New and US Transportation Co., Ltd and one other (Law Firm LLC, Attorneys Jeon Sung-soo et al., Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Bae & Yang LLC, Attorneys Kang Jin-soo et al., Counsel for the defendant-appellant)

October 23, 2014

1. All of the plaintiffs' claims are dismissed.

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

On March 22, 2013, the Defendant revoked each order to reduce the number of vehicles listed in the attached Table 1, which the Defendant issued to the Plaintiff New U.S. Transport Co., Ltd., and the vehicles listed in the attached Table 2, which the Plaintiff U.S.

1. Details of the disposition;

A. On December 24, 1966, Plaintiff New U.S. Transport Co., Ltd., and Plaintiff New U.S. Co., Ltd., Ltd., on April 10, 1979, operated a general taxi transport business after obtaining a general taxi transport business license from Seoul Special Metropolitan City on April 10, 1979. Plaintiff New U.S. Transport Co., Ltd. (hereinafter “Plaintiff New U.S. 1”) owns 101 taxis including the vehicles listed in attached Table 1 (hereinafter “instant 1 taxi”), and Plaintiff New U.S. Transport Co., Ltd. owns 2 taxi including each of the instant 1 taxi listed in attached Table 2 (hereinafter “the instant 2 taxi and combined with the instant 1 taxi”). (On the other hand, the Plaintiffs are companies operated by the same management entity as the representative director, and employees are also concurrently holding office).

B. On March 22, 2013, the Defendant issued an order to reduce the number of taxis to the Plaintiffs pursuant to Article 43(1)3 of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 2443, Mar. 23, 2013; Presidential Decree No. 2443, Mar. 23, 2013; hereinafter “Enforcement Decree of the Passenger Transport Service Act”), on the ground that the Plaintiffs violated the prohibition of the use of the name under Article 12 of the former Passenger Transport Service Act (amended by Act No. 11690, Mar. 27, 2013; hereinafter “instant disposition”), and notified the Plaintiffs of the reduction of the number of taxis pursuant to Article 43(1)3 of the former Enforcement Decree of the Passenger Transport Service Act (hereinafter “instant disposition”), and voluntarily notified the registration number of the instant taxi to the competent Si/Gun/Gu Governor pursuant to Article 89(1)31 of the Passenger Transport Service Act.

[Grounds for Disposition]

The plaintiffs received 1820,00 won (=26 days x 70,000 won) from 1.7 July 3, 2006, and leased 263 times as shown in attached Table 3 to 203 times from 206 to 14.7, and leased 1950,000 won (29,000 won) from 20,000 won to 270,000 won (29,000 won) from 20,000 won, and leased 20,000 won to 30,000 won (29,000 won) from 30,000 won (27,000 won) from 20,000 won and 70,000 won (3,00,000 won) from 30,000 won and 20,000 won (3,000 won,00 won) from 27,000 new 33,00 new passenger transport service.4.

C. The Plaintiffs were dissatisfied with the instant disposition and filed the instant lawsuit on April 8, 2013.

[Ground for Recognition: Facts without dispute, Gap 1 through 3 evidence, each entry in Eul 1 evidence, the purport of whole pleadings]

2. The assertion and judgment

A. The plaintiffs' assertion

1) The plaintiffs, from the drivers of each of the instant taxiss, obtained the resumes, resident registration certificates, driving experience certificates, and qualification certificates as employment-related documents, and had them drive the taxi regularly through interview. The plaintiffs, including each of the instant taxiss, were conducted on the garages of the plaintiffs, and the drivers of each of the instant taxiss did not have the status to transfer or take over the vehicle independently. In addition, they were insured at the expense of the plaintiffs as to each of the instant taxiss, and the accident disposition was also taken place by the plaintiffs. In light of the above circumstances, in the light of the above circumstances, the non-party 1, the non-party 2, the non-party 3, and the non-party 4 (hereinafter referred to as the "non-party 1, etc.") played the role of introducing the plaintiff as an intermediary manager, and it cannot be said that the plaintiffs independently operated the instant taxi. Therefore, the disposition was unlawful under the premise that the plaintiffs leased the instant taxi to the non-party 1, the non-party 2, and the non-party 4.

