Dan Transport Co., Ltd. (Law Firm Law School, Attorneys Han-soo et al., Counsel for defendant-appellant)

port of destination

June 17, 2011

Suwon District Court Decision 2010Guhap9137 Decided November 29, 2010

1. The defendant's appeal is dismissed.

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

1. Purport of claim

On May 19, 2010, the Defendant’s provisional disposition on the transfer or acquisition of trucking transport business (general) against the Plaintiff is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. On June 19, 2009, Gyeonggi-do Co., Ltd. obtained a license for general trucking transport business (vehicle registration number 1 omitted) from Suwon-si (vehicle registration number 1 omitted) and thereafter acquired a freezing truck (vehicle registration number 2 omitted), and (vehicle registration number 3 omitted).

B. On November 17, 2009, the Plaintiff acquired two freezing trucks and the entire general trucking transport business, and reported this to the Defendant. On November 17, 2009, the Defendant received the above transfer report, and issued a general trucking transport business license to the Plaintiff.

C. The Plaintiff acquired the cargo vehicles (vehicle registration No. 4 omitted) and the relevant general trucking transport business from the Telecommunications General Logistics Co., Ltd., and reported it to the Defendant. The Defendant accepted the above acquisition report on May 11, 2010.

D. On May 17, 2010, the Plaintiff acquired the instant cargo truck (hereinafter “instant cargo truck”) and its subsequent trucking transport business from DOIS Co., Ltd. (5 omitted), and reported it to the Defendant on May 17, 2010.

E. On May 19, 2010, the Defendant issued a provisional disposition of transfer or disposal (hereinafter “instant disposition”) on the ground that “the Plaintiff acquired the transport business permission according to the special purpose type vehicle 1 that is permitted to be supplied at Suwon city on June 19, 2009,” and that “the Plaintiff’s transfer or disposal of a vehicle, the supply of which is limited in accordance with the terms of “the details of the return related to the scrapping of the truck and the permission (Ministry of Land, Transport and Maritime Affairs June 1, 2009), is impossible.”

F. On the other hand, on June 1, 2009, the Ministry of Land, Transport and Maritime Affairs sent to the Gyeonggi-do Governor, etc. a public notice stating that “if a new permit is obtained for a truck permitted to be supplied, it shall not become a general trucking business operator who owns more than two cargo vehicles after partial transfer or acquisition of a truck restricted to be supplied from the limited corporation.”

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Gap evidence 4, Eul evidence 5, Eul evidence 1, Eul evidence 2, Eul evidence 3, Eul evidence 4, Eul evidence 7, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) As seen in the reasoning of the disposition by the Plaintiff, the Plaintiff’s acquisition of the instant truck and the instant general trucking transport business from DIIS by transfer from another trucking business operator of the same type of business, and thus, it is permissible under Article 16(1) of the Trucking Transport Business Act. Nevertheless, the instant disposition based on the instant guidelines, which cannot be applied to the transfer or acquisition of trucking transport business, is unlawful.

2) In order to prevent the excessive supply of trucking transport business, it is sufficient to restrict the new permission of trucking transport business. Nevertheless, the instant disposition that restricts the transfer or acquisition of a truck already supplied, which is irrelevant to the public interest, such as the prevention of excessive supply, is unlawful as it is against the principle of proportionality and is against the discretionary authority.

3) The Plaintiff was confirmed by the public official in charge of the Defendant to the effect that “if the Plaintiff acquires the right of trucking transport business from Gyeonggi-do, he may operate a general trucking transport business without any restriction,” and the Defendant has allowed the Plaintiff to take over one trucking transport business from the public official in charge of the Defendant prior to the instant disposition. Nevertheless, the instant disposition that the Plaintiff is not allowed to take over the trucking transport business from the public official in charge of the Defendant is unlawful as it is in violation of the principle of trust protection

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) A) According to Article 16(1) of the Trucking Transport Business Act and Article 23(3) of the former Enforcement Rule of the Trucking Transport Business Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 319, Dec. 29, 2010; hereinafter “former Enforcement Rule of the Trucking Transport Business Act”), the transfer and acquisition of trucking transport business shall be the whole of the relevant trucking transport business, but only a part of the transfer and acquisition may be made where a trucking business operator who owns more than the permitted number of trucking transport businesses transfers and acquires more than the permitted number of trucking transport business operators

B) In addition, according to Article 3(1) and (3) of the Trucking Transport Business Act, and each subparagraph of Article 3 of the Enforcement Decree of the Trucking Transport Business Act, the types of trucking transport businesses are classified into general trucking transport businesses, individual trucking transport businesses, and trucking transport businesses.

