2017Du73693 Revocation of the reduction of the number of vehicles in violation of paragraph (1)

KNN Co., Ltd.

Law Firm Support

Attorney Lee Dong-hoon

The head of Seocho-gu

Attorney Park Jong-soo, Counsel for the plaintiff-appellant

Seoul High Court Decision 2017Nu44352 Decided November 9, 2017

May 28, 2020

The original judgment shall be reversed, and the case shall be remanded to the Seoul High Court.

The grounds for appeal are determined.

1. Case summary and the point of dispute

A. The reasoning of the original judgment reveals the following facts. (1) The Plaintiff is a trucking transport business operator running a general trucking transport business. In order to change the figure-on truck to a general truck-type truck, it is necessary to obtain the large-scale scrapping permission, but the Plaintiff only reported the scrapping of the vehicle on 22 occasions as shown in the attached Table 1 of the judgment of the first instance from April 5, 2013 to August 21, 2013 (hereinafter “the instant vehicle”).

2) On September 2, 2015, the head of ○○○○○ in charge of the location of the Plaintiff’s head office operated the instant vehicle with a general truck without obtaining permission for the scrapping of the Plaintiff on the ground that it is operating the instant vehicle with an illegal truck (hereinafter “the first violation of the Trucking Transport Business Act”) (hereinafter “ Trucking Transport Business Act”) imposed a penalty surcharge of KRW 20 million in lieu of the suspension of operation of the violating vehicle (60 days) based on Articles 3(3), 19(1)2, and 21(1) of the Trucking Transport Business Act (hereinafter “ Trucking Transport Business Act”).

3) On February 23, 2016 and February 25, 2016, the 00 head of the 200 Gun suspended the Plaintiff from operating the instant vehicle with a general water-type truck, and did not carry out the procedure of scrapping the instant vehicle with the original special purpose cargo again within three months, he/she made a prior notification to the Plaintiff on the ground that he/she did not obtain a prior notification to the head office of the 20th Gun under the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 27782, Jan. 10, 2017; hereinafter referred to as the "former Enforcement Decree"), Article 5 (1) [Attachment 1] of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 27782, Jan. 10, 2017; hereinafter referred to as the "Guidelines 1] of the 2nd 1st 2nd 2nd 2nd 3th 2016.

B. The key issue of the instant disposition is whether the instant disposition complies with the criteria for aggravated disposition following the frequency of violations under the former Enforcement Decree [Attachment 1].

2. Relevant regulations and legal principles

A. (1) Article 19(1)2 and (3) of the Cargo Vehicles Act provides that the Minister of Land, Infrastructure and Transport may revoke the permission or order the suspension of all or part of the business or the reduction of the number of vehicles by setting a period not exceeding six months, and that the criteria and procedures for sanctions following such delegation shall be prescribed by Presidential Decree. Article 19(1)2 of the former Enforcement Decree of the Trucking Transport Business Act provides that "where a trucking business operator amends permitted matters without obtaining the permission for change or obtaining the permission for change in accordance with Article 3(3) of the Act by improper means" and "where a trucking business operator amends permitted matters without obtaining the permission for change in accordance with Article 3(3) of the Act (60 days)," "the reduction of the number of vehicles in violation" in the second violation, and "the revocation of permission" in the second violation of subparagraph 4 provides that "the criteria for the deletion of administrative disposition within the number of years from the date of the violation in subparagraph 1 of the same Article shall apply to cases where the violation is discovered."

2) The purpose of the former Enforcement Decree [Attachment 1] subparag. 2 and subparag. 4 of the Act is to impose more severe punishment in the event of repeated violations of the same content even though a sanction was imposed against a violation (see Supreme Court Decision 2014Du2157, Jun. 12, 2014). Comprehensively taking account of the purport of the system and the language and text of subparag. 4 of the former Enforcement Decree [Attachment 1] and the former Enforcement Decree, in order to apply the criteria for aggravated punishment according to the frequency of violations, it should be deemed sufficient if the previous violation was committed and where the same violation was discovered within one year from the date of the relevant sanction, even though the valid sanction was imposed, and there was no other need to deem that the previous sanction against the previous violation was made in accordance with the criteria for the sanction No. 2 of the former Enforcement Decree [Attachment 1], and that the previous disposition should not be deemed to have been made in excess of the scope of the discretion of the previous disposition or in any other way.

