209Gudan15190 Revocation of revocation of driver's license

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The Commissioner of Seoul Local Police Agency

December 8, 2009

December 22, 2009

1. On July 10, 2009, the part concerning Class II driver's license of the defendant against the plaintiff on July 27, 2009 concerning the second-class driver's license is revoked.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be divided into four parts, and three parts shall be borne by the plaintiff, and the remainder by the defendant, respectively.

4. On July 10, 2009, the part concerning the Class II small license in the above disposition of revocation of the license for the plaintiff on July 10, 2009 shall be suspended until the judgment of this case becomes final and conclusive.

The Defendant’s revocation of the driver’s license of July 27, 2009 (Class I, Class I, Class II, Class II, and Class II) against the Plaintiff on July 10, 2009 is revoked.

1. Details of the disposition;

A. On June 16, 2009, the Plaintiff is a person who has obtained Class 1 large vehicles, Class 1 common, Class 2 common, and Class 2 small vehicles, and around 25, the Plaintiff was found to have driven a vehicle of Seoul ○○○○○○○○○○ (hereinafter “instant vehicle”) on the street in the front of ○○○○○○○○○, a restaurant located in ○○○○○○○○○○○○, a restaurant located in ○○○○○, while driving the vehicle on the street at 09%.

B. Accordingly, on July 10, 2009, the Defendant rendered the instant disposition against the Plaintiff on the ground of the above drunk driving. The Defendant revoked all of its license for each motor vehicle driving on July 27, 2009.

[Ground of recognition] Gap evidence Nos. 1, 3, Eul evidence Nos. 9, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Even though 10 minutes have not elapsed from the time of the Plaintiff’s final drinking to the time of the measurement of alcohol in this case, since the control police officer did not give the Plaintiff an opportunity to engage in a drinking alcohol measurement without giving the Plaintiff an opportunity to engage in water drafting, the Plaintiff’s blood alcohol content at the time of the instant driving cannot be ruled out to have been measured excessively due to the Plaintiff’s remaining alcohol content in the mouth, etc., and therefore, the instant disposition that the Defendant deemed the Plaintiff’s blood alcohol content to be justifiable is unlawful.

(2) Although the Plaintiff’s Class 2 driver’s license for small-sized vehicles cannot drive the instant vehicle, the Defendant’s revocation of the Plaintiff’s Class 2 driver’s license for small-sized vehicles on the ground of this case’s drinking driving is illegal.

( 3 ) 원고가 어머니를 여읜 슬픔으로 식당에서 술을 마시다가 다른 차량이 이동할 수 있도록 이 사건 차량을 잠시 이동해 달라는 요청을 받고 이 사건 차량을 운전하게 된 점 , 원고가 직장에서 차량을 운전하여 가족들을 부양하고 암으로 투병하고 있는 처 의 치료비를 마련하고 있는데 , 이 사건 처분으로 운전면허가 취소되는 경우 퇴직당할 수밖에 없어 원고 가족들의 생계 등이 위협받게 되고 , 경제적으로 어려운 점 등 제반 사정에 비추어 보면 , 원고의 각 운전면허를 취소한 이 사건 처분은 지나치게 가혹하여 재량권의 일탈 · 남용한 것으로 위법하다 .

(b) Related statutes;

As shown in the attached Form.

C. Determination

(1) As to the Plaintiff’s assertion regarding the blood alcohol concentration

Measurement of blood alcohol concentration by pulmonary measuring instruments shall be made in blood by absorbing in the chapter.

Since the measurement of alcohol discharged into the pulmonary air through the pulmonary air is conducted when the pulmonary alcohol was discharged through the pulmonary air. Thus, it can be found that if a considerable time has not elapsed from the final drinking time, or if the alcohol remaining in the cream due to the use of telim, earth and sand, stove scrap metal, oral air conditioners, etc., alcohol ingredients, in the mouth with the pulmonary air discharged from the waste, the blood on the upper part, etc. are measured together with the pulmonary air, the pulmonary alcohol concentration higher than the actual pulmonary alcohol concentration. Thus, it cannot be ruled out that the pulmonary measuring method can only lead to the result of the pulmonary alcohol concentration conducted by the pulmonary measuring instrument without the pulmonary air conditionor (see Supreme Court Decision 2005Do734, Nov. 23, 2006).

