(영문) 서울행정법원 2017.3.23.선고 2016구합8876 판결

A. From the 1980s, the People's Republic of China (hereinafter referred to as "China") designated an area where group tourists are permitted to travel in consultation with the government of each country in order to control foreign tourism. On June 27, 2000, the People's Republic of China (hereinafter referred to as "China") introduced a travel permission system (ADS, APvvved Datus) which allows only the travel agencies recommended by the country which entered into an agreement with China to attract and contact Chinese group tourists. On May 1998, China designated the Republic of Korea as the "China's country of departure from Korea" and the defendant, the Ministry of Foreign Affairs and Trade, the Ministry of Ministry of Ministry of Construction and Transportation, the Ministry of Foreign Affairs, the Ministry of Construction and Transportation, and the Ministry of Construction and Transportation related officials of the China's Republic of China's Republic of China's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of China's Republic of China's Republic of China's Republic of China's Republic of China's Republic of Korea's Republic of China.

B. According to the Round of this case, 66 Chinese travelers were allowed to take exclusive charge of Korean organization tourism business, and these travel agents were selected from among travel agencies recommended by the Government of the Republic of Korea, and entered into a group tour service contract. The Defendant established the guidelines for the exclusive tour service for attracting Chinese organization tourists (hereinafter referred to as the “instant guidelines”), and accordingly designated and managed the “exclusive tour guide for attracting Chinese organization tourists” (hereinafter referred to as the “exclusive tour guide”). The Plaintiff was a company established on October 16, 2012 for the main purpose of domestic and foreign travel business and general travel business, and was designated as a exclusive tour agent by the Defendant.

D. On November 4, 2016, pursuant to Article 11(3)2 of the Guideline, the Plaintiff rendered a disposition to revoke the designation of the exclusive travel agent for Chinese organization tourists (the effective date of revocation: November 25, 2016; hereinafter referred to as the “instant disposition”) on the ground that the Plaintiff, as a exclusive travel agent, lent the name of the exclusive travel agent for Chinese organization tourists in Korea, a non-designated general travel agent, a non-designated general travel agent, (hereinafter referred to as “China tour agent”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings;

A. The plaintiff's assertion

1) The Plaintiff entered into a contract on the premise of a merger with a medium-sized tour operator and entered into a joint business agreement, and performed the overall duties of Chinese tourists regarding Korean travel under the above contract. However, only the Plaintiff’s use of the business network on superior conditions in shopping centers, duty-free shops, etc. at the medium-sized tour events, and did not lend the name of the exclusive tour operator to the middle

2) Even if the Plaintiff lent the name of the exclusive travel agent to the main travel agent, the Plaintiff did not have awareness of the name lending under a joint contract premised on the merger between the main travel agent and the main travel agent, and there was no damage to the Korean image, violation of national interests, and violation of laws and regulations. Therefore, the instant disposition is erroneous in the misapprehension of discretionary authority.

Therefore, the instant disposition is unlawful on a different premise.

B. Relevant statutes

It is as shown in the attached Form.

1) On June 7, 2016, the Defendant publicly notified the Plaintiff on June 13, 2016 that a fact-finding survey personnel visited an enterprise to conduct an inspection of actual conditions for the efficient management of the exclusive contribution event from June 13, 2016 to June 17, 2016. On June 16, 2016, the Plaintiff visited the Plaintiff’s office to conduct an inspection of actual conditions, and the name transfer and tax invoice was discovered, and the account statement and tax invoice were received from the Plaintiff.

2) After that, on July 11, 2016, the Defendant requested the Plaintiff to submit the following additional data on the inspection of actual condition. Accordingly, the Plaintiff explained to the effect that the Plaintiff: (a) lent the name of the shopping center, duty-free shop, etc. to the shopping center, etc. for the use of the name of the shopping center, duty-free shop, etc.; and (b) issued the tax invoice, etc. in the name of the middle travel company.

Schedule of Reference Materials Demand

A person shall be appointed.

3) On August 25, 2016, the Defendant requested the Plaintiff to submit the following additional data on the inspection of actual condition, and the Plaintiff made a vindication to the effect that the Plaintiff was unable to go through the market conditions, such as the hotel price and duty-free shop shopping commission, due to the fact that the Plaintiff’s delayed commencement of the instant inspection of actual condition, and thus, it was conducted with a mid-term leisure event with price competitiveness, and that it did not name the mid-term tourer, and is proceeding with the middle-term tourer through a merger with the middle-term tourer’s events. The second explanation required.

A person shall be appointed.

4) On October 17, 2016, the Defendant notified the Plaintiff that a disposition was scheduled to revoke the designation of the exclusive travel agent, and notified the Plaintiff of the reason that “the name of the exclusive travel agent was lent to a non-designated general travel agent for the purpose of attracting Chinese organization tourists,” and on October 21, 2016, the Plaintiff submitted a statement of opinion to the effect that “the Plaintiff, on October 21, 2016, did not have the name of the exclusive travel agent nor intended to promote the main business by means of a merger with the middle travel agent.” The Defendant issued the instant disposition on November 4, 2016.

5) Meanwhile, the main contents of the joint agreement entered into with the Plaintiff on January 8, 2015 (hereinafter “instant agreement”) are as follows.

The purpose of Article 1 (Purpose) is to regulate matters related to the implementation of joint projects by attracting Chinese tourists jointly with Gap and Eul.Article 2 (Joint Business) 1.B entered into a contract with Eul as a good condition that shopping commission, such as shopping centers, duty-free shops, etc., which has advantages while operating the existing Chinese Round.2, Gap and Eul, along with Eul, are attracting tourists, and manage the general affairs and all affairs.3. The future merger between Gap and Eul is to be conducted as joint projects.The merger is to be conducted again when the legal issues and other issues that do not mutually agree.The profit distribution is to be 5:5 each other, and the settlement fee distribution ratio is to be borne by Gap and Eul. The purpose of Article 2 (Joint Business) 1.B is to enter into a contract with Gap and Eul on the preferential basis of good condition.

