The meaning of “agents, employees, and other employees” subject to punishment under Article 93 and Article 92 subparag. 9 of the former Passenger Transport Service Act because they failed to comply with the terms and conditions of rental reported under Article 31(1) of the same Act, and whether a travel agency merely as a travel agency constitutes an agent, etc. (negative)

Comprehensively taking account of Articles 31(1), 92 Subparag. 9, and 93 of the former Passenger Transport Service Act (amended by Act No. 11295, Feb. 1, 2012; hereinafter “Act”), and Article 3(1)1 of the Tourism Promotion Act, an agent, employee, or other employee who is subject to punishment pursuant to Article 93 and subparagraph 9 of Article 92 of the Act as he/she fails to comply with the terms and conditions of lease reported pursuant to Article 31(1) of the Act, refers to a person who leases a motor vehicle on behalf of or on behalf of a motor vehicle rental business operator, such as entering into a motor vehicle rental contract, and if he/she merely acts as a travel business operator as a broker or intermediary for a motor vehicle rental contract, such act cannot be deemed as an agent, etc.

Articles 31(1), 92 Subparag. 9 (see current Article 92 Subparag. 10), and 93 of the former Passenger Transport Service Act (Amended by Act No. 11295, Feb. 1, 2012); Article 3(1)1 of the Tourism Promotion Act

Defendant 1 and four others

Defendants

Attorney Yang Jin-soo

Jeju District Court Decision 201No533, 542, 560, 563 decided November 1, 2012

All the judgment below is reversed, and the case is remanded to Jeju District Court Panel Division.

The defendants' grounds of appeal are examined.

1. The summary of the facts charged in the instant case against the Defendants is as follows: “The Defendant is a person engaged in the travel brokerage business in the course of operating a travel agency, and entered into a contract to lend a siren with the qualification of an agent of the automobile rental business entity, with a charge lower than that of the rental agreement reported by the rental business entity, and accordingly, the rental agreement was concluded by the rental business entity to collect only a charge lower than that of the rental agreement that was reported by the rental business entity under the terms and conditions of the contract and did not comply with the reported rental agreement.” The lower court found the Defendants guilty of all the facts charged in the instant case on the ground that the Defendants constituted “agent” of the rental business entity registered with the automobile rental business under Article 93(a) of the former Passenger Transport Service Act (amended by Act No. 11295, Feb. 1, 2012; hereinafter “Act”).

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

A. Article 31(1) of the Act provides that a motor vehicle rental business operator shall set the rental terms and conditions and report them to the Mayor/Do Governor. According to Article 92 Subparag. 9 of the Act, where a motor vehicle rental business operator fails to comply with the reported rental terms and conditions, he/she shall be punished by a fine not exceeding KRW 10 million. In addition, Article 93 of the Act provides that a representative of a corporation, or an “agent, employee, or other worker” of a corporation or an individual commits an offense under Article 92 in connection with the business of the corporation or the individual, not only shall such offender be punished, but also the corporation or the individual shall be punished by a fine

Meanwhile, Article 3(1)1 of the Tourism Promotion Act provides that, for travelers or operators of transportation facilities, accommodation facilities, and other facilities ancillary to travel, the term "tourism business" means the business of arranging the use of such facilities, acting as an agent for tourists to conclude contracts, providing guidance on travel, and providing other convenience for travel.

In full view of the above provisions, an agent, employee, or other worker who fails to perform the terms and conditions of rental reported pursuant to Article 31(1) of the Act and is subject to punishment pursuant to Article 93 and Article 92 subparag. 9 of the Act refers to a person who, on behalf of or on behalf of a motor vehicle rental business operator, has performed an act of leasing a motor vehicle by entering into a motor vehicle rental contract on behalf of or on behalf of the motor vehicle rental business operator, and if a travel agency is a broker or intermediary for a motor vehicle rental contract,

B. According to the evidence adopted by the court below and the first instance court, each travel company operated by the Defendants entered into an agreement on the business of car rental with the automobile rental business entity, and the travel company entered into an agreement with the travel business entity to arrange for the car rental of a specific siren company. Accordingly, if the travel agent receives the Internet reservation from the travel agent, he/she shall ascertain whether the travel agent holds the remaining sirens of the company, and then find a siren company holding a siren who wishes to be a travel agent, within the scope of the commission that he/she would receive from the travel agent, by presenting the rental fee to the travel agent as the rental fee. If such a promise is made between the travel agent and the travel agent, the travel agent is found to have collected the difference between the travel agent and the company at a specific place where the travel agent was designated, and then the company receives the difference between the travel agent and the company at a discounted price and the designated place where the travel agent was agreed to receive the difference.

According to these facts, travel agencies, as the business of arranging the use of travel-related facilities, etc. and providing convenience for travel, travel agencies may arrange for the lease of automobiles. Thus, even if the travel agency made a promise for the lease of automobiles between the travel agency and the travel agency, it cannot be deemed that the travel agency and the travel agency may assert the establishment of the automobile rental contract or enforce the conclusion of the contract to the other party, respectively, on the sole basis of the fact that the travel agency and the travel agency have made a promise for the lease of automobiles, and that the travel agency have made a direct contract for the lease of automobiles between the travel agency and the travel agency, and that the travel agency is made a promise between the travel agency and the travel agency. Therefore, in light of these facts, the defendants cannot be deemed as having received the promise for the lease of automobiles from the travel agency and the agreement was made as the agent of the travel agency, and the reservation constitutes the act of arranging the lease of automobiles as part of the travel agency's business.

Therefore, while a travel agent makes a promise with a travel agent, the travel agent offered a reduction of part of the fee to be received by the travel agent from the price reported by the rental company at the rental fee for a siren, and it cannot be deemed that the travel agent did not comply with the terms and conditions reported as the agent of the rental company.

C. Nevertheless, the lower court determined otherwise by deeming that the Defendants leased a rental fee and other rental fee prescribed in the rental agreement reported by a specific siren car company as a representative of a specific siren car company, and thus, found the Defendants guilty of the primary charges of this case. In so doing, the lower court erred by misapprehending the legal doctrine on “agent,” which is subject to Article 93 of the Act, and thereby adversely affected the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, all of the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)