(영문) 대구고등법원 2017.4.21.선고 2016누5724 판결

① On January 22, 2016, the Defendant imposed a penalty surcharge of KRW 100,00 on the Plaintiff (designated parties; hereinafter referred to as “Plaintiff”) for a penalty surcharge of KRW 100,000 on the Plaintiff;

(2) A disposition of imposition of a penalty surcharge of KRW 100,000,000,000,000,000,000,000,000,000 on December 23, 2015; and

(4) The imposition of a penalty surcharge of KRW 100,000 on December 31, 2015 to the designated person F, and (5) the imposition of a penalty surcharge of KRW 100,000 on January 2016

19. Imposition of a penalty surcharge of KRW 100,000 against Selection G (hereinafter both the Plaintiff and the designated parties are referred to as "the Plaintiff et al."), and the Defendant

All of the above penalty surcharges imposed on the plaintiff et al. shall be revoked.

2. Purport of appeal

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

Reasons

1. Details of the disposition;

A. The Plaintiff et al. is a transport employee who actually engages in the relevant driving service by a private taxi transport business entity that operates the passenger transport business with a private taxi of all individuals.

B. On June 24, 2015, Daegu Metropolitan City sent a public door to the head of the Gu and the president of the Daegu Metropolitan City Private Passenger Transport Business Association, etc. to the head of the Gu and the head of the Daegu Metropolitan City Private Passenger Transport Business Association, etc., a thorough establishment of order in taxi operation, such as a dong zone, and there are civil petitions regarding illegal parking of a taxi in the vicinity of multi-use facilities, such as a dong zone. The head of the Gu strengthens the crackdown and instructs each union president to guide its members.

C. On the road in front of the square of a arable zone, a taxi is installed at a point 40 meters away from the crosswalk to the lower side of the square, and the taxi and passengers are waiting for boarding each other. ① On December 16, 2015, the Plaintiff was waiting for boarding the taxi on December 16, 2015; ② on November 23, 2015: 17:46:4; ③ on November 11, 2015; ③ on November 24, 2015; ④ on November 28, 2015; ④ on November 28, 2015; ④ on the Selection F, around 07: ⑤ on December 10, 2015; and on December 14, 2015, on December 14, 2015:

D. As between December 23, 2015 and January 22, 2016, the Defendant: (a) falls under the act of disturbance of public order for taxi riding; and (b) the instant act of riding in the taxi constitutes an act of disturbance of public order for taxi riding; and (c) was amended by the former Passenger Transport Service Act (amended by Act No. 12982, Jan. 6, 2015).

1. Each of the dispositions in this case, which stated that "each penalty surcharge is imposed in KRW 100,000 in accordance with Articles 21, 85, and 88 of the former Passenger Transport Act and Article 46 of the Enforcement Decree of the former Passenger Transport Act" was imposed.

[Grounds for Recognition] Unsatisfy, Gap evidence 1 (including branch numbers; hereinafter the same shall apply), Eul evidence 1 to 7, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

For the following reasons, each of the dispositions of this case rendered by the defendant against the plaintiff et al. should be revoked as it is unlawful.

① Even in accordance with Article 21 of the former Passenger Transport Act, the Enforcement Decree thereof, and the Enforcement Rule, there is no legal basis to impose penalty surcharges on each of the instant passengers.

② The place where the Plaintiff et al. embarks passengers shall not fall under the taxi train.

③ Even if the Plaintiff et al.’s place where the Plaintiff et al. embarked on the passengers falls under the taxi stand, the Plaintiff et al. at that time cannot refuse to take passengers by opening a door while temporarily stopped due to the signal signal at the crosswalk. As such, the act of taking passengers in the instant case does not constitute the act of disturbing order in the taxi stand.

B. Defendant’s assertion

① Article 21(9) of the former Passenger Transport Act, Article 44(3) [Attachment 4] of the former Enforcement Rule of the Passenger Transport Act (amended by Ministerial Ordinance No. 274, Jan. 6, 2016; hereinafter “former Enforcement Rule”).

Article 8(2) and (1), Article 85(1)21, and Article 21(9) of the former Passenger Transport Act, Article 46(1) [Attachment Table 5] of the former Enforcement Decree of the Passenger Transport Act (amended by Presidential Decree No. 26970, Jan. 6, 2016; hereinafter “former Enforcement Decree”), which constitutes a violation of Article 88(2) and (1), and Article 85(1) and Article 21(9) of the former Enforcement Decree of the Passenger Transport Act may impose a penalty surcharge of KRW 200,00 in accordance with Article 46(1)16(e) of the former Enforcement Decree of the said Act. Thus, there is a legal basis for imposing a penalty surcharge on each

② Although Article 46(1) [Attachment 5] of the former Enforcement Decree provides that Article 46(1)16(e) of the former Enforcement Decree provides that “where a stop disturbs the order of parking or stopping at the stopping place,” the stopping place shall be interpreted to include the costs of taxi cars.

