One Special Co., Ltd. (Attorney Ba-young, Counsel for defendant-appellant)

Sung-ju Gun (Law Firm Gai General Law Office, Attorneys Don-ju, Counsel for defendant-appellant)

September 24, 2014

1. On May 20, 2014, the Defendant’s disposition of restitution to the original state and the disposition of restitution of fuel subsidies, respectively, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Two-thirds of the costs of lawsuit are assessed against the Plaintiff, and the remainder are assessed against the Defendant, respectively.

4. Disposition of restitution to the original state under Paragraph 1 shall be suspended until the judgment of the appellate court of this case is rendered.

The disposition that the Defendant rendered against the Plaintiff on May 20, 2014, as indicated in the “Contents of Disposition” column of Attached Table 1, shall be revoked.

1. Details of the disposition;

A. On June 2009 to August 2009, the Plaintiff, as a general trucking business operator, acquired a truck from Geum River basin, etc. and reported the transfer and acquisition of the trucking transport business (part) to the Defendant, and completed the lease and lending of the trucking transport business as a general truck (hereinafter referred to as “each of the following vehicles”, and among them (vehicle number 1 omitted) vehicle (hereinafter referred to as “instant violating vehicle”).

(1) On July 21, 2009, the transferee of the ticket number transfer and registration date in the main text, and thereafter (vehicle number 2 omitted) (vehicle number 4 omitted) on June 19, 2009 (vehicle number 1 omitted) (vehicle number 5 omitted) on July 21, 2009 (vehicle number 5 omitted) (vehicle number 3 omitted) (vehicle number 6 omitted) on July 27, 2009 on July 27, 2009, the transferee of the ticket number transfer and registration date in the main text.

B. The Defendant: (a) determined that each of the instant vehicles was a truck with limited supply in a general-use truck with limited supply (hereinafter referred to as “vehicle scrapping”); and (b) issued a disposition of full suspension of business (47 units) 30 days against the Plaintiff pursuant to Articles 3(3) and (5)1, 19(1)2, 44, and 44-2 of the Trucking Transport Business Act (hereinafter referred to as the “ Trucking Transport Business Act”) on April 29, 2014; and (c) issued a disposition of full suspension of business against the Plaintiff (47 units of suspension period: from May 15, 2014 to June 13, 2014); (d) restitution of the instant violating vehicle (general-type car truck ? period: 14 to May 29, 2014; and (e) suspension of payment (14 to 14 May 14, 2014); and (e) suspension of payment (14 to 15:614 months).5 months.

C. Upon requesting the Defendant to extend the period for performance of the above disposition, the Defendant issued a full suspension of business (see, e.g., Disposition No. 47 and Disposition No. 2) 30 days as indicated in the separate sheet No. 1 as to the Plaintiff on May 20, 2014 (see, e.g., the details of the vehicle subject to Disposition No. 47 and 2), a disposition to restore the vehicle in violation of the instant disposition, the recovery of oil subsidies, and the suspension of payment for six months (hereinafter “each of the instant dispositions”).

[Ground of recognition] The fact that there is no dispute, Gap's 1, 2, 7 through 9, Eul's 1, 2, 5 through 7 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Each disposition of this case is unlawful on the following grounds:

1) The Defendant issued each of the instant dispositions on the premise that the scrapping of the instant chassis is a matter of permission for modification under the main sentence of Article 3(3) of the Trucking Transport Act, but it is subject to permission for modification only when the type of the trucking transport business or the total number of the trucking businesses is changed in the interpretation of the relevant provisions. As such, only the formation cost of the ordinary truck and the special purpose trucking vehicle is changed, and the number of the entire trucks is not changed, the instant scrapping of the instant chassis is merely a matter of permission for modification

2) Nonparty 1, the representative director of the Plaintiff, who knew Nonparty 2, etc. as a broker of Nonparty 2, acquired each of the instant vehicles from KRW 10 million to KRW 11 million per unit of the number plate, and received a notification of repair of car-scrapping normally from the Gyeongbuk-do Freight Trucking Association (hereinafter “cargo Association”), and was registered as a general truck. The Plaintiff did not know that each of the instant vehicles was a special purpose truck prior to the notification of each of the instant dispositions.

