Defendant 1 and two others

The Kim Delay (Lawsuits), Kim Jong-chul, the water conveyance, the water conveyance, the Kim Delay, and the Kim Il-young (Trial)

Attorney Hong-soo

Defendants are not guilty.

The summary of this decision shall be published.

1. Facts charged;

Defendant 1 is the representative of Defendant 2 Co., Ltd., Defendant 3 Co., Ltd., and the vice-president of the Ganbuk Cargo Association, and Defendant 2 Co., Ltd and Defendant 3 Co., Ltd are corporations with the purpose of trucking transport business.

A. Defendant 1

1) Violation of the Trucking Transport Business Act

The increase of the number of trucks by a person who has obtained permission for trucking transport business shall be an alteration of the permitted matters and shall obtain permission of the Minister of Land, Transport and Maritime Affairs, as prescribed by Ordinance of the Ministry

Nevertheless, the Defendant had attempted to operate trucking transport business by increasing the general truck without obtaining permission for change by replacing the specific-use truck with the general-use truck and registering it with the general-use truck.

Although the Defendant did not allow the Gyeongbuk-do Trucking Transport Business Association to substitute for a general truck, Defendant 3 Co., Ltd. (vehicle No. 2 omitted) reported the permissible special-purpose truck to be supplied as a general truck and received notification for the modification of the permitted matters in the name of the head of the said Association on the replacement of the general truck.

On May 2, 2008, the Defendant submitted a notice of repair at the ○○ City Building Registration Office located in the south-gu Office of Port-si, Seoul, to register as a general truck (vehicle No. 2 omitted) and actually increased the number of a general truck without obtaining permission for change.

From May 2, 2008 to August 7, 2008, the Defendant: (a) removed a general truck with a specific-use type of truck permitted to be supplied at least four times in total as shown in the annexed Table (1), and registered it as a general truck and actually increased the four general truck without obtaining permission for change.

Accordingly, the Defendant operated trucking transport business without obtaining permission from the Minister of Land, Transport and Maritime Affairs.

2) Fraud

On April 29, 2008, the Defendant: (a) at the office of Defendant 3 Co., Ltd. located in Macheon-gu, Nam-gu, Sincheon-gu, Sincheon-gu, Seoul on April 29, 2008, the Defendant sold the number plate of the (vehicle No. 2 omitted) truck, as if it were a general truck, and received KRW 10 million from the victim as the price therefor.

From April 29, 2008 to February 2, 2010, the Defendant received 1,5830,000 won from three third parties, such as the victim Nonindicted Party 1, etc., on a total of three occasions, as shown in the attached Form (2) in the above manner, and acquired it by deception.

B. Violation of the Trucking Transport Business Act by Defendant 2

As to his duties, Defendant 1, a representative, committed the same act as that of the above A. (1).

C. Violation of the Trucking Transport Business Act by Defendant 3

As to his duties, Defendant 1, a representative, committed the same act as that of the above A. (1).

2. Determination

A. Comprehensively taking account of the legitimate evidence submitted in this Court, it is recognized that ① (vehicle number 2 omitted), (vehicle number 3 omitted), and (vehicle number 4 omitted) reported the scrapping of a general truck to a general-type truck even though it is impossible to substitute for a general-type truck with a transport tank for the transport of cancer, and the fact that (vehicle number 1 omitted) obtained permission to increase the number of a truck to a tank for the disposal of food waste on October 1, 2007, and (3) it is allowed to substitute for a general-type truck with a limited special-purpose truck for the disposal of food waste.

B. Comprehensively taking account of the following circumstances in the above facts, insofar as the increase in the number of vehicles was permitted in the case of (vehicle No. 1 omitted), so long as it was increased by a special-purpose truck with a limited-use truck, it cannot be said that the permitted special-purpose truck with a general-use truck as stated in the facts charged, was increased by replacing it as a general-type truck, and even if Defendant 1 operated the trucking transport business by increasing the general-type truck with the same method as stated in the facts charged, it cannot be deemed as falling under Article 67 subparagraph 1 and Article 3 (3) of the former Trucking Transport Business Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Transportation Business Act”). [The Prosecutor was indicted by applying the current Transport Business Act (No. 1258) to the facts charged in this case, and thus, Article 3 (3) of the said Act before the amendment shall apply].

