Plaintiff

Daeyang Transportation Co., Ltd. (Law Firm leap, Attorney Yoon-soo, Counsel for the defendant-appellant)

Seoul Western District Court Decision 201Gadan80022 Decided July 6, 2012

November 16, 2012

1.The judgment of the first instance shall be modified as follows:

On January 4, 2012, the defendant will implement the procedure for the registration of transfer of ownership on the motor vehicle stated in the attached Form to the plaintiff on January 4, 2012.

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

1. Purport of claim

The defendant shall implement the procedure for the registration of transfer of ownership on the motor vehicle stated in the attached Form to the plaintiff on the ground of the termination of the entrusted management contract.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. On March 29, 2006, the Plaintiff purchased the instant vehicle at its own expense, and entered into an entrusted management agreement with the Defendant (hereinafter referred to as the “Defendant Company”) who is a trucking business operator, on the same day, to vest in the name of the ownership registration of the instant vehicle as indicated in the attached Table (hereinafter referred to as the “instant vehicle”) and the Defendant Company, and the Plaintiff, upon being entrusted with the operation and management right of the instant vehicle by the Defendant Company, entered into a contract with the Defendant Company to pay various expenses, such as monthly admission fees, liability insurance premiums, comprehensive insurance premiums, etc. (hereinafter referred to as the “instant entrusted management agreement”).

B. On March 29, 2006, the Plaintiff completed the registration of transfer of ownership in the name of the Defendant Company with respect to the instant vehicle in accordance with the instant entrusted management agreement, and operated and managed the said vehicle.

C. The Plaintiff expressed to the Defendant Company the intent to terminate the instant consignment management contract by serving the duplicate of the instant complaint, and the duplicate was served on the Defendant Company on January 4, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1 to Gap evidence 4, Eul evidence 1, Eul evidence 2 (including each number of partial head evidence), the purport of the whole pleadings

2. Determination as to the cause of action

According to the above facts, the Defendant Company is obligated to implement the procedure for the registration of transfer of ownership on January 4, 2012 with respect to the instant vehicle on the ground of the termination of the instant entrusted management contract, barring any special circumstance.

3. Judgment on the argument of the defendant company

(a) Claim that the contract may be terminated only by mutual agreement;

1) The assertion

According to Article 17, which provides for the cancellation of the instant consignment management contract, the contract is stipulated as “a contract may be cancelled even during the contract period by mutual agreement between the parties,” and there is no ground to unilaterally cancel the said contract to the Plaintiff. Therefore, the Plaintiff cannot terminate the instant consignment management contract without mutual agreement with the Defendant Company unilaterally.

2) Determination

On the other hand, the contract on the consignment and the consignment management of a motor vehicle is a form of contract in which the land owner registers the motor vehicle under the name of the land owner company and vests the ownership, operation, and management rights of the land owner company. In the case of an internal management and management rights of the land owner company by being entrusted with the independent operation and management rights of the land owner company and operated and managed under its own account, and the fees for using the registered title of the freight trucking business of the land owner company and the entrusted management expenses of the land owner company are paid every month for the management of the external management affairs such as paying taxes and public charges to the land owner company. The above entrustment management contract is terminated at any time as the land owner who is in the position of the said person and the truster and the truster are in the form of contract in which the entrusted management expenses are combined, and the land owner may seek against the land owner company the implementation of the transfer registration procedure based on the termination of the contract (see Supreme Court Decision 97Da29479, Nov. 11, 1997, etc.).

Therefore, this part of the Defendant Company’s assertion is without merit on a different premise.

B. Non-performance of requirements under the Trucking Transport Business Act

1) The assertion

According to Article 3 of the Addenda of the former Trucking Transport Business Act (amended by Act No. 7711 of Dec. 7, 2005; hereinafter “ Trucking Transport Business Act”), the title trust relationship between the trucking transport business operator and the owner of the land shall be established at the time of January 20, 2004, which is the date of promulgation of the said Act. However, since the Plaintiff entered into an entrusted management contract with the Defendant on or after January 20, 2004, the Plaintiff cannot respond to the Plaintiff’s request.