3) Since the Trucking Subsidy Management Regulations do not distinguish the beneficiary of the fuel subsidy into the special purpose type and the general type, it should be deemed that the instant violating vehicle is subject to fuel subsidy regardless of whether the instant scrap scrapping is changed or not. Therefore, the Plaintiff cannot be deemed to have received fuel subsidy for the instant violating vehicle by unlawful means.

4) Article 44(3) of the Trucking Transport Business Act provides that the other party to the order to return a fuel subsidy shall be an enterprisers’ organization or a trucking business operator, etc. Therefore, the other party to the order to return a fuel subsidy to the instant violating vehicle shall be a party to the order to return the fuel subsidy.

5) The Plaintiff acquired the instant vehicles in accordance with the guidance of the cargo association, which is a general truck, and removed them for the Plaintiff, and thus making each of the instant dispositions against the Plaintiff on the ground of an illegal scrapping is contrary to the principle of trust protection.

6) In light of the fact that the main liability for the scrapping of the instant chassis lies in the Cargo Association and the Defendant; the Plaintiff, knowing the number plate of each of the instant vehicles as a legitimate general truck number plate and purchased at least KRW 10 million with the knowledge that it would be a legitimate general truck number plate; and that each of the instant dispositions prevents a landowner from living, each of the instant dispositions is a deviation from and abuse of discretionary authority.

(b) Related statutes;

Attached Form 3 is as shown in the relevant statutes.

(c) Fact of recognition;

1) Article 3(5)1 of the Trucking Transport Business Act provides that the criteria for permission for trucking transport business or permission for alteration accompanying the increase of the number of trucking transport business 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, and the Minister of Land, Transport and Maritime Affairs annually announces “standards for the supply of trucking transport business”. Since 2004, in principle, the Minister of Land, Transport and Maritime Affairs publicly announces “standards for the supply of trucking transport business” and exceptionally prohibits the new supply of trucking transport business for trucking transport business, and exceptionally prohibits the special construction of a motor vehicle for the transport of specific cargo under subparagraph 2 of

2) However, the scrapping of a vehicle, the age of which expires for a trucking vehicle with another vehicle (Article 57(1) of the Trucking Transport Act), is subject to a change in the minor permitted matters pursuant to the proviso to Article 3(3) of the Trucking Transport Act, and the Minister of Land, Transport and Maritime Affairs entrusted with the authority of the trucking transport business association for repairing a report on the change of permitted matters under the replacement of a trucking vehicle by the Minister of Land, Transport and Maritime Affairs (Article 64(1) of the Trucking Transport Act and Article 15(1)1 of the Enforcement Decree of the Trucking Transport Business Act), while issuing

3) The method of scrapping a truck for business use is that the existing vehicle is worn out and scrapped and new vehicle is registered in its number. The freight trucking business operator may register the vehicle with the existing number if it applies for the registration of cancellation of the vehicle to be scrapped and submits the notification of alteration of the permit for the freight trucking services issued by the Freight Trucking Association at the time of new registration, the notification of alteration of the permit for the freight trucking services issued by the Freight Trucking Association, and the certificate of cancellation of the existing vehicle. In addition, if it is submitted the notification of alteration of the permit for the freight trucking services at the time of the registration of the transfer of the vehicle by transferring the existing vehicle to the entrusted owner operator or another freight trucking business operator and transferring the existing vehicle to another trucking business operator, it is necessary to accept the notification of alteration of the permit for the freight trucking services of the Freight Trucking Association.

4) Each of the instant vehicles was transferred, taken over, and dismissed on several occasions as follows. The details of the scrapping of the instant vehicles are the same as those recorded. The Plaintiff acquired each of the instant vehicles, which are special-purpose trucks, and substituted them for a general truck, and subsequently transferred (vehicle No. 2 omitted), and (vehicle No. 3 omitted) to the luminous Communications Co., Ltd. and the distribution company becoming a stock company, respectively.

