2019Du4351 Revocation of the suspension of operation

A Stock Company

Yangsan City

[Plaintiff-Appellee] Plaintiff 1 et al.

Attorney Go-won, Justice Kim Won-won, Justice Kim Jong-won, Counsel for the plaintiff-appellant

Busan High Court Decision 2019Nu20143 Decided May 22, 2019

October 18, 2019

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Article 3(1) and (3) of the former Trucking Transport Business Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “trucking Act”) and Article 6(1) and (2), Article 7(1) and (2), and Article 9(2) and (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 “Enforcement Rule of the Trucking Act”) require the competent authorities to submit documents stating the type, type, type, etc. of each truck when applying for permission for trucking transport business or for permission for change accompanied by expansion of the number of trucks, and require the competent authorities to verify whether each truck is registered and whether each truck complies with the criteria for permission depending on the size, loading volume, type, etc. of the trucking transport business.

Meanwhile, Article 2 subparag. 4 of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 22502, Jun. 15, 2011; Presidential Decree No. 22502, 201; hereinafter referred to as the "Enforcement Decree of the Trucking Transport Business Act") provides that the "vehicle scrapping for a truck is subject to the permission of change," and Article 57 of the Trucking Transport Business Act provides that "the "vehicle scrapping for a truck whose age has expired" means replacing the vehicle with another vehicle for which the order has expired." The provision that the Trucking Transport Business Act delegates to the Minister of Land, Transport and Maritime Affairs with the amendment by Act No. 10804, Jun. 15, 2011; Article 57(2) of the Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 22502, Dec. 31, 201) is subject to the permission of the same supply of the truck (hereinafter referred to as "motoring Transport Act").

Article 52-3 (1) 1 of the Enforcement Rule of the Trucking Transport Business Act, which limits the object of the replacement of a vehicle to the "cases where supply is permitted as a truck for the same purpose of use", is limited to the case of a truck for the same purpose of use for which supply is permitted. In such a case, it is difficult to view that it is necessary to simplify the procedures for the replacement of a vehicle, on the premise that there is no need to re-examine whether the change is in conformity with the relevant Act and subordinate statutes. It is difficult to view that the purpose of excluding the cases where the supply volume varies before and after the replacement of a vehicle due to a change in the type and type of the vehicle."

Therefore, in order to constitute an act of changing the former vehicle into a new vehicle, which is subject to a change report under Article 2 subparag. 4 of the Enforcement Decree of the Trucking Transport Act, the act of changing the former vehicle into a new vehicle must be so minor as not to require an additional examination as to whether it conforms to the relevant statutes, including supply standards (see Supreme Court Decisions 2015Du50474, Feb. 18, 2016; 2018Du53498, Apr. 25, 2019; 2018Du65484, May 16, 2019). Therefore, changing the shape of a specific truck, the supply of which is limited, to a general truck, is not subject to a change report under Article 2 of the Enforcement Decree of the Trucking Transport Act, but subject to a change report under Article 3(3) main sentence of the Trucking Transport Act, which is inappropriate to be invoked in the instant case.

2. Nevertheless, the lower court determined otherwise, that the Plaintiff’s replacement of a truck for a general truck, the supply of which is limited, as a general truck with limited supply, was subject to a report on alteration. In so determining, the lower court erred by misapprehending the legal doctrine on permission to alter the truck transport business, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

2. Judgment of the presiding judge

Note Roster of Justice Lee In-bok

Justices Lee Dong-won

Justices Kim Gin-soo