[1] The meaning of the "speed" of the final and conclusive judgment of revocation under Article 30(1) of the Administrative Litigation Act and the meaning of "s judicata" under Articles 216 and 218 of the Civil Procedure Act, which apply mutatis mutandis to the administrative litigation under Article 8(2) of the same Act

[2] In a case where the previous disposition is revoked by a judgment, whether it conflicts with the binding force of the previous disposition for a reason different from that of the previous one (negative); and the standard for determining whether the same reason is the same in this case, and whether the administrative agency, a party to the final and conclusive judgment, may re-examine the previous disposition on the ground of a new reason that occurred after the previous disposition (affirmative); and in a case where the grounds for the new disposition are different from those of the previous disposition and were known to the parties, whether it conflicts with the binding force of the final and conclusive judgment (negative)

[3] Requirements to constitute the act of using the name under the Passenger Transport Service Act and the standard to determine whether such act has been committed

[1] Article 30(1) of the Administrative Litigation Act provides, “The final and conclusive judgment revoking a disposition, etc. shall bind the administrative agency which is the party concerned with the case and other relevant administrative agencies in respect of the case.” As such, the term “speed” in the final and conclusive judgment of revocation is recognized in the judgment to which the claim for revocation was accepted, and thus imposes an obligation on the administrative agency which is the party concerned and other relevant administrative agencies to act in accordance with the purport of the final and conclusive judgment. In contrast, the term “s judicata” under Articles 216 and 218 of the Civil Procedure Act, which are applicable mutatis mutandis to the administrative litigation pursuant to Article 8(2) of the Administrative Litigation Act, does not allow a subsequent suit identical to the subject matter of the judgment in the prior suit in which the judgment in the prior suit is res judicata, and at the same time, it does not allow a subsequent suit to be asserted differently from the judgment in the prior suit, if the judgment in the subject matter of the prior suit

[2] Although the binding force of a final and conclusive judgment is not limited to the determination on the specific grounds for illegality, such as the order and premise of the judgment, even if the previous disposition was revoked by the previous disposition, it does not conflict with the binding force of the previous disposition. Here, whether the same grounds are identical or different should be determined depending on whether it is recognized as unlawful in the previous grounds and basic facts of the previous disposition determined as unlawful in the final and conclusive judgment, and whether the factual identity of basic facts is identical or not is determined based on the same factual basis as that of the relevant basic social facts in light of the specific facts before the legal evaluation of the grounds for the disposition. In addition, the determination of illegality of the administrative disposition is based on the relevant laws and regulations at the time of the execution of the administrative disposition. As such, an administrative agency that is the party to the final and conclusive judgment may re-disposition on the new grounds that occurred after the previous disposition, and as long as the grounds for a new disposition are not identical with those of the grounds for the previous disposition and basic facts, even if the parties had already known the grounds at the time of the previous disposition and were involved, it does not

[3] In light of the contents and legislative intent of the main text of Article 12(1) of the Passenger Transport Service Act, in order to constitute an act of use in the name of a transport business entity under the Passenger Transport Service Act, it is recognized that a non-transport business entity independently operated the passenger transport business by excluding a transport business entity under the name of the transport business entity. If it is merely an act of operation of an individual vehicle under the general direction and supervision

Furthermore, determination as to whether a non-transport business entity committed an act of using a passenger transport business independently by operating a passenger transport business without excluding a transport business operator is based on an external element, such as the name of a person who has joined the mutual aid association and his/her employees, who is the employer. Rather, rather than an external element, it is important to determine whether a non-transport business entity actually exercises the authority to direct and supervise the details of the agreement accompanying the use and the use of a vehicle, whether the person who is not a transport business entity exercises the authority to command and supervise the driver's vehicle dispatch or operation, the absence of service, education, and the amount of transport income to be paid, etc., whether the person who is in charge of the risks of profits and losses arising from the operation of the vehicle, and whether the person who is actually bears the expenses for the operation of the vehicle, such as wages for drivers

[1] Articles 8(2) and 30(1) of the Administrative Litigation Act, Articles 216 and 218 of the Civil Procedure Act / [2] Article 30(1) of the Administrative Litigation Act / [3] Article 12(1) of the Passenger Transport Service Act

[1] Supreme Court Decision 2013Da19083 Decided November 28, 2013 / [2] Supreme Court Decision 2003Du7705 Decided December 9, 2005 (Gong2006Sang, 122) Supreme Court Decision 2011Du14401 Decided October 27, 201 (Gong201Ha, 2456) / [3] Supreme Court Decision 2009Do4129 Decided September 24, 2009

New U.S. Shipping Co., Ltd and one other (Law Firm Lee Hun-hwan, Attorneys Kim Tae-won et al., Counsel for the plaintiff-

Seoul Special Metropolitan City Mayor (Bae & Yang LLC, Attorneys Lee Dai-min et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2014Nu71827 decided June 30, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiffs’ appeals are dismissed.