0. 20. 0. 7. 0. 20. 7. 0. 0. 20. 0. 0. 1, 108. 20. 0. 7. 0. 1, 10. 20. 7. 1, 2006. 3. 0. 7. 0. 7. 1, 2007. 0. 7. 1, 2007. 3. 7. 1, 200. 7. 1, 200. 7. 0. 7. 1, 200. 7. 4. 7. 1, 200. 7. 7. 1, 200. 7. 1,200. 7. 1,200. 7. 7. 1, 2007. 7. 7. 1, 2007. 7. 1. 7. 10

5) According to the Defendant’s notification of acceptance of each report following the Plaintiff’s report of transfer and acquisition of the trucking transport business (part of the trucking transport business), the Defendant, as a general trucking business operator, has the data by identifying all the registration status of each type of the trucking transport business owned by the Plaintiff (general-type truck (kack, bareboat, etc.), special-use truck (cleaning, Jump, Dump, Cump, Bump, bridge, etc.), and special-use truck (bitr, etc.). After accepting the report of transfer and acquisition of the truck, the Defendant notifies the reporter

6) On the other hand, around December 200 to April 201, Nonparty 1, the representative director of the Plaintiff, conspired with Nonparty 3, Nonparty 4, and Nonparty 5, who was the Plaintiff, filed a false report in general form even though the scrapped truck was a special purpose, and received a notification of large-scale repair of the vehicle to a general truck from the Chungcheong Cargo Association, etc. on the premise that it falls under the change of minor matters under the proviso of Article 3(3) of the Truck Act and subparagraph 4 of Article 2 of the Enforcement Decree of the same Act (large-gu District Court Branch Branch Office No. 2012Ga1530, supra). The above court sentenced Nonparty 2 not guilty of the above crime of violation of the Social Service Order Act (which is not included in the subject of prosecution) on October 17, 2014, on the premise that it was an alteration of minor matters under Article 3(4) of the Trucking Transport Business Act (which is not included in the indictment).

【Ground of recognition】 The fact that there has been no dispute, Gap 3, 7 through 9, Eul 5 through 7 (including each number), the purport of the whole pleadings

D. Determination

1) Whether the disposition of restitution of the instant case and the disposition of recovery of subsidies is legitimate

A) Unless there are special circumstances in administrative litigation, the pertinent disposition agency should assert and prove the legality of the pertinent administrative disposition (see Supreme Court Decision 98Du2768 delivered on March 23, 2000, etc.).

B) First, the defendant ordered the plaintiff to restore the violation vehicle of this case, which is a general car truck, to the original state. We examine whether there are legal grounds for this order.

Article 3(3), Article 3(5)1, Article 19(1)2, Article 5(1) [Attachment Table 1], and Article 5(2)1 of the Enforcement Decree of the Truck Act as the grounds-based Act and subordinate statutes of the instant disposition provides that a trucking business operator shall obtain permission to change matters subject to permission and shall meet the supply standards publicly notified by the Minister of Land, Infrastructure and Transport. Article 19(1)2 of the same Act provides that the Minister of Land, Infrastructure and Transport may revoke permission or order suspension of all or part of business or reduction of the number of vehicles for a fixed period not exceeding six months; Article 5(1)2 of the same Act provides that a trucking business operator shall comply with the standards for permission to change matters subject to permission; Article 3(3) and Article 3(5)1 of the Trucking Transport Business Act provides that a trucking business operator shall obtain permission to change matters; and Article 19(2) of the same Act provides that the Minister of Land, Infrastructure and Transport shall either increase permission to change matters or order suspension of business [Attachment 1];

According to the above facts and relevant Acts and subordinate statutes, with respect to the violation of this case, for which the permission to change under Article 3 (3) of the Truck Act was not obtained by unlawful means, the defendant can only take a disposition to suspend the whole business (60 days) when the first violation was committed, and there is no legal basis to order the plaintiff to restore the violation of this case, which is a general car truck, to the cleaning lane.