2) Determination

Article 3 (2) of the Addenda to the Trucking Transport Business Act provides that "any person who intends to operate the trucking transport business on or after December 31, 2004 among the persons entrusted with the trucking transport business by a trucking transport business under title trust to a person operating the trucking transport business at the time of the promulgation of this Act, intends to operate the trucking transport business with the relevant vehicle after cancelling the relevant title trust and entrustment contract, notwithstanding the amended provisions of Article 3 (5) 1, he may apply to the Minister of Construction and Transportation for permission, and the Minister of Construction and Transportation, upon receipt of the application for permission, may grant permission to

This is only a provision on trucking transport business permission, but is not a provision that limits the termination right of the entrusted management contract, and the above provision does not affect the termination of the entrusted management contract of this case by the plaintiff.

Therefore, this part of the defendant company's assertion is without merit.

C. The assertion that the transfer of ownership should be registered on the condition that the use of the instant vehicle is changed from “business use” to “private use”

1) The assertion

At the time of the conclusion of the instant consignment management contract, the instant vehicle was a private-use vehicle that is unable to carry out cargo transportation services, and was converted into a business use only when it was registered with the Defendant company. However, in the event that the Plaintiff is transferred the ownership transfer registration of the instant vehicle as of the date of termination of the instant consignment management contract, the Defendant Company suffers losses due to the decrease in the number of vehicles for business use already permitted. Therefore, even if the instant consignment management contract is terminated, the Defendant Company is only obligated to implement the procedure for ownership transfer registration as a private-use vehicle, and does not have any obligation to implement the procedure for ownership transfer registration as

2) Determination

On January 20, 200, the former Trucking Transport Business Act, enacted by Act No. 7100 of Jan. 20, 200, converted the registration system of trucking transport business into the permission system to resolve imbalances caused by excessive supply of trucking transport business. However, Article 3(2) of the Addenda of the above Act provides that "any person who intends to operate the trucking transport business under title trust or the entrustment contract from December 31, 2004 among those who are entrusted with the trucking transport business by a trucking transport business to a person operating the trucking transport business at the time of the promulgation of this Act, intends to operate the trucking transport business under title trust or the entrustment contract concerned and to operate the trucking transport business with the vehicle in question, may apply for permission to the Minister of Construction and Transportation, taking into account the demand for the transportation of cargo by type of business under the provisions of paragraph (4) of Article 3, and the Minister of Construction and Transportation, upon receipt of the application for permission, may not separately manage the number of trucking transport business operators under his/her jurisdiction separately from the existing guidelines for permission (the number of trucking transport business.).

Therefore, in order for the Plaintiff to lawfully terminate the instant entrusted management contract and to use the name of the Plaintiff in the name of the Plaintiff, the Plaintiff would obtain a new registration number by applying for the transfer of ownership after obtaining permission for individual transport business in accordance with the special provisions permitted by Article 3(2) of the Addenda. If the Plaintiff applies for the transfer of ownership without obtaining the permission, the registration number of the private-use truck shall be assigned to the Plaintiff, and if the Plaintiff applies for the issuance of a new registration number after obtaining the permission for individual transport business, the number of the business registration number shall be assigned to the Plaintiff. In this case, as the Defendant Company, which is the so-called branch company entrusted with the trucking transport business by the instant entrusted management contract, would be able to register the transfer of ownership for the instant vehicle as seen above, the number of the existing vehicles subject to the permission pursuant to Article 9 of the above Ministry of Construction and Transportation’s guidelines for handling the trucking transport business permission system

Therefore, the Defendant Company is obligated to implement the transfer registration procedure for the instant vehicle since the instant consignment management contract was lawfully terminated. Therefore, this part of the Defendant Company’s assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so it is decided as per Disposition by accepting the plaintiff's appeal and changing the judgment of the court of first instance.

[Attachment]

The delay of judge's grievance settlement (Presiding Judge)