2) Even if the instant disposition is a factual fact, the instant disposition is so excessive that there is an error of deviation from and abuse of discretionary power.

(b) Related statutes;

Attached Form is as shown in the attached Form.

(c) Fact of recognition;

1) Facts recognized through documents, etc.

A) Among the plaintiffs and some articles engaged in driving each of the instant taxi (hereinafter “each of the instant taxi drivers”), a labor contract is prepared pursuant to the Rules of Employment of the plaintiffs. The plaintiffs entered some of the instant taxi drivers in the list of drivers and reported them to the Seoul Special Metropolitan City taxi transportation business association. In addition, it seems that the plaintiff had some of the aforementioned articles subscribed to four-party insurance and allowed them to receive safety education for taxi drivers.

B) The Plaintiffs, like other taxis owned by the Plaintiffs, also joined the mutual aid association operated by the Federation of Passenger Transport Business Associations, and engaged in insurance management when a traffic accident occurs (liability insurance).

2) Statement, etc. at an investigative agency of the persons involved

A) Statement by four investigative agencies (Seoul Special Judicial Police Officer and Prosecutor) including Nonparty 1

본문내 포함된 표 ○ 소외 1 본인이 도급택시 기사들(이 사건 각 택시를 실제로 운전한 택시기사들을 의미한다)을 채용함에 있어서 원고들의 직원이 직접 도급택시들과 근로계약을 체결한 사실은 없다. 도급택시 기사들과의 근로계약서는 본인의 사무실에서 작성하거나, 사전에 도급택시 운행조건 등을 설명하고 신미운수, 주호교통의 배차실로 기사를 데리고 가서 배차실에서 근로계약서를 작성하였다. 그런데 2008. 2. 이전에는 회사(원고들)에서도 근로계약서를 요구하지 않았는데, 2008. 2.경 이후부터는 회사에서 요구를 하여 형식적으로 근로계약서를 작성하였다. 택시기사는 본인이 직접 인간관계를 형성하여 채용하였고, 본인의 판단 하에 말썽을 피우고 본인에게 입금을 하지 않는 등의 행위를 하는 경우 일을 시키지 않은 사실도 있다. 택시기사는 채용부터 퇴사까지 모든 책임이 본인에게 있고, 본인이 채용한 기사이기 때문에 본인의 임의로 모든 조치를 취할 수 있었으며, 임의로 해고도 가능하였다. 이 사건 각 택시 중 본인이 도급을 받은 차량이 고장이 나는 경우 일단 회사에서 다른 차량으로 대차를 해 주기는 하였으나, 차량의 1일 도급금액은 본인이 모두 책임졌다. ○ 소외 2 본인은 도급택시라 함은 회사에서 차량을 사다가 임의대로 굴리고, 별도로 운영하는 것이라고 생각한다. 본인이 서울시에서 제시한 자료대로 기사들을 관리했다는 사실관계 자체는 인정한다. 그러나 그것이 도급제에 해당되어 형사처벌의 대상이 된다는 사실은 인정하지 않는다. 원고들의 직원 소외 5가 본인이 도급택시를 운영했다고 진술했으나, 그것은 소외 5가 도급택시의 개념을 이해하지 못했기 때문이다. ○ 소외 3 본인이 2007. 2.경 원고 신미운수의 배차실에 찾아가 배차과장을 만나 도급제 택시를 운행하기로 하였다. 택시당 하루 도급금액을 9만원으로 하여 한 달에 26일치를 입금하면 나머지 기간은 차량을 본인 마음대로 사용할 수 있고, 수입금도 본인 것이 되는 조건이었다. 도급택시 기사를 하려는 사람들이 본인을 찾아오면, 사전에 도급택시의 운행조건 등을 설명하고 원고 신미운수의 배차실로 기사를 데리고 가서 배차실에서 근로계약서를 작성하였다. 본인이 2007. 4.경부터 2010. 9.경까지 도급택시를 운영하면서 도급택시 기사들과 근로계약서를 작성한 방법은 모두 위와 동일하였다. 본인이 도급택시를 운행한 2007. 4.부터 2010. 9.경까지 차량의 배차는 본인의 지시하에 이루어졌으며, 장소는 원고 신미운수의 차고지가 아니라 교대하는 도급택시 기사의 집에서 교대가 이루어졌다. (차량번호 2 생략), (차량번호 3 생략), (차량번호 4 생략), (차량번호 5 생략), (차량번호 6 생략), (차량번호 7 생략), (차량번호 8 생략), (차량번호 9 생략), (차량번호 10 생략), (차량번호 11 생략) 차량은 본인이 관리하던 도급택시의 번호가 틀림없다. 위 도급택시 기사들은 휴가를 가려면 본인의 허락을 얻어야 했고, 교통사고 발생시에도 본인에게 먼저 연락이 왔다. ○ 소외 4 2007년 봄에 원고 신미운수의 관리부장을 만나게 되었는데, 관리부장이 본인에게 ‘도급택시를 해 볼 생각이 있느냐, 관리만 제대로 하게 되면 직접 택시를 운전하는 것보다는 훨씬 낫다’라고 하여 처음에는 월급을 줄 것처럼 이야기해서 그렇게 생각했는데, 나중에 받고 보니 월급이 아니라 수당을 주는 것이었고, 그나마도 도급택시 기사들이 회사에 납부하지 않는 각종 과태료, 가스충전요금, 미납금, 입금 미납액 등을 전부 본인이 받을 수당에서 공제하는 방식이어서 거의 남는 것이 없었다. 본인이 원고 신미운수의 도급택시를 운행한 2007. 6.부터 2008. 12.까지 도급택시들과의 근로계약서는 원고 신미운수의 배차대기실에서 본인과 도급택시 기사들이 작성한 것이다. 이 사건 각 택시의 운전사들 중 소외 6, 소외 7, 소외 8, 소외 9, 소외 10, 소외 11은 본인이 원고 신미운수로부터 임대받아 관리한 도급택시의 운전사들이며, (차량번호 12 생략), (차량번호 13 생략), (차량번호 13 생략), (차량번호 14 생략), (차량번호 15 생략), (차량번호 16 생략), (차량번호 17 생략), (차량번호 18 생략) 차량은 본인이 관리하던 도급택시들이다. 위 차량의 운행이 끝나면, 운전사 혼자서 운행하는 차량의 경우 운전사 본인의 집에 세워 놓고, 교대하는 경우는 운전사들이 자기들끼리 만나서 교대운행을 하였다.