B. 1) Article 21(1) and (2) of the Cargo Act provides that where a trucking business operator is obliged to take a disposition of business suspension because it falls under any subparagraph of Article 19 (1), the Minister of Land, Infrastructure and Transport may impose and collect a penalty surcharge not exceeding 2,000 civil petitions in lieu of a disposition of business suspension, as prescribed by Presidential Decree, if such disposition of business suspension is likely to cause serious inconvenience to users of the relevant trucking services or undermine public interests, and that the amount of penalty surcharges depending on the type, degree, etc. of an offense subject to the imposition of the penalty surcharge and other necessary matters shall be prescribed by Presidential Decree. The first sentence of Article 7(1) of the former Enforcement Decree of the Trucking Transport Business Act provides that "the kinds of offenses subject to the imposition of a penalty surcharge or the amount of a penalty surcharge shall be limited to Article 21(1) of the Act (including cases applied mutatis mutandis in Articles 28 and 33 of the Act) and that the provisions of Article 21(2) of the former Enforcement Decree shall not include any exception to the provisions of the Act.

The legislators are allowed to impose penalty surcharges on behalf of the business suspension disposition. As such, instead of simply delegating to the Presidential Decree the duty of embodying the “standards for calculating penalty surcharges”, the legislators should be deemed to have delegated the duty of embodying the “type of a violation that may impose penalty surcharges in lieu of the business suspension disposition.” Therefore, the imposition of penalty surcharges on the type of a violation that is not listed in the “amount of penalty surcharges” under the former Enforcement Decree [Attachment 2] and the “amount of penalty surcharges” should not be allowed in lieu of the business suspension disposition. (iii) On the other hand, if there is room for dispute over the interpretation of the relevant law as it is clearly stated that the legal relationship or factual relations are not subject to the application of the relevant law, even if the administrative disposition was made by erroneous interpretation of the relevant regulations, and thus, it cannot be deemed that the defect is apparent (see, e.g., Supreme Court Decision 95Da46722, May 9, 197).

3. Judgment on the instant case

A. We examine the aforementioned factual relationship in light of the legal principles as seen earlier. 1) Operation of a special-purpose truck without obtaining permission for alteration in violation of Article 3(3) of the Cargo Act by the head of the Gun constitutes grounds for business suspension pursuant to Article 19(1)2 of the Trucking Transport Business Act, but it is not allowed to impose a penalty surcharge in lieu of business suspension pursuant to Article 21(1) of the former Enforcement Decree because it is not listed in the attached Table 2 of the Trucking Transport Business Act. However, it is difficult to conclude that there was no room for dispute over interpretation because the relevant legal principles were clearly stated at the time of the first disposition of a penalty surcharge, but it is not unlawful as to the first disposition of a penalty surcharge. 2) Operation of a special-purpose truck without obtaining permission for alteration in violation of Article 3(1) of the Enforcement Decree, which was conducted by the 2nd disposition after the first disposition of a penalty surcharge was conducted by the 2nd disposition on September 2, 2015 by the 1st disposition on the ground that the Plaintiff was subject to correction of the 2nd disposition.

4) As long as the Defendant issued the instant disposition pursuant to subparagraph 2 of the former Enforcement Decree [Attachment 1] of the Sanctions Criteria, unless there exist reasonable grounds to believe that the criteria are in violation of this superior statute or that the result of the application of the criteria is considerably unreasonable in light of the content and purport of the relevant statutes, it cannot be deemed that the instant disposition discretion was deviates from and abused.

B. Nevertheless, the lower court determined that the Defendant could take measures to reduce the number of vehicles in violation of the second violation pursuant to subparagraph 2 of the former Enforcement Decree [Attachment Table 1] as to the second violation only in cases where the Defendant imposed the suspension of business (60 days) for the first violation pursuant to subparagraph 2 of the attached Table 1 of the Enforcement Decree of the former Enforcement Decree for the first violation. In so determining, the lower court erred by misapprehending the legal doctrine on the criteria for aggravated disposition according to the frequency of the violation, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating

It is so decided as per Disposition.

Justices Noh Jeong-hee

Justices Park Sang-ok

Justices Ansan-chul

Justices Kim Jong-hwan