The legal nature of the old bus or taxi oil purchase card system announced by the Ministry of Land, Transport and Maritime Affairs, and whether a transport business operator violates the above enforcement guidelines prohibiting a transport business operator from compelling his/her transport employees to oil only at a gas station or charging station designated by him/her without a labor-management agreement, and whether the same constitutes a case of receiving subsidies by fraudulent or other unlawful means under Article 51(3) of the former Passenger Transport Service Act

Article 50(1) of the former Passenger Transport Service Act (amended by Act No. 11295, Feb. 1, 2012; hereinafter “former Passenger Transport Service Act”); Article 94 Subparag. 4 of the former Enforcement Rule of the Passenger Transport Service Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 507, Aug. 2, 2012); the former Guidelines for the Implementation of the Card System (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 2012-520, Aug. 16, 2012; hereinafter “Implementation Guidelines”) prohibits transport business operators from having them receive gas only from the gas station or charging station designated by him/her (hereinafter “former Passenger Transport Service Act”); Article 94 Subparag. 4 of the former Enforcement Rule of the Passenger Transport Service Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 507, Aug. 2, 2012); however, it does not provide for the purpose and enforcement of the former Guidelines for the redemption of oil purchase.

Articles 50(1) and 51(3) of the former Passenger Transport Service Act (Amended by Act No. 11295, Feb. 1, 2012); Article 94 Subparag. 4 of the former Enforcement Rule of the Passenger Transport Service Act (Amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 507, Aug. 2, 2012) (see current deletion; Article 50(4) of the Passenger Transport Service Act)

Dong-si Stock Company

Daegu Metropolitan City Mayor

Daegu High Court Decision 2012Nu1991 decided January 11, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. According to Article 50(1) of the former Passenger Transport Service Act (amended by Act No. 11295, Feb. 1, 2012; hereinafter “former Passenger Transport Service Act”) and Article 94 Subparag. 4 of the former Enforcement Rule of the Passenger Transport Service Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 507, Aug. 2, 2012), the State may subsidize part of the increase in the amount of oil tax for passenger transport service providers following the system adjustment to promote passenger transport service. In addition, according to Article 51(3) of the former Passenger Transport Service Act, the Minister of Land, Transport and Maritime Affairs, a Mayor/Do Governor, or the head of a Si/Gun shall order a passenger transport service provider to return the subsidy if the passenger transport service provider has received the subsidy under Article 50 by fraud or other improper means.

The former Guidelines for the Implementation of the Card System for Purchase of Oil from the Passenger Transport Service (amended by the Ministry of Land, Transport and Maritime Affairs No. 2012-520, Aug. 16, 2012; hereinafter “instant Guidelines”) established by the Minister of Land, Transport and Maritime Affairs in relation to the introduction of the card system for the simplification and simplification of the payment procedures for subsidies under the above statutes provides that transport business operators shall prohibit transportation service employees from having them paid only at the gas station or charging station they have designated (Provided, That this case’s Guidelines shall not be applicable where a designated gas station is operated through an agreement between labor and management), and shall recover the total amount of fuel subsidies paid when the violation is discovered. However, in light of the above, the instant Guidelines is not only for delegation of superior statutes, but also for the purpose and contents thereof, it is merely determined internal affairs of the administrative agency on the implementation of the oil purchase card system, and it is not necessary to determine whether a transport business operator violates the previous provisions of Article 5(1) of the Passenger Transport Service Act or the previous provisions of the Passenger Service Act.

2. According to the reasoning of the judgment below, the court below held that the instant guidelines were unlawful on the ground that: (a) premised on the premise that the instant guidelines were insufficient to satisfy the standards for administrative affairs inside the administrative agency and that external binding force against the general public cannot be recognized; and (b) the instant guidelines were not applicable if there exists an agreement between the labor and management on the operation of the designated gas station; (c) given that there seems to be no difference between the designated gas service provider and the designated gas station’s concerns on illegal exploitation of oil between the designated gas station and the labor and management on the operation of the designated gas station, it is difficult to deem that the purpose of the instant prohibition regulations is to prevent unjust supply; (d) even if the operation of the designated gas station without the agreement between the labor and management increases the concern on illegal exploitation of oil between the designated gas station and the designated gas station, it is difficult to evaluate the same act as the act of receiving the subsidy by fraud or other improper means unless it is confirmed that the instant regulations were violated.

In light of the above legal principles, we affirm the judgment of the court below as just, and there is no error in the misapprehension of legal principles as to external binding force of the legal order, as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)