(영문) 대구고등법원 2017.5.26.선고 2016누5762 판결

2. On January 5, 2016, the Defendant’s disposition to suspend the operation of a non-compliant vehicle for 60 days against the Plaintiff on January 5, 2016, the suspension of payment of fuel subsidies of KRW 22,233,640, and the suspension of payment of fuel subsidies for six months is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The text shall be as shown in the text.

Reasons

1. Details of the disposition;

A. On September 23, 2008, the Plaintiff, running a general trucking business, obtained a permit for the alteration of trucking transport business (a certificate of the registration number of the trucking vehicle: 1.00, 200; hereinafter hereinafter hereinafter hereinafter 'the instant vehicle') to increase one truck for special use (the tank for transporting chemical products) from the Defendant. On May 22, 2009, the Plaintiff reported the alteration of the trucking transport business to the Gyeongbuk-do Trucking Transport Association of Korea with the general car-type truck (the changed registration number: 860111) of the instant vehicle (the changed registration number: the replacement of the vehicle with another vehicle whose age expires). On May 22, 2009, the report on the replacement of the above vehicle was accepted (hereinafter 'the scrapping of the instant vehicle').

B. Meanwhile, the tank truck for the transport of chemicals was a special purpose truck for which new supply is permitted. From January 1, 2009, it was classified into a special purpose truck for which new supply is restricted pursuant to the "Standards for the Supply of Trucking Transport Business (No. 2008-782 of the Ministry of Land, Transport and Maritime Affairs Notice No. 2009)," and the general truck was classified into a general cargo truck for which new supply is offered continuously since 2004.

C. On January 5, 2016, the Defendant issued a disposition to reduce the number of vehicles in violation of Article 3(3), 16, 19(1)2, and 44(3) of the Trucking Transport Business Act against the Plaintiff on the ground that the Plaintiff illegally scrapped the instant vehicle from a special-purpose truck to a general truck, and issued a disposition to suspend payment from the date of suspension of operation (from January 25, 2016 to March 24, 2016) based on Article 14-2 of the Regulations on the Handling of Trucking Subsidies Management Regulations, Article 6 subparag. 1 and Article 29 of the Regulations on the Handling of Trucking Subsidies, and Article 14-2 of the Regulations on the Suspension of Operation of Vehicles (from September 25, 2010 to April 24, 2015).

D. On February 29, 2016, the Plaintiff filed an administrative appeal against it, and the Gyeongbuk-do Administrative Appeals Commission made a decision that "Da, which dismissed the remainder of the Plaintiff's claims," by changing the period from January 5, 2016 to February 29, 2016, from the time when five years have elapsed since the date of the disposition to recover the fuel subsidy, taking into account the extinctive prescription of the right to claim restitution.

E. Accordingly, on March 16, 2016, the Defendant issued to the Plaintiff a disposition to suspend the operation of the violating vehicle of this case 60 days (from April 1, 2016 to May 30, 2016), to change the chemical tank to the chemical tank glass during the suspension period, to recover fuel subsidies (22,23,640 won received from January 1, 201 to April 201), and to suspend the payment of fuel subsidies for six months (from April 1, 2016 to September 30, 2016) (hereafter referred to as “the instant disposition” in this case, excluding the change to the chemical tank glass during the suspension period).

F. On May 3, 2016, the Defendant revoked, ex officio, a disposition to change the instant vehicle to a chemical tank, while suspending the operation of the instant vehicle, and the Plaintiff voluntarily withdrawn the lawsuit on this part.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence Nos. 1 through 5 and 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The scrapping of the instant car is a general car truck with limited supply, and it is merely a modified report of the trucking transport business already permitted, and the instant disposition that is premised on the fact that the instant car scrapping is a modified report of the trucking transport business, which has limited supply from January 1, 2009, should be revoked in an unlawful manner.

B. Relevant statutes

Attached Form 3 is as listed in the relevant statutes.

C. Determination

1) Relevant legal principles

Article 3 of the former Trucking Transport Business Act (amended by Act No. 10804, Jun. 15, 201; hereinafter referred to as the "former Trucking Transport Business Act") provides that where a person who has obtained permission for trucking transport business (hereinafter referred to as "transport business operator") intends to change matters to be permitted, he/she shall obtain permission for change as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs (main sentence of paragraph 3), and "permission for change accompanying increased trucks" 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 (Article 5). Accordingly, according to the former standards for the supply of trucking transport business (Article 208-782 of the Ministry of Land, Transport and Maritime Affairs, and Article 3 of the former Trucking Transport Business Act (amended by Act No. 10804, Jun. 15, 201; hereinafter referred to as the "former Trucking Transport Business Act"), the former Enforcement Decree of the Trucking Transport Business Act stipulates 2131.