B) Summary of the statement made by each taxi driver of the instant case in an investigative agency

This is because, on June 209, the non-party 12 (the non-party 1) did not receive a new transportation contract from the non-party 1's office located in the non-party 1's Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-Appellee-dong-dong-dong-Appellee-dong-dong-dong-Appellee-dong-dong-dong-Appellee-dong-dong-dong-dong-Appellee-dong-dong-Appellee-dong-dong-Appellee-dong-Appellee-dong-Appellee-dong-dong-Appellee-dong-Appellee-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-

C) Major statements to investigation agencies of the Plaintiffs’ employees

The number 2 of the non-party 1 and the non-party 2 were located in the non-party 4 and the representative of the non-party 1 and the non-party 2 were employed by the non-party 4 and the non-party 1 and the non-party 2 were the non-party 1 and the non-party 4 were the non-party 1 and the non-party 2 were the non-party 1 and the non-party 5 were the non-party 2 were the non-party 1 and the non-party 4 were the non-party 1 and the non-party 2 were the non-party 4 were the non-party 1 and the non-party 2 were the non-party 1 and the non-party 2 were the non-party 1 and the non-party 2 were the non-party 4 were the non-party 2's non-party 2's non-party 1 and the non-party 2 were the non-party 2's non-party 1 and the defendant 2 were the non-party 1.

D) Documents, etc. seized in the course of the investigation

① The details of the LPG subsidy refund discovered in the course of search and seizure against the Plaintiffs include the names of the Plaintiffs, including the drivers of each taxi of this case, and the amount of LPG subsidies used by them, and the amount of subsidies. In the confirmation column, it is confirmed that Nonparty 1 and other contractors, including Nonparty 1, sign the confirmation column, or the name of Nonparty 1, etc. and the vehicle number of each taxi of this case are stated next to the confirmation column (No. 18 and 24, the Defendant specified each taxi of this case as contract taxi and identified four persons, including Nonparty 1, as contract manager).

