[1] Whether Article 91 (1) [Attachment 28] 2 (13) of the Enforcement Rule of the Road Traffic Act and Article 92 subparagraph 2 (e) of the Enforcement Rule of the Road Traffic Act exceed the limit of the delegated legislation (affirmative)

[2] Whether Article 91 (1) [Attachment 28] 2 (13) of the Enforcement Rule of the Road Traffic Act and Article 92 subparagraph 2 (e) of the Enforcement Rule of the Road Traffic Act violate the principle of prohibition of excessive (affirmative)

[3] The case holding that in case where the commissioner of a district police agency revoked a driver's license pursuant to Article 93 (1) 11 of the Road Traffic Act on the grounds that "A, who belongs to or was included in a large number of organizations, was involved in the act of obstructing traffic by using a motor vehicle," etc. with the members belonging to the candlelights Union as well as the members belonging to the "Madlelights Union", the disposition of revocation is unlawful

[1] Article 93 (1) 11 of the Road Traffic Act provides that a driver's license shall be revoked in cases of using a motor vehicle for the purpose of murder, rape, etc., and therefore, even if a person is delegated with the authority to set the subject of a criminal act for which the driver's license may be revoked, if the person committed a serious crime, such as murder, rape, etc., and a serious crime, to the extent that the driver's license may be revoked, it is ordinarily predicted that the driver's license may be revoked. In addition, Articles 91 (1) [Attachment Table 28] 2 (1) and 92 subparagraph 2 (e) of the Enforcement Rule of the Road Traffic Act, which provide for the above, are only applicable to cases where the person belongs to an organization or obstructs traffic by a large number of people, and there are no specific provisions. However, any crime, such as murder, rape, etc., committed by a person who needs a driver's license under Article 93 (1) 11 of the Road Traffic Act, which is the Act authorized to permit the above provision of the Enforcement Rule.

[2] Article 93(1)11 of the Road Traffic Act, Article 91(1) [Attachment Table 28] 2(1) [Attachment Table 28] and Article 92 subparag. 2(e) of the Enforcement Rule of the same Act are traffic obstruction under Chapter 15 of the Criminal Act, and a general traffic obstruction shall be punished by imprisonment for not more than 10 years or by a fine not exceeding 15 million won, and a person who obstructs traffic by means of destroying tracks, lights, or signs shall be punished by imprisonment for a limited term of not less than one year, and a person who causes injury to another thereby shall be punished by imprisonment for life or imprisonment for not less than three years, and a person who causes death shall be punished by imprisonment for life or for not less than five years. Inasmuch as the crime of traffic obstruction scheduled as the grounds for revocation is the crime of traffic obstruction, as seen above, from the statutory punishment to the punishment of imprisonment for life, it may only be punished by a fine, regardless of the degree of interference and specific nature of the crime committed by a large number of organizations or organizations.

[3] In a case where the commissioner of a district police agency revoked a driver's license in accordance with Article 93 (1) 11 of the Road Traffic Act on the ground that "A, who belongs to or was included in many people, committed an act interfering with traffic by using a vehicle," with a vehicle operated by the members of the "Candlelight Motor Vehicle Association" while driving the vehicle along with the vehicle, and carried out following the candlelights that participated in the candlelight assembly against import of U.S. beef, the case holding that the above disposition is unlawful since Article 91 (1) [Attachment 28] 2 Item 2 Item (e) and subparagraph 2 Item (e) of Article 92 of the Enforcement Rule of the Road Traffic Act, which served as the legal basis for the above disposition, goes beyond the limit of the delegated legislation, and is not effective in violation of the principle of excessive prohibition.

[1] Article 93 (1) 11 of the Road Traffic Act, Article 91 (1) [Attachment 28] subparagraph 2 (13), Article 92 subparagraph 2 (e) of the Enforcement Rule of the Road Traffic Act, Article 95 of the Constitution / [2] Article 93 (1) 11 of the Road Traffic Act, Article 91 (1) [Attachment 28] subparagraph 2 (1) of the Enforcement Rule of the Road Traffic Act, Article 92 subparagraph 2 (e) of the Road Traffic Act, Article 37 (2) of the Constitution / [3] Article 93 (1) 11 of the Road Traffic Act, Article 91 (1) [Attachment 28] subparagraph 2 (1) of the Enforcement Rule of the Road Traffic Act, Article 92 subparagraph 2 (e) of the Road Traffic Act, Article 37 (2) and Article 95 of the Constitution

Plaintiff (Attorney Lee Jae-ho, Counsel for plaintiff-appellant)

The Commissioner of the Gyeonggi Police Agency

September 3, 2010

1. The Defendant’s revocation of the license granted to the Plaintiff on November 12, 2008 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

3. Disposition stated in Paragraph 1 shall be suspended until the judgment of this case becomes final and conclusive.

The same shall apply to the order.