The grounds of appeal are examined.

1. As to the binding force and res judicata of the judgment of revocation (Defendant’s ground of appeal No. 1)

A. (1) Article 30(1) of the Administrative Litigation Act provides, “The final and conclusive judgment revoking a disposition, etc. shall bind the administrative agency which is the party to the case and other relevant administrative agencies with respect to the case.” The term “speed” in the final and conclusive judgment of revocation is recognized in the judgment to which the claim for revocation was accepted, and thus imposes an obligation on the administrative agency which is the party concerned and other relevant administrative agencies to act in accordance with the purport of the final and conclusive judgment. In contrast, the term “s judicata” under Articles 216 and 218 of the Civil Procedure Act, which are applicable mutatis mutandis to the administrative litigation pursuant to Article 8(2) of the Administrative Litigation Act, does not allow a subsequent suit identical to the subject matter of the judgment of the previous suit which is res judicata, and at the same time, even if the subject matter of the prior suit is not the same as the subject matter of the prior suit, if the judgment of the subject matter of the prior suit is prior to or inconsistent with that of the subsequent suit, the subsequent suit does not allow any assertion different from the judgment of the previous suit (see, etc.).

(2) The binding force of a final and conclusive judgment is not consistent with the final and conclusive judgment regarding specific grounds for illegality, such as the disposition that is the main text and premise of the judgment. However, even if the previous disposition was revoked by the judgment, it does not conflict with the binding force of the previous disposition. Here, whether the same grounds are identical or different should be determined depending on whether it is recognized as identical or similar to the previous grounds and basic facts of the previous disposition that are judged illegal in the final and conclusive judgment. The existence of factual identity of basic facts is determined based on the same factual basis in light of the specific facts before the legal evaluation of the grounds for disposition (see Supreme Court Decision 2003Du7705, Dec. 9, 2005, etc.). In addition, the issue of illegality of administrative disposition is determined based on the law and the fact at the time when an administrative disposition was rendered. Thus, even if the new grounds arising after the final and conclusive judgment exist as a party to the final and conclusive disposition, it does not conflict with the previous grounds and basic facts at the time of the final and conclusive disposition (see Supreme Court Decision 201Du14, Oct. 27, 2014, 201).

(3) On the other hand, res judicata of a final and conclusive judgment of revocation shall only affect the order of the judgment, and it shall only affect the judgment on the existence of illegality of administrative disposition, which is the subject matter of a lawsuit, and where the previous and subsequent suit differs in the subject matter of a lawsuit, res judicata of the final and conclusive judgment does not affect the subsequent suit (see Supreme Court Decision 95Nu5820 delivered on April 26, 1996, etc.).

B. The reasoning of the lower judgment and the evidence admitted by the lower court reveal the following.

(1) The Plaintiff New U.S. Transport Co., Ltd. (hereinafter “Plaintiff New U.S. Transport”) owns 101 taxiss including 70 vehicles listed in the separate sheet No. 1, and the Plaintiff Hoho Transport Co., Ltd. (hereinafter “Plaintiff Hoho Transport”) owns 101 taxiss including 23 vehicles listed in the separate sheet No. 2, and operates the ordinary taxi transport business.

(2) On May 2, 2008, the Defendant issued an order to reduce the number of taxiss (hereinafter “previous disposition”) to the Plaintiffs pursuant to Articles 13(1) and 76(1)13, etc. of the former Passenger Transport Service Act (wholly amended by Act No. 8980, Mar. 21, 2008) on the grounds that “the Plaintiff operated the taxi in the form of a contract system for 48 vehicles (25 vehicles for the Plaintiff New and Unified Transport, and 23 vehicles for the Plaintiff).”

(3) The Plaintiffs filed a lawsuit seeking revocation of the previous disposition with the Seoul Administrative Court 2008Guhap22549. On July 9, 2009, the above court rendered a favorable judgment against the Plaintiffs on the grounds that the Plaintiff’s 48 operation of the 48 taxi was difficult to be deemed to constitute the act of using the name. Accordingly, the Defendant appealed to Seoul High Court 2009Nu22623, but the appellate court rendered a judgment dismissing the appeal on February 10 of the same year after the closure of the pleadings on January 27, 2010. Although the Defendant appealed, the Defendant’s appeal was dismissed on May 27, 2010, but the judgment of the Plaintiffs became final and conclusive at that time (hereinafter “instant final judgment”).

