2017Nu57075 Revocation of revocation of driver's license

A person shall be appointed.

The Commissioner of Incheon Local Police Agency

Litigation performer ○○○

Incheon District Court Decision 2017Gudan50260 Decided June 13, 2017

November 24, 2017

December 22, 2017

The judgment of the first instance is revoked.

The defendant's revocation disposition of the driver's license granted to the plaintiff as of February 2, 2017 shall be revoked.

All costs of the lawsuit shall be borne by the defendant.

The order is as set forth in the text.

1. Basic facts and circumstances of dispositions;

A. On August 9, 1988, the Plaintiff’s license for Class 2 motorcycles, and Class 2 of February 15, 1996, respectively.

On October 6, 2008, Class I ordinary driver's license was acquired respectively.

B. Modern Motor Vehicles Co., Ltd. (hereinafter referred to as "Gangseo Tourism") in which the Plaintiff was in office

Incheon Southern-gu Agency (hereinafter referred to as "Modern Motor Vehicle") and a motor vehicle purchase contract for a franchiseer motor vehicle.

A. On December 13, 2016, when the franchiser car (hereinafter referred to as “the instant vehicle”) was released:

Modern Motors are registered in the course of delivering the instant motor vehicle to the Gangnam Tourism on December 15, 2016.

Since it is impossible to replace a vehicle even after the occurrence of a defect, the instant vehicle as a new model.

Having been operated with temporary operation permission in preparation for any defect in quantity; and

In January 2017, the vehicle registration should be completed at the beginning of January 2017 when there is no error in the vehicle.

C. Accordingly, a holiday holiday on December 15, 2016 (the period of permission: December 13, 2016) a temporary operation permission on December 15, 2016

In this case, upon receipt of a temporary number plate under the name of the head of Jung-gu Incheon Metropolitan Government on December 22, 2016, attached 97951

A person who received a vehicle from a modern vehicle, and who is a corporation KB Damage Insurance and the instant vehicle

The same comprehensive insurance contract (insurance period: December 15, 2016 to December 15, 2017) was concluded.

D. On December 23, 2016, the day following the expiration of the period of temporary operation permission of the instant vehicle.

19:In the case of operating the instant vehicle on the street before a small-scale terminal as between 50 and 239, as between 50 and 239.

The examination was controlled.

E. The defendant, on the ground that the plaintiff has driven a vehicle not registered in the register of automobiles:

On February 2, 2017, pursuant to Article 93(1)16 of the Road Traffic Act, revocation of all of the Plaintiff’s driver’s licenses.

(hereinafter referred to as the "disposition of this case") was made.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 1 to 10

each entry, the whole purport of the pleading, including subparagraph,

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of the grounds for disposition

Temporary operation permission from the beginning only when the period of temporary operation permission has expired for the instant vehicle

The person liable for registration of the instant vehicle is not a plaintiff but a modern automatic vehicle.

Risk of harm caused by the operation of unregistered vehicles is likely to occur due to different types of automobile insurance;

Comprehensively taking account of the fact that the Plaintiff did not have had a temporary operation permit period expired, the instant vehicle

of the Road Traffic Act only with the driving of the vehicle for a day

“A vehicle which is not registered under the Automobile Management Act or which is not permitted to operate temporarily.”

In the previous case, it can not be considered to be a case.

2) A deviation from and abuse of discretionary power;

The plaintiff did not know that the period of temporary operation permission has expired and the plaintiff operated the vehicle in this case.

Before the expiration of the period of temporary operation permission, the plaintiff shall make a regular registration in Gangseo Tourism prior to the expiration of the period of temporary operation permission.

The plaintiff was trying to fulfill his duty of care, such as requesting that he made a request, and the plaintiff was a 14-year driver.

Unless it has been controlled once due to the use of a mobile phone during driving, there is no other record of violation of other Acts and subordinate statutes.

In general, such as the fact that the disposition of this case is significantly hindered in performing the affairs of this case

In light of the foregoing, the instant disposition is too harsh to the Plaintiff compared to the public interest to be achieved.

There is an error of deviation and abuse of authority.

B. Determination

1) Relevant statutes

According to the Automobile Management Act, automobiles (excluding two-wheeled automobiles: hereinafter the same shall apply) are the register of automobiles.

