[1] Criteria for the distinction between route passenger transport service and chartered bus transport service under the Passenger Transport Service Act

[2] In a case where a transport service provider entered into a transport contract with a transit bus association composed of school employees and operated a transit bus according to the course, time, etc. of operation decided by the transit bus association, the case holding that the imposition of a penalty surcharge is illegal on the ground that the transport of a chartered bus is not allowed, and the latter part of Article 3 subparagraph 2 of the Enforcement Decree of the former Passenger Transport Service Act is interpreted as a restrictive permissible provision

[1] In full view of the provisions of Article 3(1)1 of the Passenger Transport Service Act and Article 2(1)1 and 2(1)2 of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 16934, Aug. 2, 2000), Article 3 subparag. 1(a), (c), and (2) of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 16934, Aug. 2, 2000), in cases where a passenger transport business entity determines the operation system by one of the unilateral intent of the passenger transport business entity and engages in passenger transport business for many and unspecified general public, it constitutes a route passenger transport business; however, even if the vehicle continues to operate a certain area in external form, it shall be deemed a chartered bus transport business regardless of whether the user bears the service charge.

[2] In a case where a transportation business entity enters into a transportation contract with a transportation business entity, and operates a transportation service bus according to the course, time, etc. determined by the transportation contract, the case holding that the above transportation contract is illegal since it is not concluded by an organization or the head of the organization listed in the latter part of Article 3 subparagraph 2 of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 18996 of Aug. 5, 2005), and thus, it is not permissible to transport a chartered bus, and thus, it is illegal to interpret the above provision as a limited permissible provision.

[1] Article 3 (1) 1 of the Passenger Transport Service Act, Articles 2 and 3 of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 16934 of Aug. 2, 2000) / [2] Article 3 subparagraph 2 of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 18996 of Aug. 5, 2005), Article 3 subparagraph 2 of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 18996 of Aug. 5, 2005)

[1] Supreme Court Decision 2000Do4180 decided Dec. 26, 2000 (Gong2001Sang, 408) Supreme Court Decision 2000Do5104 decided Jan. 5, 2001 (Gong2001Sang, 479)

Plaintiff Limited Liability Company

The head of Gwangju Metropolitan City North Korea;

Gwangju High Court Decision 2008Nu1282 Decided November 6, 2008

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. In full view of the provisions of Article 3(1)1 of the Passenger Transport Service Act and Article 2(1)1 and 2(1)2 of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 16934, Aug. 2, 2000), Article 3 subparag. 1(a), (c), and 2(a) of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 16934, Aug. 2, 200), in cases where a passenger transport business entity engages in passenger transport service for an unspecified number of general public by determining the operating system, namely, the starting point, route, and terminal point of the operating section, and the number of flights from the starting point to the ending point, and the number of flights, it constitutes a route passenger transport service; however, even if a certain operation section continues to be operated in a non-permanent form, it should be viewed as a whole-out bus transport service, regardless of whether a user bears a user fee (see Supreme Court Decision 200Do145, Apr. 2000, 20000).

2. According to the reasoning of the judgment below, the court below found, based on the evidence of employment, that the transit bus association composed of the elementary school and the secondary school teachers and staff working at ○○ City residing in Gwangju exists before March 2, 2004. On the same day, the plaintiff entered into a transportation contract for the transit bus (hereinafter “instant transportation contract”) with the above transit bus association on March 2 of each year. The plaintiff has renewed the instant transportation contract on March 2 of each year and received the cost of operation from the transit bus association on March 2 of each year. The court below determined the number of the transit bus association's annual route, operation time, arrival area, and operation number, and the reason for the amendment of the Enforcement Decree of the transportation contract was not clearly determined by the order of the general bus service association on board the vehicle where the member does not work, and determined that the provision of the transportation contract of this case was not permissible by the Presidential Decree of the Ministry of Construction and Transportation or the amendment of the Enforcement Decree of the transportation contract of this case (excluding the case's transportation contract of this case.).

3. However, it is difficult to accept such a determination by the lower court for the following reasons.

Article 3(1)1 of the Passenger Transport Service Act (amended by Presidential Decree No. 17261 of Jun. 29, 2001) provides that "passenger transport business shall be subdivided as prescribed by Presidential Decree" under Article 3(1)1 of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 17261 of Jun. 29, 2001), and Article 3(2)2 of the same Act provides that "a passenger transport business within a certain section for regular operation of automobiles: a business for transporting passengers: a business for transporting passengers within a designated business area; a passenger transport business for transporting passengers by designating a navigation system within the Seoul Special Metropolitan City, Metropolitan City, or Si/Gun/Gu's single administrative area; and a business for transporting passengers through a transport contract within a business area throughout the country, without setting the operation system; and Article 3(2)2 of the Enforcement Decree of the same Act provides that "a passenger transport business under Article 3(2)2 of the former Enforcement Decree of the Passenger Transport Service Act may be further subdivideded under Article 3(2).

According to the above legal principles, " without setting the operation system" in the main sentence of Article 3 subparagraph 2 of the Enforcement Decree of this case refers to "when a chartered bus operator unilaterally sets the route at the request of the other party or by consultation, not unilaterally setting the route." The main sentence of Article 3 subparagraph 2 of the Enforcement Decree of this case is not clearly defined in the form of the proviso to limit the professional provision. The latter part of Article 3 subparagraph 2 of the Enforcement Decree of this case does not mean that the provisions of the former part of Article 3 subparagraph 2 of the Enforcement Decree of this case are restricted to the provisions of the former part of Article 3 subparagraph 2 of the Enforcement Decree of this case. However, in cases other than the purpose of commuting and commuting, it is possible for the other party to freely enter into a charter bus transport contract, but only for the purpose of commuting and commuting, the other party to the charter bus transport contract is limited to government agencies, local governments, companies, schools, etc., which are difficult to be seen as discrimination with reasonable grounds, the disposition of this case is unlawful.

Nevertheless, the lower court determined that the instant disposition was lawful on the grounds that the other party to the instant contract was not concluded by an organization or the head of such organization listed in the latter part of Article 3 subparag. 2 of the Enforcement Decree of the said Act. In so doing, the lower court erred by misapprehending the legal doctrine regarding the charter bus transport contract under Article 3 subparag. 2 of the Enforcement Decree of the instant case, which affected the conclusion of the judgment

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)