Whether the competent administrative agency may attach a license condition to the effect that a trucking business operator may issue an order to reduce his/her number of automobiles upon the agreement of a trucking business operator after issuing a license to a passenger transport business operator (affirmative) and whether an order to reduce the number of automobiles may be issued in accordance with Article 85(1)38 of the Passenger Transport Service Act if a trucking business operator violates any of the conditions (affirmative)

According to Article 85(1)38 of the Passenger Transport Service Act (hereinafter “passenger Transport Service Act”), where a trucking business operator violates any condition attached to a license for a trucking business operator, an order to change his/her business plan (hereinafter “motor vehicle reduction order”) following the reduction of the number of units of trucks, etc. However, “conditions” includes not only the condition attached to a license issued by a trucking business operator but also the term “unauthorized officer” that a trucking business operator may issue a reduction of the number of units of trucks if he/she violates the condition attached to a license, which serves as the ground for the order to reduce the number of units of trucks. Furthermore, barring special circumstances, barring special circumstances, such as attaching a license to a trucking business operator at the time of the issuance of the license as well as attaching an order to reduce the number of units of trucks when he/she violates the condition, the competent administrative agency may issue a license to a trucking business operator with the consent of the trucking business operator and order to reduce the number of units of trucks in accordance with Article 85(1)38.

Article 2(1)1 of the Administrative Litigation Act; Article 4(1) and (3) of the Passenger Transport Service Act; Article 10(1), Article 85(1)38, and Article 89(1)3 and (2) of the Passenger Transport Service Act

[1] Supreme Court Decision 2004Du11954 Delivered on April 29, 2005

Hyundai Commercial Co., Ltd. and two others (Attorney Choi Young-young, Counsel for the defendant-appellant)

Ilsan Market

Gwangju High Court ( Jeonju) Decision 2016Nu1047 decided June 27, 2016

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Review of the reasoning of the lower judgment, the reasoning of the first instance judgment partially admitted by the lower court, and the evidence duly admitted by the lower court reveals the following facts.

(1) Around October 2010, the Defendant established a supply and demand plan for the 272 taxi in the following cities with the content that “The 272 taxi in the following cities was excessively supplied, and thereby promoting the reduction of the number of 272 taxi by 2014.”

(2) On September 19, 2012, the Defendant, along with the 11st taxi companies and each company within the jurisdiction including the Plaintiffs, agreed that “the taxi companies voluntarily reduce the total number of 272 taxis (40% of the number of taxis owned) for three years,” and the Defendant shall pay the taxi companies a certain amount of reduction of the number of taxis, and if a taxi company fails to take a voluntary measure to reduce the number of taxis as agreed upon, the Defendant may issue an order to reduce the number of taxis ex officio (hereinafter “instant agreement”).

(3) According to the instant agreement, the 11 taxi companies reduced the total number of 96 vehicles in 2012 and total 86 vehicles in 2013. However, in 2014, the 2014 expressed the opinion that “the additional reduction is unnecessary due to a sufficient restructuring, and the additional reduction is difficult to reduce from the management conditions of the taxi companies,” and refused to implement the instant agreement.

(4) The Defendant urged the Plaintiffs to implement the instant agreement three times, and notified the Plaintiffs of the “plan to reduce the number of vehicles ex officio according to the instant agreement, if the application for the change of the business plan for the reduction of vehicles is not submitted.”

(5) On October 29, 2014, the Defendant notified the Plaintiffs and the head of the office of the business of the registration of the vehicle of the vehicle of the following cities of the modification (ex officio reduction) pursuant to Article 10 of the Passenger Transport Service Act (hereinafter “passenger Transport Service Act”) and Article 31 of the Enforcement Rule of the same Act under the title of “the notification of ex officio reduction in the number of automobiles according to the corporate taxi reduction agreement” (hereinafter “the Passenger Transport Service Act”). The Plaintiffs applied for the reduction of the number of automobiles after completing the reduction of the number of automobiles, and the operation of the relevant vehicle will be suspended from November 29, 2014. The registration office of the vehicle of the purpose of the registration of the vehicle of the vehicle of this case shall notify the Plaintiffs of the fact that the registration office of the vehicle of this case would

2. On the ground that the Plaintiff alleged that the instant notification of ex officio reduction is an order to reduce the number of vehicles under the Passenger Transport Act, and that the lower court rejected the instant lawsuit on the ground that “the instant agreement constitutes a public contract concluded between equal parties, and the Passenger Transport Act does not include a provision that an order to modify a business plan may be issued for the same reason as the nonperformance of the instant agreement. Therefore, the instant notification is not based on the Passenger Transport Act but based on a public contract, on the premise that the instant notification was made based on a contract under public law, rather than on the Passenger Transport Act, the legal effect of the instant notification of change, suspension of operation, and the request for cancellation of registration is an effect of expression of intent based on the public law