Therefore, even if there is a need to remove the state of violation, it is not permissible for the defendant to issue an influence restoration order to the plaintiff without any ground under the law, regardless of whether the ex officio registration of the automobile under Article 13 (3) Item 4 of the Automobile Management Act or the suspension of operation of the violating vehicle under Article 5 (1) Item 6 of the Enforcement Decree of the Trucking Transport Business Act can be taken. Thus, the disposition of restitution in this case is unlawful without examining the plaintiff's argument.

C) Next, Article 44(3) of the Trucking Transport Business Act provides that the Minister of Land, Transport and Maritime Affairs, the Mayor, etc. shall order a trade association or a trucking business operator who received a subsidy or loan pursuant to Article 43(1) or (2) to return the subsidy or loan by fraud or other improper means.

In light of the following circumstances revealed by the aforementioned facts and evidence No. 1-1 and No. 2, namely, ① the recovered amount from the registration date of the illegal act on behalf of the violating vehicle to the restoration to the original state, ② the disposition of the restoration to the original state of the original state of the instant violating vehicle is unlawful as seen earlier, ③ the amount of the fuel subsidy paid or to be paid to the violating vehicle is not known at all until the restoration to the original state, and the return deadline of the fuel subsidy is not entirely specified, the disposition of the redemption of the instant fuel subsidy cannot be deemed to have been specifically specified to the extent that the implementation of the disposition is possible on the grounds that the Plaintiff, who is the other party to the disposition, cannot be seen as having known the amount of the refund and the return deadline, and thus, the disposition of restitution of the instant fuel subsidy is unlawful without further review the Plaintiff’s assertion.

2) Whether the entire business suspension of the instant case and the suspension of payment of fuel subsidies is legitimate

A) Determination on the first argument

In light of the above facts, relevant Acts and subordinate statutes, and the following circumstances revealed, the type of truck owned by a trucking business operator is permitted under Article 3(1) and (3) of the Trucking Transport Business Act, and if it is intended to modify it, permission for modification should be obtained from the Minister of Land, Infrastructure and Transport. In particular, in the case of permission for modification accompanying a trucking transport business, it should meet the standards for the supply of trucking transport business publicly notified by the Minister of Land, Infrastructure and Transport pursuant to Article 3(5)1 of the same Act. Since the scrapping of a truck with a special-purpose truck as a general truck is changed, regardless of the increase of the number of the truck, it is subject to permission for the change of the Minister of Land, Infrastructure and Transport regardless of the increase of the number of the trucks. Since the scrapping of a truck under Article 2 subparag. 4 of the same Act is based on a legitimate large-scale scrapping, it cannot be said that the report for the change of the chassis is merely a matter of permission for the change of the trucks under Article 19(1)2 of the Enforcement Decree of the Trucking Act.

① As amended by Act No. 7100 on January 20, 2004, Article 3(1) and (3) of the Trucking Transport Business Act provides that trucking transport business shall be converted from the previous registration system to the license system (Article 3(1) and (5)). The standards for permission are to meet the supply standards publicly notified by the Minister of Land, Infrastructure and Transport for each type of business, taking into account transport demand for cargo (Article 3(5)). This is to resolve imbalances arising from excessive supply of trucking transport business (see Supreme Court Decision 2011Du31604, Apr. 10, 2014).

② The Ministry of Land, Infrastructure and Transport announced in 2004 prohibits new supply of trucking transport services in principle, but exceptionally permits new supply of trucking transport services only to trucking transport services using special-purpose trucks, except special-purpose trucks. The purpose of this is to prevent the increase of trucking transport services exceeding the number of existing trucks in cases of general-use trucks other than special-purpose trucks.