(4) After that, on March 22, 2013, the Defendant leased the Plaintiffs’ vehicles to Nonparty 1 on a total of 263 occasions by the method that the Plaintiff received a monthly fixed rent per vehicle from July 3, 2006 to September 14, 2010. The Plaintiff’s new and American transport service, from March 3, 2007 to September 30, 2010, 233 times in total, from April 2007 to September 30, 2010 to Nonparty 3, 294, from July 31, 2007 to December 31, 2008, on the ground that Nonparty 1, Nonparty 2, Nonparty 3, and Nonparty 2 (hereinafter “the instant passenger transport service”)’s list of the instant passenger transport service (hereinafter “the instant order”) and Nonindicted 1, and Nonparty 2, Nonparty 3, 201, indicated Nonparty 4’s “the instant passenger transport service”).

C. Based on the foregoing factual basis, the lower court held that: (a) whether the same subject matter of a lawsuit is identical to res judicata is based on the basic factual basis of the violation subject to a disciplinary measure; and (b) the time limit of res judicata should also be considered as the time of closing argument at the fact-finding court in the administrative litigation; and (c) insofar as the act of using the name prohibited under Article 12(1) of the Passenger Transport Service Act is anticipated to be repeated due to the nature of the elements thereof, inasmuch as the act of using the name is deemed to be the time of closing argument at the fact-finding court; (b) where a transport business entity continuously engaged in the act of using the name on the same vehicle for a certain period, it constitutes a single violation comprehensively; (c) the portion of the previous disposition and the same act of using the name on the same vehicle among the instant dispositions are deemed to be identical with the basic factual basis; and (d) each of the vehicles listed in Tables 1 and 2 of the attached Table 3 (hereinafter “the instant overlapping vehicle”) was subject to reduction in the number in the final judgment.

D. However, in light of the above legal principles and the reasoning of the judgment of the court of first instance as well as the following circumstances revealed by the reasoning of the judgment of the court of first instance as cited by the court below, we cannot accept the judgment

(1) As to the overlapping vehicle at the time of the instant disposition, the Defendant specified the period of the instant disposition as indicated in the “use period of name” column for each of the pertinent vehicles listed in [Attachment 3 List 1, 1, 2, 4, 7, 9, and 2, 3, 5, 6, and 7, among the pertinent vehicles, includes the act of using the name on November 2007, which is the object of the previous disposition. Of the instant disposition, the part of the overlapping vehicle during the instant disposition, which was the object of the previous disposition, should be deemed identical to the previous disposition and its basic factual basis. Thus, the Defendant’s inclusion of this part in the instant disposition in the Defendant’s violation at the time of the instant disposition would conflict with the binding force of the final and conclusive judgment.

(2) However, it is reasonable to view that the remaining part of the grounds for the instant disposition, excluding the act of using the name during the previous period, which was the object of the previous disposition, is not identical to the factual basis by comparing the grounds for the previous disposition and the period thereof, and thus, it does not conflict with the binding force of the final judgment, even if the Defendant used the above part of the grounds for the instant disposition as the grounds for the instant disposition.

(3) Furthermore, res judicata of the final and conclusive judgment of this case only affects the judgment on the existence of illegality of the previous disposition, which was the subject matter of the lawsuit, and does not affect the lawsuit of this case where the subject matter of the lawsuit of this case differs.

E. Nevertheless, the lower court determined otherwise, on the grounds indicated in its reasoning, that in the case of the act of using the name prohibited under Article 12(1) of the Passenger Transport Service Act, it should be determined whether the act is identical to the basic facts based on the legal and normative elements that are expected to repeat the act. In so doing, the lower court erred by misapprehending the legal doctrine on the binding effect of the final judgment or res judicata, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal pointing this out is with merit.

2. As to whether there was a trade name use (the Plaintiff’s ground of appeal and the Defendant’s ground of appeal No. 2)

A. As to whether there was an act of using Nonparty 1’s name (the Plaintiff’s ground of appeal)

(1) The main text of Article 12(1) of the Passenger Transport Service Act provides that “A transport business entity shall not have another transport business entity or a person who is not a transport business entity operate passenger transport business with or without compensation by using all or part of the business vehicle.”

In light of the contents of the provision and the legislative intent thereof, in order to constitute an act of using passenger transport services under the Passenger Transport Service Act, it is recognized that a person who is not a transport business operator independently operated a passenger transport business under the name of the transport business operator by excluding the transport business operator, and if it is merely an act of operating an individual vehicle under the general direction and supervision of the transport business operator, it does not constitute an act of using the above name (see, e.g., Supreme Court Decision 2009Do4129, Sept.