② According to the settlement confirmation (Evidence No. 17) discovered in the course of search and seizure against the Plaintiffs, the number of drivers, gas excess, shortage, actual payment, etc. are indicated. The settlement confirmation file is divided into two categories: general taxi drivers, contract taxi engineers directly managed by the Plaintiffs, and contract taxi drivers directly managed by the Plaintiffs, and four drivers of each of the instant taxi, including Nonparty 1.

③ In the office of Nonparty 1 (No. 3 omitted), the forms of the employment contract (the so-called "public employment contract") used by the Plaintiffs were discovered.

[Ground for Recognition: Facts without dispute; Gap's evidence 5, 6, 9, 21 through 27, 31-36, 39, Eul's evidence 2 through 7, 13, 15, 24, 28, 32; the purport of the whole pleadings]

D. Determination

1) Whether the prohibition of use of name was violated

Article 12(1) and (3) of the Passenger Transport Business Act provides that “A transport business entity shall not have another transport business entity or a person who is not a transport business entity operate passenger transport business with or without compensation by using all or some of his/her commercial automobiles for business purposes, and a person who is not a transport business entity shall not operate passenger transport business with or without compensation.” The legislative purport of the provision is that if a person who has obtained a passenger transport business license operates passenger transport business with or without compensation by using an automobile for business purposes, he/she shall be able to carry on passenger transport business even without the license requirements prescribed in consideration of the public nature of passenger transport business, so that the passenger transport business entity can obtain a license only for those who meet certain requirements and restrict the entrustment of passenger transport business and the transfer of a certain business, which might disturb the order of passenger transport business by nullifying the provisions of the law that requires the competent authorities to obtain authorization, it shall be determined that the person is not a transport business entity under the name of a transport business entity under the above-mentioned Act and shall not be deemed a person who has been under the name of a transport business entity under 70.

In light of the above legal principles, in full view of the following facts, it is reasonable to consider that the Plaintiff, who is a transport business entity, entered into a contract with Nonparty 1, etc. and Nonparty 1, etc. on each of the instant taxis, who is not a transport business entity, received certain monthly money as stated in the disposition reason of this case, and let Nonparty 1, etc. independently operate each of the instant taxis as stated in the disposition reason of this case, and violated the prohibition of use of the name as stipulated in Article 12 (a) of the Passenger Transport Business Act. The evidence submitted by the Plaintiffs alone is insufficient to reverse it, and there is no counter-proof otherwise.

① While Nonparty 1 and 4 are the intermediate manager who belongs to the Plaintiffs (i.e., the Plaintiffs’ employees), the Plaintiffs did not have paid monthly salary to Nonparty 1 and 4. In addition, the Plaintiffs asserted that the payment of salary was made to each of the instant taxi drivers. However, according to the Plaintiffs’ statement in the accounting staff’ statement, the Plaintiffs were found to have prepared a false benefit ledger in order to deal with as if they were paid to each of the instant taxi drivers, and there was no fact that the Plaintiffs also paid retirement allowances to each of the instant taxi drivers.

② The recruitment of each taxi driver of the instant case was entirely in charge of Nonparty 1, etc. without the involvement of the Plaintiffs ( even if there was a case where Nonparty 1, etc. had been sent an article to the class room of the Plaintiff, and the contract was already determined by interview with Nonparty 1, etc. before that case). Each taxi driver of the instant case was allowed to leave when Nonparty 1, etc. were given leave, not the Plaintiffs, but Nonparty 1, etc., and the authority to dismiss them was also Nonparty 1, etc.

③ Nonparty 1, Nonparty 3, and Nonparty 4, under an investigation by an investigative agency, make a detailed statement to the extent that the name and vehicle number of the articles he/she managed, and the computer file data can be reported and identified, and are credibility in the statement.

④ Documents to be kept by the Plaintiffs (such as a labor contract in the name of the Plaintiffs with their names, addresses, resident registration numbers, etc.) were seized at the office of Nonparty 1, which appears to have been used in the case of preparing a direct contract without sending them to the office of Nonparty 1.

