Defendant

Defendant

Kim Byung- Line (public prosecutor acting on behalf of, indictment for, and prosecution for, the person involved in a case)

Attorney Sung-sung (Korean)

Seoul Central District Court Decision 2013Gohap856 Decided August 30, 2013

The judgment of the first instance shall be reversed.

The sentence of sentence against the defendant shall be suspended.

1. Summary of grounds for appeal;

misunderstanding of facts or misunderstanding of legal principles (the defendant, as a trucking trucking business operator, operated the freight properly and operated the joint business and divided freight rates to the rest of the joint business operators participating in the transportation, but did not operate the freight forwarding business without permission) and unfair sentencing.

2. The judgment of this Court

A. As to the assertion of mistake of fact

(1) Relevant provisions ( Trucking Transport Business Act)

Article 67 (Penal Provisions)

Any of the following persons shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 20 million won:

2. Any person who has run a freight forwarding business without obtaining a license under Article 24 (1) or with obtaining a license by fraudulent or other illegal means;

Article 24 (Permit, etc. for Freight Forwarding Business)

(1) A person who intends to operate freight forwarding business shall obtain permission from the Minister of Land, Infrastructure and Transport.

(3) Types of freight forwarding businesses under paragraph (1) shall be prescribed by Presidential Decree.

Article 2 (Definitions)

3. The term "trucking transport business" means a business that engages in the commercial transport of cargo by using trucks in compliance with requests from other persons;

4. The term "motor-freight forwarding business" means a business that acts as a broker or an agent for a fee in compliance with requests from any third person, or a business that transports cargo in his/her name and on the account using a truck transportation means of transport from a person who runs a trucking transport business

Article 9 (Types of Forwarding Businesses)

Types of freight forwarding businesses under Article 24 (3) of the Act shall be as follows:

1. Transportation brokerage business for moving-in cargo: A brokerage business for handling (including incidental services, such as packing and keeping) moving cargo;

2. General cargo forwarding services: Brokerage services for cargo which is not a director cargo;

[This Article Newly Inserted by Act No. 1101, Dec. 13, 2011]

(2) Determination

Article 2 subparag. 4 of the Trucking Transport Business Act includes a kind of transportation brokerage business which transports cargo under its name and on its account, in addition to the transportation brokerage business which acts as a broker or an agent for a cost in response to another person's request (see Supreme Court Decision 2007Da80619, Feb. 14, 2008). It seems reasonable to have been established on December 13, 201 for the purpose of including the package director business which is likely to be controversial in the category of the truck transportation brokerage business in the category of the truck transportation business. Considering the fact that the 10th anniversary of the above interpretation of Article 9 of the Enforcement Decree of the Trucking Transport Business Act or the legislative intent of the administrative agency, it is not possible to interpret the law as the 3rd interpretation of the law as well as the so-called 3rd interpretation of the law as the 2nd interpretation of the law as well as the so-called 3rd interpretation of the law as the 3rd interpretation of the law as well as the so-called 3rd interpretation of the law.

On the other hand, according to the evidence duly examined and adopted by the first instance court (in particular, the person, the name, etc.) in this case, the defendant can be deemed to operate the freight forwarding business without permission by providing the following services as well as various incidental services, such as the packaging, packing, and unloading of the board cargo, beyond the simply transporting level as a trucking business operator. Therefore, the defendant's allegation that raised this issue is not acceptable.

B. As to the assertion of unfair sentencing

In light of the following: (a) there is no history of punishment for a crime similar to the Defendant; and (b) the interpretation of the instant penal provision includes a difficult aspect to the extent of controversy among legal experts; (c) there is no established precedent or authoritative interpretation; and (d) the degree of possibility of criticism against the Defendant and the same permanent business operator is relatively low; and (e) taking into account various sentencing conditions as indicated in the instant argument, including the Defendant’s age, character and conduct, motive and circumstance of the crime, and circumstances before and after the crime, the fine imposed by the first instance court is somewhat unreasonable

3. Conclusion

Therefore, the defendant's appeal is accepted, the judgment of the first instance court is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the judgment is reversed and it is again decided as follows.

The summary of the facts charged and the evidence of this court are the same as the judgment of the court of first instance. Thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Selection of applicable laws and punishment concerning facts constituting an offense;

Articles 67 Subparag. 2 and 24(1) of the former Trucking Transport Business Act (Amended by Act No. 11690, Mar. 23, 2013).

1. The type to be suspended;

Fines 500,000

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act (50,000 won per day)

1. Suspension of sentence;

Article 59 (1) of the Criminal Act (No ground for disqualification for Suspension of Sentence exists to the defendant, and considering the favorable circumstances as seen earlier)

Judges Park Jong-dae (Presiding Judge)