(3) In Article 3 of the former Regulations on the Handling of Stopting and Scrapping of Trucks (amended by the Ministry of Land, Transport and Maritime Affairs No. 2009-118, Nov. 18, 2009) on the Handling of Stoping and Scrapping of Trucks under Article 57 of the Trucks Act, in cases where a truck with a specific-use-type truck is lent as a general, dump-type truck and a special-use-type truck with a limited-use-type truck (subparagraph. 1), the Act does not allow a car-vehicle scrapping; and the permissible special-use-type truck with a permissible special-use-type truck with a specific-use-type truck with a specific-use-type truck with a specific-use-type truck with a specific-use-type truck with a specific-use-type truck with a specific-use-type truck, which

④ In order for a truck to be considered as being an insignificant matter among the permitted matters for trucking transport business and thus, it is naturally premised on a lawful scrapping of the truck. If a bribe is issued and a false notification of repair of the chassis is issued, a false notification of repair of the scrapping has been modified, or a false notification of repair of the scrapping has been issued by altering an automobile registration certificate, or a substitute scrapping has been illegally made by altering a notification of repair of the scrapping of a general truck under the name of the truck association, such scrapping shall not be deemed a substitute scrapping that can run the transport business only by making a report of alteration in accordance with Article 3(3) of the Trucking Transport Act and Article 2 subparag. 4 of the Enforcement Decree of the same Act, and shall not be subject to a report of alteration. Even if the report of alteration of the snow scrapping was made, the trucking transport business operator is not a legitimate trucking business.

(5) In a case where the issue is whether an existing trucking business operator's replacement of an entrusted trucking transport business with another vehicle after obtaining permission for trucking transport business under Article 3 (2) of the Addenda of the Trucking Transport Business Act (amended by January 2004) constitutes "vehicle scrapping for a trucking transport business" subject to the proviso to Article 3 (3) of the Trucking Transport Business Act and subparagraph 4 of Article 2 of the Enforcement Decree of the same Act, the Supreme Court also held that the existing trucking business operator's replacement of the entrusted vehicle with another vehicle is an increase in the number of permits granted by the trucking business operator and thus it is not subject to a report on alteration (see Supreme Court Decision 2011Du31604, Apr. 10, 2014). Accordingly, only the car scrapping for a trucking transport business operator who fails to comply with the relevant provisions and is subject to a report on alteration under the proviso to Article 3 (3) of the Trucking Transport Business Act.

(6) In the relevant criminal judgment, an application for permission for trucking transport business submitted by a person who intends to obtain permission for trucking transport business (attached Form 3 of the Enforcement Rule of the Truck Act) is only required to state only “the type of business intended to run” and “the number of trucks to be used for the business” without distinguishing the type of the trucks (general type and special-purpose truck). The main argument is to determine that the increase of the ordinary truck through the scrapping of the trucks does not constitute an object of permission for change under Article 3(3) of the Trucking Transport Business Act. However, the same holds true, however, the application does not include the scrapping of the trucks, the installation or closure of the truck handling office, the relocation of the place of business and the place of cargo handling, which are minor matters subject to permission for change under Article 3(3) of the Trucking Transport Business Act and Article 2 of the Enforcement Decree of the same Act.

7) Meanwhile, the accompanying documents stated in the application for permission for trucking transport business include documents stating the name, location, and size of the principal office, business office, and cargo handling office, documents stating the number, type, name, form, and maximum loading quantity of trucks placed in the principal office and business office, the certificate of installation of a garage, the sales contract, the certificate of transfer, or the certificate of scheduled shipment of the truck. Therefore, even though the matters to be reported, such as the location of the place of business are not stated in the application for permission for trucking transport business, the details of the application can be identified by the accompanying documents. Likewise, the document stating the type, name, and form of the truck, which is the accompanying documents for the application for permission,