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 relevant laws and regulations, including the old supply standard announcement. It is a result of increasing the number of vehicles permitted as a special-purpose truck in the old supply standard announcement to a "general-use truck" or a special-use truck with limited supply-use truck (hereinafter referred to as a "special-use truck with limited supply-use truck") in which new supply is prohibited, and thus, it does not constitute a minor change even if it is done by the method of the large-scale scrapping, and thus, it is necessary to obtain permission for change under Article 3(3) of the Trucking Transport Act. On the other hand, the act of changing the shape of a general-use truck with limited supply-type truck without permission does not constitute a new supply-type truck in violation of the old supply standard announcement, and thus, it is also a modification without permission for change (see, e.g., Supreme Court Decision 2001Do15Do164.

2) Whether the scrapping of this case is subject to the permission of change

In full view of the above quoted evidence, the following facts are acknowledged: ① the Plaintiff was increased to a special purpose truck (chemical transport tank) truck, which was allowed to newly supply the instant vehicle on September 25, 2008; ② the vehicle for chemical transport tank is classified as a special purpose truck, the new supply of which is restricted by the former Public Notice of Supply Standards from January 1, 2009 to May 22, 2009; ③ the Plaintiff dismissed the instant vehicle as a general car for which the new supply of the instant vehicle is restricted.

In light of the aforementioned facts in light of the legal principles as seen earlier, the instant vehicle constitutes a special-purpose truck with which the increase of the vehicle is not permitted at the time of the instant scrapping, and the act of scrapping the instant vehicle into a general-use truck with the restriction on supply is only subject to the report on the change of permitted matters under the proviso of Article 3(3) of the former Trucking Transport Act and Article 2 subparag. 4 of the former Enforcement Decree, and it is not subject to the permission for the change of permitted matters under the main sentence of

In light of the fact that ① the instant vehicle was increased to a special purpose-type truck for which new supply had been permitted, ② the instant vehicle was processed in detail, which is the business guidelines of the Ministry of Land, Transport and Maritime Affairs, which was announced on March 19, 2009, (hereinafter referred to as the “detailed processing guidelines of this case”) was enacted on November 18, 2009, which is the business guidelines of the Ministry of Land, Transport and Maritime Affairs, and the instant vehicle was defined as “the vehicle for the transportation of chemicals cannot be lent to a special purpose-type truck with a general dump type and a general dump type. dump type. dump type truck with the exception of the relevant use.”

However, since January 1, 2009, the vehicle of this case was classified as a special-purpose truck with the same chemical transport tank as the vehicle of this case from January 1, 2009 to which new supply is restricted by the old supply standard announcement, and the vehicle of this case was classified as a special-purpose truck with the same special-purpose truck at the time of the scrapping of the building of this case. Thus, the defendant's argument about the above (1) cannot be accepted.

In addition, the detailed processing guidelines of the instant case and the detailed processing guidelines of the same purport are amended by the former Trucking Law by Act No. 10804 on June 15, 201 (Article 57(2)). Accordingly, the Enforcement Rule of the said Trucking Transport Business Act was amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 430 on December 31, 201 (Article 52-3(3)). As such, the detailed processing guidelines of the instant case, which were publicly notified at the time of the scrapping of the instant case, are merely the internal guidelines of the administrative agency prepared without any delegation basis, and it is difficult to recognize its legal nature. Accordingly, the Defendant’s assertion as to the foregoing (2) cannot be accepted on any different premise.

3) Sub-determination

Therefore, the instant disposition, which is based on the premise that the scrapping of the instant car is subject to permission for change under the main sentence of Article 3(3) of the former Trucking Transport Act, shall be revoked as it is illegal.

