In a case where a vehicle permitted for a special-purpose truck that is allowed to increase is changed to a general-use truck or a special-purpose truck that is not allowed to increase the number of vehicles, whether permission for change under Article 3(3) of the former Trucking Transport Business Act should be obtained (affirmative), and whether only the report for change may be made if a special-purpose truck, the number of which is not allowed to increase the number of vehicles, is replaced to a general-use truck (affirmative)

In full view of Article 3(3) and (5) of the former Trucking Transport Business Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “ Trucking Transport Business Act”), Article 2 subparag. 4 of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 24443, Mar. 23, 2013); and the supply standards for trucking transport business (hereinafter “supply standards announcement”) of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 2443, Mar. 23, 2013), the replacement of a vehicle subject to the alteration report should be a minor case to the extent that it is unnecessary to examine whether the replacement of the former vehicle is consistent with the relevant laws and regulations, including the supply standard announcement, and thus, it is not necessary to obtain a new permit for alteration of the vehicle with a special purpose truck permitted as a truck from the supply standard announcement, and thus, it is not necessary to obtain a new permit for alteration of the vehicle without a new permit for alteration.

Articles 3(3) and (5), and 67 subparag. 1 of the former Trucking Transport Business Act (Amended by Act No. 11690, Mar. 23, 2013); Article 2 subparag. 4 of the former Enforcement Decree of the Trucking Transport Business Act (Amended by Presidential Decree No. 2443, Mar. 23, 2013);

Defendant 1 and two others

Prosecutor

Daegu District Court Decision 2014No2086 Decided June 25, 2015

The part of the judgment of the court below against Defendant 3 and the part against Defendant 1 as to the violation of the Trucking Transport Business Act and the part against Defendant 1 as to the fraud against Defendant 3, are reversed, and this part of the case is remanded to the Daegu District Court. The remainder of the appeal against Defendant 1 and the appeal against Defendant 2 are dismissed, respectively.

The grounds of appeal are examined.

1. As to the violation of the Trucking Transport Business Act

A. Article 3 of the former Trucking Transport Business Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “ Trucking Transport Business Act”) provides that when a person who has obtained permission for trucking transport business (hereinafter “trucking transport business entity”) intends to modify matters to be permitted, he/she shall obtain permission for modification as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs (main sentence of paragraph (3), and “permission for modification accompanying a 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 (Paragraph (5)). According to the “standard for the supply of trucking transport business” (hereinafter “standard for the supply of trucking transport business”), the “general trucking transport business” is not allowed. Meanwhile, in order to modify minor matters prescribed by Presidential Decree, the proviso to Article 3(3) of the Trucking Transport Business Act requires a report as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs, and the former Enforcement Decree of the Trucking Transport Act (amended by Presidential Decree No.

In full view of the above provisions, the act of changing the previous vehicle into a new one must be so minor that it does not require an additional examination as to whether the act of changing the previous vehicle into a new one does not comply with the related Acts and subordinate statutes, including the supply standard announcement, and the alteration to a special-purpose truck which is allowed to increase the number of vehicles permitted by the increase in the supply standard announcement (hereinafter “special-purpose truck”) is a result of increasing the number of vehicles for which new supply is prohibited, and thus, it cannot be deemed a minor change even if it was done by the large-scale truck method, and therefore, it is interpreted that the change of the special-purpose truck that is not permitted by the increase in the supply standard announcement constitutes a change in the supply standard, and thus, it is also necessary to obtain a change report without obtaining a change report, since it does not violate the new supply standard announcement.

B. As to the vehicle belonging to Defendant 2 Co., Ltd.

According to the reasoning of the judgment below, the court below found Defendant 1 and Defendant 2 not guilty of this part of the facts charged on the ground that (vehicle No. 1 omitted) a vehicle obtained a permit to increase the number of vehicles as a special-purpose truck for which supply is restricted, and the vehicle scrapping for a general-use truck, which is not subject to a permit to change under Article 3(3) of the Truck

In light of the aforementioned legal principles and the evidence duly admitted, the above judgment of the court below is just, and there is no error in the misapprehension of the relevant legal principles as alleged in the grounds of appeal.

C. As to the vehicle belonging to Defendant 3 Co., Ltd.

(1) The summary of this part of the facts charged is that Defendant 1, the representative of Defendant 3 Co., Ltd., operated a trucking transport business without obtaining permission for change, even though he/she left the vehicle for a general truck on May 2, 2008 (vehicle No. 2 omitted) with respect to (vehicle No. 3 omitted), and (Vehicle No. 4 omitted) with respect to (Vehicle No. 3 omitted), he/she operated a trucking transport business without obtaining permission for change, even though he/she left the vehicle for a general truck on August 7, 2008.

