Defendant 1 and five others

Defendants

Kim Jong-Hun, Kim Jong-Gyeong (Court of Justice) (Court of the Republic of Korea), and a trial of the court of law

Attorney Kang Jong-soo (National Election for all the defendants)

1. Jeju District Court Decision 201DaMa69 decided September 29, 2011 / 2. Jeju District Court Decision 2011DaMa44 decided September 23, 2011 / 3. Jeju District Court Decision 2011Ma229 decided September 29, 201 / 4. Jeju District Court Decision 201Ma106 decided September 29, 201

The part concerning Defendant 1 and 3 of the judgment of the first instance, the judgment of the second instance, and the judgment of the third instance, and the part concerning Defendant 2 and 3 of the judgment of the fourth instance shall be reversed.

Defendant 1 shall be punished by a fine of 200,000 won.

When Defendant 1 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

The sentence of each sentence against the defendant 2 and 3 shall be suspended.

To order the provisional payment of an amount equivalent to the above fine against Defendant 1.

Defendant 4, 5, and 6's appeal is dismissed.

1. Summary of grounds for appeal;

Notwithstanding the fact that the Defendants only arranged a car rental contract as a travel agency and did not conclude each of the instant rental contracts on behalf of the rental company, the lower court found the Defendants guilty of each of the facts charged of the instant case, and erred by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. Ex officio determination

We examine the Defendants’ grounds for appeal ex officio prior to the judgment.

As to Defendant 1 (Defendant 1 of the Supreme Court Decision), the first court sentenced Defendant 1 (Defendant 1) to KRW 201,00,000, each of the original courts was sentenced to a fine of KRW 200,000, after completing separate hearings with Defendant 2 (Defendant 2 of the Supreme Court Decision), with respect to Defendant 2 (Defendant 2 of the Supreme Court Decision 2011No. 44, 2011, 201, and 106, each of the original courts rendered a decision suspending all of the above original courts after completing separate hearings with respect to Defendant 3 (Defendant 3 of the Supreme Court Decision 2011No. 229, and the fourth original court’s decision No. 2011, 229, 2011, and 106, and each of the above Defendants was sentenced to a single penalty of KRW 3,000,000, and each of the above Defendants is subject to concurrent trials with the lower court’s judgment with respect to the above Defendants 2 and 3 of the Criminal Act.

B. Judgment on misconception of facts or misapprehension of legal principles

However, the defendants' assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of this court, despite the above reasons for ex officio reversal.

According to the records, ① a person who intends to operate a rent-a-car business shall register with the Mayor/Do governor, and a rent-a-car business operator shall not allow any other person to operate a rent-a-car business without obtaining permission from the Mayor/Do governor, and even in this case, no person who is not a rent-a-car business operator shall entrust the management of the rent-a-car business (see Articles 90 subparag. 4 and 6, 28(1), and 32(1) and (2) of the Passenger Transport Service Act). ② The defendants who operate a travel business enter into an agreement with a car rental business operator with the automobile rental business operator, and then transfer most of the remainder of the money except the fees to be borne by the travel business operator by the customers after oral or written terms and conditions of the lease, such as the period of lease, amount of lease, and type, etc. (in cases where the passenger rent is paid directly by the car rental business operator, the automobile rental business operator transferred money to the travel business operator under the name of the vehicle rental business operator.

It is reasonable to view that the term "agent" of a corporation or individual under Article 93 of the Passenger Transport Service Act includes a person who acts on behalf of the principal or who acts as an agent in actual manner without taking the form of representation because he/she actually takes charge of his/her business on behalf of the principal and takes charge of his/her own business on behalf of the principal. As acknowledged earlier, it is reasonable to view that the act of the Defendants, in consultation with the terms and conditions of leasing a motor vehicle rental business operator who wishes to rent a motor vehicle with customers and accordingly, acts of actually taking money on behalf of a motor vehicle rental business operator by having customers prepare a motor vehicle rental contract with the motor vehicle rental business operator and the motor vehicle rental business operator and receiving money under the pretext of the fee constitutes an act of "agent" under Article 93 of the same Act, not merely arranging the

Meanwhile, Article 3(1)1 of the Tourism Promotion Act defines the business of arranging the use of travel facilities, arranging the conclusion of contracts, providing guidance on travel, and providing other convenience to travelers or operators of transportation facilities, lodging facilities, and other facilities incidental to travel. As such, the Defendants, who are travel agencies, may act as a broker or agent for the conclusion of automobile rental contracts between travelers and automobile rental business operators due to the acts of carrying on travel business, but in such a case, it cannot be deemed that illegal arrangement or vicarious execution of contracts in violation of the statutes, as in the instant case.

Therefore, the Defendants’ assertion is without merit.

3. Conclusion

Therefore, of the judgment of the court below, the part against Defendant 1 and 3 among the judgment of the court below of first instance, and the part against Defendant 2 and 3 among the judgment of the court below of first instance, and the part against Defendant 4 among the judgment of the court of first instance, since there exist the above reasons for ex officio reversal, pursuant to Article 364(2) of the Criminal Procedure Act, this part of the judgment below is reversed, and it is again decided as follows, and the appeal against Defendant 4 (Defendant 4 of the judgment of the court of first instance), 5 (Defendant 5 of the judgment of the Supreme Court), and 6 shall be dismissed in its entirety

The summary of Defendant 1, 2, and 3’s criminal facts and evidence recognized by this Court is as shown in each corresponding column of the judgment below, except for the deletion of “written charge” among the summary of the evidence of the court of first instance. As such, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Defendants: Articles 92 subparag. 9 and 31(1) of the former Passenger Transport Service Act (Amended by Act No. 11295, Feb. 1, 2012)

1. Aggravation for concurrent crimes;

Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

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

1. The type to be suspended;

Defendant 2, 3: Fines 200,000

1. Suspension of sentence;

Defendant 2 and 3: Taking into account the Defendants’ criminal records and relationships, the circumstances of the crime, etc.

1. Order of provisional payment;

Defendant 1: Article 334(1) of the Criminal Procedure Act

Judges Kim Byung-su (Presiding Judge)