1. Details of the disposition;

A. On July 19, 2008, the so-called candlelight meeting against the import of U.S. beef was held in the Cheongcheon-dong, Jongno-gu, Seoul. From 03:00 on the following day, the Plaintiff, who was a member of the candlelight Motor Association, was driving the vehicle (vehicle number omitted) on the front of the Seodaemun-gu, which was driven by the members belonging to the said candlelight Motor Association, along with the vehicle driven by the said members, 800 candlelights participating in the above candlelight meeting.

B. Accordingly, on November 12, 2008, the defendant revoked the plaintiff's first-class and second-class driver's license number (number omitted) as of November 24, 2008 by applying Article 93 (1) 11 of the Road Traffic Act and Article 91 (1) [Attachment Table 28] 2 (1) of the Enforcement Rule of the same Act and Article 92 subparagraph 2 (e) of the same Act to the plaintiff's first-class and second-class driver's license (number omitted) by applying Article 93 (1) 2 (i) and Article 92 subparagraph 2 (e) of the Enforcement Rule of the same Act.

[Reasons for Recognition] Facts without dispute, Eul evidence Nos. 4 through 12 (including additional numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

First, Article 93(1)11 of the Road Traffic Act, which is the legal basis of the instant disposition, violates the constitutional principles concerning the clarity principle, the principle of prohibition of comprehensive delegation, the principle of prohibition of excessive restriction, etc., and Article 92 Subparag. 2(e) of the Enforcement Rule of the Road Traffic Act violates the constitutional principles concerning the clarity principle, the principle of excessive prohibition, and the limitation of delegated legislation, and thus, the instant disposition is also unlawful.

Second, in light of the fact that the plaintiff did not receive any caution or warning from the traffic police in the vicinity of the candlelight demonstration team at the time of proceeding following the candlelight demonstration team, and that the plaintiff was already blocking the road due to the candlelight demonstration, it does not constitute a traffic obstruction as provided in the Road Traffic Act only by the plaintiff's act of walking down according to the front direction of the participants in the candlelight assembly.

(b) Relevant statutes: omitted;

C. Determination

(1) Whether Article 91(1) [Attachment 28] 2(1) of the Enforcement Rule of the Road Traffic Act, Article 92 subparag. 2(e) of the Enforcement Rule of the Road Traffic Act deviates from the limits of the delegated legislation, or violates the principle of excessive prohibition

(A) Article 93 of the Road Traffic Act provides that "traffic obstruction (limited to interference belonging to an organization or interference with traffic, including many persons)" shall be deemed a necessary cause for revocation of a driver's license. We examine whether each of the above provisions deviates from the limit of delegated legislation or violates the principle of excessive prohibition.

(B) The so-called administrative rules, which are issued by a superior administrative agency to a subordinate administrative agency, are generally effective only within the administrative organization, and do not have external binding force. However, in the case where the provisions of statutes specifically provide for the matters to be the contents of the statutes in the form of administrative rules in which the delegated administrative agency grants authority to a specific administrative agency to determine the specific contents of the statutes and does not specify the procedure or method of the exercise of such authority, such administrative rules, provisions are effective only within the administrative organization, and do not have external binding force, not only within the administrative organization, but also within the general effect of administrative rules that grant authority to supplement the specific contents of the statutes, but also within the general effect of administrative rules that grant authority to an administrative agency to supplement the contents of the statutes. Accordingly, insofar as they do not go beyond the delegated scope of the statutes in question, they have the effect of external binding legal orders (Supreme Court Decision 97Nu19915 delivered on June 9, 198).

Article 93(1)11 of the Road Traffic Act provides that a driver's license shall be revoked when a person who has obtained a driver's license commits an act prescribed by Ordinance of the Ministry of Public Administration and Security, such as murder, rape, etc. by using a motor vehicle. Article 92 of the Enforcement Rule of the same Act provides that a person who has obtained a driver's license shall revoke the driver's license. Article 92 of the Enforcement Rule of the same Act provides that a crime violating the National Security Act is committed under subparagraph 1, the Criminal Act is committed in violation of the National Security Act, etc. under subparagraph 2, that (a) is murder, dead body abandonment, or fire-fighting; (b) robbery; (c) is kidnapped, induced, or detained; and (e) is habitually stolen (limited to a case where a person carries a stolen article; and (e) the item (e) is subject to the provision of Article 91(1) [Attachment 28] of the Enforcement Rule of the same Act that provides for the revocation of a driver's license under subparagraph 2 of the same Article 91(2).