(2) The lower court, based on its stated reasoning, found Defendant 1 and Defendant 3 not guilty of all the charges on this part of the charges against Defendant 1 and Defendant 3, on the ground that even if the Plaintiff operated a trucking transport business by increasing the number of the general trucks by replacing the permissible special-use truck with a general truck, this is merely a change in the composition cost of a special-use truck and a general truck without a change in the total number of the trucks, and thus, it did not constitute an increase in the number of the trucks subject to a permit of change pursuant to Article 3(3)

(3) First of all, we examine (vehicle No. 2 omitted). According to the facts found by the court below, it changed the permissible special-purpose truck into a general truck by the method of scrapping it, and actually increased the general truck. In light of the aforementioned legal principles, it is subject to permission to change under Article 3(3) of the Trucking Transport Act, and insofar as Defendant 1 and Defendant 3 did not obtain such permission, it constitutes “the case of running trucking transport business without obtaining permission under Article 3(3) of the Trucking Transport Business Act” under Article 67 subparag. 1 of the Trucking Business Act. Nevertheless, the court below found that it is not subject to permission to change, and found Defendant 1 not guilty of this part of the facts charged. In so doing, it erred by misapprehending the legal principles on Article 3(3) of the Truck

(4) Next, we examine the following (number 3 omitted) and (number 4 omitted). According to the evidence duly adopted by the court below, the above vehicles obtained each permissible special purpose truck when obtaining the first increase permit, and as to (number 3 omitted), reported the increase of the above vehicles to a general truck on July 22, 2008 after obtaining the structural change permit for a general truck under Article 3(3) of the Trucking Transport Act, and on July 23, 2008, reported the scrapping of the vehicle to a general truck on July 23, 2008, and on (number 4 omitted), after obtaining the structural change permit for the special purpose truck with the structural change permit for the special purpose truck on August 22, 2007, after obtaining the structural change permit for the general truck on July 15, 2008.

In light of the above legal principles, as long as a permit for alteration of structure was obtained for a special purpose-type truck and a general truck pursuant to Article 3(3) of the Trucking Transport Act prior to the act of scrapping the vehicle for the above (vehicle No. 3 omitted) and (vehicle No. 4 omitted), it shall not be prohibited to dismiss the vehicle again for a general truck, apart from the fact that there was an error in relation to the permission for alteration of structure, even if there was an error in the construction permission. Therefore, it is justified in the conclusion that the court below acquitted Defendant 1 and Defendant 3 corporation on the violation of the Trucking Transport Act relating to (vehicle No. 3 omitted) and (Vehicle No. 4 omitted)

2. As to fraud

The lower court found Defendant 1 not guilty of all the charges on this part of the facts charged, on the ground that even if Defendant 1 sold to the victims the following: (a) the vehicle number 2 omitted (victim Nonindicted 1), (a vehicle number 1 omitted) (victim Nonindicted 2), and (a vehicle number 4 omitted) (victim Nonindicted 3 omitted), it cannot be deemed that Defendant 1 was deceiving the victims unless it was an illegal and increased truck.

As seen earlier, the act of scrapping a vehicle on behalf of (number 1 omitted) and (number 4 omitted) is not in violation of the Trucking Law, and thus, this part of the judgment of the court below is justifiable.

However, the act of scrapping for the (vehicle Number 2 omitted) is against the Trucking Law on the ground as seen earlier and constitutes an illegal increase in the number of vehicles. Therefore, the judgment of the court below on a different premise can no longer be maintained.

3. Scope of reversal

Of the lower judgment, the part of the lower judgment on Defendant 1 and Defendant 3’s violation of the Trucking Transport Act (vehicle No. 2 omitted) and the part on fraud against Defendant 1’s victim Nonindicted Party 1 should be reversed on the grounds as seen earlier. Since the fact of violation of the relevant Trucking Transport Act (vehicle No. 2 omitted), (vehicle No. 3 omitted), and (Motor Vehicle No. 4 omitted) violation of the relevant Trucking Transport Act are related to a single comprehensive crime, it should

4. Conclusion

Therefore, by the assent of all participating Justices, the part of the judgment of the court below against Defendant 3 corporation and the part against Defendant 1 concerning Defendant 3 corporation (vehicle number 2 omitted), (vehicle number 3 omitted), (vehicle number 4 omitted), and the part concerning the violation of the Trucking Transport Act concerning vehicles and the fraud against the victim non-indicted 1 are reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's remaining appeals against Defendant 1 and the appeal against Defendant 2 corporation are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)