[1] The meaning of "private cars" which punish the act of providing commercial transport service under Article 81 subparagraph 7 of the Passenger Transport Service Act

[2] The case holding that a vehicle provided by the defendant for a commercial transport is not a "private vehicle" which is punished under Article 81 subparagraph 7 of the Passenger Transport Service Act, in case where it is a vehicle for a car rental business under the Passenger Transport Service Act, which was moved into a siren company after the defendant purchased the vehicle for a commercial transport

[1] In light of the language and text of the provisions of Articles 81 subparag. 7 and 73(1) of the Passenger Transport Service Act, the term “private cars” to be punished when provided for commercial transport under Article 81 subparag. 7 of the Passenger Transport Service Act means the automobiles other than those for business under the provisions of the Passenger Transport Service Act.

[2] The case holding that since a vehicle offered by the defendant for a commercial transport is a vehicle for a car rental business under the Passenger Transport Service Act, which is a vehicle located in a siren after the defendant purchased for a commercial transport, it does not constitute a "private vehicle" which punishs an act of providing commercial transport under Article 81 subparagraph 7 of the Passenger Transport Service Act

[1] Articles 73(1) and 81 subparag. 7 of the Passenger Transport Service Act / [2] Articles 73(1) and 81 subparag. 7 of the Passenger Transport Service Act

Defendant

Defendant

Suwon District Court Decision 2005No2178 Decided September 27, 2005

The judgment of the commission shall be reversed, and the case shall be remanded to the Suwon District Court Panel Division.

We examine the grounds of appeal.

The gist of the conjunctive facts charged in this case is that even if a private car is not provided or rented for a commercial transport purpose, the defendant conspired with the non-indicted in collusion with the defendant for a commercial transport purpose, it was provided for the commercial transport purpose of a private car for seven times in total, including the transportation of a private car by obtaining KRW 80,000 in return for the transportation of a private car from the Osan Training Institute and receiving KRW 80,000 in return for the transportation of the private car. The court below found the defendant guilty of the facts charged in this case on the premise that the car constitutes a private car under Article 81 subparagraph 7 of the Passenger Transport Service Act and Article 73 (1) of the same Act.

However, such judgment of the court below is hard to accept.

Article 81 subparagraph 7 of the Passenger Transport Service Act provides that "any person who provides or leases a private motor vehicle for transport with compensation in violation of Article 73 shall be punished by imprisonment for not more than two years or by a fine not exceeding twenty million won." Meanwhile, Article 73 (1) of the same Act provides that "any motor vehicle other than a private motor vehicle (hereinafter referred to as "private motor vehicle") shall not provide or lease it for transport with compensation (including expenses necessary for the operation of the motor vehicle)." In light of the language and text of the above provision, "private motor vehicle" which is punished when it is provided for transport with compensation in accordance with subparagraph 7 of Article 81 of the Passenger Transport Service Act means a motor vehicle other than that for business under the provisions of the Passenger Transport Service Act.

However, according to the records, this case's car offered by the defendant for commercial transport is a vehicle registered in the name of the corporation (company name omitted) rental car and entered into the automobile for the automobile rental business under the Passenger Transport Service Act after purchasing by the defendant, and thus, it cannot be deemed that this case's car constitutes a "private car" which is punished by Article 81 subparagraph 7 of the Passenger Transport Service Act.

Therefore, even if the defendant conspired with the non-indicted for the purpose of transporting the automobile of this case for a fee, such act cannot be punished pursuant to Article 81 subparagraph 7 of the Passenger Transport Service Act.

Nevertheless, the court below found the defendant guilty on the premise that the automobile of this case constitutes a private automobile, not a commercial automobile, and thus, it erred in the misapprehension of the legal principles as to the violation of the Passenger Transport Service Act or in the misapprehension of the rules of evidence, which affected the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)