(C) On the other hand, the limitation of delegation legislation with the validity of a statutory order is predictability. This means that, in cases where the basic matters of the contents and scope that are already prescribed by the Presidential Decree are specifically prescribed in the Act, any person can predict the outline of the contents that are to be prescribed by the Presidential Decree, etc. from the relevant Act. The existence of such predictability is not determined with only one of the relevant specific provisions, but should be determined systematically and systematically, and the whole of the relevant legal provisions should be determined systematically and systematically, and if it can be reasonably predicted when comprehensively considering the nature of the relevant law and the legislative intent of the law, it does not deviate from the limitation of delegation (Supreme Court Decision 2007Du9884 Decided October 26, 2007).

In this case, Article 93 (1) 11 of the Road Traffic Act, which is the Act on the Authority of the above Enforcement Rule, provides that the driver's license shall be revoked in cases of using a motor vehicle for the purpose of murder, rape, etc... Therefore, even though the delegation from the above provision to determine the subject of criminal acts for which the driver's license may be revoked, the driver's license may be revoked in cases where a serious crime has been committed to the extent that the crime, such as murder, rape, etc., was committed. In addition, Articles 91 (1) [Attachment Table 28] 2 (1) [Attachment Table 28] and 92 subparagraph 2 (e) (e) of the Enforcement Rule of the Ministry of Public Administration and Security, which provide for such a provision, only those cases belonging

However, it is not similar to the crime of murder, rape, etc. committed as a crime that requires the driver's license to be revoked in accordance with Article 93 (1) 11 of the Road Traffic Act, which is the Act on the Authority of the above Enforcement Rule, to obstruct traffic belonging to an organization or contained in a large number of persons. Therefore, it is difficult to predict the above provision of the Enforcement Rule from the above provision of the Road Traffic Act to define traffic obstruction as a necessary cause for revocation of driver's license. Therefore, it is determined that the above provision of the Enforcement Rule deviates from the limit of delegated legislation delegated by the Ordinance of the Ministry of Public Administration and Security

(D) In addition, traffic obstruction under Article 93(1)11 of the Road Traffic Act, Article 91(1) [Attachment Table 28] 2(1) [Attachment Table 28] 2(1) and 92(2)(e) of the Enforcement Rule of the same Act, which is prescribed as the grounds for revocation of driver's license, are stipulated in Chapter 15 of the Criminal Act, and a general traffic obstruction is committed by imprisonment for not more than 10 years or by a fine not exceeding 15 million won, and a person who obstructs traffic by means of damaging a track, light, or sign shall be punished by imprisonment for a limited term of not less than one year, and a person who thereby causes injury to another shall be punished by imprisonment for life or by imprisonment for not less than three years, and a person who causes death

However, the crime of traffic obstruction scheduled as a reason for revocation of a driver's license is diverse as above until the statutory punishment is fine and life imprisonment, and even if the form of such act is partially restricted under Article 91 (1) [Attachment Table 28] 2 (1) [Attachment Table 13] and Article 92 subparagraph 2 (e) of the Enforcement Rule, however, the driver's license is revoked regardless of how much the act is heavy if it interferes with traffic flow belonging to or among many persons, and what degree of participation in such a criminal act, etc. Therefore, the crime of traffic obstruction scheduled as a reason for revocation of a driver's license is to prevent the driver's license from being revoked even in a case where the degree of illegality or criticism is weak.

(2) Sub-determination

Therefore, inasmuch as Article 91(1) [Attachment 28] subparag. 2(c) and Article 92 subparag. 2(e) of the Enforcement Rule of the Road Traffic Act, which is the legal basis of the instant disposition, cannot be deemed as null and void by deviating from the limit of delegated legislation and violating the principle of excessive prohibition, the instant disposition based thereon is unlawful without further examining the remainder of the Plaintiff’s assertion.

3. Suspension of execution.

In full view of the data revealed in the records of this case, it is recognized that the execution of the disposition of this case was urgently required to prevent irrecoverable damage to the plaintiff, and there is no other data to recognize that such suspension of execution may have a significant impact on public welfare. Thus, the disposition of this case shall be suspended ex officio until the judgment of this case becomes final and conclusive.

4. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and this is accepted, and the suspension of execution of the disposition of this case is ordered ex officio.

Judges Ish Sung-hee