(8) In addition, the standards for permission for trucking transport business under Article 3 (5) 2 of the Trucking Transport Business Act and Article 13 of the Enforcement Rule of the same Act provide for the number of trucking transport businesses, the minimum capital, offices and places of business, the minimum size of the truck owned (the area obtained by multiplying the length and width of the relevant truck per truck by one truck) and the type of truck [excluding Ban-type truck (excluding Ban-type truck with the maximum load capacity of five tons for transporting directors cargo or for special purposes, and trucking five tons or more of the maximum load equipped with fixed bridge-type equipment for transporting directors cargo) under the Motor Vehicle Management Act, large special vehicles under the Motor Vehicle Management Act (excluding large special vehicles equipped with fixed bridge-type equipment for transporting directors cargo), two or more trucks or special vehicles under the Motor Vehicle Management Act (excluding those for trucking transport business or special vehicles for trucking transport business only), the standards for the permission for trucking transport business shall be determined based on the maximum size of trucking vehicles or the change of the size of the truck to be used or the size of the truck.

(9) In fact, the defendant has the data by ascertaining the current status of registration of all types of truck owned by the plaintiff, who is a general truck trucking business operator, and after receiving each report on transfer or acquisition of the case of this case by the plaintiff, the notification was accompanied by the change details of

(10) Even in the case of a garage, an application for permission for trucking transport business is not included in the matters to be stated, but the certificate of the installation of the garage (attached Form 2 of the Enforcement Rule of the Truck Act) is included in the attached documents, and is also included in the guidelines for permission for trucking transport business, and the permission for trucking transport business. The certificate of the installation of the garage is included in the column for the use of the garage. Therefore, even if the application for permission for trucking transport business is not included in the matters to be stated in the application for permission for trucking transport business, the permission for change shall be obtained as a matter of course unless it is prescribed in the report on change. If the vehicle is changed or obtained by illegal means without undergoing such procedures, it constitutes a violation of Article 19 (1) 2 of the Trucking Transport Business Act.

(11) Ultimately, whether a trucking business operator is subject to permission for change shall be determined by comprehensively taking into account not only the descriptions stated in an application for permission for trucking transport business but also the relevant provisions, such as documents attached to the application for permission, standards for permission for trucking transport business, and shall not be readily concluded that the matters to be stated in

(12) Therefore, in light of the type of trucking transport business owned by a trucking transport business entity, standards for permission for trucking transport business, documents attached to an application for permission for trucking transport business, details of the written confirmation on the installation of a garage, etc., it shall be deemed that the permission under Article 3 (1) and (3) of the Trucking Transport Act is permitted, and if it is intended to modify such permission, permission for modification shall be obtained from the Minister of Land, Infrastructure and Transport, and in particular, in cases of permission for modification involving increase

(13) The automobile scrapping in this case was made illegally, and each of the instant vehicles is changed from a special purpose truck to a general truck in order to circumvent the provisions of the truck-type truck-type truck-type truck-related Acts and subordinate statutes that intend to restrict the supply of a general truck in order to solve the imbalance caused by excessive supply of trucking transport business, only formally, through the method of the car scrapping. Such car scrapping cannot be deemed a substitute scrapping for a truck under Article 2 subparagraph 4 of the Enforcement Decree of the Trucking Transport Business Act, which is the subject of the report of change, and as a truck trucking business operator causes a change in the type of truck owned by the trucking business operator, it shall be deemed that the vehicle is subject to the permission of change under Article 3 (3) of the same Act. If the type of the truck is changed, the area of the vehicle owned at the lowest (the area obtained by multiplying the length and width of the relevant truck per truck by the size of the relevant truck), and if so, the permission of change of the vehicle should also be examined as to whether the changed truck-type-type-type-type

(14) As a matter of principle, Article 3(3) of the Trucking Transport Act prohibits strict prohibition to eliminate imbalances caused by excessive supply of freight trucking services after setting an increase in the number of general freight cars in freight trucking services as permitted by the Minister of Land, Infrastructure and Transport. However, in the case of the scrapping of automobiles, it shall be interpreted that only the cases where the increase in the number of general freight cars, which are permitted by the Minister of Land, Infrastructure and Transport, is not achieved, such as replacing the vehicle whose age has expired, to another vehicle (see Seoul High Court Decision 2013Nu50151, May 1, 2014).

