2017Du47045 Revocation of the suspension of operation

A Stock Company

Attorney Lee Jae-in, Kim Jae-ho, Park Jae-ho, Park Yong-ho, leap, leap, Lee Jae-hee, and Song-sung;

Heading Board

Law Firm (Bae, Kim & Lee LLC)

[Defendant-Appellee] Defendant 1, 1, 1, 1, 1, 10

The Minister of Land, Infrastructure and Transport

Law Firm LLC (LLC) LLC

[Defendant-Appellee] Plaintiff 1 et al.

Attorney Kim Young-young, Counsel for the defendant-appellant

Seoul High Court Decision 2016Nu39407 Decided May 17, 2017

October 17, 2019

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

The lower court rejected the Plaintiff’s assertion that the degree of “the duty of due care that the air transport business entity owes to the appointment and supervision of an aircrew” under the latter part of Article 115-3(1)45 of the former Aviation Act (amended by Act No. 14116, Mar. 29, 2016; hereinafter the same) refers to “the duty of due care to the extent that it could avoid an ordinary accident by predicting the risks of accidents that may occur ordinarily by an aircrew,” and that the breach of the duty of care refers only to a breach of the duty of care to the extent that it is intentional or gross negligence.

Such judgment of the court below is contrary to what is alleged in the grounds of appeal by the air carrier in the former public law.

There is no error of misapprehending the legal principles concerning "the duty of care for the appointment and supervision of a person."

2. As to the grounds of appeal Nos. 2 and 3, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and rejected the Plaintiff’s assertion that the Plaintiff neglected to pay considerable attention to the pilot convenience related to the instant flight, did not conduct sufficient education and training to prevent the aircraft accident to its employees, and that the Plaintiff’s breach of duty of care to appoint and supervise the Plaintiff’s pilots was the main cause of the instant accident, and that the instant provision did not prove the grounds for disposition.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the burden of proof, etc. of the reason for disposition, or by failing to exhaust all necessary deliberations as to whether the Plaintiff was appointed and supervised.

3. As to the fourth ground for appeal

The court below, based on its reasoning, found that the suspension of operation of an aircraft under Article 115-3 (1) of the former Aviation Act included "the suspension of operation of an aircraft operating on a specific route, such as the suspension of operation of the aircraft" as the suspension of operation of the aircraft. The suspension of operation of this case is a ground for the plaintiff's violation of duty of appointment and supervision of aircrew, and thus, the suspension of operation of the aircraft is mitigated by the suspension of operation under subparagraph 8 of the former Enforcement Rule (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 146, Nov. 28, 2014) [Attachment 56] of the former Enforcement Rule of the Aviation Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 146, Nov. 28, 2014]. Thus, the court below's decision is just and acceptable in light of the legal principles as to the violation of duty of care and supervision as to the appointment of the plaintiff and the violation of duty of free evaluation of evidence.

4. As to the fifth ground for appeal

A. In an administrative litigation to which the provisions of the Civil Procedure Act apply mutatis mutandis, as a matter of principle, there is no limitation on the admissibility of evidence concerning a tangible object, and thus, in the case of a document, there is a qualification to be used as a law for evidence, and where the formal admissibility of evidence is recognized, the admissibility of evidence is recognized, and only the judgment on the substantive admissibility is left to the judge’s free evaluation of evidence (see Supreme Court Decision 2001Du6319, Nov. 27, 2001). In addition, even if Korea joined the international civil aviation treaty and became effective as the domestic law, the Annex to the above treaty frequently adopts and amends international standards and recommendations practices concerning matters deemed to have the same effect as the domestic law, and notifies each contracting party thereof, unlike the provisions of the above treaty, and it does not have any legal effect that the contracting party is forced to comply with the contents of the Annex, but it is merely an advisory effect (see Supreme Court Decision 2002Do850, Jun. 27, 2003).

B. Based on its stated reasoning, the court below rejected the Plaintiff’s assertion that a factual report prepared by the Ministry of Land, Infrastructure and Transport based on the findings conducted by the Ministry of Land, Infrastructure and Transport in relation to the instant aircraft accident should not be used as evidence in accordance with Annex 13 adopted by the International Civil Aviation Organization by the Convention on International Civil Aviation unless part of the investigation report by the National Traffic Safety Commission (NTSB) is included in the investigation report by the Ministry of Land, Infrastructure and Transport.

C. The lower court did not err in its judgment by misapprehending the legal doctrine on admissibility of documents in an administrative litigation and the validity of domestic law in Annex 13 to the Convention on International Civil Aviation, contrary to what is alleged in

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ansan-chul

Justices Park Sang-ok

Justices Noh Jeong-hee

Chief Justice Kim Jong-hwan