Plaintiff (Attorney Shin-dong et al., Counsel for plaintiff-appellant)

The Commissioner of the Gyeonggi-do Local Police Agency

September 1, 2017

Suwon District Court Decision 2016Gudan9057 Decided March 8, 2017

1. The judgment of the court of first instance is modified as follows.

A. On October 18, 2016, the part concerning the driver’s license for Class I large vehicles, Class I ordinary vehicles, and Class I special vehicles (large-scale vehicles and rescue vehicles) among the disposition of revocation of the driver’s license for the Plaintiff on October 18, 2016.

B. The plaintiff's remaining claims are dismissed.

2. The total cost of a lawsuit shall be borne individually by each party.

The judgment of the first instance is revoked. The revocation of the driver's license granted to the Plaintiff on October 18, 2016 by the Defendant shall be revoked.

1. Details of the disposition;

A. On October 18, 2016, the Defendant issued a disposition to revoke the Plaintiff’s license for Class 1 large, Class 1 ordinary, Class 1 small vehicles (large, rescue vehicles), Class 2 small vehicle driving license as of October 27, 2016, on the ground that the Plaintiff driven a two-wheeled vehicle on the road in front of the ○○○○○ cafeteria cafeteria (location omitted), while under the influence of alcohol leveling 0.140% on September 11, 2016 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 4 through 8, the purport of the whole pleadings

2. The legality of disposition.

A. The plaintiff's assertion

The Plaintiff, who works as a local driving assistant belonging to △△△ City, has been dismissed or dismissed when the driver’s license is revoked, making it difficult for the Plaintiff to maintain his/her livelihood due to his/her parents and two children, and in light of the Plaintiff’s driving power and drinking circumstances, etc., the instant disposition was excessively harsh to the Plaintiff, thereby abusing and abusing the discretion.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion by social norms shall be determined by comparing and balancing the degree of infringement of public interest and the disadvantages suffered by an individual as well as the degree of infringement of public interest by objectively examining the content of the act of violation, which is the reason for the disposition, and the public interest to be achieved by the relevant act of disposal and all the relevant circumstances (see Supreme Court Decision 98Du11779 delivered on April 7, 20

B) In principle, one person shall be treated as separate from one another in cases where he/she has obtained multiple driver's license, as well as where he/she has revoked or suspended it. However, in cases where the reason for revocation is not related to a specific license, it is common with another license, or is related to a person who has obtained a driver's license, it may be revoked in full (see, e.g., Supreme Court Decisions 95Nu850, Nov. 16, 1995; 98Du1031, Mar. 24, 1998).

C) In principle, one person shall be treated as separate from one another in revoking or suspending a number of driver's licenses, and it is reasonable to regard the grounds for revocation or suspension as being common to other licenses or in the case of a person who has obtained a driver's license. However, it is reasonable to regard that only a person who holds a Class 2 driver's license as a two-wheeled automobile is unable to drive a two-wheeled automobile with a Class 1 driver's license or a driver's license, and therefore, the driver's license of a two-wheeled automobile is not related to a Class 1 driver's license or a driver's license, so only the grounds for revocation or suspension of a two-wheeled automobile cannot be revoked or suspended (see Supreme Court Decision 91Nu8289 delivered on September 22, 192).

2) Specific determination

In light of the following circumstances, the Plaintiff’s revocation of the Plaintiff’s driver’s license by the instant disposition is more unfavorable than the public interest that the Defendant intends to achieve the instant disposition. As such, the revocation of the Plaintiff’s driver’s license by the instant disposition is more unfavorable than the Plaintiff’s revocation of the Plaintiff’s revocation of the first class large, first class, first class, first class, and first class (one class, second class, and salvage) driver’s license, other than the first class small driver’s license, of the instant disposition, is erroneous in the misapprehension of the scope of discretionary authority.

A) On November 13, 1995, the Plaintiff was appointed as a local driving assistant for about 21 years to the △△△△△△△△△△△△, and served in good faith as the head of the Do government (the head of the metropolitan organization) on December 31, 201, and the head of the Si/Gun/Gu on August 1, 201.

