2012Nu2609 Revocation of revocation of a construction machinery operator's license

○ ○

○○ Head of ○○○

A litigation performer ○○, ○○○

Suwon District Court Decision 201Guhap7442 Decided July 19, 2012

April 5, 2013

May 10, 2013

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On January 20, 201, the defendant revoked the construction machinery operator's license.

2. Purport of appeal

The order is as set forth in the text.

1. Details of the disposition;

2. Whether the instant disposition is lawful

A. The parties' assertion

(b) Related statutes;

This court's explanation on each of the above parts is the same as the reasoning of the judgment of the court of first instance except for the following changes. Thus, this court's explanation is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ 7 pages 7 of the first instance judgment is changed to "Construction Machinery Management Act (amended by Act No. 9770 of Jun. 9, 2009)", and 20 degrees are changed to "Enforcement Rule of the Construction Machinery Management Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 266 of Jul. 20, 2010)".

C. Determination

Article 26 (2) of the former Construction Machinery Management Act (amended by Act No. 9770, Jun. 9, 2009; hereinafter referred to as "Construction Machinery Management Act") provides that "a construction machinery operator's license shall be deemed to have been obtained as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs, when a construction machinery operator's educational institution designated by the relevant Mayor/Do Governor has completed an educational course for the operation of the construction machinery." Article 74 (2) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 266, Jul. 20, 2010) provides that "when a construction machinery operator's license is issued for less than 3 tons, 6 hours in theory and 16 hours in training for less than 5 tons, it shall not be deemed that a 20-hour operator's license should be issued for the purpose of improving public safety and safety of the construction machinery operator's license."

In light of the above legal principles, Gap evidence 1 and 12, Eul evidence 8, testimony and arguments of the first instance court ○○○○○○○○, etc., it is difficult to interpret 20 tons of construction machinery as follows: (1) from January 1, 207 to December 31, 209, 1, 209 small students, including the plaintiff, were issued 1,209 in the instant private teaching institute by issuing a certificate of completion of education to the public official in charge of the issuance of the above 20 tons of construction machinery without being sentenced to 20 tons of education; (2) from August 4, 2011 to December 31, 2007, it is difficult to view that the above 20 tons of construction machinery were subject 4 hours of education as different from 3 hours of education; and (3) even if the plaintiff was issued with a false certificate of completion of education by means of 20 hours of education, it is difficult to regard the two different subjects of education as an organization for each subject of education.

On the other hand, sanctions against violations of administrative laws are imposed on the objective facts of violation of administrative laws in order to achieve administrative purposes. Thus, barring special circumstances, such as where there is any justifiable reason not to cause any violation of the duty of the violator, it may be imposed even if the violator intentionally or negligently does not exist (see Supreme Court Decision 2002Du5177, Sept. 2, 2003, etc.). As the private teaching institute in this case is designated from the competent authority as an educational institution for small construction operator's license, the plaintiff who takes part in the course to acquire a small construction operator's license as an educational institution for small construction operator's license from the competent authority is also liable to the supervising authority that did not prevent the violation of the regulations, and even if there are circumstances such as that the plaintiff did not receive a certificate of completion of education through active misconduct such as paying tuition fees to the private teaching institute, it is difficult to view that there is a justifiable reason for each of such circumstances alone.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed as per Disposition.

Judges Lee Jae-won