3. Conclusion

Therefore, the Plaintiff’s claim of this case shall be accepted on the grounds of its reasoning. Since the judgment of the first instance is unfair, the judgment of the court of first instance accepted the Plaintiff’s appeal and revoked the judgment of the first instance and decided to revoke the disposition of this case, it is so decided as per

Judges

Written acceptance (Presiding Judge)

Freeboard Kim

x. Jark Sick Number

Site of separate sheet

Relevant statutes

former Trucking Transport Business Act (amended by Act No. 10804, Jun. 15, 2011)

Article 3 (Permission for Trucking Transport Business)

(1) A person who intends to operate a trucking transport business shall obtain permission from the Minister of Land, Transport and Maritime Affairs.

shall be subject to such order.

(3) A person who has obtained permission for trucking transport business under paragraph (1) (hereinafter referred to as "transport business operator") shall modify any of the permitted matters.

To obtain permission for change from the Minister of Land, Transport and Maritime Affairs, as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs

Any modification to insignificant matters prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs.

such report.

(5) Permission for trucking transport business or permission for modification accompanying the increase of trucks under the main sentence of paragraph (1) or (3).

The standards shall be as follows:

1. Meeting the supply standards publicly announced by the Minister of Land, Transport and Maritime Affairs for each type of business under paragraph (4), taking into consideration transport demand

Of others

2. Transportation facilities (hereinafter referred to as "transport facilities"), such as the number of trucks, capital or appraised value of assets, garages, etc., out of the transport facilities;

shall meet the standards prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs.

Article 16 (Transfer, Acquisition, etc. of Trucking Transport Business)

(1) Where a trucking transport business is intended to be transferred or taken over, the transferee shall be a bureau, as prescribed by Ordinance of the Ministry

shall report to the Minister of Maritime Affairs and Fisheries.

(3) Upon receipt of a report under paragraph (1) or (2), the transferee of a trucking transport business shall engage in the trucking transport business.

The status of the transferor as a trucking business operator shall be succeeded, and the corporation established or surviving a merger shall be merged.

corporation to be extinguished shall succeed to its status as a trucking business operator.

Article 19 (Revocation, etc. of Permission for Trucking Transport Business)

(1) Where a transport business operator falls under any of the following subparagraphs, the Minister of Land, Transport and Maritime Affairs shall revoke his/her

An order to suspend all or part of the business or to reduce the number of vehicles for a fixed period within the area.

in the case of subparagraphs 1 and 5, the permission shall be revoked.

2. Where he/she obtains permission for modification under Article 3 (3) by fraudulent means;

(3) Standards and procedures for a disposition of revocation or suspension of business, or an order to reduce trucks under paragraph (1) and other necessary matters.

The Presidential Decree shall be prescribed.

Article 43 (Financial Support)

(2) The Special Metropolitan City Mayor, Metropolitan City Mayors, Special Self-Governing Province Governor, or the head of a Si/Gun (including the head of a Gun in a Metropolitan City)

40. Imposition on oil on a person entrusted with trucking transport business pursuant to Article 40 (1) (including a person entrusted with trucking transport business):

All or part of the amount equivalent to the increase of the amount of tax, etc. under each subparagraph may be subsidized. In such cases, subsidies may be granted.

Matters necessary for the subjects, methods, application documents, procedures, etc. shall be determined by the Minister of Land, Transport and Maritime Affairs

1. Article 5 (1) of the Education Tax Act, Article 2 (1) 2 of the Traffic, Energy and Environment Tax Act, and Article 196 of the Local Tax Act;

17 (1), respectively, education tax, traffic, energy, environment tax, and driving tax imposed on light oil.

2. A business under Article 1 (2) 4 (f) of the Individual Consumption Tax Act, Article 5 (1) of the Education Tax Act, and a petroleum and alternative fuel business;

Individual consumption tax, education tax, and dues imposed on butane among petroleum gas pursuant to Article 18 (2) 1 of the Act;

Article 44 (Use, etc. of Subsidies)

(3) The Minister of Land, Transport and Maritime Affairs, the Special Metropolitan City Mayor, Metropolitan City Mayors, Special Self-Governing Province Governor, or the head of a Si/Gun

(2) A project for which a subsidy or loan has been granted pursuant to paragraph (1) or (2) of Article 43 by fraud or other improper means;

An organization or a trucking service provider (including a person entrusted with trucking transport business pursuant to Article 40 (1)).

An order to return subsidies or loans, and the examples of dispositions on default of national or local taxes shall be issued if such order is not complied with.

may be recovered pursuant to paragraph (1).

