Gyeong Passenger Transport Co., Ltd. (Attorney Jin-jin, Counsel for the plaintiff-appellant)

Ansan Market (Law Firm Tae Jin, Attorneys Ba-young et al., Counsel for defendant-appellant)

June 19, 2019

1. The Defendant’s disposition imposing a penalty surcharge of KRW 50,000,000 on the Plaintiff on April 24, 2018 exceeds KRW 200,000 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant.

The defendant's disposition of imposition of the penalty surcharge against the violation of each Passenger Transport Service Act against the plaintiff on April 19, 2018 and the 24th of the same month shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a legal entity that operates a passenger transport service with his/her address at his/her head office, and the Defendant is an administrative agency entrusted by the Gyeonggi-do Governor with the authority to impose penalty surcharges under the Passenger Transport Service Act (hereinafter “passenger Transport Service Act”).

B. On September 12, 2017, the Governor of the Gyeonggi-do requested the Defendant to take an administrative disposition on the ground that the Plaintiff violated Article 4 and Article 10 of the Passenger Transport Act (hereinafter “instant violation of Article 1”), on the ground that: (a) from March 1, 2016 to September 11, 2017, the Plaintiff’s route “Seoul (Seoul)-○○○”); and (b) from Seoul (Gu)-○○” (hereinafter “instant two routes”); and (c) from each “○○ bus Terminal” to “△△○○○ Camp” without filing a stop report; and (d) on the ground that the Plaintiff violated Article 85(1)6 and Article 10 of the Passenger Transport Act (hereinafter “instant violation”); and (e) the Defendant imposed a penalty surcharge on the Plaintiff on April 19, 2018 by applying Article 85(1)2 of the Passenger Transport Service Act; and (e) Article 508 subparag. 12, 2018.

C. In addition, on February 13, 2018, the Governor of the Gyeonggi-do requested the Defendant to impose a penalty surcharge on the Plaintiff for violating Article 10 (1) of the Passenger Transport Act (hereinafter “instant violation”) by failing to operate the “○-Seoul Routes” (hereinafter “instant route”) that the Plaintiff acquired from △ High-speed Co., Ltd. (hereinafter “instant route”) once from June 29, 2017 to February 12, 2018, on which the Plaintiff reported as the date of commencement of transportation. The Defendant was in violation of Article 10 (2) of the Passenger Transport Service Act (hereinafter “instant violation”) and Article 50 (2) of the Enforcement Decree of the Passenger Transport Service Act (hereinafter “instant Article 3”) on the “non-cheon-○ Routes route” and “Mayang-○ Routes route” on July 10, 2017 to February 12, 2018.

D. The Plaintiff filed an administrative appeal against the instant disposition Nos. 1 and 2, but received each dismissal ruling on October 1, 2018.

[Reasons for Recognition] The facts without dispute, Gap's 1 through 11, 13, Eul's 1, 2, 3 (including the numbers with each number), 5-7, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The exclusion period map (the First Claim)

According to Article 42(4) of the Enforcement Decree of the Passenger Transport Act, the disposing authority shall take the disposition within 30 days, except in extenuating circumstances, in cases where it receives the notification of detection pursuant to Article 42(3) of the same Act. The defendant shall impose 219 days from the date on which it receives the notification of detection of the violation of Article 1 from the Gyeonggi-do Governor, and impose 81 days from the date on which it receives the notification of detection of the violation of Articles 2 and 3 and 2 of this case. Thus, the first and second dispositions of this case are all illegal dispositions with the lapse of the disposal period.