In full view of all the statements and arguments in the Health Team and Eul evidence Nos. 3 through 6 as to this case, the plaintiff was driving the vehicle of this case at the above time and at the above location and caused the accident that causes the loss of the damaged vehicle to the extent of 758,000 won for repairing the other vehicle due to the shock of the front part of the other vehicle. On June 18, 2009, the plaintiff was exposed to the plaintiff's drinking during the investigation into the above traffic accident at around 38, 2009, and the blood alcohol level of the plaintiff was measured as 09%. The plaintiff's blood alcohol level was measured as 0.209%. The plaintiff's blood alcohol level was stated in the report on drinking alcohol driver's statement of this case at the time of drinking, and the plaintiff's final report on detection of drinking and the protocol on examination of drinking alcohol at around 16, 209.

In addition to about 38 minutes from the point of view, it is difficult to conclude that the police officer granted the Plaintiff a planning to put a fluoral fluoral fluor, so it is difficult to say that the Plaintiff’s blood alcohol concentration was measured excessively. At the time of the instant driving, it can be said that the Plaintiff’s blood alcohol concentration exceeded 0.1% of the criteria for revocation of license. Thus, the Plaintiff’s above assertion is without merit.

(2) As to the argument about the second-class revocation of license

In principle, when one person has obtained a multiple driver's license, it is treated separately for the revocation thereof. However, if the grounds for revocation are not related to a specific license, but for a specific license, or is related to a person who has obtained a driver's license, it may be revoked before multiple licenses (see Supreme Court Decision 96Nu4909 delivered on June 28, 1996).

With respect to this case, the health stand, the instant vehicle cannot be driven with the second-class driver's license, and the second-class driver's license is not related to the operation of the instant vehicle, as well as the first-class driver's license, Article 80 (2) of the Road Traffic Act, and Article 53 of the Enforcement Rule of the Road Traffic Act [Attachment 18] does not include all vehicles that can be driven with the second-class driver's license, and it does not include the first-class driver's license for the first-class driver's license for the first-class driver's license for the first-class driver's license for the first-class driver's license for the first-class driver's license for the first-class driver's license for the second-class driver's license for the second-class driver's license for the second-class driver's license for the second-class driver's license for the second-class driver's license for the second-class driver's license for the second-class driver's license. Therefore, the revocation of the second-class license is unlawful.

(3) Discretionary discretion on the first-class and second-class ordinary license revocation part of the instant disposition

As to the assertion of abuse or deviation of power

In light of the following facts: (a) it is difficult to deem that there was an inevitable circumstance for the Plaintiff’s drunk driving solely on the ground as alleged by the Plaintiff; (b) the Plaintiff was subject to a disposition of suspension of driver’s license on August 6, 2008 due to a drinking alcohol level of 0.093% on the part of the Plaintiff; (c) and (d) the Plaintiff’s blood alcohol level at the time of the instant drunk driving, which considerably exceeded the criteria for revocation of license, cannot be deemed to be less than that of the Plaintiff’s violation; and (d) the instant disposition was properly conducted within the scope of discretion.

(4) Sub-decisions

Therefore, the part revocation of Class I, Class I, Class II, and Class II driver's license among the dispositions in this case is legitimate, and the part revocation of Class II driver's license is illegal.

3. Suspension of the execution of the part concerning Class II driver's licenses for small-sized enterprises in the instant disposition

According to the records of this case, it is recognized that there is an urgent need to prevent irrecoverable damage caused to the plaintiff due to the execution of the part concerning the revocation of the Class II license of this case among the dispositions of this case, and there is no other data to recognize that the suspension of the execution of the part concerning the revocation of the Class II license of this case is likely to have a significant impact on public welfare. Thus, the execution of the part concerning the Class II license of this case shall be suspended ex officio until

4. Conclusion

Therefore, the part concerning the Class 2 small license among the dispositions of this case concerning the small license of this case shall be revoked as unlawful, and the remaining claims of the plaintiff shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges 000

Attachment-Related Acts and subordinate statutes

【Road Traffic Act

Article 80 (Driver's Licenses)

(2) The Commissioner of a Local Police Agency shall classify the scope of driver's licenses based on the types of motor vehicles that are permitted to drive and manage them. In such cases, the kinds of motor vehicles permitted to drive according to the scope of driver's licenses shall be prescribed

1. First-Class License:

(a) Large license:

(b) A ordinary license;

(c) Small licenses:

(d) Special licenses:

2. Class II drivers' licenses:

(a) A ordinary driver's license;

(b) Small licenses:

(c) A motorcycle driver's license;

【Enforcement Rule of the Road Traffic Act

Article 53 (Types of Motor Vehicles, etc. that can be Driving with Driver's License)

The kinds of motor vehicles, etc. that can be driven by a person who has obtained a driver's license pursuant to Article 80 (2) of the Act shall be listed in attached Table 18

[Attachment 18] Types of Vehicles that can be Driving (Related to Article 53)

A person shall be appointed.

A person shall be appointed.