Article 57 (Conditions for Appropriation of Vehicles)

Trucks appropriated for new registration of trucking transport business and franchise trucking transport business, for the increase of the number of vehicles, or for the replacement of the cars (referring to replacement of the automobiles, etc. whose age has expired for other vehicles) shall not exceed the age limit prescribed by the Ordinance of the Ministry of Land, Transport and Maritime Affairs within the limit of three years: Provided, That the vehicles prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs may change the conditions of the appropriation

Article 64 (Entrustment, etc. of Authority)

(1) The Minister of Land, Transport and Maritime Affairs or the Mayor/Do Governor shall prescribe part of his/her authority under this Act by municipal ordinance of Presidential Decree

the Association, the Federation, or a specialized inspection institution prescribed by Presidential Decree, as prescribed by the Presidential Decree. In such cases, the City/Do shall be entrusted.

When a branch office entrusts business affairs, it shall obtain prior approval from the Minister of Land, Transport and Maritime Affairs.

【former Trucking Transport Business Act (amended by Act No. 14725, Mar. 21, 2017)

Article 3 (Permission for Trucking Transport Business)

(3) A person who has obtained permission for trucking transport business under paragraph (1) (hereinafter referred to as "transport business operator") shall change matters to which permission is granted.

To obtain permission for change from the Minister of Land, Infrastructure and Transport, as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport:

Where modifying insignificant matters prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, he/she shall do so.

A report shall be filed.

Article 16 (Transfer, Acquisition, etc. of Trucking Transport Business)

(1) Where a trucking transport business is intended to be transferred or acquired, the transferee shall be the State, as prescribed by Ordinance of the Ministry of Land,

The Minister of Land, Transport and Maritime Affairs shall report to the Minister of Land, Transport and Maritime Affairs.

(4) If a report is filed under paragraph (1) or (2), the transferee of the trucking transport business shall engage in the trucking transport business.

The status of the transferor as a trucking business operator shall be succeeded, and the corporation established or surviving a merger shall be merged.

The status of the corporation to be extinguished shall be succeeded as a transport business operator.

Article 19 (Revocation, etc. of Permission for Trucking Transport Business)

(1) Where a transport business operator falls under any of the following cases, the Minister of Land, Infrastructure and Transport shall revoke his/her license

An order to fully or partially suspend his/her business or to reduce the number of vehicles for a fixed period not exceeding one month.

(1) Provided, That in cases falling under subparagraph 1, 5, or 13, the permission shall be revoked.

June 15, 2011;

2. He/she obtains permission for modification or without obtaining permission for modification pursuant to Article 3 (3) by fraudulent means;

Where permitted matters are modified;

Article 44 (Use, etc. of Subsidies)

(3) The Minister of Land, Infrastructure and Transport, the Special Metropolitan City Mayor, Metropolitan City Mayors, Metropolitan Autonomous City Mayors, Special Self-Governing Province Governors, or

A trade association or organization that receives a subsidy or loan pursuant to Article 43 (1) or (2) by improper means;

An order for the return of subsidies or loans to the trucking business operator, etc., and national taxes or loans shall not be complied with.

Collection may be made in the same manner as delinquent taxes are collected.

Article 44-2 (Suspension, etc. of Subsidy)

1 ① The Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of Si/Gun shall:

In cases falling under any of the following subparagraphs, Article 43 (2) shall not exceed one year, as prescribed by Presidential Decree:

The payment of subsidies shall be suspended.

5. A person who commits fraud or other misconduct in violation of matters prescribed by Presidential Decree under Article 43 (2).

in the case of receiving the subsidy by means of

Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 23372, Dec. 13, 201)

Article 2 (Matters Subject to Reporting on Matters Permitted for and Reported on Trucking Transport Business)

Matters to be reported for modification under the proviso to Article 3 (3) of the Trucking Transport Business Act (hereinafter referred to as the "Act") shall be as follows:

4. Scrapping for a truck;

Article 5 (Criteria for Revocation of License, etc. of Freight Trucking Services)

(1) The disposition of suspending the permission or the order to reduce the number of vehicles under Article 17 (1) of the Act shall be made as follows:

(d) It shall be conducted in accordance with the criteria in attached Table 1. In such cases, any disposition taken against any violation of subparagraph 7 (i) of attached Table 1.

Detailed standards shall be prescribed by Ordinance of Ministry of Land, Transport and Maritime Affairs

1. Cancellation of license: Cancellation of license for freight trucking services;

2. Measures to reduce the number of trucks: Change of the permitted matters accompanying the reduction of the number of trucks.