2) The denial of the operation of the extension of the first route (the second assertion) of the instant case

① Since the Plaintiff obtained authorization on the starting point or the ending point of the first route of this case as the administrative district “○○○○○,” the Plaintiff’s operation from ○○ Terminal to ○○ University ○○○○○○ University ○○○○○○○ Scambs does not change the starting point or ending point. ② Moreover, the starting point or ending point change should be changed as a matter of course due to an increase of operating distance. There is no fact that the Plaintiff has received additional charges; ③ the Plaintiff operated the instant route up to 34/day; ③ the Plaintiff operated the instant route up to 34/day each, and the Plaintiff operated the instant route up to ○○ Camp at △△ University ○○ University ○○ Scambs, each of which was operated up to three times, and even if not subject to authorization, it does not constitute a violation of Article 10(1) of the Passenger Transport Service Act, and thus, the instant disposition was unlawful under the premise that the instant bus operation system was not subject to authorization.

3) The denial of the instant violation of Article 2 (Third Claim)

① On June 29, 2017, the Plaintiff acquired the instant route transportation business, and reported the commencement of transportation to the Gyeonggi-do Governor on June 29, 2017. The Gyeonggi-do Governor notified the receipt of the report on the same date. The Plaintiff was erroneous for the Defendant’s disposal of the “transport commencement date” on the ground that the Plaintiff was not in compliance with the “transport commencement date” due to the problem of the use of the platform, etc. of Sungnam Integrated Bus Terminal and the lack of Plaintiff’s operation vehicles. However, the Plaintiff submitted an application for the abolition of the instant route to the Gyeonggi-do Governor after the date, and the Gyeonggi-do Governor approved the modification of the instant route’s business plan on May 9, 2018 with the contents of the abolition of the instant route. However, it is unreasonable for the Defendant to take the second disposition based on the request for the abolition of the instant route, and the Defendant’s disposition on the second disposition on the ground that the instant route was not subject to the cancellation of the Plaintiff’s disposition on the ground that the instant route was not subject to the second disposition on the abolition.

Therefore, the instant disposition No. 2 ought to be maintained only for KRW 200,000 ( KRW 100,000 per one route) of the amount of penalty surcharges for Unauthorized Integrated Operation from July 10, 2017 to December 2, 2018.

4) Illegality in calculation of penalty surcharge (Claim 4)

In accordance with Article 88 (1) of the Passenger Transport Service Act, the Minister of Land, Infrastructure and Transport or a Mayor/Do Governor is reasonable to interpret that a penalty surcharge exceeding 50 million won shall not be imposed for each route when imposing a penalty surcharge on the relevant passenger transport service provider. Thus, it is erroneous to impose a penalty surcharge on the basis of a route other than a passenger transport service provider. However, the Defendant’s imposition of a penalty surcharge is unlawful for each period of time similar to the route, which is KRW 50 million for each route.

5) A deviation from and abuse of discretionary authority of the instant Disposition 1 (Claim 5)

In full view of the following circumstances: (a) during the semester of the students of △△ University, the Plaintiff was operating at ○○ Terminal with the public interest prior to the imposition of additional charges on the part of the students of △△ University up to 1.2km; (b) there was no business interference with the relevant region-related enterprises; (c) there was no objection against the operation; and (d) the Defendant had no objection to the extension of the legal training institutes within the Southern Terminal-Innovic City; and (b) the Plaintiff deemed the Plaintiff to constitute a minor business plan violation (other violation of the business plan), not the extension of the business plan; and (c) the Plaintiff imposed a penalty surcharge of KRW 50,000,000 on the part of the students of △△△ University, the instant disposition was unlawful by deviating from or abusing its discretionary power, in violation of the principle of proportionality or the principle of equality, the principle

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to the first argument

According to Article 85(1) of the Passenger Transport Act and Article 42(4) of the Enforcement Decree of the Passenger Transport Act, where an authority having jurisdiction over disposition receives notification of detection of a violation falling under any of the subparagraphs of Article 85(1) of the Passenger Transport Act within 30 days unless there exist any special reasons. However, the above provision is merely a decoration provision that requires the disposition as soon as possible, and it cannot be deemed a mandatory provision or an effective provision. Thus, the disposition cannot be deemed unlawful on the ground that the authority having jurisdiction over disposition completed the above period (see, e.g., Supreme Court Decisions 2003Da35635, Jul. 14, 2005; 2016Du54084, Mar. 16, 2017); and even if the Defendant received notification of detection of such violation from the Governor of Gyeonggi-do and 30 days have elapsed, the Plaintiff’s assertion that the above disposition was unlawful.