1) Article 3(3) main text and Article 3(5) of the Transport Business Act provides that a trucking business operator shall obtain permission for change from the Minister of Land, Infrastructure and Transport in order to increase a truck. However, the proviso of Article 3(3) of the Transport Business Act and Article 2(4) of the Enforcement Decree of the same Act provide that the Minister of Land, Transport and Maritime Affairs shall report the change to the Minister in order to substitute for a truck. In addition, Article 67 Subparag. 1 of the same Act provides that a trucking business operator shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding 20 million won if the trucking is scrapped without permission for change or with permission for change obtained by fraudulent or other illegal means, but it is clearly distinguishable from increase in the number of vehicles and scrapping because there is no such penal provision

2) Meanwhile, an application for permission for trucking transport business submitted by a person who intends to obtain permission or permission for alteration of trucking transport business (attached Form 3 of the Enforcement Rule of the Transport Business Act) is required to state only the “type of business intended to run” and “number of trucks to be used for a business”. Article 3 of the Enforcement Decree of the Transport Business Act is required to distinguish the type of trucking transport business from the “general trucking transport business” and “individual trucking transport business” and “individual trucking transport business” according to whether the type of the entire trucking transport business is used or not, but does not distinguish the type of business depending on whether the truck is a special purpose type or a general type of trucking transport business. Therefore, it is reasonable to deem that obtaining permission for alteration under the main sentence of Article 3(3) of the Transport Business Act is limited to cases where the type of trucking transport business or the number of the entire trucking businesses is changed, and only the change

3) In the instant case, Defendant 1’s increase of a general truck through the scrapping of a car and the reduction of a special-purpose truck in proportion thereto. Therefore, only the construction cost of a special-purpose truck and a general-use truck is changed, and there is no change in the total number of trucks. Thus, the Defendant’s act is merely merely the act of the above Defendant’s act requiring a change, but it cannot be seen as an increase in the number of trucks requiring a change. Thus, even if the above scrapping can be rejected on the ground that it violates the Regulations on the Handling of Trucking and Scrapping Business (Public Notice of the Ministry of Land, Infrastructure and Transport) or the internal regulations and guidelines related to the handling of the business of the scrapping of a truck, the above Defendant cannot be punished on the ground that the act of the

4) Furthermore, Article 3 of the Regulations on the Handling of Trucking and Scrapping Business (Public Notice of the Ministry of Land, Infrastructure and Transport) permits the replacement and scrapping of trucks, in principle, but subparagraph 1 of the same Article prohibits the borrowing and lending of a truck permissible special-purpose truck as a general truck. However, there is no provision on the restriction on the scrapping of a truck until June 15, 201, there is no provision on the restriction on the scrapping of a truck by the time when the Trucking Transport Business Act was amended by Act No. 10804, Jun. 15, 201, the relevant provision was newly established, and accordingly, the ground provision under the Enforcement Rule of the Trucking Transport Business Act was newly established on December 16, 2011.

Furthermore, the above notice was established on November 8, 2009, and the truck for special use permitted to be supplied in accordance with the internal regulations and guidelines regarding the handling of the scrapping of the truck was merely the lending and borrowing of the general truck. Therefore, even if the above defendant used the special-use truck as a general truck during the period from May 2008 to August 2008, it cannot be viewed as a violation of the Transport Business Act, regardless of the violation of internal regulations and guidelines.

C. As long as Defendant 1’s act is not a violation of the Transport Business Act, the facts charged against Defendant 2 and Defendant 3 also cannot be said to have violated the said Transport Business Act.

D. In addition, even if Defendant 1 sold a truck for the scrapping or alteration of its structure as above, it cannot be deemed as deceiving the victim unless it was an illegal and increased truck, and there is no other evidence to recognize that the above defendant deceivings the victims. Therefore, fraud is not established.

3. Conclusion

Thus, the facts charged in the instant case are not a crime or there is no proof of a crime, and thus, the Defendants shall be acquitted pursuant to Article 325 of the Criminal Procedure Act, and the summary of this judgment shall be publicly announced pursuant to Article 58(2) of the Criminal Act.

[Attachment Form 5]

Judges Park Dool

(1) Article 57 (Conditions for Appropriation of Trucks) (1) The age of a truck appropriated for new registration of trucking transport business and trucking franchise business, for the increase of the number of vehicles or for the replacement of the vehicles (referring to the replacement of the vehicles, etc. for which age limits expire for other vehicles) shall not exceed the age limits prescribed by Presidential Decree within the range of three years: Provided, That the conditions for appropriating the vehicles may vary:

(3) In addition to the matters provided for in paragraphs (1) and (2), the procedures and methods for the scrapping of the relevant cargo vehicle shall be prescribed and publicly notified by the Minister of Land, Transport and Maritime Affairs with respect to the detailed types, maximum discretion, etc. of the relevant cargo vehicle; 2. The deadline: The period shall be determined and publicly notified by the Minister of Land, Transport and Maritime Affairs within six months from the date of the report on the change of the scrapping of the relevant motor vehicle: Provided, That the period may be extended only once within one month: Provided, That the procedures shall be extended by up to one month if the scrapping of the motor vehicle is completed.