3. Measures for reducing vehicles in violation of the Act: Trucks directly related to the violation (no truck directly related to the violation);

(2) Measures to reduce the number of vehicles for a trucking business operator who commits an offense.

4. Suspension of the whole business: Suspension of the whole freight trucking services;

5. Partial suspension of the business: One fifth of the truck (in such cases, the number of decimal places or less shall be discarded: Provided, That the number of decimal places shall be rounded down by one fifth.

the suspension of use of the number of trucks under one (if the number of trucks is less than one, such number shall be deemed one);

6. Suspension of operation of a non-compliant vehicle: A truck directly related to the violation (which does not have a truck directly related to the violation);

(2) the suspension of use of a trucking business operator's other trucking

Enforcement Decree of the former Trucking Transport Business Act (wholly amended by Presidential Decree No. 26251, May 26, 2015)

Article 5 (Criteria for Revocation, etc. of Permission for Trucking Transport Business)

(1) The cancellation of permission, the suspension of business, or an order to reduce the number of vehicles under Article 19 (1) of the Act shall be classified as follows:

Pursuant to the criteria in attached Table 1, measures shall be taken for any violation of subparagraph 7 (p) of attached Table 1. In such cases, measures against violations shall be taken.

The additional standards shall be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport.

6. Suspension of operation: Trucks directly related to the violation (no truck directly related to the violation).

(1) the suspension of the use of a trucking business operator’s other trucking

(2) The Minister of Land, Infrastructure and Transport shall infringe public welfare, the degree of damage caused by traffic accidents, and the frequency of violations.

Considering the criteria for disposition under attached Table 1, it may be aggravated or mitigated according to the following classifications:

1. 1/2 of the number of days of the criteria for disposition in cases of vehicles that have violated the whole suspension of business, partial suspension of business or suspension of operation;

The period shall be increased or decreased within the extent of increase or decrease: Provided, That if so increased, the period shall not exceed six months.

(c)

[Attachment 1]

Criteria for revoking permission for trucking transport business (related to Article 5 (1))

A person shall be appointed.

* * non-high

4. The same details of an administrative disposition following the frequency of violations shall be committed within one year from the date the administrative disposition is issued.

(2) A violation of subparagraph (1) shall apply to cases where such violation is discovered: Provided, That an administrative disposition pursuant to the frequency of the violation under subparagraph (15)

The criteria for administrative disposition shall apply where a violation of the same contents is discovered within five years from the date of the administrative disposition.

The Addenda No. 26251, May 26, 2015

Article 2 (Application Cases concerning Criteria for Administrative Dispositions)

The amended provisions of subparagraphs 2 and 14 of attached Table 1 and subparagraph 9 (e) of attached Table 4 shall also apply to cases where a violation prior to the enforcement of this Decree is committed by an administrative office.

m. Supply standards of trucking transport business in 2008 (No. 2007-622 of the Ministry of Construction and Transportation)

1. Amount of trucking transport business:

(a) Trucking transport business: Prohibition of a new supply;

○: Provided, That the following cases shall be excluded herefrom:

(1) A towing vehicle towing by another vehicle and the special cases under Rule 2 [Attachment 1] 2 of the Enforcement Rule of the Automobile Management Act;

A work-type vehicle may be permitted without applying the supply standards pursuant to this Notice.

(2) The Enforcement Rule of the Automobile Management Act, which is a vehicle specially manufactured to transport specific cargo

Of the trucks referred to in subparagraph 2 of Article 2 (Attached Table 1), the following vehicles shall be the Special Metropolitan City Mayor, Metropolitan City Mayor or Do Governor:

The branch office may grant permission in consideration of the transportation demand, etc. of the relevant area: Provided, That towing vehicles and towed vehicles shall be permitted.

Where it is separated, this shall not apply to towing vehicles.

(a) A rolling stock for cleaning the surface;

(b) a cleaning vehicle;

(d) Fire vehicles:

(e) Vehicles for petroleum transport (tanks)

(f) Vehicles for the transportation of chemicals (tanks)

(g) A vehicle specially manufactured to carry a motor vehicle;

Supply Standards for Trucking Transport Business in 2009 (Public Notice of Ministry of Land, Transport and Maritime Affairs No. 2008-782)

1. Amount of trucking transport services;