장애인차별금지 및 권리구제 등에 관한 법률상 차별행위에 대한 구제수단에 관한 연구 - 대법원 2022. 2. 17. 선고 2019다217421 판결을 중심으로

In the Supreme Court Decision 2019Da217421 decided February 17, 2022 (hereinafter the “subject case”), plaintiffs with disabilities, claiming that the defendant bus companies’ (transportation business operators) failure to introduce low-floor buses or buses with wheelchair boarding facilities for intercity buses and wide-area city buses, and the defendant Republic of Korea et al.’s (transportation administration agencies) failure to provide necessary support for the defendant bus companies’ introduction of those buses, respectively constitute discriminatory acts under the Act on the Prohibition of Discrimination Against Persons with Disabilities and Remedy Against Infringement of Their Rights (hereinafter the “Act”) in violation of the Act on Promotion of the Transportation Convenience of Mobility Disadvantaged Person, pursued injunctive relief to rectify such acts and claimed damages under the Act. This case relates to right to transportation of persons with disabilities. The court of first instance ordered partial injunctive relief against the defendant bus companies, and the lower court ordered more comprehensive injunctive relief (provision of wheelchair boarding facilities). However, the Supreme Court reversed and remanded the lower judgment on the grounds that the lower judgment violated the principle of proportionality by failing to limit routes or set up implementation periods. The subject case declared some legal principles on various issues for the first time in the absence of the Supreme Court precedent on the Act, and thus, there is a great need for study. This study examines the major issues in the order of the claims against the defendant bus companies and the claims against the defendant Republic of Korea et al. First, the claims against the defendant bus companies are examined. ① As to whether the lawsuit should be dismissed on the grounds that there is no dispute over specific rights or legal relations because the plaintiffs did not actually attempt to board buses of the defendant bus companies, the subject case acknowledged the existence of a dispute on the grounds that the plaintiffs had no choice but to abandon or forsake boarding in advance, which is valid. ② As to whether the defendant bus companies have a duty to introduce low-floor buses, the subject case denied this. While the conclusion is valid, the logic is questionable. ③ As to whether the defendant bus companies’ failure to introduce buses with wheelchair boarding facilities is justifiable on a good reason like undue hardship, the Supreme Court denied this, which is valid. ④ As to whether the court have discretion over injunctive relief, the subject case acknowledged this, while setting forth a legal principle specifying criteria for its exercise. It is valid overall, but its logic is somewhat questionable. ⑤ As to whether the injunctive relief ordered by the lower court violated the principle of proportionality, the subject case held that the lower judgment violated the principle of proportionality by failing to limit routes or set up implementation periods. The part that required the setting of implementation periods is valid, while the part that required the setting of the routes is somewhat questionable. ⑥ As to whether the defendant bus companies engaged in the discriminatory acts with intent or negligence, the subject case denied this, which is valid. Next, the claims against the defendant Republic of Korea et al. are examined. ① As to whether the claims fall under civil or administrative litigation, the subject case is understood to have implicitly considered them as civil one, which is valid. ② As to whether transportation administrative agencies can be held themselves to have committed discriminatory acts if they fail to fulfill their obligation to support and supervise transportation business operators in the area of movement and transportation, the subject case comprehensively denied it; however, it is not valid because transportation administrative agencies could be held to have committed discriminatory acts themselves under exceptional circumstances.