Furthermore, in determining whether a person, other than a transport business entity, operated an independent passenger transport business without excluding a transport business, thereby committing an act of using the vehicle in his/her name, it is not an external element, such as who is the nominal owner of the mutual aid association and the relevant driver, and who is the employer. Rather, rather than the external element as above, it is important to determine whether a person, other than a transport business entity, actually exercises the authority to direct and supervise the use of a vehicle and the details of the agreement accompanying such use, such as the details of the agreement being used and the amount of transportation revenues to be paid, whether a person who is not a transport business entity, actually exercises the authority to command and supervise the vehicle for drivers, whether he/she ultimately bears the risk of profits and losses arising from the operation of the vehicle, and who is in charge of operating the vehicle, such as wages for drivers and four large-scale insurance premiums

(2) According to the reasoning of the lower judgment, the lower court determined that: (a) Nonparty 1 purchased a total of 29 taxi from the Plaintiffs on a monthly and daily basis; (b) Nonparty 1 prepared an employment contract by preparing an office for the applicants; and (c) Nonparty 1 exercised the power to determine the amount of taxi drivers and the amount of transportation income to be paid and the amount of leave; (d) Nonparty 1 prepared and kept a day-to-day bulletin and a day-day bulletin separately from the Plaintiffs; and (e) Nonparty 1 paid the agreed amount to the Plaintiffs even if the recruited transport employees were absent from the taxi and were not in operation; and (vi) Nonparty 1 separately prepared and managed data on the basis that Nonparty 1’s regular taxi drivers and Nonparty 1 recruitment employees did not receive the Plaintiffs’ daily wage under the name of the applicants; and (e) Nonparty 1 did not actually receive the Plaintiffs’ wage under the name of Nonparty 1 and Nonparty 1’s employer; and (g) even if Nonparty 1 did not receive the Plaintiffs’ wage under the name of Nonparty 1’s employer.

(3) Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules,

B. As to whether Nonparty 2, etc. committed the act of using the name (Defendant’s ground of appeal No. 2)

(1) According to the reasoning of the lower judgment, the lower court determined that the part on the vehicle in the attached Table 3 list of the instant disposition is unlawful on the ground that it is difficult to view that Nonparty 2, etc. independently operated a passenger transport business, without any reason to view that the number of employees recruited and managed by Nonparty 2, etc. was half of the number of employees recruited and managed by Nonparty 1, on the ground that it is difficult to view that Nonparty 2, etc. independently operated a passenger transport business without any reason to exclude the Plaintiff’s new and American transport service.

(2) However, according to the reasoning of the lower judgment, the following facts are revealed: (a) Nonparty 2 paid a certain amount to the Plaintiffs as well as Nonparty 1, and recruited taxi drivers; (b) Nonparty 2, etc. exercised the power to make decisions on taxi drivers and leave, etc. against the recruited taxi drivers; and (c) the Plaintiffs separately managed data on daily LPG usage fees, etc. of taxi drivers recruited by Nonparty 2, etc.; and (d) Nonparty 4 did not pay wages to the said transport employees and did not actually bear insurance premiums.

Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that: (a) Nonparty 2, etc., also leased a taxi from the Plaintiffs, bears the risk of profits and losses arising from the operation thereof, and has been in charge of managing the transport employees; (b) Plaintiff New and American Transportation appears to have not any particular difference in terms of the terms and conditions, management methods, etc. while leasing a taxi to Nonparty 1 and Nonparty 2, etc.; and (c) Nonparty 2, etc., etc., are reasonable in terms of the frequency and lease period during which Nonparty 2, etc. leased a taxi from Plaintiff New and American Transport. Therefore, it is reasonable to deem that Nonparty 2, etc., like Nonparty 1, independently operated the taxi transport

In addition, even if Nonparty 2 et al. did not prepare a separate office or did not prepare books necessary for management, such as a dispatch on board, it cannot be deemed that there was any particular obstacle to the actual operation of the taxi transport business due to the characteristics of the taxi transport business through the act of using the name, and Article 12(1) of the Passenger Transport Service Act does not require the act of using the name to borrow vehicles from many transport business operators. Thus, the circumstances at the time of the original judgment do not appear to be sufficient to determine whether Nonparty 2 et al. independently operated the passenger transport business without excluding the Plaintiff’s new and outstanding transportation.

(3) Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that Nonparty 2, etc. did not engage in the act of using the name. In so doing, it erred by misapprehending the legal doctrine on the act of using the name under Article 12(1) of the Passenger Transport Service Act, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal on this part is with merit

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiffs’ appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment 1] List: omitted

[Attachment 2] List: omitted

[Attachment 3] List: omitted

Justices Kwon Soon-il (Presiding Justice)