D. Judgment on the second argument

1) If the starting point and ending point of a cross-city bus were determined using the name of a Si/Gun using the name of a bus terminal located in a Si/Gun/Gu, it cannot be accepted that the size of the cross-country bus depends on the horizontal distance of the Si/Gun unit or the shortest distance of the crossing km, which is on the basis of the boundary of the administrative district of the Si/Gun/Gu, falls on the 0k square meters, and it is not reasonable to regard that the starting point and ending point of the cross-country bus in question can be designated as one bus terminal, and if the bus terminal located in the Si/Gun/Gu can be designated as one, it is reasonable to regard that the starting point and ending point of the cross-country bus in question

2) Since the change of the starting point and terminal point of cross-city buses among the operating systems is merely an increase in the distance, it does not constitute an element of a increase in the fee, the argument that the Plaintiff did not change the starting point and terminal point of cross-country buses 1 on the first route bus of this case is merely an independent opinion, since the Plaintiff did not receive any additional fee while operating the cross-country bus of this case to the ○○ Campus simplified bus stops at △ University.

3) According to Article 10(1) of the Passenger Transport Act, if a business plan is not prescribed as being subject to reporting by Ordinance of the Ministry of Land, Infrastructure and Transport, a change in the business plan constitutes an object of authorization in principle, and an extension of the operating system is not included in any item of Article 33(1)3 of the Enforcement Rule of the Passenger Transport Act concerning minor matters to be reported among the business plan of cross-country bus transport business, and thus, it is subject to authorization regardless

According to the main sentence of Article 7 subparagraph 2 (a) of the former Guidelines for Handling Passenger Transport Service Personnel and License Services (amended by Ministry of Land, Infrastructure and Transport Directive No. 1154, Jan. 14, 2019), the criteria for licensing, authorization, and reporting shall be at least three times for the extension of the operating frequency of the cross-country bus operation system, and the operating frequency of the extended section shall be extended to less than three times. The provisions of the said Directive do not mean that the number of operating frequency of the extended section shall be more than three times for the extension of the existing operating frequency, and that if the existing operating frequency is less than three times, it does not mean that the extension of the previous operating frequency is required for the extension of the operation frequency of the bus operation system without obtaining authorization for the extension of the operation system.

Therefore, in the case of the operation of the cross-country bus of the first route of this case by more than three times, it is not in conformity with the authorization criteria, and it will not be subject to reporting, but if it was operated by extending not more than three times, it constitutes a change in the business plan without authorization or report.

4) For the foregoing reasons, the Plaintiff’s second assertion cannot be accepted.

E. Judgment on the third argument

1) The Governor of the Gyeonggi-do who authorized the change of the business plan, including the decision on the abolition of the route 2 of this case, with the defendant who made the disposition of this case as well as the Governor of the Gyeonggi-do who approved the change of the business plan including the decision on the abolition of the route 2 of this case, is deemed to have been an independent administrative agency, and it is apparent that the plaintiff committed the violation of the No. 2 of this case at the time when the defendant made the disposition of this case. The defendant notified the detection of the violation of the No. 2 of this case, although the disposition of this case was made within the disposal period, it is difficult to deem that the Gyeonggi-do Governor has a duty to wait for the approval of the abolition of the route 2 of this case as the plaintiff applied for the approval of the change of the business plan due to the abolition of the route 2 of this case, and therefore, it is difficult to regard the abolition decision of the Gyeonggi-do Governor as an indivable disposition, and therefore,

2) The error in calculating penalty surcharges on the operation of the route 2 of the instant case

