화물자동차운수사업법 위반에 관한 소고 - 대법원 2011. 4. 14. 선고 2008도6693 판결을 중심으로 -

As generally agreed, the transport and logistics business could be said as a barometer for the national economy and the bloodstream of business. South Korea regretfully had an opportunity to learn the definite meaning of this saying from suffering of the nation-wide strike of the truck drivers on 2003. Since that, considering the main reason of this emergency occurrence as an excessive supply in national transport industry, Korean government has taken very strict actions with the revised rules. According to the Truck Transportation Business Act (hereinafter, "the Act") which was reformed on 2004 and its Enforcement Regulations, any launching a new cargo related business with freight truck in Korea is not permitted and this regulation has been served steadily. Given the above back ground knowledge, this article tried to analysis Korean Supreme Court cases regarding the violation of this Act. In case, the defendant was accused of violation this regulation because of his business, leasing the cargo truck. However, the defendant alleged that they had merely leased their private owned cargo truck for noncommercial purpose and this has no effect of increasing the whole number of business cargo truck. However, the Korean Supreme Court delivered the decision confirming that from the interpretation of this Act, the mattered lease also should be prohibited. Based on the ground that the mattered business was just a lease of private cargo truck and it could not cause the increasing of the number of business cargo truck in the market, this article is on the opposite position to the decision. In addition, another Supreme Court case which was delivered recently confirmed that the transferring of the cargo business and cargo truck ownership regarding to the cargo and its trucks is not regarded as a launching of new cargo truck business nor increasing of total number of business cargo truck in market. Given the fact and reasons of the latter case, the mattered business of former case - leasing the private cargo truck - should be construed as free from the prohibition of regulation and it could not be any violation of the Act. Further more, as the defendant alleged, a strict prohibiting the lease of private cargo truck could be caused some constitutional issues. It seems beyond argument that the necessity of prohibition in new launching cargo truck business or increasing the number of business cargo truck in market. It is not the matter of judicial settlement but the matter of the value judgement under the industrial public policy. However, this article provides a brief consideration of the separate legislation for the courier business from the general business cargo truck. Given the importance of courier business which is the most friendly transport business to the general people and is one of the most growing markets, the prohibition of increasing number of vehicle is so far from the practical needs.