B) Judgment on the second argument

Sanction against violation of the administrative law is a sanction against the objective fact of violation of the administrative law in order to achieve the administrative purpose. Thus, barring any special circumstance, such as where a failure to perform the duty of the violator is not caused by an intentional act or negligence, it may be imposed even on the violator (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003). According to the above acknowledged facts, the Plaintiff illegally changed the permitted matters by reporting the scrapping of the instant vehicle, which is a special-purpose truck permitted to be supplied, to a general truck without obtaining permission for change, and thus, the Plaintiff is bound to be subject to the administrative responsibility for the Plaintiff, and there is no other justifiable reason that does not cause an omission of the Plaintiff’s duty.

Rather, in light of the above-mentioned facts and the fact that the plaintiff's operation experience of trucking transport business, the scale of business operation, and the plaintiff's use of a falsified and forged private document in order to obtain permission for change (proof) from the defendant, etc., and offered a bribe to the public official in charge, and deceiving the truck number illegally scrapped as if it is a normal general truck number and acquired the money of several hundred million won, etc., the plaintiff can be sufficiently recognized that each of the vehicles of this case was acquired with the well-known knowledge that it was a special purpose truck, and it was registered by receiving the notification of the repair of the substitute truck to a general truck through the cargo association. Accordingly, the plaintiff's above assertion is without merit.

C) Judgment on the third argument

Article 44(2) of the Trucking Transport Business Act provides that a trucking business operator, a trucking franchisor, and a person entrusted with trucking transport business (hereinafter “trucking business operator, etc.”) pursuant to Article 40(1) of the Act shall order the return of subsidies or loans. “False or unlawful means” refers to any act that makes it possible to unlawfully receive fuel subsidies and any act that is recognized as fraudulent and illegal by social norms (see Supreme Court Decision 2005Do2652, Oct. 7, 2005, etc.). In addition, considering the purpose of the Act to contribute to the promotion of public welfare by efficiently managing and soundly fostering trucking transport business and promoting smooth transportation of cargo, the amount of fuel subsidies is limited to vehicles lawfully registered for trucking transport business under the Act (see Supreme Court Decision 2005Do2652, Jul. 27, 2009).

After the representative director of the Plaintiff took over each of the instant vehicles for which Nonparty 1 had a permissible special purpose truck, the fact that the Plaintiff changed to a general truck with limited supply-type truck through the scrapping of the instant vehicles is as seen earlier, and according to the statement in subparagraph 1-1 of the evidence No. 1, it is recognized that the Plaintiff received fuel subsidies of approximately KRW 3 million every month from December 2009 to KRW 3 million for the instant violating vehicles, which had been changed to a general truck with illegal scrapping.

According to the above facts, it is sufficiently recognized that the Plaintiff was aware of the fact that the instant violating vehicle was illegally scrapped, and the Plaintiff illegally changed the instant violating vehicle from a special-purpose truck to a general-use truck through illegal scrapping, and received fuel subsidies for the said vehicle. Therefore, this constitutes a case where the Plaintiff received fuel subsidies by fraudulent or other illegal means as stipulated in Article 44(3) of the Trucking Transport Act. Therefore, the Plaintiff’s allegation is without merit.

D) Determination on the fourth argument (preliminary determination)

According to the above facts and relevant Acts and subordinate statutes, and the evidence No. 6-1 to 34, the following circumstances are revealed by the statement, namely, ① According to each management entrustment contract concluded by the Plaintiff, the land owner company invested in kind in the Plaintiff and registered the contract vehicle in the name of the Plaintiff, and the Plaintiff operates and manages the contract vehicle by entrusting the land owner company with the operation and management right of the contract vehicle. ② The Plaintiff is not only the owner of the violating vehicle, but also the representative of the Plaintiff did not receive the fuel subsidy in the absence of the illegal act by Nonparty 1, and it is evident that the fuel subsidy is issued by the Plaintiff’s fraudulent or unlawful means. Therefore, it is reasonable to view that the order to return the fuel subsidy has to be the opposing party, and ③ in the case of the land owner, the Defendant transferred the fuel subsidy directly to the deposit account of the land owner (see Supreme Court Decision 2009Du6087, Jul. 23, 200). 209, it is reasonable to deem that the above general cargo transport business operator was wrongfully granted the above subsidy by fraudulent or fraudulent means.