(Article 5), a motor vehicle shall not be operated unless it is registered (Article 5), and a date and time without being registered.

A person who intends to operate shall obtain a temporary operation permit (Article 27), and automatic without registration.

When operating a vehicle, he/she shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 20 million won.

(Article 80(1)).

Meanwhile, Article 93 (1) of the Road Traffic Act provides that "the commissioner of a district police agency shall obtain a driver's license.

In any of the following cases, a driver shall meet the standards prescribed by Ordinance of the Ministry of the Interior:

De-permission or suspension of the effect of a driver's license for a period not exceeding one year.

under the proviso, "Provided, That the period of a regular aptitude test shall not be any of the following subparagraphs."

subsection (1), (2), (12), (14), (16) through (18, and (20)

in the case of a party, the driver's license must be revoked. "The Road Traffic Act 93" provides that "the driver's license shall be revoked."

Section 1(1)16 of the Motor Vehicle Management Act provides that "not registered pursuant to the Motor Vehicle Management Act or obtained temporary operation permission."

In the case of operating a motor vehicle (excluding two-wheeled motor vehicles), it is defined as "motor vehicle".

2) Scope of application under Article 93(1)16 of the Road Traffic Act

In full view of the contents of the relevant laws and regulations as seen earlier, a person who possesses a driver’s license temporarily;

In the case of operating a motor vehicle without permission, it shall be operated pursuant to the proviso to the provisions of the same Article.

There is no doubt about the interpretation that the license is revoked.

The problem is that a person who holds a driver's license obtained temporary operation permission for the relevant vehicle;

In the case of operating with an excessive permission period, the temporary operation permission is prohibited in principle;

A system that exceptionally permits the operation of unregistered vehicles, except in extenuating circumstances;

A vehicle whose effect of permission ceases to exist due to the expiration of the period of permission for operation and whose period of temporary operation permission is over the Do;

In light of the fact that administrative needs to restrain operation are recognized, road traffic in this case.

It is reasonable to interpret Article 93 (1) 16 of the Act as applicable.

However, considering the following circumstances, Article 93(1) of the Road Traffic Act

The occupation of the driver of a driver's license when applying only the main sentence or the proviso thereof.

Inasmuch as there is high probability of unconstitutionality by infringing upon the freedom of freedom or the general freedom of action, the court shall

It is necessary to limit and interpret the prohibition of unconstitutionality.

A) The Constitution is the highest norm binding all national agencies in legislative, judicial, and administrative affairs, and the legislation.

Since the authority to interpret and apply is an essential element of the judicial power, the court shall rule on the Constitution.

Article 103 of the Constitution shall be interpreted in harmony with the Constitution and laws. Article 103 of the Constitution shall also apply to judges under the Constitution and laws.

by prescribing that the trial shall be conducted according to one's conscience, but the judge shall comply with the trial.

There is a declaration that the appropriate norm is the Constitution. Accordingly, a number of interpretations in respect of any legal provision are being made.

If this is possible, a judge shall be given priority in light of the language and purpose of the legal provisions.

To the extent of the interpretation consistent with the Constitution, i.e., constitutional interpretation (Supreme Court Decision 2009.

2. Constitutional Court en banc Decision 2004Du10289 Decided July 21, 1989; 89Hun-Ma38 Decided July 21, 1989

(see, e.g., Supreme Court Decision).

B) The proviso of Article 93(1) of the Road Traffic Act is an aggravated administrative act under the main sentence of the same Article.

Since the other party's rights and interests are more restrictive administrative acts, the requirements for establishment of such administrative acts are the main text.

It is necessary to interpret more strictly than the requirements for establishment, and in light of the above constitutional principles of statutory interpretation.

If this is strictly limited and interpreted by the Constitution, the court shall actively do so.

In addition, there is a duty to interpret the same as the above.

C) Article 93(1) of the Road Traffic Act provides for the grounds for revocation and suspension of a driver’s license.

As an exception, the reason why the degree of illegality is serious is required in the proviso.

section 93(1)16 of the Road Traffic Act provides that a non-registered vehicle shall be filed

operation constitutes operation. The reason why the operation of unregistered vehicles is prohibited is automatically permitted.

