Whether Article 74 of the Automobile Transport Business Act, which is a joint penal provision, is applicable to an unincorporated association or individual member thereof.

Article 72 subparagraph 5 of the Automobile Transport Business Act provides that a person who provides or leases a private car for transport with compensation without obtaining permission pursuant to Article 58 of the same Act shall be punished. Article 74 of the same Act provides that "if a representative of a corporation, or an agent, employee or other worker of a corporation or an individual commits an offense in violation of Article 72 of the same Act in connection with the business of the corporation or the individual, not only shall the offender be punished, but also the corporation or the individual shall be punished by a fine pursuant to each corresponding provision of the same Act." Since Article 72 subparagraph 5 of the same Act does not provide any explicit provision in regard to an unincorporated association under the principle of no punishment without law, an unincorporated association shall not be punished pursuant to Article 74 of the same Act, and further, an individual member of an unincorporated association shall not be punished by taking the position of "individual" under Article 74 of the same Act.

Article 72 Subparag. 5, Article 74 of the Automobile Transport Business Act

Defendant

Prosecutor

Incheon District Court Decision 94No465 delivered on November 3, 1994

Supreme Court Decision 93Do2535 delivered on April 12, 1994

The appeal is dismissed.

The grounds of appeal are examined.

Article 72 subparagraph 5 of the Automobile Transport Business Act provides that a person who provides or leases a private car for transport with compensation without permission under Article 58 of the same Act shall be punished, and Article 74 of the same Act provides that "if a representative of a corporation, or an agent, employee, or other worker of a corporation or an individual commits an offense under Article 72 of the same Act in connection with the business of the corporation or the individual, not only shall the offender be punished, but also the corporation or the individual shall be punished by a fine under each corresponding Article in addition to the punishment of the offender," and there is no express provision as to whether the above provision shall apply to an unincorporated association under the principle of no punishment without law. Therefore, an unincorporated association shall not be punished under Article 74 of the same Act, and further, an individual member of an unincorporated association shall not be punished under the status of "individual" under Article 74 of the same Act by having engaged in commercial transport with compensation. The judgment below is justifiable, and the judgment of the court below shall not be accepted, as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)