Plaintiff (Attorney Lee Young-young, Counsel for the plaintiff-appellant)

Hongsung Gun

August 31, 2006

Daejeon District Court Decision 2005Guhap3044 Delivered on February 8, 2006

1. Revocation of a judgment of the first instance;

2. The defendant's disposition of rejection of the application for a private taxi transportation business license against the plaintiff on October 24, 2005 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On August 10, 2005, pursuant to Article 5 of the former Passenger Transport Service Act (amended by Act No. 7712 of Dec. 7, 2005; hereinafter “Act”), Articles 16 and 17 of the Enforcement Rule thereof (hereinafter “Enforcement Rule”), the Defendant issued a notice of application for the license of private taxi transport business (hereinafter “instant notice”) to the effect that five private taxi drivers will be issued according to the following order of priority.

Grade I (A) : A person who has driven a taxi due to an accident for at least ten years and has served in the same taxi company for at least seven years.

B. Class: A person who drives a taxi due to an accident for at least 13 years.

C: A person who drives a commercial motor vehicle by accident for at least 16 years.

D class: A person who has served for at least ten years in the same taxi company as of the date of application for a license.

E. Class: A person who drives a military vehicle for at least 16 years during military service period.

○ Second and Third: No recruitment plan is available.

B. Accordingly, from February 1, 1990 to September 2, 2005, the Plaintiff had a non-accidented driving experience for more than 10 years. From May 7, 1993 to September 2, 2005, who had served for more than 10 years in Ycheon-si Co., Ltd., the Plaintiff filed an application for a private taxi transport business license with the Defendant on September 2, 2005.

C. However, in accordance with Article 26(1) of the Act and Article 42 of the Enforcement Rule of the Enforcement Rule, a person who intends to be engaged in driving service of passenger transport business shall meet the criteria for close inspection of driving aptitude, and as long as he was engaged in a taxi driving service from February 1, 1990 without undergoing a close inspection of driving and has undergone a close inspection on April 6, 201, the above period of driving without meeting the requirements for a driver of a commercial vehicle must be excluded from the period of driving an automobile for business, and as a result, the plaintiff's driving experience is merely four years and four months from April 6, 201 to August 9, 205, and the plaintiff's driving experience is excluded from the first priority order for issuing a license as stated in the public notice of this case.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Defendant’s act of taking the instant disposition under the premise that the period of driving prior to being subject to a close inspection without any legal basis, excluding the Plaintiff’s driving experience, does not fall under the order of priority in issuing licenses as expressed in the instant public notice, is unlawful as it is an abuse of discretionary power.

B. Relevant statutes

Attached Table 1 is as stated in the "relevant statutes".

C. Determination

(1) Discretionary discretion of the instant disposition

Unless otherwise specifically provided for in Acts and subordinate statutes, a license for private taxi transportation business under the Passenger Transport Service Act is an administrative act that grants a specific person the right or interest, and it also belongs to the discretion of an administrative agency. Thus, barring any special circumstance where the standard established is objectively unreasonable or unreasonable, an administrative agency’s intent should be respected as far as possible. However, in specifically applying the criteria established by an administrative agency to a certain application for a license, if the application is deemed to fall under the priority order for the issuance of a license, and thus, the disposition of refusal to grant a license is an illegal disposition that abused the discretionary authority, barring special circumstances (see, e.g., Supreme Court Decisions 2001Du8414, Jan. 22, 2002; 98Du1321, Mar. 13, 1998).