③ The concept of taxi vehicle is not a specific point, but also includes a specific area where the identity of the place is recognized. The vicinity of the crosswalk in which the Plaintiff et al. al. gets passengers is included within the scope of the taxi vehicle as above. Accordingly, each of the instant passengers constitutes an act of disturbing order in the taxi vehicle.

C. Relevant statutes

Attached Form 2 is as listed in the relevant statutes.

D. Determination

1) Relevant legal principles

If a private taxi transport business entity does not take measures necessary to employ a proxy taxi transport business entity to complete the training course, it shall be subject to the provisions of Article 31-2 (1) and Article 31 (1) 1 of the Automobile Transport Business Act, Article 3 (1) of the former Enforcement Decree of the Automobile Transport Business Act (amended by Presidential Decree No. 1451 of Jan. 21, 1995) [Attachment Table 1] 24 of the former Enforcement Decree of the Passenger Transport Business Act. However, if a private taxi transport business entity who is a private taxi transport business entity and a transport employee fail to complete the training course at the same time, the disposition of this case shall be subject to the imposition of a penalty surcharge of KRW 300,00 for the relevant private taxi transport business entity pursuant to Article 33-4 (1), (2) and (3) of the Enforcement Decree of the Automobile Transport Business Act, Article 6-3 of the Enforcement Decree of the Automobile Transport Business Act, Article 30-10 (1) 35 of the former Enforcement Rule of the Passenger Transport Business Act.

(2) Article 44(3) of the former Enforcement Rule (amended by Presidential Decree No. 2010, Jan. 1, 201; Presidential Decree No. 2010, Jan. 1, 2011; Presidential Decree No. 2020, Jan. 2, 2

According to the relevant legal principles, a private taxi transport business entity falls under the category of a transport business entity at the same time as a transport business entity, unless there are special circumstances, such as employing a substitute driver. In light of the provisions of the relevant statutes or the overall purport of the arguments in the facts recognized earlier, the act of each of the instant flights is merely limited to the Plaintiff, etc. directly engaged in an act that disturbs the order of the taxi board as a “transport business entity,” and does not constitute a “transport business entity,” which is a “transport business entity,” and does not constitute a failure to perform its duty of care and supervision at all times.

Therefore, each of the instant dispositions based on the premise that each of the instant measures constitutes an act of violating the matters to be observed by a transport business entity under Article 21(9) of the former Passenger Transport Act and Article 44(3) of the former Enforcement Rule [Attachment 4] of the former Enforcement Rule, shall be revoked as it is unlawful without having to further examine the remainder of the Plaintiff’s assertion.

(1) The former Passenger Transport Act separates "transport business operators" (a person who has obtained a license or has registered for passenger transport business pursuant to Article 4 (1)) and "transport employees" (a person who is engaged in driving service of passenger transport business and is qualified for driving service of passenger transport business pursuant to Article 24): (a) Article 9 (1) and Article 21 (1) and Article 21 (1)); and (b) Article 21 and Article 26 (a person who is engaged in transport business and is also engaged in driving service of passenger transport business); and (c) Article 85 (1) through 21 and (4), Article 8, Article 92 subparagraph 9, Article 94 (1) 3 and (3) 1 through 3, Article 87 (1) 4 and 5, Article 94 (3) 4 and (4).

② Article 21(9) of the former Passenger Transport Act provides that, among the matters to be observed by a transport business entity, a transport business entity shall comply with the Ordinance of the Ministry of Land, Infrastructure and Transport with respect to guidance for safe operation, passenger convenience, improvement of service, etc., in addition to paragraphs (1) through (8) of this Article. Accordingly, Article 44(3) [Attachment 4] of the former Enforcement Rule provides for a transport business entity’s obligations. Of that, Article 44(3) [Attachment 4](a) of the former Enforcement Rule provides for a transport business entity’s obligations, a transport business entity shall have his/her transport employees faithfully observe the following matters when transporting passengers and shall guide and supervise his/her transport business entity. This provision provides that “When parking or stopping at a stopping place or a taxi train, it shall not disturb order.” This provision is based on the premise that a transport business entity employs a transport employee to be supervised. Thus, it is not applicable to an act of a transport business entity directly while driving a taxi.

③ Article 26 of the former Passenger Transport Act separately provides for “the matters to be observed by transport employees”. Article 26(1)8 of the same Act delegates matters to be observed by transport employees for the safe operation and convenience of passengers to the Minister of Land, Infrastructure and Transport. Article 44(3) [Attachment 4] 2 of the former Enforcement Rule provides for the matters to be observed by transport employees. Article 94(3)4 of the former Passenger Transport Act provides for the imposition of an administrative fine not exceeding KRW 50,000 if a transport employee violates Article 26(1). If the Plaintiff et al., as a transport employee, violates the aforementioned matters to be observed, it is only possible to be subject to an administrative fine under Article 94(3)4 of the former Passenger Transport Act.

3. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.