The burden of proving "driving career", which constitutes the requirements for issuing a private taxi transport business license under Article 19 of the Enforcement Rule of the Passenger Transport Service Act and the "Rules on the Business Affairs of License for Private Taxi Transport Business" established by local governments based on Article 19 of the Enforcement Rule of the Passenger Transport Service Act

Article 19 of the Enforcement Rules of Passenger Transport Service Act

Supreme Court Decision 2008Du19871 Decided August 20, 2009 (Gong2009Ha, 1552)

Plaintiff (Law Firm LLC, Attorneys Ma-ho et al., Counsel for the plaintiff-appellant)

Goyang market (Government Law Firm, Attorneys Kim Jong-min et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Nu58388 decided April 21, 2016

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

The grounds of appeal are examined.

1. The “driving experience” under Article 19 of the Enforcement Rule of the Passenger Transport Service Act and the provision on the business of licensing private taxi transport business established by a local government on the basis thereof constitutes a fact that constitutes a requirement for issuing a license for private taxi transport business, which is a beneficial administrative act, and thus, in principle, the burden of proof may be borne by the driver who is the other party to the administrative act. However, a license for private taxi transport business is to be issued only to the applicants in the order within the scope among the multiple applicants who meet the requirements necessary for the issuance of the license within the scope of limited number of licenses, and thus, the certification of driving experience, which is a fundamental requirement, shall be based on objective and reasonable evidence equivalent to the documents prescribed in the above business handling rule (see Supreme Court Decision 2008Du19871, Aug. 20, 2009)

2. A. The reasoning of the lower judgment and the record reveal the following.

(1) From September 1, 1990 to March 27, 2003, the Plaintiff worked for ○○○ Incorporated Company (hereinafter “Nonindicted 1 Company”) and worked for Nonparty 2 Company (hereinafter “Nonindicted 2 Company”) from May 1, 2003.

(2) On May 31, 2013, the Defendant issued a notice of recruitment of a person eligible for a new license for private taxi transport business in Goyang-si in 2013, and stated that the Defendant submitted the required documents to prove driving experience, a certificate of driving experience, and a statement of monthly number of monthly working days, etc. ② The certificate of driving experience must be verified in the form designated by the Regulations on Business License for Private taxi Transport Business in Goyang-si, and the certificate of career must be issued in accordance with the personnel-related documents, the attendance book, the place of attendance, the place of dispatch, the association, or the association’s employment-based documents, and the case where there is no clear evidence, such as the issuance of the letter of credit guarantee only based on the letter of credit guarantee

(3) On June 26, 2013, when the Plaintiff applied for a license for private taxi transport business to the Defendant, the Plaintiff submitted all documents, including a detailed statement of monthly working days, to Nonparty 2. However, Nonparty 1 did not submit a detailed statement of monthly working days for the reasons that the Plaintiff had worked in Nonparty 1 on the ground that all materials were discarded before 2008 and the Plaintiff did not remain in the attendance book and the place of work at the time of Nonparty 1’s work.

(4) On October 2, 2013, the Defendant publicly announced the 19 applicants who were superior 14th 14th 27th 14th 14th 27th 201 as individual taxi transport business license holders only, and the Plaintiff excluded the Plaintiff from the subject-matter of license by recognizing only 10th 1th 1th 1th 1th 201 of the remainder of the driving experience except the driving experience in Nonparty 1 Company.

(5) 원고는 1998. 12. 9.부터 2001. 12. 31.까지의 운전경력을 증명하기 위하여, 이 사건 원심에서 소외 1 회사가 작성한 1998년부터 2001년까지의 각 연도별 급료대장 및 1999년부터 2001년까지의 각 연도별, 소득자별 근로소득원천징수부를 제출하였는데, 위 급료대장에는 원고를 포함한 소외 1 회사 소속 운전기사들의 매월 실입금액과 인정금액, 주야 근무일수 및 이를 바탕으로 산정된 월 급여 내역이 기재되어 있다.

(6) In addition, in order to prove driving experience from January 1, 2002 to March 27, 2003, the Plaintiff submitted a certificate of driving experience issued by the representative director of the non-party company 1 on April 20, 209, a certificate of career issuance, a certificate of career, and a certificate of seal impression. The above certificate of driving experience was submitted by the Plaintiff while applying for a personal taxi transport business license to the Defendant on April 2009, and contains annual and monthly working days during the above period.

B. Based on such factual basis, the lower court determined that the Plaintiff’s disposition was unlawful on the ground that: (a) the Plaintiff’s driving experience certificate, issuance register of career certificates, and certificate of personal seal impression submitted to prove the driving experience from January 1, 2002 to March 27, 2003; (b) the above driving experience certificate was issued by Nonparty 1’s representative director, and the transport company that issued the certificate is likely to suffer disadvantage in the disposition of revocation of license; (c) it is difficult for Nonparty 1 to enter the number of monthly working days on its own on the certificate of driving experience; and (d) the above driving experience certificate only stated the monthly working days in 202 and 203 from the previous 193 to 201; and (e) the Plaintiff’s disposition was made on the basis of objective documents related to the taxi transport business, such as wages ledger kept at the time of Nonparty 1 to the 193th 2nd 193th 201.

3. However, in light of the legal principles as seen earlier, it is difficult to accept the judgment of the court below for the following reasons.

Article 27(1) of the Regulations on Handling Affairs of License for Private Taxi Transport Business, which was enacted pursuant to Article 19 of the Enforcement Rule of the Passenger Transport Service Act, provides that the taxi driver's experience shall be issued based on a clear basis, such as personnel-related documents, wage payment-related documents, work-related documents, attendance book, dispatch log, Gap's duty completion certificate, employment-related documents, etc., and shall not be recognized as a driver's experience if issued without complying with objective and reliable documents. Thus, the certification of the Plaintiff's taxi driver's experience should be based on the documents prescribed in Article 27(1) of the above Regulations or other objective and reasonable

However, even if the court below integrates the Plaintiff’s certificate of driving experience, issuance register of career certificate, and certificate of personal seal for one year and three months from January 1, 2002 to March 27, 2003, it can be recognized that the Plaintiff was paid wages while working in the non-party 1 company for one year and three months from January 1, 2002 to March 27, 2003, and that the representative director of the non-party 1 company issued the Plaintiff’s certificate of driving experience stating the number of monthly working days in the non-party 1 company from January 1, 200 to March 203, 209, and further, it is difficult to view that the above certificate of driving experience falls under an objective and reasonable evidence, such as personnel-related documents, or similar documents, as provided by Article 27(1) of the above business regulations.

Nevertheless, the court below recognized the plaintiff's experience of taxi driving for the above period only on the grounds as stated in its reasoning. Thus, the court below erred by misapprehending the legal principles on calculating the experience of driving a private taxi transport business license, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim Jae-hyung (Presiding Justice)