The subject of responsibility for the operation of the vehicle becomes unclear, and a legitimate administrative control is taken against it.

by increasing criminal acts using a motor vehicle and failing to meet safety standards;

Operation of a motor vehicle not only increases the risk of danger and impediment to traffic, but also operates of the motor vehicle.

In the event of damage, the scale of the risk of determining the legal person or making it difficult to remedy damage;

This is because the law imposes strict criminal liability on operators of unregistered vehicles. Therefore, the law imposes strict criminal liability on operators of unregistered vehicles.

It imposes not only administrative sanctions but also administrative sanctions to cancel the driver's license. However, it does not mean that the driver's license is cancelled.

In the case of a vehicle permitted to operate the vehicle, administrative control over the vehicle at the stage of temporary operation permission.

As such, the risk has already been substantially eliminated to a substantial extent;

Where a non-registered vehicle is operated without temporary operation permission from the beginning;

In fact, the Plaintiff does not appear to be the same. In this case, the temporary operation permit period stated by the Plaintiff.

No registration shall be made without obtaining temporary operation permission by operating the instant vehicle in the state of attaching the plate.

Unlike the operation of a vehicle, there was little possibility to conceal the state of violation.

D) Other provisions under the proviso of Article 93(1) of the Road Traffic Act as a requisite cause for revocation of a driver’s license.

Even in comparison with the illegality of the reason, the case where the proviso of the Disposition No. 16 applies

Operation of a car without registration or temporary operation permission under the Motor Vehicle Management Act from the beginning;

(1) In the case of a temporary operation permit, it shall include the period in which the temporary operation permit is issued;

It does not mean that the other necessary driver's license provided in the proviso of Article 93 (1) of the Road Traffic Act is not interpreted.

The grounds for revocation shall be for violation of three times of drinking driving (subparagraph 2), non-compliance with the measurement of drinking alcohol (subparagraph 3), and the deduction of another person's motor vehicle.

A seed shall obtain and maintain a license (No. 12), 1) without a license, failure to pass an aptitude test, misappropriation of a driver's license, etc.

Relevant reasons (No. 7-9, 17, 18, 20), violence against enforcement officers (No. 14), etc., and these reasons.

If the period of temporary operation permission has elapsed even when compared, the illegality is significantly low. 2)

E) Article 93(1) proviso of the Road Traffic Act in the case of operating a vehicle with a temporary operating permit period exceeding that of the temporary operation permit

If it is interpreted that it is applicable, the Commissioner of the Local Police Agency shall grant a driver the license with the exception of the permission period.

·the circumstances leading up to the commission, the Do and the period, the relationship between the owner and the driver, the driver's intentional act with respect to the violation;

It may be necessary for all cases where the period of permission is lapsed without considering all circumstances, such as negligence.

The cancellation of a driver's license will result in the cancellation of the license, which is the public interest expense to be achieved under the above provision.

Despite being in progress, the freedom of occupation or the freedom of general action of the driver's license holders excessively;

The limitation results are contrary to the principle of balance of legal interests.

F) Legislative intent to restrict the application of the proviso of Article 93(1) of the Road Traffic Act as above

It is difficult to deem that there is a blank or it is difficult to achieve the purposes of administration. Temporary operation permission is granted.

In the case of operating with an excessive period, local police still in accordance with the main sentence of Article 93 (1) of the Road Traffic Act.

The Commissioner of the Inspection Agency shall revoke the driver's license or suspend the driver's license for not more than one year to the violator.

Therefore, a driver's license is granted in the case of a serious degree of illegality operated over the temporary operation permission period.

There is no room for any unreasonable cause which cannot be cancelled.

Therefore, this Court does not exceed the extent that the plaintiff's act falls under the main sentence of Article 93 (1) of the Road Traffic Act.

Based on the premise that the instant disposition is an act, it is judged as to the legality of the instant disposition.

3) Specific determination

A) Determination as to the non-existence of the grounds for disposition

In the interpretation theory of Article 93 (1) 16 of the Road Traffic Act as seen earlier, the indictment is made.

In the case of the plaintiff, there are reasons falling under Article 93 (1) 16 of the Road Traffic Act to the plaintiff.

