K Total Logistics Co., Ltd. (Law Firm Support, Attorney Lee Ha-hoon, Counsel for defendant-appellant)

The head of Seocho-gu

October 12, 2017

Seoul Administrative Court Decision 2016Guhap67080 decided March 24, 2017

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition to reduce the number of violating vehicles against the Plaintiff on June 13, 2016 shall be revoked.

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

The same shall apply to the order.

1. Partial citement of judgment of the first instance;

In the reasoning of the judgment of this court, the pertinent part of the reasoning of the judgment of the court of first instance (from 1.0 to 21 pages) is the same, except for adding some of the following: (a) whether the instant disposition is legitimate; (b) the Plaintiff’s assertion; and (b) relevant statutes; and (c) as such, the relevant part of the reasoning of the judgment of the court of first instance (from 2.3 to 6 to 17 pages and from 13 to 21 pages). Accordingly, it is cited in accordance with Article 8(2

○ The following shall be added to the last 16th order of the first instance court:

【Enforcement Decree of the former Trucking Transport Business Act (amended by Presidential Decree No. 26824, Dec. 30, 2015)

Article 7 (Acts Subject to Imposition of Penalty Surcharges and Amount thereof, etc.)

(1) The types of violations subject to penalty surcharges and the amounts of penalty surcharges pursuant to Article 21 (1) of the Act (including cases applicable mutatis mutandis under Articles 28 and 33 of the Act) shall be as specified in attached Table 2. In such cases, detailed standards for the amounts of penalty surcharges for violations under subparagraph 2 (o), 5 (f) and 10 (g) of attached Table

Table 2 attached Table 2 - The types of offenses subject to a penalty surcharge under the revised Act May 26, 2015.

2. Parts that vary from the judgment of the first instance court;

(a)

(b)

C. First, we examine whether the first violation vehicle was subject to the suspension of operation among the requirements for the instant disposition.

1) Article 19(1)2 of the Trucking Transport Business Act provides that “Where a trucking business operator obtains permission for a change in accordance with Article 3(3) by improper means or without obtaining permission for a change, the Minister of Land, Infrastructure and Transport may revoke the permission or order the suspension of all or part of his/her business or the reduction of the number of vehicles for a fixed period not exceeding six months.” Article 5(1) of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 27242, Jun. 21, 2016) provides that “Where a trucking business operator changes the permitted matters without obtaining permission for a change or obtaining permission for a change in accordance with Article 3(3) of the Act, the Minister of Land, Infrastructure and Transport may order a trucking business operator to reduce the number of vehicles in violation of Article 19(1)2 of the Act,” and subparagraph 2 of [Attachment 1] of [Attachment 1] provides that “Where a trucking business operator changes the permitted matters without obtaining permission for a change or obtaining permission for a change.”

Meanwhile, Article 21(1) of the Trucking Transport Business Act provides that “The Minister of Land, Infrastructure and Transport may impose and collect a penalty surcharge not exceeding 20,000 won in lieu of a disposition for the suspension of business where a trucking business operator is obliged to take a disposition for the suspension of business because it falls under any of the subparagraphs of Article 19(1) and where the disposition for the suspension of business is likely to cause serious inconvenience to users of the relevant trucking transport business or impair other public interests.” Article 7(1) of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 26824, Dec. 30, 2015) provides that “The types of violations and the amount of penalty surcharges imposed pursuant to Article 21(1) of the Act (including cases applied mutatis mutandis under Articles 28 and 33 of the Act) are as specified in attached Table 2. In such cases, detailed standards for the amount of penalty surcharges for violations under subparagraphs 2(o), 5(f) and 10 (g) of the Act shall be prescribed in attached Table 2.”

2) Comprehensively taking account of the overall purport of the arguments in Gap evidence 2 and Eul evidence 1, the head of ○○○○, on August 13, 2015, notified the Plaintiff that the suspension of operation of a non-compliant vehicle will be 60 days or a penalty surcharge of 20 million won due to a violation of Article 3(3) of the Trucking Transport Business Act. Accordingly, the Plaintiff’s written opinion is acceptable in substitution of the legal liability due to an illegal increase of the number of vehicles, but all of the Plaintiff’s vehicles are invested in kind, and their income is independently raised, and if the above vehicles are subject to a disposition of 60 days due to the suspension of operation, it is anticipated that the amount of damage would be too high if the above vehicles are subject to a disposition of 20 million won in place of the suspension of operation of the non-compliant vehicle. Accordingly, the head of ○○○○ is deemed to have been subject to the disposition of 60 days in lieu of the disposition of 60 days in lieu of the disposition of 30 days in lieu of the instant report.

3) Article 21(1) of the Trucking Transport Business Act provides that “The Minister of Land, Infrastructure and Transport may impose and collect a penalty surcharge not exceeding 20 million won in lieu of a disposition suspending trucking transport business if a trucking business operator is obliged to take a disposition suspending the operation of a trucking transport business because it falls under any of the subparagraphs of Article 19(1) and such disposition suspending the operation of a trucking transport business is likely to cause serious inconvenience to users of the relevant trucking transport business or impair public interests, as prescribed by Presidential Decree.” However, [Attachment 2] of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 26824, Dec. 30, 2015) does not provide for the amount of the penalty surcharge “where a business operator is required to take a disposition suspending the operation of a trucking transport business because it falls under Article 19(1)2 of the Act.” In other words, the head of 00 head of the relevant Si/Gun is scheduled to impose a penalty surcharge not exceeding 60 days prior to the date of the Plaintiff’s order suspending the operation.

4) If so, the instant disposition cannot be deemed to meet the requirements for the disposition to reduce the number of violating vehicles, and thus, it should be revoked in an unlawful manner without examining the Plaintiff’s other arguments.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and since the judgment of the court of first instance is unfair on the grounds of its conclusion, the plaintiff's appeal shall be accepted and the judgment of the court of first instance shall be revoked and the disposition of this case shall

Justices Cho Jong-dae (Presiding Justice)