2018Du65484 Revocation of the suspension of operation, etc.

A Stock Company

Law Firm Southern, Attorney Nam-il

Attorney Hah-han, Bail, and Maternization

Racing Market

Law Firm Hysung (Law Firm Lee & Lee, Counsel for defendant-appellant)

[Defendant-Appellant]

Daegu High Court Decision 2018Nu4329 Decided November 23, 2018

May 16, 2019

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

The grounds of appeal are examined.

1. Article 3(1) and (3) of the former Trucking Transport Business Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “trucking Act”) and Article 6(1) and (2), Article 7(1) and (2), and Article 9(2) and (3) of the former Enforcement Rule of the Trucking Transport Business Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 319, Dec. 29, 2010; hereinafter “Enforcement Rule of the Trucking Act”) require the competent authorities to submit documents stating the type, type, type, etc. of each truck when applying for permission for trucking transport business or for permission for change accompanied by expansion of the number of trucks, and require the competent authorities to submit the permission after confirming whether the registration of an individual trucking transport business, the size, volume, type, etc. of each trucking vehicle, and to provide the permission for change.

Meanwhile, Article 2 subparag. 4 of the former Enforcement Decree of the Trucking Transport Business Act (amended by Presidential Decree No. 22502, Nov. 24, 2010; hereinafter referred to as the "Enforcement Decree of the Trucking Transport Business Act") provides that the "motor vehicle for which permission is to be reported" is subject to the alteration of the "motor vehicle for which permission is to be reported," and Article 57 of the Trucking Transport Business Act provides that "the replacement of the motor vehicle for which the age of the motor vehicle is terminated means the replacement of another motor vehicle for the same purpose," and the provision that the Trucking Transport Business Act delegates matters necessary for the object, deadline, etc. of the scrapping of the motor vehicle to the Minister of Land, Transport and Maritime Affairs (Article 57(2)) upon the amendment by Act No. 10804, Jun. 15, 2011; Article 52-3(1)1 of the Enforcement Rule of the Trucking Transport Business Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 430) is limited to the same purpose of supply.

Article 52-3 (1) 1 of the Enforcement Rule of the Trucking Transport Business Act, which limits the object of the replacement of a vehicle to the "cases where supply is permitted as a truck for the same purpose of use", is limited to the case of a truck for the same purpose of use for which supply is permitted. In such a case, it is difficult to view that it is necessary to simplify the procedures for the replacement of a vehicle, on the premise that there is no need to re-examine whether the change is in conformity with the relevant Act and subordinate statutes. It is difficult to view that the purpose of excluding the cases where the supply volume varies before and after the replacement of a vehicle due to a change in the type and type of the vehicle."

Therefore, the act of changing the former vehicle into a new vehicle is so minor that it does not require an additional examination as to whether it conforms to the relevant laws and regulations, including supply standards, in order to constitute a car scrapping subject to a change report under Article 2 subparag. 4 of the Enforcement Decree of the Trucking Transport Act (see Supreme Court Decision 2015Du50474, Feb. 18, 2016). Therefore, changing a salvage-type special vehicle, the supply of which is restricted, into a towing-type special vehicle, is not subject to a change report under Article 2 of the Enforcement Decree of the Trucking Transport Act, but subject to a change report under the main sentence of Article 3(3) of the Trucking Transport Act. The Supreme Court Decision 2015Do1040, Apr. 15, 2016 cited by the lower court, is inappropriate to be invoked

2. Nevertheless, the lower court determined otherwise, that the Plaintiff was subject to reporting on the replacement of a towing-type special vehicle, the supply of which was limited for salvage-type special vehicles. In so doing, the lower court erred by misapprehending the legal doctrine on the permission to change trucking transport business, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

3. 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.

The presiding judge shall keep the record of the Justice

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Gin-soo