6) 중원여행사는 2016. 3. 31. 공급자를 자신으로 하고, 공급받는 자를 SK네트웍스 주식회사, 주식회사 한화갤러리아타임월드 갤러리아면세점 63, 에이치디씨 신라면세점 주식회사, 주식회사 호텔신라, 주식회사 서울씨엔씨코리아, 주식회사 신정고려인삼, 주식회사 수익강, 주식회사 장수김으로 된 전자세금계산서 9장을 각 발행하였다.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 3 to 5, and Eul evidence 9 (including each number), the purport of the whole pleadings

D. Determination

1) Whether there is a ground for disposition

First of all, on March 2016, it is the subject who directly performed shopping centers, duty-free shops, etc. in the name of middle-sized tourers, and hotel accommodation, etc. for Chinese organization tourists.

The following circumstances, which are acknowledged as a whole by taking into account the evidence as seen earlier and the overall purport of the arguments, i.e., the Plaintiff’s local travel agent working in China along with a medium-sized tour event (Article 2(2)), distribute profits to 5:5 (Article 3(1)), and the Plaintiff’s local travel agent, together with the Plaintiff, endeavor to develop the goods of the Chinese region and attract tourists, and make efforts to attract tourists in the future. (Article 4(1) and (2)) Accordingly, the Plaintiff’s business is conducted jointly with a medium-sized tour’s organization beyond the scope of shopping center, duty-free shop, etc., and the Plaintiff did not lend the name of the exclusive travel agent, and the Plaintiff did not receive fees from a medium-sized tour agent. However, in light of the circumstances, the Plaintiff’s business is not limited to KRW 500,000,000 for the instant joint travel contract, and the Plaintiff’s business is also limited to KRW 20,300,000.

Furthermore, as above, it is reasonable to consider whether the Plaintiff’s exclusive tour business is the case where the Plaintiff lent the name of the event exclusively in charge to a non-designated general tour agent under the instant guidelines, and ① this case’s guide was prepared based on the instant Round. It is reasonable to see that the “the above Round” refers to all of the activities related to the trip within the Republic of Korea. ② The instant guideline provides that the scope of business for the exclusive tour business is set forth in Article 8, and Article 9 of the instant guideline provides that the exclusive tour agent is obliged to perform his/her best to implement the designated business for the purpose of holding the exclusive tour business in a sound and good manner from the entry of Chinese organizations to the departure of China. ③ The instant guideline provides that the Defendant is obliged to separately designate the exclusive tour business for the purpose of holding the exclusive tour business in accordance with the above-mentioned guidelines, taking into account the financial status of the exclusive tour operator, the Defendant, who is an organization that has been designated to have the exclusive tour business for the purpose of holding the exclusive tour business in China.

Therefore, it is the case where the plaintiff allowed the Jung-gu tourer to carry out the domestic travel business of Chinese organization tourists and lent the name of the exclusive tourer to the Jung-gu tourer.

2) Whether the discretion is deviates or abused or not

Although there was no particular defect at the time of the disposition, and there was no separate legal ground for the withdrawal of the disposition after the disposition, the disposition agency may withdraw the disposition by a separate administrative act which would lose its validity where there was a change in circumstances that no longer need to continue the original disposition, or where there was a need for important public interest. However, where the disposition of profit is revoked or withdrawn, it would infringe upon the people's vested rights. Thus, even if there is a reason for revocation, the exercise of the right of revocation, etc. is determined by comparing and comparing with the disadvantage suffered by the other party only when there is a need for important public interest to justify the infringement of the vested rights or when it is necessary to protect the interests of a third party, and where the disadvantage suffered by the other party is greater than the necessity for the public interest, it is in itself unlawful (see, e.g., Supreme Court Decision 2003Du10251, 10268, Nov. 26, 2004).

However, the facts of the above recognition are recognized by comprehensively taking into account each of the evidence and the purport of the entire pleadings as seen earlier.

The following circumstances are as follows: (a) The exclusive travel agent system is operated to promote Chinese tourism in a sound and orderly manner by promoting Korean organizations' sound and orderly manner; (b) there is a high need for public interest to strictly maintain and manage the qualification for exclusive travel events at a certain level through the exclusive travel agent renewal system; and (c) the Plaintiff did not have any awareness of the name lending; (c) however, it appears that the Plaintiff, a travel business entity, was able to easily recognize that the exclusive travel agent's name lending can be at issue if the Plaintiff, a travel business entity, performs the business related to the travel with a mid-to long-term tour business before the merger, and thus, it is difficult to accept the Plaintiff's argument; and (c) there is no reason to view that the designation of exclusive travel agent may be revoked on the basis of the designation of exclusive travel agent; and (d) it is difficult to view that the Plaintiff's exclusive travel business entity, including the Plaintiff, was dedicated to the Plaintiff, and that the exclusive travel business entity, other than the Plaintiff's business entity of this case, has no more likely to operate the exclusive travel business entity.

3) Sub-determination

Therefore, the instant disposition that revoked the designation of the exclusive travel agent for the Plaintiff pursuant to Article 11(3)2 of the Guideline is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

The presiding judge, Yoon-sung

Judges Kim Jae-han

Judge Kang Dong-hun

Note tin

1) It seems that free tourers mean Free Indedededededeist.

심급 사건

서울행정법원 2017.3.23.선고 2016구합8876

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