⑤ The Plaintiffs’ employees Nonparty 19 and Nonparty 5 stated that Nonparty 1, etc. received LPG subsidies on behalf of the drivers of each of the instant taxi, and the drivers of each of the instant taxi employed by Nonparty 1, etc. also received LPG subsidies through Nonparty 1, etc., consistent with each other. Accordingly, the Plaintiffs did not directly pay LPG subsidies to the drivers of each of the instant taxi, but received it on behalf of Nonparty 1, etc., and paid it to the drivers.

6) The Plaintiffs’ employees Nonparty 5 stated that the drivers of each of the instant taxi managed by Nonparty 1, etc. were classified into “floiting and metre function” in the course of preparing a written confirmation of settlement, and in fact, it is confirmed that this is classified into the written confirmation of settlement that was seized by the Plaintiffs. It seems to have been for the management of the instant taxi drivers, which are general engineers belonging to the Plaintiffs and contract taxi drivers.

7) In the event of a breakdown in the course of the operation of each taxi of this case, Nonparty 1 et al. received contact first and repaired the other vehicle. On the other hand, the plaintiffs leased the other vehicle. However, Nonparty 1 et al. was responsible for the daily rent (i.e., the amount agreed to be paid to the plaintiffs by Nonparty 1 et al. per taxi) and paid it to the plaintiffs. Ultimately, this means not only the portion excluding a certain amount from the profit accrued from each taxi of this case is attributed to Nonparty 1 et al., but also the risk burden at the time of the occurrence of the accident is borne by the plaintiffs et al.

8) It is true that the plaintiffs allowed the driver of each taxi of this case to subscribe to the fourth-class insurance. However, as seen earlier, the plaintiffs did not pay the wages to the driver of each taxi of this case, and compared with the wage ledger confiscated from the plaintiffs and the LPG refund statement, the company's insurance premium of the fourth-class insurance that the plaintiffs should bear is deducted and paid to the article. In conclusion, only formally, the plaintiffs can be determined to have subscribed to the fourth-class insurance of this case and the burden of insurance is transferred to the driver.

In conclusion, considering all the above circumstances, it is reasonable to view that the management parties, such as Nonparty 1, etc. independently run the taxi transport business without being operated by each taxi of this case under the general direction and supervision of the plaintiffs who are transport business operators, while the plaintiffs' direction and supervision were excluded, and it is judged that there is no illegality as claimed by the plaintiffs.

2) A deviation from or abuse of discretionary power

The purport of Article 12 of the Passenger Transport Business Act stipulating the prohibition of use of name, and Article 85 (1) 13 of the same Act imposing sanctions, such as revocation of license, is to eradicate illegal management practices, thereby establishing order in transport business and improving the smooth transport of passengers and transport services. Thus, whether a punitive administrative disposition on the ground of a violation of prohibition of use of name deviates from or abused from the scope of discretionary power under social norms should be determined by considering all the specific and individual circumstances, such as the scale of the relevant company, the rate of vehicles in violation, the details of the violation, etc., and the gravity of the infringement of private interest arising from the relevant administrative disposition (see Supreme Court Decision 2002Du9285, Mar. 10, 2005).

As to the instant case, the provision on the prohibition of use of the name under Article 12 of the Passenger Transport Service Act is mainly aimed at preventing any danger to the public due to taxi transport, such as an increase in risk of accidents or a concern about the use of a taxi in the course of operating a taxi transport business by a person who is not a transport business entity, and thus, it is highly necessary for public interest in regulation. ② The Plaintiffs are more than those who are obliged to comply with the relevant laws and regulations such as the Act as a taxi transport business entity that provides the public for traffic. However, in light of the number and method of operation of a taxi operated under the contract system, the Plaintiff’s violation of the prohibition of use of the name appears to be relatively more serious in its illegality. ④ According to Article 43(1) [Attachment 3] of the Enforcement Decree of the Passenger Transport Service Act, considering that the Plaintiff’s economic disposition such as this case’s abuse of discretion cannot be considered as unlawful, even if the Plaintiff asserts that it constitutes a violation of Article 12(1) [Attachment 3] of the Enforcement Decree of the Passenger Transport Business Act.

3. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-jin (Presiding Judge)