[1] The legal nature of the act of establishing standards for recognizing driving experience related to the private taxi transportation business license and the discretion of the administrative agency

[2] The case holding that the disposition of rejecting an application for a license for a private taxi transport business was lawful, on the ground that the administrative agency's standard for recognition of a private taxi transport business license was set up "the period during which a private taxi transport business license was ordinarily engaged in driving practice" and the period of driving a taxi without undergoing a close inspection of the driving aptitude was excluded from the above driving experience,

[1] A private taxi transport business license under the former Passenger Transport Service Act (amended by Act No. 7712 of Dec. 7, 2005) is a so-called beneficial administrative act that grants a specific person a right or interest, and barring special provisions in the law, setting or amending the criteria for the method of recognition of driving experience within the order determined for the license belongs to the discretion of an administrative agency. Thus, as long as the establishment or modification of the criteria is not objectively reasonable or unreasonable, the administrative agency’s intent shall be respected as far as possible, and even if it may arise from unclear points in the interpretation of the criteria, if it is applied equally to all applicants by a rational interpretation and unification, it shall not be objectively reasonable.

[2] The case holding that the disposition of rejecting the application for the license of a private taxi transport business is lawful on the ground that the administrative agency's standard for recognizing the driving experience of a private taxi transport business license was set up "the period during which the private taxi transport business license was ordinarily engaged in driving practice" and the period of driving a taxi without undergoing a close inspection on the driving aptitude was excluded from the above driving experience

[1] Articles 5 and 6 of the former Passenger Transport Service Act (amended by Act No. 7712 of Dec. 7, 2005) / [2] Articles 5, 6 and 26 of the former Passenger Transport Service Act (amended by Act No. 7712 of Dec. 7, 2005)

[1] Supreme Court Decision 89Nu3984 delivered on December 8, 1989 (Gong1990Sang, 272) Supreme Court Decision 97Nu13061 delivered on February 13, 1998 (Gong1998Sang, 785) Supreme Court Decision 2004Du9531 Delivered on November 25, 2004, Supreme Court Decision 2005Du999 Delivered on July 22, 2005 (Gong2005Ha, 1429) (Gong206Du1386 delivered on February 8, 2007)

Plaintiff (Attorney transferred-type et al., Counsel for the plaintiff-appellant)

Hongsung Gun

Daejeon High Court Decision 2006Nu437 decided September 21, 2006

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

A private taxi transport business license under the Passenger Transport Service Act is a so-called beneficial administrative act that provides a specific person with rights or interests, and barring special provisions in Acts and subordinate statutes, the establishment of the standards for the method of recognizing driving experience within the order determined for the license and the modification of the established standards also belong to the discretion of an administrative agency. Thus, inasmuch as the establishment or modification of the standards is objectively unreasonable or unreasonable, the administrative agency’s intent shall be respected as far as possible (see Supreme Court Decisions 97Nu13061, Feb. 13, 1998; 2004Du9531, Nov. 25, 2004; 2005Du999, Jul. 22, 2005; hereinafter, etc.), even if the standards are unclear, if it can not be reasonably interpreted and uniformly applied to all applicants by unification (see, e.g., Supreme Court Decision 98Nu984, Dec. 38, 1989).

According to the records, on August 10, 2005, the defendant prescribed the age limit of 6 of the former Passenger Transport Service Act (amended by Act No. 7712 of Dec. 7, 2005; hereinafter "the Act") Article 5 of the former Passenger Transport Service Act and Articles 16 and 17 of the Enforcement Rule thereof (hereinafter "Enforcement Rule") as "public notice of application for a private taxi transport business for 2005", the number of licenses (5) and the method of license (as a result of the examination of the license application document, the number of private taxi businesses qualified for private taxi transport business who has not been disqualified for 10 years or more, and who has been working for the same taxi company for 7 years or more," and the person who has been working for the same taxi company for 10 years or more shall be excluded from the license application period under Article 7 of the Enforcement Rule.

Comprehensively taking account of the contents of the above provisions, driving of a commercial motor vehicle without undergoing a close inspection of driving aptitude is merely a motor vehicle in violation of the law, and thus, it is reasonable to deem that the period of driving does not fall under “the period during which a person has engaged in ordinary driving practice” as referred to in the above treatment regulations. The establishment of the standards for recognition of driving experience does not objectively and objectively unreasonable or unreasonable, and it is not different from the above treatment regulations or the content of the notice to the effect that “the period of driving a motor vehicle without meeting the qualifications for a commercial driver, such as a close inspection of driving aptitude, is excluded from driving experience.” (However, it is desirable for competent authorities to clearly state such purport in the public notice of license or application for license as determined by themselves).

On the other hand, “driving career” constitutes a requirement for issuing a personal taxi transport business license, which is a beneficial administrative act, and thus, a driver who is the other party to the administrative act bears the burden of proof (see Supreme Court Decision 2005Du999, Jul. 22, 2005). In examining the records of this case, it cannot be said that the Plaintiff was proved that he was judged to have been subject to a close inspection of driving aptitude before February 1, 1990, which claimed that the Plaintiff began to engage in a taxi transport business.

Therefore, the defendant's disposition rejecting the application for the driver's license of the passenger taxi transport business of this case on the ground that the period of operating a taxi before receiving a close inspection on the driver's aptitude is excluded from the driving experience and is legitimate. However, the court below accepted the plaintiff's claim seeking its revocation on the ground that the defendant's disposition did not have any grounds under the law and is illegal as it abused discretion, and thus, it is erroneous in the misapprehension of legal principles as to the administrative agency's discretion on the establishment and interpretation of the standards for the driver's license of the passenger taxi transport business which is a beneficial administrative act. The ground of appeal

Therefore, 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.

Justices Kim Hwang-sik (Presiding Justice)