Therefore, the plaintiff's assertion of this issue is without merit.

B) Determination on the deviation and abuse of discretionary power

The facts and evidence admitted above are the whole purport of the pleading.

In light of the following circumstances, the public interest to achieve the disposition of this case

Since the disposition of this case is deemed to have a great disadvantage to the plaintiff, the disposition of this case is proportional won.

It is recognized that there was deviation from and abuse of discretionary power against the rules. Accordingly, the plaintiff pointing this out.

The argument is justified.

(1) On the day when the Plaintiff committed a violation, the day following the expiration of the period of temporary operation permission of this case.

and the period of the violation is only one day.

(2) The Plaintiff is not a person obligated to register the instant vehicle or a person permitted to temporarily operate the instant vehicle.

The Plaintiff was in the position of a member of the company for tourism in the lecture, a purchaser of the instant vehicle, and inside the train.

There is no evidence to deem that the obligation to register or obtain temporary operation permission was responsible.

(3) As to the circumstances in which the Plaintiff committed the act of violation at an investigative agency as above, the Plaintiff’s act of violation at the investigative agency is as follows.

15. Temporary operation period is 10 days after delivery of the instant vehicle from the Motor Vehicle Sales Board.

Because the period of temporary operation permit was known to December 24, 2016, temporary operation permit was made temporary on December 22, 2016, and temporary on December 22, 2016

The term of operation has expired. The plaintiff changed from the Motor Vehicle Sales Board.

The date of delivery of the instant vehicle is December 15, 2016, and the temporary operation permission is 10 days ( December 13, 2016).

In light of the fact that there is a temporary operation permit on December 22, 2016, etc., the temporary operation permit is granted to the instant vehicle on the temporary operation number plate.

Since the period of time is clearly specified, such circumstance up to the extent that the plaintiff's criminal liability is denied.

There are at least some points to be considered in the motive of the violation, even if it does not reach the level. 3)

(4) The instant vehicle is only 10 days after it was released on December 23, 2016, the date of control.

A motor vehicle, as above, was transferred from December 15, 2016 to December 15, 2017, with the date of delivery.

In light of the fact that the vehicle was covered by a comprehensive insurance, the responsibility for the operation of the vehicle of this case is responsible for the vehicle.

Even if the subject is unclear or the risk of traffic danger and obstacle increases.

It is difficult to do so.

3. Conclusion

Thus, the plaintiff's claim of this case is justified. The judgment of the court of first instance differs from this conclusion.

Since it is unfair, the plaintiff's appeal is accepted and the judgment of the first instance is revoked, and the disposition of this case is revoked; and

All costs of the lawsuit are assessed against the losing defendant. It is so decided as per Disposition.

Justices Kim Yong-seok

Judges Supbing

For the purpose of judge sex impulse

1) In the Constitutional Court en banc Order 2016Hun-Ga6 Decided May 25, 2017, the former Road Traffic Act (amended by Act No. 1081, Jun. 8, 2011)

Article 93 (1) 12 of the Act amended by Act No. 10790 and amended by Act No. 13829, Jan. 27, 2016)

When a person steals a motor vehicle, etc., the part " shall be free from the occupation of the person holding the driver's license or freedom of general action."

The Court ruled that infringement was unconstitutional.

2) In particular, Article 93(1)1 of the Road Traffic Act provides that driving under the influence of alcohol (less than three times), subparagraph 4 of the same Article, subparagraph 6 of the same Article shall be the driver's license of traffic accidents.

(1) In this case, only the main sentence of Article 93 (1) of the Road Traffic Act shall apply and the proviso shall not apply.

Taking into account equity, the driver’s license is necessary to be revoked solely on the ground that the temporary operation permit period has been exceeded.

It goes against equity.

3) The Plaintiff was indicted for violation of the Motor Vehicle Management Act on the ground that he operated a non-registered vehicle and was vice versa in the Incheon District Court.

At Won, upon being sentenced to a fine of 200,000 won on May 12, 2017 (2017 High Court Decision 278), the Plaintiff appealed against this (2017 High Court Decision 278).

On October 20, 2017 at the Incheon District Court, the appeal was dismissed (2017No1919), and the post-appeal was later dismissed.

The decision was finalized as it is.