209Nu110 Revocation of revocation of license for driving motor vehicles

Actual Provision of Rights

Daegu Commissioner of Local Police Agency

Daegu District Court Decision 2008Gudan3017 Decided December 24, 2008

June 5, 2009

July 10, 2009

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's revocation of the license for the plaintiff on July 3, 2008 shall be revoked.

1. Details of the disposition;

피고는, 원고가 2008. 6. 2. 23:00경 대구 ●●바 ●●●●호 개인택시를 이용하여 · ●● 를 강제추행하였다는 이유로 도로교통법 제93조 제1항 제11호, 같은 법 시행규칙 제92조 제2호 나목을 적용하여 2008. 7. 3. 원고의 제1종 대형 · 보통운전면허(면허번 호 : 경북 81- 7 69- ●●)를 취소하는 내용의 이 사건 처분을 하였다.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 1 and 2 (including paper numbers)

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the Plaintiff’s disposition of this case is unlawful and thus must be revoked.

chapter 2.

(1) The Plaintiff was aware of the agreement on the reduction of KRW 2,00,00 on the part of the comments to ○○○○○ and the taxi rate of KRW 2,00, and there was no indecent act by force, and the instant disposition does not exist any grounds for such disposition.

(2) The Plaintiff, while driving a private taxi, supported the wife and children suffering from cerebral cerebral Bribery. Considering that the instant disposition makes it difficult for the family members to maintain their livelihood due to the difficulty of maintaining their livelihood, agreed with the victim, and by negligence inducing an indecent act on the injured party, the instant disposition is erroneous in the misapprehension of the discretionary authority by excessively harshing the Plaintiff.

(3) Article 93(1)11 of the Road Traffic Act provides that a person who obtained a driver's license shall revoke the driver's license in a case where he commits a crime prescribed by the Ordinance of the Ministry of Government Administration and Home Affairs, such as murder or rape by using a motor vehicle, etc...

(4) When an administrative disposition is taken on the ground of the existence of a criminal act, it should be taken in the case where the conviction of the criminal act has become final and conclusive in accordance with the original rule of presumption of innocence under the Constitution. The plaintiff

It is impossible to dismiss a public prosecution due to agreement with the victim after prosecuted for the crime of indecent act by compulsion.

The disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the assertion regarding the absence of the grounds for disposition

을 제3호증의1, 2의 각 기재 및 제1심 증인 의 증언에 변론 전체의 취지를 보태면, ① 원고는 2008. 6. 2. 22:45경 대구 ●●바●●●●호 개인택시에 피 해자 ●●●(여, 17세 )를 태우고 가던 중 경북 고령군에 있는 금산재 인근에 이르러 · ●●에게 한번 포옹하게 해 주면 택시요금 2,000원을 깎아주겠다는 제안을 하였고, ● ●●가 위 제안에 응하여 포옹을 허락해준 사실, ② 그런데 원고는 포옹에만 그치지 아니한 채 ●●●의 의사에 반하여 오른손으로 피해자의 팔을 움직이지 못하게 잡고 왼손을 피해자의 옷 속에 넣어 젖가슴을 만지며, 입으로 피해자의 젖가슴을 빨아 ●● ●를 강제로 추행한 사실을 인정할 수 있다.

If so, the plaintiff was forced to commit an indecent act, and therefore, this part of the plaintiff's assertion is without merit.

(2) Whether the discretionary authority is deviates or abused or not

According to Article 93 (1) 11 of the Road Traffic Act and Article 92 (2) 2 (b) of the Enforcement Rule of the same Act, the driver's license shall be revoked to a person who commits an indecent act by compulsion by using a motor vehicle as a tool or place. Thus, the plaintiff's assertion on this part on the premise that the defendant has discretion to decide whether to revoke the driver's license, is without merit, even though it is based on the premise that

(3) As to the assertion of unconstitutionality and illegality of the Act and the Enforcement Rule

Considering the rapidness of crimes using automobiles, scarcity, and the increase in social damage caused thereby, the provisions allowing revocation of driver's license in the case of specific criminal acts using automobiles are considered necessary and appropriate means to restrain crimes using automobiles, so such provisions do not seem to be unconstitutional.

In addition, the limit of delegation legislation is predictability, which means that the basic matters of the contents and scope that are already prescribed by the Presidential Decree, etc. of the Act should be specified in detail. Any person who has obtained a driver's license for a crime prescribed by the Ordinance of the Ministry of Government Administration and Home Affairs, such as murder or rape, shall not be determined with only one of the relevant specific provisions, but shall be determined with organic and systematic integration of the relevant provisions. The whole of the relevant provisions of the Act shall be determined systematically and systematically, depending on the nature of each applicable law, if it is possible to predict the whole of the relevant provisions in light of the legal provisions and the legislative intent of the Act comprehensively, it shall not deviate from the limit of delegation (see, e.g., Supreme Court Decision 2007Du9884, Oct. 26, 2007). Article 93 (1) 11 of the Road Traffic Act provides that a person who committed an offense prescribed by the Ordinance of the Ministry of Government Administration and Home Affairs, such as murder or rape, and Article 93 (2) 13 of the former Enforcement Rule of the Road Traffic Act provides that the license for revocation.

