2012Gudan8062 Revocation of revocation of driver's license

Objection

Seoul Mapo-gu

The place of service is received at the cost

The Seoul Local Police Agency

Articles of the Litigation Performers

May 2, 2013

June 13, 2013

1. On March 13, 2012, the revocation of the driver’s license (Class 1 large scale) issued by the Defendant against the Plaintiff is revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

A. On September 25, 2010: (a) around 37, 2010: (b) the Plaintiff was issued a summary order of KRW 1,00,000 in Seoul Central District Court Decision 201Da77444, and in the case of the violation of the Road Traffic Act (joint danger act), the Plaintiff was issued a summary order of KRW 1,00,000,000,000 on the ground that: (c) the Plaintiff’s driver was forced to stop the Plaintiff’s use of the Rab-dong-dong-dong, Incheon, along with the BMW M3 Motor Vehicle that was driven by the Plaintiff while driving the Rab-dong-dong-dong, which was driven by the Plaintiff; and (d) approximately 300~40 to 400 meters by driving the Rab-dong in high speed.

B. On March 13, 2012, the Defendant revoked the driver’s license by applying Article 93(1)11 of the former Road Traffic Act (amended by Act No. 10790, Jun. 8, 201; hereinafter “former Road Traffic Act”) and Article 91(1) of the Enforcement Rule of the same Act (amended by Ordinance of the National Police Agency No. 2, Mar. 23, 2013; hereinafter “Enforcement Rule of the former Road Traffic Act”) to the Plaintiff (hereinafter “instant disposition”).

[Ground of recognition] A-4 Evidence, Gap 6-8 Evidence, Eul 1-6 evidence (including various numbers)

each entry of this section.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant ground provision, which is an authorized law, deviates from the delegation limit under Article 93(1)11 of the former Road Traffic Act, and is null and void in violation of the principle of excessive prohibition. Therefore, the instant disposition, which was made by the application of the relevant ground provision null and void, is unlawful.

B. Relevant statutes

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

(1) When a person who has obtained a driver's license (excluding any student 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 for a period not exceeding one year according to the standards prescribed by Ordinance of the Ministry of Public Administration and Security: Provided, That when the person falls under subparagraph 2, 3, 6 through 8 (excluding cases where the regular aptitude test period has elapsed), 11, 13, 15, 16 or 17, the driver's license shall be revoked:

11. When a person who has obtained a driver's license commits any crime prescribed by Ordinance of the Ministry of Public Administration and Security, such as murder or rape;

effect of the former Road Traffic Act (Ordinance of the Ministry of Public Administration and Security)

Article 91 (Criteria, etc. for Cancellation and Suspension of Driver's License)

(1) Standards for revoking or suspending driver's licenses pursuant to Article 93 of the Act (including the standards for penalty points imposed according to the degree of violation, damage, etc. where traffic accidents have been violated or caused).

The standards for prohibiting the driving of motor vehicles, etc. under Article 97 (1) of the Act shall be as set forth in attached Table 28.

[Attachment 28] Revocation of Driver's License; Criteria for Suspension (related to Article 91 (1))

2. Individual criteria for revocation. Article 92 (Types, etc. of Crimes Using Motor Vehicles, etc.)

"Criminal conduct prescribed by Ordinance of the Ministry of Public Administration and Security as a reason for revocation of driver's license" in Article 93 (1) 11 of the Act means when a person commits any of the following crimes by using his/her motor vehicle, etc.

1. A crime that violates the National Security Act; 2. A crime that violates the Criminal Act, etc.;

(a) homicide, abandonment, or fire prevention;

(b) Robbery, rape, or indecent act by compulsion;

(c) Kidnapping, inducement, or confinement;

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

(e) Obstruction of traffic (limited to cases where organizations belong to or are included in many persons)

/ Criminal Act

Article 185 (Obstruction of General Traffic) Any person who damages, destroys, or destroys a road, waterway, or bridge, or obstructs traffic by any other means, shall be punished by imprisonment for not more than ten years, or by a fine not exceeding 15 million won.

C. Determination

1) Whether it deviates from the limitation of delegated legislation

Considering the legislative intent, contents, form, etc. of the relevant statutes, this case's ground provision seems to have the effect of external binding legal order as a provision supplementing the contents of the statutes in the form of administrative rules by granting authority of the statutes.

However, in the case of delegation legislation with the validity of a statutory order, its limitation is predictability. This means that the basic matters of the contents and scope that are already provided for by the Presidential Decree are specified in the Act, and any person can predict the outline of the contents to be provided for by the Presidential Decree, etc. from the relevant Act. The existence of such predictability is not determined with only one of the relevant specific provisions, but should be determined organically and systematically, and the entire relevant provisions of the law can be determined systematically and systematically, and if it can be reasonably predicted when comprehensively considering the nature of the relevant law and comprehensively considering the legislative intent of the relevant law, it does not deviate from the limitation of delegation (Supreme Court Decision 2007Du9884 Decided October 26, 2007).

Since Article 93 (1) 11 of the former Road Traffic Act, which is an authorized law of the instant ground provision, provides for the revocation of a driver's license in cases of using a motor vehicle for crimes such as murder, rape, etc., the Ministry of Public Administration and Security delegated by the said provision to determine the subject of a criminal act for which the driver's license may be revoked can normally be expected to be revoked in cases where the driver's license has been committed to a serious crime that is likely to be committed, such as murder, rape, etc., and a serious crime that is likely to be committed. Therefore, the instant ground provision only provides only a case where a person belongs to an organization

However, it is not similar to the crime of murder, rape, etc., which is a crime that requires the revocation of the driver's license in accordance with Article 93 (1) 11 of the former Road Traffic Act, which is an authorized law of the grounds of this case to obstruct traffic belonging to an organization or which is included in many people.

Therefore, it is difficult to promptly predict that the above traffic obstruction from the above authorized law is stipulated as a requisite cause for revocation of a driver's license. Therefore, it is reasonable to view that the instant ground provision deviates from the limit of delegated legislation delegated by the above authorized law. (2) Whether the above authorized law violates the principle of excessive prohibition

Traffic obstruction prescribed by Article 93 (1) 11 of the former Road Traffic Act and the applicable provisions of this case, as stipulated in Chapter 15 of the Criminal Act, shall be punished by imprisonment for not more than 10 years or by a fine not exceeding 15 million won, and a person who obstructs traffic by means of destroying or damaging a track, light, or sign shall be punished by imprisonment for a limited term of not less than one year, and a person who thereby injures another shall be punished by imprisonment for life or for not less than three years, and a person who causes death shall be punished by imprisonment for life or for not less than five years.

However, the crime of traffic obstruction, which is scheduled as the reason for revocation of driver's license, is diverse as above, and the relevant provision limits part of the amount of punishment by fine to life imprisonment, but it is against the principle of minimum infringement, as it is against the principle of minimum infringement, inasmuch as the crime of traffic obstruction, regardless of how much the act would be committed, and how much the act would be committed if it interfere with traffic that belongs to or belongs to an organization or many people, and what degree of participation in such a criminal act, should be revoked.

3) Sub-decisions

As above, the underlying provision of this case goes beyond the limit of delegated legislation and is null and void in violation of the principle of excessive prohibition. Therefore, the disposition of this case based on the above underlying provision is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is legitimate and acceptable.

Judges Kim Jong-soo