편의제공의무로 포섭된 휠체어 승강설비, 저상버스 도입의무와 장애인의 버스 이동권의 규범구조 - 대법원 2022.2.17. 선고 2019다217421 판결을 중심으로 -

The Supreme Court ruled that bus companies do not bear the obligation to introduce low-floor buses, but bear the obligation to install wheel lifts for buses. The court of first instance ordered the provision of ‘boarding and alighting accommodation, such as wheelchair boarding facilities’, but ‘boarding and alighting through an assistant from the bus company’ was also permitted as an alternative until the introduction of wheelchair boarding facilities. The reason for this was that the Act on Promotion of the Transportation Convenience of Mobility Disadvantaged Persons (APTCMD) Enforcement Decree Annex 1 stipulates that the obligation to install wheelchair lifts is non-mandatory and optional. The decision of the appellate court denied the possibility of substitution through human services and ordered only the provision of wheelchair boarding facilities. The reason for this is that Article 13, Paragraph 2 of the Enforcement Decree of the Act on the Prohibition of Discrimination against Persons with Disabilities, which stipulates the specific details of the bus company’s obligation to provide accommodations, applies mutatis mutandis only to Annex 2 of the APTCMD Enforcement Decree, which mandates the installation of wheelchair boarding facilities for buses, and does not apply mutatis mutandis to Annex 1 of the Enforcement Regulation of the APTCMD. The above view of the appellate court is consequently valid. The relevant content of annex 1 of the APTCMD Enforcement Regulation, which changed the obligation to install wheelchair boarding facilities for buses according to Annex 2 of the Enforcement Decree of the APTCMD to a non-mandatory option, goes beyond the scope delegated by the parent law and infringes on the right to transportation of the disabled, which is unconstitutional and illegal. It should be regarded as invalid. Contrary to the appellate court decision, which upheld the obligation to install wheelchair boarding facilities immediately on all buses, the Supreme Court held that the deadline for fulfillment of the obligation should be set in stages so that wheelchair boarding facilities are installed in phases. The Supreme Court also limited the scope of the obligation to install wheelchair boarding facilities to specific and realistic bus routes that plaintiffs with disabilities will board in the future. It is reasonable to order the step-by-step introduction of wheelchair boarding facilities by setting the deadline for fulfilling the duty in stages. However, limiting the scope of the obligation to install wheelchair boarding facilities to specific and realistically probable bus routes for the plaintiffs to board does not have a solid legal basis and can be easily neutralized through lawsuits filed by many other plaintiffs. When setting the deadline for implementing the obligation to introduce wheelchair boarding facilities step by step, the midpoint between the time when the bus will be replaced and the time when the trial hearing is completed should be the reference point, but it is necessary to allow an increase or decrease in the time limit depending on the individual bus. The plaintiff filed a lawsuit by requesting the introduction of a low-floor bus or a bus equipped with a wheelchair lift facility, giving the bus company the right to choose between the two. However, it is not reasonable for the Supreme Court to deny the obligation of bus companies to introduce low-floor buses and recognize only the obligation to install wheelchair lift facilities. It is necessary to change the conclusion of the decision in the form of reviving the bus company’s choice between wheelchair lift facilities and low-floor buses.