A) According to the main sentence of Article 7 of the Passenger Transport Service Act, a person who has obtained a license for passenger transport business shall confirm and commence transport facilities according to the business plan within the date or period designated by the Minister of Land, Infrastructure and Transport or a Mayor/Do Governor, and shall be subject to a disposition such as license, permission, authorization, or cancellation of registration pursuant to Article 85(1)9 of the same Act if he/she violates

B) Attached Table 5 of Article 46(1) of the Enforcement Decree of the Passenger Transport Act provides for the amount of penalty surcharges when a penalty surcharge is imposed on a person who falls under any of the subparagraphs of Article 85(1) of the Passenger Transport Act. Subparagraph 7 of attached Table 5 provides for the amount of penalty surcharges for a violation of Article 85(1)12 of the Passenger Transport Act. Of that, in the case of “an end-of-life” under item (a), the amount of penalty surcharges is KRW 1 million. Of that, the amount of penalty surcharges is determined as KRW 100,000,000, and there is no separate provision for a violation of Article 85(1)9 of the Enforcement Decree of the Passenger Transport Act. Therefore, in the case of a violation of Article 85(1)9 of the Enforcement Decree of the Passenger Transport Act, the amount of penalty surcharges should be deemed as KRW 1

C) In light of the aforementioned relevant provisions, it is reasonable to view that: (a) “the commencement of transport” refers to the commencement of actual transport by a license holder of passenger transport business; and (b) “the commencement of transport” refers to a case in which a passenger transport business operator who starts transport fails to transport a passenger transport business according to a business plan.

D) On June 29, 2017, after the Plaintiff acquired the instant route transport business, the Gyeonggi-do Governor reported the commencement of transport of the instant route 2 to the Gyeonggi-do Governor on June 29, 2017, but the failure to operate the instant route 2 does not conflict between the parties. However, the Plaintiff’s business director prepared a confirmation document on February 12, 2018 that “the Plaintiff failed to operate the instant route 2” (Evidence 2-2) but the meaning of the said “unrun-out” was known to the effect that the Plaintiff did not operate only once without the commencement of transport, and it is difficult to conclude that the Defendant did not otherwise submit a confirmation document (Evidence 19) to the effect that there was no reason to believe that the instant route 2 is unlawful in light of the fact that the Defendant did not start the transport of the instant route 2.

3) Therefore, the instant disposition is unlawful within the scope of KRW 200,000 ( KRW 100,00 per one route) calculated by the Defendant with respect to the integrated operation of the Non-authorized Operating Routes from July 10, 2017 to December 2, 2018, which is a violation of Article 3 of the instant disposition. The Plaintiff’s allegation 3 is based on the grounds of appeal.

F. Judgment on the fourth argument

Article 43 (1) of the Enforcement Decree of the Passenger Transport Act provides that measures such as restricting or prohibiting the use of private cars under Article 83 of the Passenger Transport Act and cancelling the license of a passenger transport service provider under Article 85 of the Passenger Transport Act shall be taken according to the classification of the following subparagraphs, and attached Table 31. The first part of attached Table 31. (b) provides that "The criteria for imposing an aggravated administrative disposition due to the frequency of violations shall apply to cases where an administrative disposition has been taken for the same violation for the last one year," while item (f) of item (i) shall increase or decrease the number of days by up to half the number of days of the disposition standards in cases where the whole suspension of business, partial suspension of business or the suspension of operation is imposed. In such cases, even in cases of the increase, the period shall not exceed six months:

Article 46(1) of the Enforcement Decree of the Passenger Transport Act provides that “The amount of penalty surcharges depending on the type and degree of violation subject to penalty surcharges pursuant to Article 88(1) of the Passenger Transport Act shall be prescribed in attached Table 5.” Article 46(2) provides that “The amount of penalty surcharges may be increased or reduced by up to 1/2 of the penalty surcharges pursuant to paragraph (1) in consideration of the scale of a passenger transport service provider, characteristics of a project area, degree and frequency of a driver’s negligence, etc., but the total amount of penalty surcharges shall not exceed 50,000 won even in the case of an increase.”