(2) Criteria for issuing private taxi transportation business licenses established by the Defendant

However, considering the purport of Gap's evidence Nos. 2 and 7, the defendant is a person who has no ground for disqualification under Article 7 of the Act, ② a person who meets the qualification requirements under Article 17 (1) 1, 2, and 3 of the Enforcement Rule, ③ a person who meets the qualification requirements for driver of a motor vehicle under Article 42 of the Enforcement Rule (except for those whose period of validity expires after the date of application for close inspection) and (4) a person who has failed to obtain the driver's license under the Passenger Safety Regulations is announced as a prospective licensee. ⑤ A person who has resided in the Hong-gun area as of the date of the public notice of the application for the license, 6) a person who has not obtained a previous driver's license or an individual taxi, 7) a person who has failed to obtain the license under Article 7 of the Enforcement Rule, 3) a copy of the driver's license or other documents indicating his/her license's license, 3) a person who has failed to obtain the license's license or other documents indicating his/her qualification.

(3) Whether the disposition of this case deviates from or abused discretionary power

As above, Article 6(1) of the Act, Article 5 of the Enforcement Decree thereof, and Article 17 of the Enforcement Rule of the Enforcement Rule provide for the criteria for the license of private taxi transport business, and the defendant who has discretion in the disposition of the license within the scope of the license through the public notice of this case demands the above 2.C. (1) through (8) requirements as the qualification for application for the license. In relation to the calculation method of the period of driving experience, the defendant shall obtain a driver's license pursuant to Article 7 of the Rules on the Handling of License Affairs, which is Hong-gun, a private taxi, and shall be deemed to have a driving experience directly engaged in driving duties in a normal manner by rules of employment or collective agreements, etc., but the period for which he is not actually engaged in driving due to absence of more than 1 month, temporary retirement, lock-out, long-term strike, cancellation

On the other hand, the public notice of this case requires a person who is engaged in driving business to submit a comprehensive examination report in force as of the date of application for a license, along with the qualification requirements for a driver of a commercial vehicle as provided by Article 42 of the Enforcement Rule as well as the comprehensive examination report in force as of the date of application for a license. This is based on Article 26 of the Act and Article 42 of the Enforcement Rule, and its purpose is to ensure the safety of passenger transport business by prior examination as to whether the person who is engaged in driving business of a commercial vehicle transport business complies with a certain standard of inspection. If the person violates this, the person who is engaged in driving business is subject to an administrative

However, according to the criteria for issuing a license for private taxi transport business established by the Defendant, the period of driving experience required as a license application in the instant public notice refers to the period of directly engaged in driving practice in accordance with the rules of employment or collective agreement, etc. However, since the purpose of legislation and the methods of securing effectiveness and effectiveness are different, it cannot be interpreted that it is excluded from the period of driving experience until the period of driving without undergoing a close inspection without any legal basis. If the Defendant intended to exclude the period of driving experience from the period of driving without undergoing a close inspection different from the provisions of the public notice of this case or the rules on conducting a close inspection of driving experience, it should be clearly based on the laws and regulations or the standards established by the Defendant (On the other hand, if the period of driving experience means only the period of lawful driving beyond the standards set by the Defendant, demanding only the submission of a close inspection report with the materials to determine its legality is unreasonable in terms of equity, and there is no premise that the Defendant had already been driving only by calculating the period of driving experience, and there is no reason to require another type of application for a license application.

Ultimately, insofar as the Act and subordinate statutes on the criteria for license for private taxi transport business and the public notice of this case, which are the licensing criteria set by the Defendant within the scope of discretionary authority, and the regulations on the handling of license duties, etc. do not provide that the period of operating a motor vehicle without undergoing a separate precise inspection for driving is excluded from the driving experience, the Plaintiff, who had been in continuous service in Mine-gun, Inc. for more than 10 years from February 1, 1990 and has been in continuous service in for more than 10 years from May 7, 1993, constitutes the first priority class, which is the granting priority of license issued in the public notice of this case, but the Defendant’s previous disposition was unlawful since the Plaintiff was excluded from the driving experience on April 6, 201 on the ground that he had been under a thorough driving inspection without any legal basis.

3. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted as well as the judgment of the court of first instance which has different conclusions is unfair, so it shall be revoked, and it shall be decided as per Disposition with the decision to cancel the disposition of this case.

Judge Sung Pung-sung(Presiding Judge)