions of the Addenda of this case, the number of existing trucking business operators is reduced accordingly. As such, the replacement of an existing trucking business operator with another vehicle after the entrusted owner operator obtained permission for trucking transport business pursuant to the provisions of the Addenda of this case increases the number of existing trucking business operators so reduced. Thus, it cannot be deemed that the "vehicle scrapping of a truck" subject to a report on change under the above provision constitutes "vehicle scrapping of a truck."

2. According to the reasoning of the lower judgment, the lower court determined that the Defendant’s disposition rejecting the report of change was unlawful, on the premise that the number of existing transport business operators’ permission does not decrease even when the entrusted owner operator obtained permission for the transport business pursuant to the provisions of the Addenda of this case, on the ground that the Plaintiff, an existing transport business operator, replaced the said vehicle with another vehicle constitutes “vehicle scrapping of a truck” subject to the report of change

However, according to the above legal principles, where an entrusted owner operator terminates an entrustment contract and obtains permission for a transportation business under the supplementary provisions of this case, the replacement of an existing trucking business operator with another vehicle is to increase the number of the trucking business operator's permission and thus, it is not subject to a report on alteration. Therefore, the court below erred by misapprehending the legal principles as to the scope of "vehicle scrapping of a truck" subject to a report on alteration under the proviso of Article 3 (3) of the Trucking Transport Business Act and Article 2 (4) of the Enforcement Decree of the same Act, and thereby affecting the conclusion of the judgment.

3. Therefore, without examining 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 on the bench.

Justices Kim Shin (Presiding Justice)