E) Determination on the fifth argument

In general, in administrative legal relations, in order to apply the principle of the protection of trust to the acts of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, there should be no reason attributable to the individual as to the trust of the individual, third, the individual should have trusted the opinion list, and third, the administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency should have made a disposition contrary to the opinion list, thereby infringing on the interests of the individual who trusted the opinion list. Lastly, when taking an administrative disposition in accordance with the above opinion list, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du46, Jun. 9, 2006, etc.).

First of all, as to whether the Defendant may be deemed to have ordered the Plaintiff to make a public statement of opinion that the change reported to the Plaintiff, the Defendant received a report on the change of the freight truck permission details of the freight association for each of the of the of the of the of the instant vehicles in accordance with the notification on the change of the freight truck permission details of the freight association for the truck of this case, which are different from the actual facts submitted by the Plaintiff, as seen earlier. However, the Defendant cannot be deemed to have issued a public statement of opinion that it is possible for the Defendant to change the special-use truck to a general truck only by the change report through the scrapping of the instant vehicle. There is no

In addition, even if there was any public opinion expressed by the Defendant, the fact that Nonparty 1, the representative director of the Plaintiff, received a cargo association's notice of acceptance to substitute a specific truck which is not allowed by the cargo association as a general truck, and submitted it to the Defendant is as seen earlier. Therefore, it cannot be said that there is no reason attributable to the Plaintiff as to what opinion expressed by the Defendant is justifiable and trust.

Therefore, the plaintiff's above assertion does not appear to have any mother or reason.

F) Determination on the fifth argument

The following circumstances revealed pursuant to the above facts and relevant Acts and subordinate statutes, namely, ① the Plaintiff changed the instant vehicle to a general truck with limited-use type of truck with permission for change instead of permission for change through the scrapping of the instant vehicle. ② The Plaintiff completely dismissed the purpose of the Trucking Law to resolve imbalance caused by excessive supply of trucking transport business; ③ Nonparty 1, the representative director of the Plaintiff changed not only the instant vehicle but also the general truck with a specific-use type of truck with a general-use type of truck, thereby deceiving a third party as if it were issued normally, and acquired money of KRW 00 million by deceiving the third party as if it was a general-use truck number; ② forged the documents in the process; exercised the above investigation document; ④ Nonparty 1 was sentenced to imprisonment for two years, suspension of execution, community service, and 240 hours due to the above criminal facts; ⑤ The Defendant cannot be deemed to have been subject to suspension of payment by applying the entire provision of Article 5(2)1 of the Enforcement Decree of the Trucking Transport Act to the Plaintiff’s business suspension for the purpose of the Plaintiff.

3. Suspension of the restoration of this case.

According to the records of this case, it is recognized that there is an urgent need to prevent the plaintiff from causing irrecoverable damage due to the execution of the restoration of the non-compliant vehicle among the dispositions of this case, and there is no evidence that the suspension of execution is likely to have a significant impact on public welfare. Thus, the execution of this case shall be suspended ex officio until the appellate court rendered a decision

4. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment of Related Acts and Subordinate Statutes]

Judges Kim Jong-dae (Presiding Judge)

1) Unlike the Seoul High Court Decision 2013No3556, 2014No113 (Joint) Decided May 2, 2014, the Seoul High Court explicitly stated that the case of the car scrapping in the instant case is subject to the permission of modification under Article 3(3) of the Trucking Transport Act.

2) Articles 29(2) and 29-2(3) of the former Trucking Transport Act (wholly amended by Act No. 8979, Mar. 21, 2008) are basically the same as Articles 43(2) and 44(3) of the former Trucking Transport Act after the amendment.