Defendant

Prosecutor

Hong-hee

Daejeon District Court Decision 2003DaMa115 delivered on April 28, 2004

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal by the public prosecutor;

A. As Nonindicted Party 1, an employee of the Defendant, provided the truck for private use in relation to the Defendant’s business for the purpose of transporting the cargo at a cost, the Defendant, as Nonindicted Party 1’s employer, shall be punished in accordance with Articles 49, 48 subparag. 4, and 39 of the Trucking Transport Business Act.

B. Even if the Defendant cannot be punished pursuant to the above legal provision, the Defendant’s violation of the Trucking Transport Business Act is recognized in collusion with Nonindicted Party 1, and thus, the Defendant should be held liable as a co-principal in relation to Nonindicted Party 1’s violation of the Trucking Transport Business Act.

2. Summary of the violation of the Trucking Transport Business Act among the facts charged in the instant case and the judgment of the court below

A. Summary of the facts charged

The Defendant is a person engaged in the gas sales business under the trade name of “Non-Indicted 2 Co., Ltd.”;

(1) Even if the owner or user of a private-use truck is prohibited from providing or leasing a private-use truck for commercial purpose, the owner or user of the private-use truck committed the above violation in relation to the Defendant’s business by receiving KRW 1,300,000,000, including one month’s wage, from the end of October 200 to February 8, 2002, the Defendant’s employees, at the non-indicted 2 Co., Ltd. 1, the Defendant’s employees, offered the private-use truck to the gas delivery of the above non-indicted 2 Co., Ltd. for commercial purpose, by providing the private-use truck for commercial purpose, for commercial purpose, at the cost of selling the truck.

on a selective basis:

(2) Even if the owner or user of a private-use truck is not allowed to provide or rent the private-use truck for the purpose of trucking, in collusion with Nonindicted 1, the owner or user of the private-use truck provided the private-use truck for the purpose of trucking transport at a cost by having the said Nonindicted 1 work as an employee engaged in the gas delivery business of the said Nonindicted 2, by having the said Nonindicted 1 work for the purpose of trucking transport in collusion with Nonindicted 2 Company in collusion with the said Nonindicted 1, from October 200 to February 8, 2002.

B. The judgment of the court below

As to the facts charged in the above (1), the court below held that even according to the facts charged in the above (2) that even according to the facts charged, the defendant is the other party to whom the non-indicted 1 had been provided with the article 49 of the Trucking Transport Business Act, which is a joint penal provision for punishing the defendant, who is only the other party to whom the above cargo was provided, for the purpose of transporting cargo through his employee, even though the defendant is the user of the non-indicted 1 in relation to the gas sales business of the non-indicted 2 corporation, the defendant cannot be punished under Article 49 of the same Act, which is a joint penal provision for punishing the case where he provided the cargo for the purpose of transporting cargo at a cost through his employee, and even according to all evidence submitted by the prosecutor, there is no evidence to prove that the defendant was recruited by him, and rather, according to the defendant's statement in the court of the court below, the defendant was not guilty since he was provided with the above cargo for the purpose of transporting cargo at a cost by the non-indicted 1.

3. The judgment of this Court

In light of the records, we examine the legitimacy of the above judgment of the court below, and accept the judgment of the court below that the defendant was not guilty for the reasons as stated in its judgment. Thus, prosecutor's appeal is without merit.

On the other hand, the prosecutor asserts that "if a truck is carried on by entering a private-use truck and carrying on the cargo transport business, if an employer takes the form of paying the remuneration or consideration to an employee, as in this case, the employer would not be punished under the Trucking Transport Business Act, which would result in unfair conduct" (Article 3. 3 (c) of the Reasons for Appeal). However, since the defendant is a gas dealer, not a truck driver, the prosecutor's assertion is not consistent with the issue of this case. The employer who carries on the cargo transport business in the same form as the prosecutor claims, shall be punished under the Trucking Transport Business Act. Thus, the prosecutor's above assertion is without merit.

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Choi Jong-he (Presiding Judge)