C) In addition, Article 3(5)2 of the Trucking Transport Business Act provides that the permission to change a trucking transport business accompanying the increase of the trucking transport business shall meet the criteria prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs, such as the number of trucks, capital or appraised value of assets

D) Therefore, a general trucking business operator may transfer or take over part of trucking transport business to another general trucking business operator if he/she satisfies the requirements under Article 3(5)2 and Article 16 of the Trucking Transport Business Act, Article 13 [Attachment 1] and Article 23 of the former Enforcement Rule of the Trucking Transport Business Act. In addition, Article 23 of the Trucking Transport Business Act provides for the matters to be reported on the transfer or taking over of the business. As such, the head of the local government delegated with the above reporting duties must accept the report on the partial transfer or taking over of the trucking transport business, which satisfies the requirements stipulated in the Act and subordinate statutes, and there is no room for discretion

E) Meanwhile, Article 3(5)1 of the Trucking Transport Business Act provides that permission for trucking transport business or permission for alteration accompanying the increase of the number of trucking transport business shall meet the supply standards publicly notified by the Minister of Land, Transport and Maritime Affairs. Article 2009-131 of the Ministry of Land, Transport and Maritime Affairs’ notification under the said provision prohibits new supply of trucking transport business, in principle, with regard to permission for alteration accompanying the increase of the number of trucking transport business, among trucking transport business. The said notification only prohibits new supply, and does not provide for the transfer and acquisition of existing trucks. The above legislation aims to prevent excessive supply of trucks, and it does not interfere with the achievement of the above legislative purpose even if existing trucking transport business operators permit the transfer and acquisition of existing trucks and trucking transport business, it is reasonable to deem that Article 3(5)1 of the Trucking Transport Business Act and the notification of the Minister of Land, Transport and Maritime Affairs pursuant thereto are applied only to new trucking transport business, and the said provision does not apply to the transfer and acquisition of trucking transport business under Article 16 of the Trucking Transport Business

2) However, as seen in the above facts, the Plaintiff is a general trucking business operator. Moreover, the Plaintiff asserted as the Plaintiff, the transferor of the instant trucking vehicle, as the ordinary trucking transport business operator who owns a large volume of 40 trucking trucks, and the Defendant is not clearly dissatisfied with this in the pleading, and thus deemed to have been led to confession. Furthermore, according to Article 13 [Attachment 1] of the Enforcement Rule of the former Trucking Transport Business Act, the number of standards for permit for general trucking transport business is more than one unit.

Therefore, it is legitimate to transfer the instant cargo vehicle and its subsequent trucking transport business to the Plaintiff, which is a general trucking business operator, which is a general trucking business operator, which owns more than the number of the permitted trucking businesses, as a result of the transfer or acquisition of the instant cargo vehicle, barring special circumstances, such as the Plaintiff’s general trucking transport business no longer meets the criteria for permit under Article 13 [Attachment 1] of the former Enforcement Rule of the Trucking Transport Business Act, such as the number of the permitted trucking businesses, the minimum capital, the office and the place of business, the minimum size of the vehicle owned, and the type of the truck

Nevertheless, the disposition of this case, which rejected the transfer or acquisition of the freight of this case without accepting the report of the transfer or acquisition of the freight of this case and the trucking transport business, should be revoked as illegal.

3) Accordingly, the defendant asserts that the "same type of business" as stipulated in the proviso of Article 23 (3) of the former Enforcement Rule of the Trucking Transport Business Act refers to the same use of a specific truck, and that the plaintiff succeeds to the status of a trucking business operator from the Gyeonggi-ro Co., Ltd. which obtained permission for a general trucking transport business, which is a special trucking transport business, and that the plaintiff is not a trucking business operator of the same type of business. Thus, the proviso of Article 23 (3) of the former Enforcement Rule of the Truck

① However, Article 3(4) of the Enforcement Decree of the Trucking Transport Business Act provides that the types of trucking transport business shall be prescribed by the Presidential Decree. Article 3 of the Enforcement Decree of the Trucking Transport Business Act classify the types of trucking transport business into the general, individual, and monthly trucking transport business. Article 3 of the Enforcement Decree of the Trucking Transport Business Act does not distinguish the types of trucking transport business by specific trucking transport business. ② Article 13 [Attachment 1] of the Enforcement Rule of the former Trucking Transport Business Act, which provides the criteria for permission for trucking transport business or for permission for modification involving expansion of the number of trucking transport businesses, shall be classified into the general, individual, and monthly trucking transport business, and Article 13 [Attachment 1] of the former Enforcement Rule of the Trucking Transport Business Act does not provide the types of trucking transport business according to the use of the special trucking transport business. ③ However, considering the contents of the provision, the defendant's new trucking transport business is not subject to the notification or new notification, as it is not subject to the said new notification or new notification.

3. Conclusion

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

[Attachment]

Judges Gangnam-gu (Presiding Judge)