[1] In a case where a person with a driver's license drives a motor vehicle, whether the revocation of the driver's license is the discretionary act of the administrative agency (affirmative), and the aspect that the revocation of the driver's license must

[2] In a case where the commissioner of the competent district police agency revoked Gap's driver's license (Class 1 large, Class 1 ordinary, Class 1 special (large-scale check and salvage), and Class 2 small-sized vehicles) on the ground that Gap driving a two-wheeled vehicle with an engine displacement of 0.140% with an engine displacement of 0.140%, the case holding that the judgment below erred by misapprehending the legal principles as to deviation and abuse of discretionary power on the part of revoking the driver's license of Class 1 large, Class 1 ordinary, and Class 1 special (large-scale check and salvage) among the above disposition

[1] In light of the discretionary act of an administrative agency, the increase of traffic accidents caused by drunk driving, and the suspicion of its result, etc., the revocation of a driver's license should be more serious in the public interest to prevent traffic accidents caused by drunk driving. In the revocation of a driver's license, unlike the cancellation of the general beneficial administrative act, the general preventive aspect that should be prevented rather than the disadvantage of the party to be suffered due to the cancellation should be emphasized.

[2] In a case where the commissioner of the competent district police agency revoked Gap's driver's license (Class 1 large, Class 1 large, Class 1 large, Class 1 special, Class 2 large, and Class 2 small) on the ground that Gap driving a two-wheeled vehicle with an engine displacement of 0.140% with an engine displacement of 0.140%, the case holding that the judgment below erred in the misapprehension of legal principles as to Class 1 large, Class 1 large, Class 1 ordinary, and Class 1 special (large-scale check and salvage) on the ground that Gap does not revoke Gap's driver's license on the ground that he can continue driving a two-wheeled vehicle with an engine displacement of 125cc or less with an engine displacement of 0.140%, which is the criteria for revocation of driver's license under road traffic Acts and subordinate statutes, and that there are no unavoidable circumstances to reduce Gap's license from a large size of light of social norms, it is not reasonable to conclude that Gap's disposition of abuse of discretionary power is not affected or otherwise.

[1] Article 93 (1) 1 of the Road Traffic Act, Article 27 of the Administrative Litigation Act / [2] Article 93 (1) 1 of the Road Traffic Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 2012Du1051 Decided May 24, 2012

Plaintiff

The Commissioner of the Gyeonggi-do Local Police Agency

Seoul High Court Decision 2017Nu41230 decided September 29, 2017

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

The grounds of appeal are examined.

1. In a case where a person who obtained a driver’s license drives a drinking motor vehicle, whether the driver’s license is revoked should be considered as the discretionary act of an administrative agency. However, in light of the increase of traffic accidents caused by a drinking driving and the suspicion of its result, the need for public interest to prevent traffic accidents caused by a drinking driving should be more emphasized. The revocation of a driver’s license should be emphasized more than the general preventive aspect that should be prevented than the disadvantage of the party who will suffer from the revocation, unlike the cancellation of the ordinary beneficial administrative act (see Supreme Court Decision 2012Du1051, May 24, 2012, etc.).

2. On September 11, 2016, the lower court: (a) acknowledged the fact that the Plaintiff driven a two-wheeled vehicle with an engine displacement of 125cc p. c. in the state of 0.140% in blood alcohol level on September 11, 2016; (b) determined that the Defendant, on October 18, 2016, revoked the Plaintiff’s driver’s license (Class 1, Class 1, Class 1, Class 1, Class 2, and Class 2) as of October 27, 2016 (hereinafter “instant disposition”); and (c) determined that the Plaintiff’s appointment as the Local Driving Assistant and served in good faith for about 21 years; (c) the Plaintiff is highly likely to be removed or dismissed from the workplace if the Plaintiff’s driver’s license is revoked; and (d) the Plaintiff’s license as of October 1, 2016, with the exception of any particular traffic accident or his/her family’s deviation from the workplace until the date of the instant accident; (excluding the Plaintiff’s class 1).

3. However, in light of the legal principles as seen earlier, it is difficult to accept the judgment of the court below for the following reasons.

A. If the Plaintiff did not revoke the driver’s license for Class 1 large vehicles, Class 1 ordinary vehicles, or Class 1 special vehicles (alternative dogs, salvage) with the said driver’s license, the Plaintiff is able to continue to drive a two-wheeled vehicle with the engine displacement of not more than 125 cc, and the Plaintiff does not have any substantial disadvantage.

B. The Plaintiff’s blood alcohol concentration is 0.140% and exceeds 0.100%, which is the criteria for the revocation of driver’s license, stipulated in the Road Traffic Act and subordinate statutes, and there is no circumstance for the Plaintiff to be specially mitigated.

C. It does not seem that there was an inevitable circumstance that the Plaintiff should not drive despite the state of drinking at the time.

D. In light of the administrative purpose of the instant disposition, etc., solely based on the circumstance cited by the lower court, it is insufficient to readily conclude that the instant disposition was an abuse of discretion or a deviation from its limitation, as it considerably loses validity under social norms.

4. Nevertheless, the lower court determined otherwise and recognized that there was an error of deviation and abuse of discretionary power in the revocation of Class I driver's licenses for Class I large, Class I ordinary, and Class I special (large-scale check and salvage) among the dispositions in this case. In so doing, the lower court erred by misapprehending the legal doctrine on deviation and abuse of discretionary power, which affected the conclusion of the judgment.

5. 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 Lee Ki-taik (Presiding Justice)