Therefore, Article 93 (1) 11 of the Road Traffic Act does not comprehensively delegate to the Ministry of Government Administration and Home Affairs the criminal act that is subject to the revocation of driver's license, but rather sets the scope of delegation by establishing the standards for crimes using automobiles, etc., and limits the scope of delegation, and further detailed matters concerning them shall be deemed as having been flexibly prescribed by Ordinance of the Ministry of the Interior according to the situation at that time.

If so, Article 93 (1) 11 of the Road Traffic Act provides the contents of the curriculum by law.

Since the legislative method that allows partial supplementation by the Ordinance of the Ministry of Government Administration and Home Affairs can be sufficiently predicted, it does not go against the principle of prohibition of comprehensive delegation, and on the other hand, Article 92 (2) 2 (b) of the Enforcement Rule of the above case is equivalent to rape and it cannot be said that there is no possibility for it to be predicted based on the nature of the crime and the standard of crime using motor vehicles, etc., so the above provision is illegal beyond the scope and limit of delegation.

Therefore, the plaintiff's assertion on this part is without merit.

(4) Whether the conviction should be affirmed or not

The principle of presumption of innocence refers to the treatment corresponding to the person who committed the crime before the judgment of conviction becomes final and conclusive in the criminal trial, which would give a tangible and intangible disadvantage in the legal and factual aspect. In determining whether there was a criminal act that constitutes the reason for the administrative disposition, the administrative disposition cannot be taken before the final and conclusive judgment of conviction is rendered in accordance with the principle of presumption of innocence. As such, the administrative agency may take an administrative disposition by judging whether there was a criminal act that constitutes the reason for the disposition independently even before the final and conclusive judgment of conviction has been rendered. Thus, the defendant may take an administrative disposition in accordance with the principle of presumption of innocence.

prior to confirmation of conviction against the plaintiff with respect to the criminal acts on the basis of the case

The disposition of this case cannot be deemed unlawful solely on the ground that the disposition of this case was rendered, and where a final and conclusive judgment of innocence was rendered with respect to a criminal act which became the ground of the administrative disposition, the disposition is presumed to be a case of misunderstanding the facts as to the existence of the ground of disposition, barring any special circumstances, and thus becomes the ground for revocation of the administrative disposition. However, as in this case, in a case where a judgment of dismissing a public prosecution was rendered on the ground that the victim was not convicted of the facts constituting the ground of the disposition of this case and the victim did not withdraw the complaint after the prosecution was instituted, it is different from the case where the final and conclusive judgment of innocence was rendered. Thus, the fact that the plaintiff was not convicted of the facts as to the criminal facts constituting the ground of the disposition of this case and the final and conclusive judgment of dismissing a public prosecution was rendered without the conviction of the plaintiff as to the facts constituting the ground of the disposition of this case, and as long as the facts were sufficiently recognized based on various evidence as seen earlier, the plaintiff's above assertion

3. Conclusion

Therefore, the disposition of this case is legitimate, and thus, the plaintiff's claim of this case seeking the cancellation of the disposition of this case is dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Maximum-type (Presiding Judge)

Freeboards

Kim Jong-ge

Relevant statutes

Road Traffic Act

Article 93 (Revocation and Suspension of Driver's License)

(1) When a person who has obtained a driver's license (excluding an ordinary driver's license; hereafter the same shall apply in this Article) falls under any of the following subparagraphs, the Commissioner of a Local Police Agency may revoke the driver's license or suspend the validity thereof within the extent of not more than one year according to the standards set by Ordinance of the Ministry of Government Administration and Home Affairs: Provided, That when the person falls under subparagraphs 2, 3, 6 through 8 (excluding cases where the period for a regular aptitude test expires), 11, 13, 15, 16, or 17, the driver's license shall be revoked:

11. The Ordinance of the Ministry of Government Administration and Home Affairs, such as murder or rape by a driver;

When a crime has been committed;

Enforcement Regulations of the Road Traffic Act

Article 92 (Types of Crimes Using Motor Vehicles, etc.) The criminal acts prescribed by the Ordinance of the Ministry of Government Administration and Home Affairs as grounds for revocation of driver's license under Article 93 (1) 11 of the Act shall refer to cases where a person commits any of the following crimes using motor vehicles, etc. as tools or places of

1. A crime that violates the National Security Act;

2. Any of the following crimes which violate the Criminal Act, etc.:

(a) homicide, abandonment, or fire prevention;

(b) Robbery, rape or forced indecent act;

(c) Kidnapping, inducement, or confinement;

(d) Habitual theft (limited to the case of transporting stolen objects); and

(e) Traffic obstruction (limited to cases where he belongs to an organization or obstructs transportation among many persons);

Finally.