S Young Port Co., Ltd. (Law Firm Geum-Un, Attorney Lee Tae-won, Counsel for the plaintiff-appellant)

Head of Si/Gun;

October 24, 2017

1. On March 24, 2017, the Defendant’s disposition of suspending the operation of the truck 30 days is 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. On September 10, 2010, the Plaintiff (former: Heavy Cargo Co., Ltd.) was a company running trucking services, for which the transfer of ownership was registered as a truck for special purpose (motor vehicle registration number: (motor vehicle registration number omitted; hereinafter “motor vehicle”).

B. On June 8, 2011, the Nonparty, who was an employee of the Plaintiff, changed the column of the registration certificate of the instant vehicle, and subsequently, reported the alteration of the instant vehicle, which is a truck for freezing and freezing cargo transport business, to the Gyeongnam-do Trucking Transport Business Association, which deals with the business of reporting the alteration of permitted matters concerning trucking transport business, to substitute the instant vehicle as a general type truck (to replace the instant vehicle with another vehicle for which the age expires), and the said Association accepted the said report on the alteration (hereinafter “the replacement of the instant vehicle”).

C. Meanwhile, according to the Notice of Criteria for the Supply of Trucking Transport Services (No. 2010-1078 of the Ministry of Land, Transport and Maritime Affairs Notice) in 2011, which was in force at the time of the 2011 scrapping of the instant fleet, no new supply of truck and general truck is permitted.

D. On December 5, 2014, the Plaintiff filed a report on the instant vehicle that was reported for the scrapping of the said vehicle to a general truck for freezing and freezing the said vehicle as a truck for freezing and freezing the said vehicle, and restored the said vehicle to its original state.

E. On March 7, 2017, the Defendant: (a) issued a 60-day disposition to suspend the operation of the instant vehicle on the ground that the instant vehicle, which was a truck for freezing or freezing the said vehicle as a general truck, was actually unlawfully and unlawfully increased the supply of the instant general-type truck; (b) on March 24, 2017, upon submitting a written opinion disputing the said disposition, issued a disposition to the Plaintiff on March 24, 2017, to suspend the operation by reducing the number of days to the number of days during which the suspension of operation was reduced (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, each entry in Gap evidence 1 through 6 (including branch numbers), the purport of the whole pleadings

2. Relevant statutes;

Attached Form 2 shall be as listed in attached Table 2.

3. The assertion and judgment

A. The plaintiff's assertion

1) Although the Defendant issued the instant disposition on the premise that the instant scrapping falls under the increase of a general truck, it does not need to obtain permission for change in accordance with the contents of the relevant Acts and subordinate statutes, and thus, the instant disposition was erroneous in violation of Acts and subordinate statutes.

2) Since the Nonparty, who was an employee of the Plaintiff, filed a report on the scrapping of the instant building without permission, there is a justifiable reason not to mislead the Plaintiff.

3) In light of the fact that the Plaintiff returned the instant vehicle to the original state as a truck for freezing the freezing, and the fact that the prosecution issued a non-prosecution disposition as a result of the investigation on the scrapping of the instant vehicle, etc., there is an error of deviation or abuse of discretion in the instant disposition.

B. Judgment on the Plaintiff’s assertion of violation of law

For the following reasons, changing a truck to a general truck, the supply of which is limited at the time of the scrapping of the instant scrapping, is not a change permission but a change report. Therefore, the instant disposition on a different premise should be revoked in an unlawful manner.

1) Article 3 of the former Trucking Transport Business Act (amended by Act No. 10804, Jun. 15, 201; hereinafter “ Trucking Transport Business Act”) provides that when a person who has obtained permission for trucking transport business (hereinafter “trucking transport business entity”) intends to modify matters to be permitted, he/she shall obtain permission for modification as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs (main sentence of paragraph (3) and “permission for modification accompanying an increase in the number of vehicles” shall comply with the supply standards publicly notified by the Minister of Land, Transport and Maritime Affairs by type of business taking into account the transport demand of cargo (Paragraph (5)). According to the former Guidelines for the Supply of Trucking Transport Business (Public Notice No. 2008-782 of the Ministry of Land, Transport and Maritime Affairs), a general truck is not allowed, and a special purpose truck is also permitted to increase the number of trucks only for some kinds of specific-use trucking vehicles as prescribed by Presidential Decree. The proviso to Article 3(3) of the Trucking Transport Business Act stipulates that the former Enforcement Decree No.

In full view of the above provisions, the act of changing the Gu vehicle into a new truck must be so minor that it does not require an additional examination as to whether it conforms to the relevant laws and regulations including the above supply standard. However, changing the vehicle permitted as a special-purpose truck that is allowed to increase from the above supply standard to a "general-use truck" or a special-use-type truck with limited supply (hereinafter referred to as "special-use truck with limited supply restriction"), which is a result of increasing the number of vehicles, the new supply of which is not permitted. Thus, even if the method of scrapping the vehicle, it does not constitute a minor change even if it is done by the method of scrapping the vehicle, and thus, it does not constitute a change in the supply restriction type truck. On the other hand, it does not constitute a new supply in violation of the above supply restriction standard, and thus, a report of change is also required without permission for change (see, e.g., Supreme Court Decision 2015Do10415, Apr. 15, 2016).

2) As acknowledged earlier, the instant vehicle constitutes a limited freezing truck in accordance with the Notice of Criteria for Supply of Trucking Transport Business in 201, which was in force at the time of the instant scrapping, and according to the legal principles as seen earlier, the scrapping of the instant vehicle to a general truck with limited air conditioners, the supply of which is restricted, is merely the subject of a report on modification of permitted matters under the proviso of Article 3(3) of the Trucking Transport Act and Article 2 subparag. 4 of the Enforcement Decree of the Trucking Transport Business Act, and is not subject to the permission of modification under the main sentence of Article 3(3) of the Trucking Business Act. Accordingly, the instant disposition is unlawful on the premise that the instant scrapping is the subject of the permission of modification, and thus, this part of the Plaintiff’s assertion is with merit.

3) As to this, Article 3 of the former Regulations on the Handling of Business of Building and Scrapping of Trucks (amended by the Ministry of Land, Infrastructure and Transport Notice No. 2103-889, Dec. 24, 2013) prohibits the Defendant from borrowing and lending of a truck for freezing or freezing a truck as a general truck, and thus, it is against the fact that the act of scrapping the instant vehicle into a general truck constitutes an illegal increase vehicle.

C) However, the ground provision on the above provision on the handling of business was amended by the Trucking Transport Act by Act No. 10804 on June 15, 201 (new provision: Article 57(2)). Accordingly, the Enforcement Rule of the Trucking Transport Business Act was amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 430 on December 31, 201 (new provision: Article 52-3(3)). Thus, it is difficult to recognize the legal nature of the above provision on handling of business, which was announced on June 8, 2011 at the time of the scrapping of the instant building, merely because the above provision on handling of business, which was established without any ground for delegation by the superior law, is merely the internal guidelines of the administrative agency established without any delegation by the superior law. Accordingly, the Defendant’s assertion that the instant scrapping constitutes an illegal vehicle that violated the above provision on handling

4. Conclusion

Therefore, without considering the remainder of the plaintiff's remaining arguments, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

[Attachment Omission]

Judges Jeong-won (Presiding Judge)

1) The Plaintiff specified the vehicle as stated in the register of vehicles before the replacement of the vehicle, but this Court finally decides to specify the vehicle as stated in the register of trucks for the replacement of the vehicle (No. 2-3).