3. However, the lower court’s determination is difficult to accept for the following reasons.

(1) The term “disposition”, which is the subject of an appeal litigation, means “the exercise or refusal of public power as an enforcement of law with respect to a specific fact by an administrative agency, and other corresponding administrative actions” (Article 2(1)1 of the Administrative Litigation Act). The issue of whether a certain act by an administrative agency can be subject to an appeal litigation cannot be determined abstractly and generally, and the issue of whether it is determined individually by taking into account the content and purport of the relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act (see Supreme Court en banc Decision 2008Du167, Nov. 18, 201

(2) According to the Passenger Transport Act, a person who intends to operate a passenger transport business shall prepare a business plan and obtain a license from the competent administrative agency. The competent administrative agency may attach necessary conditions in order to establish order in passenger transport business (Article 4(1) and (3)). In order for a transport business entity to change the number of operation licensed, the person shall submit an application for change of the business plan and obtain authorization from the competent administrative agency (Article 10(1)). The competent administrative agency may issue an order for change of the business plan following the reduction of the number of vehicles (hereinafter “order for reduction of the number of vehicles”) (Article 85(1)38), and a transport business entity ordered to reduce the number of vehicles shall return the registration certificate and registration number plate of the relevant vehicle, and if the person fails to comply with the order, the competent administrative agency shall keep the registration certificate and registration number plate of the relevant vehicle in custody (Article 89(1)3 and (2)).

On the other hand, Article 13(1)4 and Article 13(3)1 of the Automobile Management Act provides that when a license is invalidated or cancelled in accordance with the Passenger Transport Act, the owner of the automobile shall return the registration certificate, registration number plate, and seal and apply for the registration of cancellation, and if the registration of cancellation is not applied, the competent administrative agency may make the registration of cancellation ex officio

In addition, if a trucking business operator fails to comply with an order to reduce the number of vehicles, the competent administrative agency may impose sanctions such as revocation of the license and an order to suspend the business for not more than six months (Article 85(1)40 of the Passenger Transport Service Act). The operation of a motor vehicle whose registration is cancelled is subject to criminal punishment (Article 80 subparag. 1 of the Motor Vehicle Management Act).

(3) According to Article 85(1)38 of the Passenger Transport Service Act, a transport business operator may issue an order to reduce the number of vehicles if the conditions attached to a license for a transport business operator are violated. “Conditions attached to a license” include “non-performance of certain obligations to be observed by a transport business operator and orders to reduce the number of vehicles in violation of the conditions attached to the license,” which serves as the ground for the order to reduce the number of vehicles. In addition, if a transport business operator violates such conditions, it may issue an order to reduce the number of vehicles in violation of Article 85(1)38 of the Passenger Transport Service Act, barring special circumstances such as not only attaching a license at the time of issuance of the license but also attaching a license after the issuance of the license, where there is a express provision or modification in the Act, or where there is prior consent of the other party, etc. (see Supreme Court Decision 2004Du11954, Apr. 29, 2005).

(4) Examining the aforementioned facts in light of the relevant statutes and legal principles, the instant agreement ought to be deemed to have determined specific matters of the plan to reduce the number of vehicles, such as the time and scope of the Plaintiffs and the reduction of the number of vehicles, on the premise that the Defendant is authorized to enforce the Passenger Transport Act as the competent administrative agency, and instead of exercising the said statutory authority, it is difficult to deem that the Defendant intended to secure implementation of the plan to reduce the number of vehicles and to regulate subsequent legal relations

Therefore, the instant agreement imposes ex officio reduction on the ground that it violates the license conditions under Article 4(3) of the Passenger Transport Act after obtaining consent from the Plaintiffs. Since the Defendant’s ex officio reduction notification on the ground that it violated such license conditions causes certain legal effects to the Plaintiffs pursuant to Article 85(1)38 of the Passenger Transport Act, it shall be deemed as a disposition subject to appeal, and it shall not be deemed as merely an expression of intent based on a public contract formed on an equal status as a party.

(5) Nevertheless, the lower court rejected the instant lawsuit by determining that the instant notice of ex officio reduction was an expression of intent based on a contract under public law, and thus does not constitute a disposition subject to an appeal litigation. In so determining, the lower court erred by misapprehending the legal doctrine on disposition and vice versa, thereby adversely affecting the conclusion

4. Therefore, 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 Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)