B) According to Article 55 and Article 69(1)3 of the Local Public Officials Act and Article 2(1) [Attachment Table 1] of the Local Public Officials Discipline Rule 7.e., [Attachment Table 3] of the Disciplinary Criteria, where a public official in charge of driving duties is subject to the disposition of driver's license due to drinking driving. Even if driving under the influence of alcohol was conducted, if the driver's license was revoked or the driver's license was not suspended, he/she shall be subject to the disposition of reduction of salary, reprimand, or suspension from office according to blood alcohol concentration. The Plaintiff is subject to removal or dismissal in accordance with the above criteria if the driver's license is revoked due to the local driving assistant belonging to △△△△△△△, the removal or dismissal is a heavy measure to completely cut down his/her employment relationship and does not seem to have any means to maintain his/her livelihood

C) On December 3, 1982, the Plaintiff acquired respectively a Class I driver’s license for a small-sized motor vehicle (license number omitted) on July 1, 1982, Class I driver’s license for a large motor vehicle on July 14, 1984, Class I driver’s license for a large-scale motor vehicle on October 15, 1988, Class I driver’s license for a small-sized motor vehicle on September 17, 1999, and Class II driver’s license for a small-sized motor vehicle (license number omitted) on November 2, 1999, while driving the motor vehicle as its main business, the Plaintiff did not have any other history of accident from November 7, 1992, which was 1982 when acquiring a Class I driver’s license for a common motor vehicle, until the accident in this case.

D) Article 91(1) [Attachment 28] of the former Enforcement Rule of the Road Traffic Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 87, Nov. 29, 2016) provides that “When a driver drives is an important means to maintain his family’s livelihood, and blood alcohol level exceeds 0.12%, it shall not be reduced as a ground for the revocation of the driver’s license.” This is to ensure that the driver’s license is revoked in the case of a person living with a means of driving, thereby making it impossible to engage in a party driving and making it economically difficult. Meanwhile, the Plaintiff does not meet the requirements for mitigation of blood alcohol level at 0.140% at the time of the instant accident, but the Plaintiff’s work as a local driver’s assistant and supported his parent and two children, and thus, the Plaintiff’s livelihood is an important means to maintain his family’s livelihood.

E) The necessity of public interest to prevent traffic accidents caused by drinking driving is very large due to frequent traffic accidents caused by drinking driving, and the results are harsh (see Supreme Court Decision 2007Du17021, Dec. 27, 2007). However, driving of the Plaintiff is a motor bicycle with engine displacement of 125cc, and it cannot be evaluated equally as driving of ordinary motor vehicles in terms of the risk of accidents caused by the Plaintiff’s drinking driving and the possibility of harm to others.

F) If the Plaintiff driven a two-wheeled automobile with an engine displacement exceeding 125cc, which is the object of a Class 2 small license in the state of driving, the Plaintiff’s license for Class 1 large, Class 1 ordinary, Class 1 special(s) cannot be revoked (see the above 91Nu8289), on the ground that the Plaintiff driven a two-wheeled automobile with an engine displacement exceeding 125cc, which is the object of a Class 2 small license in the state of driving, the Plaintiff’s license for Class 1 large, Class 1 large, Class 1 common, Class 1 special(s) and Class 1 special(s) cannot be revoked on the ground that the Plaintiff’s license is revoked on the ground of this reason (see the above 91Nu8289).

3. Conclusion

Therefore, the part concerning the driver's license of Class 1 large vehicles, Class 1 large vehicles, Class 1 special vehicles, and Class 1 special vehicles(s) among the disposition of this case is unlawful and thus revoked, and the remainder of the plaintiff's claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair in some different conclusions, the judgment of the court of first instance is partially accepted the plaintiff's appeal and it is so decided as per Disposition.

[Attachment]

Judges Kim Yong-seok (Presiding Judge)