[1] Whether a local government constitutes a corporation subject to joint penal provisions under Article 86 of the Road Act (affirmative with qualification)

[2] In a case where a public official belonging to a local government violated the restrictions on vehicle operation of a road management authority by loading more than a limited axis while driving on an expressway while driving a compressed truck on an expressway, the case holding that the relevant local government is subject to punishment under Article 86 of the Road Act

[1] In full view of the provisions of Article 117 of the Constitution, Articles 3(1), 9, and 93 of the Local Autonomy Act, Articles 54, 83, and 86 of the Road Act, if the State delegates part of its original affairs to the head of the local government and performs its affairs, the local government may be deemed part of the State’s affairs. However, if the local government administers its own autonomous affairs, it is not a part of the State’s affairs, but a public corporation separate from the State’s affairs. Thus, if a public official belonging to the local government commits a violation under the provisions of Articles 81 through 85 of the Road Act while performing its own autonomous affairs, the local government constitutes a juristic person subject to punishment pursuant to the joint penal provisions of Article 86 of the Road Act.

[2] In a case where a public official belonging to a local government violated the restrictions on vehicle operation of a road management authority by loading more than a limited axis while driving on an expressway while driving a compressed truck on an expressway, the case holding that the relevant local government is subject to punishment under Article 86 of the Road Act

[1] Article 117 of the Constitution, Articles 3(1), 9, and 93 of the Local Autonomy Act, Articles 54, 83, and 86 of the Road Act / [2] Article 86 of the Road Act, Article 9(2)2(i) of the Local Autonomy Act

Seo-gu Busan Metropolitan Government

Defendant

Busan District Court Decision 2003No4401 Delivered on April 22, 2004

The appeal is dismissed.

In full view of the provisions of Article 117 of the Constitution, Articles 3(1), 9, and 93 of the Local Autonomy Act, Articles 54, 83, and 86 of the Road Act, if the State delegates part of its original affairs to the head of the local government and performs its affairs, the local government may be deemed part of the State’s affairs. However, if the local government processes its own autonomous affairs, it is not a part of the State’s affairs, but a local government is a public corporation separate from the State’s affairs, and thus, if a public official belonging to the local government commits a violation under the provisions of Articles 81 through 85 of the Road Act while performing its own autonomous affairs, the local government constitutes a corporation subject to punishment pursuant to the joint penal provisions of Article 86 of the Road Act.

According to the records, while the non-indicted, who is a public official of the defendant, operated a compressed truck cleaning truck and operated an expressway on the South Sea Highway more than 10t and more than 1.29t of restriction on the operation of the above vehicle at the third axis of the above vehicle, and the road management authority violated the restriction on the operation of the vehicle. The duties performed by the above non-indicted, at the time of the violation of the Road Act, fall under the "cleaning and garbage removal and disposal" as shown in Article 9 (2) 2 (i) of the Local Autonomy Act, which prescribes the affairs concerning the promotion of residents' welfare among the autonomous affairs of local governments, and therefore, the defendant, a local government, is subject to punishment under the joint penal provisions of Article 86 of the Road Act.

In the same purport, the judgment of the court below which found the defendant guilty of the facts charged in this case is just, and it is not erroneous in the misapprehension of legal principles as to the interpretation of "corporation" under Article 86 of the Road Act as alleged in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)