Article 10(1)(7) of the aforementioned attached Table 5(1) of the Passenger Transport Service Act provides that “Where a business plan is modified without authorization, registration, or report, in violation of Article 10(including where it applies mutatis mutandis under Article 35 of the Act) of the Passenger Transport Service Act,” “where a person who violates a business plan due to any of the following acts at will,” the same item(a) provides that “where a person who violates a business plan is a bus transport business operator, he/she shall be subject to reduction or extension of operating routes or operating lines, 4) reduction or expansion of operating lines, and 10,000 won if the person who violates a business plan is a bus transport business operator, the amount of penalty surcharge shall be imposed.” Meanwhile, Article 10(1)(5) of the aforementioned attached Table 5(1) of the Passenger Transport Service Act and rent-a-car business (including where it applies mutatis mutandis under Article 35 of the Act) provides that “where the person is a bus transport business operator, the number of offenses subject to the first disposition shall be imposed within one year.”

In full view of the above provisions, if a trucking business operator commits the same violation on a route, the total amount of KRW 50 million shall not be exceeded based on the trucking business operator. However, if a trucking business operator commits a separate violation listed in attached Table 5, a penalty surcharge may be calculated for each violation. However, when subparagraph 7 (a) of the same item is applied, the penalty surcharge for each violation shall be calculated by dividing the violation by the same item, but if the number of violations is at least once within one year from the date the first violation was committed, the additional number of violations (excluding the number of violations subject to the imposition of a penalty surcharge) plus 50 percent of the standard amount of disposition on the same Table shall be added to the number of violations, and if the number of violations is at least once within one year from the date the first violation was committed, the number of violations subject to the imposition of a penalty surcharge for each violation shall not be deemed illegal.

Therefore, the plaintiff's fourth argument cannot be accepted.

G. Judgment on the fifth argument

1) In light of the overall purport of the pleadings in the statements in Evidence Nos. 13, 18, and 19, the first route of this case can be acknowledged that: (a) there is a need to operate the instant route from the △△ University bus Terminal to a simple stop of △△ University located around 1.2km for the convenience of attending school during the semester of the students of △△ University; (b) the Plaintiff committed the instant violation 1 and did not receive any additional charges in addition to the existing charges; (c) the Plaintiff did not receive any civil petition or file an objection against the fact that the Plaintiff committed the instant violation 1 with the head of ○○○○○; and (d) the Defendant was subject to the imposition of the penalty surcharge of KRW 500,000,000 from October 27, 2017 to December 29, 2017 on the Plaintiff’s voluntary stopping from the Legal Training Institute located in the North Innovation City to the “other violation of the business plan” and imposed the penalty surcharge of KRW 5 million.

2) However, the total amount of the penalty surcharge calculated without applying the upper limit for each illegal operation, which was committed from March 1, 2016 to September 11, 2017, when operating four routes including each of the following routes of the instant route 1, cannot be deemed to be less than 2.24 billion won (i.e., the calculated amount of the first route penalty surcharge x 561 million x 4 routes). The degree of illegality cannot be deemed to be less than string; where the need for the extension of approximately 1.2 km road system for the convenience of attending school during the semester of △△ University students, it appears that the authorization of the business plan was possible to revise the three-time extension; and the Plaintiff’s voluntary stopping of the Plaintiff’s voluntary stopping of the Plaintiff’s 9th Judicial Innovation Training Institute, located in Chungcheong Northern City, was substantially different from the level of illegality in the instant violation during the regular period and the period of violation, and it is difficult to view the Plaintiff’s demand for equality as well as the Defendant’s demand for equality.

3. Conclusion

Therefore, the disposition No. 2 of this case is unlawful within the scope of exceeding KRW 200,00,000. Thus, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed. It is so decided as per Disposition.

(attached Form omitted)

Judges Lee - Authority