2018Du45633 Revocation of the designation of a Chinese travel agent

주식회사 한중네트웍

Attorney Kim Dong-dong et al., Counsel for the defendant-appellant

The Minister of Culture, Sports and Tourism

Attorney Han-soo et al., Counsel for defendant-appellant

Attorney Kim Won-won et al.

Seoul High Court Decision 2017Nu84954 Decided April 25, 2018

December 24, 2020

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. A. Article 20(1) of the Administrative Procedures Act provides, “Administrative agencies shall determine and publicly announce the necessary disposition standards so that they may be in light of the nature of the dispositions concerned. The same shall also apply to any modification to the disposition standards.” Article 20(2) provides, “The publication of the disposition standards under paragraph (1) may not be made when it is considerably difficult in light of the nature of the dispositions concerned or when there are reasonable grounds to be deemed to significantly undermine the public safety and welfare.”

B. As such, allowing an administrative agency to specifically determine and publicly announce the disposition standards is to enhance predictability of the outcome of the relevant disposition, thereby securing fairness, transparency, and reliability in administration, and prevent arbitrary exercise of authority by the administrative agency, by allowing the pertinent disposition to be made in accordance with the pre-public announcement standards as much as possible.

However, in light of the nature of the disposition standards, where the disposition standards are publicly announced in advance, it would be impossible to achieve the administrative purpose or by granting discretionary authority to the administrative agency within a certain scope, and thus, it would rather be more appropriate for the safety and welfare of the general public, taking into account individual circumstances in a specific case. In such a case, the administrative agency may either publicly announce or otherwise publicly announce the disposition standards pursuant to Article 20(2) of the Administrative Procedures Act (see, e.g., Supreme Court Decision 2018Du41907, Dec. 13, 2019). Even when changing the disposition standards originally publicly announced, the administrative agency should re-announce the changed disposition standards unless they fall under the exceptions prescribed in paragraph (2).

C. Even if an administrative agency took a disposition by applying the criteria for pre-public announcement of the disposition standards under Article 20(1) of the Administrative Procedures Act in violation of the duty to pre-public announcement of the disposition standards, such circumstance alone does not immediately lead to the existence of any defect sufficient to the extent that the relevant disposition was revoked. However, if the criteria applied to the relevant disposition violate a superior statute or the general principles of the Act, such as the principle of protection of trust, or if any specific circumstance exists to deem that it is objectively unreasonable, the relevant

(1) The criteria for disposition determined and publicly announced by an administrative agency pursuant to Article 20(1) of the Administrative Procedures Act shall, in principle, be deemed to constitute an administrative rule which has no external binding force, barring special circumstances where it was enacted and promulgated upon specific delegation by the relevant statutes based on the relevant disposition.

(2) Whether a disposition is lawful ought to be determined not by whether it conforms to administrative rules, but by whether it conforms to the provisions of superior statutes and legislative purposes (see, e.g., Supreme Court Decision 2011Du10584, Sept. 12, 2013). A disposition is not immediately illegal merely because it violates administrative rules (see, e.g., Supreme Court Decision 2009Du7967, Dec. 24, 2009). It does not guarantee legality solely because the disposition is in accordance with administrative rules. Inasmuch as the standards publicly announced by an administrative agency in advance, namely, whether the administrative agency knew of the administrative rules, does not serve as a critical indicator to determine the legality of the disposition, whether the administrative agency applied the standards that were not publicly announced in advance cannot serve as a critical indicator to determine the legality of the disposition.

(3) It is difficult to uniformly conclude whether the criteria for disposition determined and publicly announced by an administrative agency are specific or the grounds for exception to the duty to make a prior public announcement of the criteria for disposition under Article 20(2) of the Administrative Procedures Act ought to be determined on an individual basis depending on specific matters. If an administrative agency considers that a legitimate disposition can be made only when it has made a prior public announcement of specific criteria pursuant to Article 20(1) of the Administrative Procedures Act, the legality of the disposition becomes excessively unstable and the enforcement of the individual

D. In a case where an administrative agency adopts and operates a so-called "Renewal" system to judge whether to renew it after it grants a specific right, interest, or status to the other party to the disposition in accordance with relevant laws and regulations or its own judgment, the other party to the disposition shall be deemed to have the right to demand a fair review in accordance with reasonable standards, barring any special circumstances, on the expectation that the renewal will be renewed if it satisfies the standards after obtaining a fair review in accordance with reasonable standards

In this context, the term "fair review" means not only a person who is an administrative agency but also an objective and reasonable standard, but also a review criteria should be formulated and published in advance so as to provide the other party with predictability of the review criteria and methods in advance and to review whether a decision on whether to renew the review has been made fairly in accordance with reasonable standards (see, e.g., Supreme Court Decision 2010Du1835, Jan. 13, 201).

It is against the request that a fair review should be conducted in accordance with the nature of the renewal system and the criteria for review already published in advance to the extent that the modification of minor matters, somewhat ambiguous and abstract parts of the criteria for review already published in advance, or that the renewal of the other party to the disposition should be determined at the time when the period has already expired or considerable parts have already elapsed. Thus, it is not permitted unless there are special circumstances, such as the necessity for a significant public interest that makes the renewal itself no longer be abolished or that the number of the other party to the renewal should be significantly reduced more than the previous ones, or the relevant statutes

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following circumstances.

A. In order to implement the designation, management, etc. of the ‘exclusive tour guide' recommended to the Government of China (hereinafter referred to as the "exclusive tour guide"), the Defendant enacted the "Guidelines for the Performance of the Exclusive Tour Business" (hereinafter referred to as the "Guidelines") to attract tourists from China. Around May 2013, the Defendant newly established Article 3-2 of the Guidelines, and introduced the "exclusive tour guide renewal system" to renew the status of the exclusive tour guide once every two years.

B. The Defendant, around September 2013, around the time of the introduction of the “exclusive travel operator renewal system”, set the criteria for renewal of the status of exclusive travel operators in cases where the sum of points according to each evaluation field, item, and index exceeds 75 points (hereinafter “previous Criteria for Disposition”) and announced it to the exclusive travel operators through the president of the Korea Tour Business Association.

C. On April 11, 2006, the Plaintiff was newly designated as the exclusive travel agent pursuant to the instant guidelines, and the Defendant renewed the Plaintiff’s exclusive travel agent status on December 5, 2013 following a renewal review in accordance with the previous guidelines. The Defendant announced that the exclusive travel agent, including the Plaintiff, including the Plaintiff, will continuously monitor the results of attracting, product prices, administrative materials, history, low-priced goods sales rate, and reflect them in the evaluation of the renewal system conducted every two years.

D. On March 23, 2016, the Defendant: (a) decided not to renew the status of the exclusive travel agent (hereinafter “disqualified criteria”); (b) decided not to renew the status of the exclusive travel agent (hereinafter “disqualified criteria”); (c) but (d) applied the renewal review without publicly announcing the previous disposition standards, in order to strengthen sanctions against some exclusive travel agents, and to partially change the evaluation area, items, indexes, and allocated points of the previous disposition standards; and (d) decided not to renew the status of the exclusive travel agent (hereinafter “disqualified criteria”); and (e) applied the renewal review without publicly announcing the previous disposition standards.

E. In accordance with the changed criteria for disposition, the Plaintiff took 77 points above 70 points, which are the standard points for renewal. However, from January 2014 to October 2015, the period for evaluation of renewal was 8 points due to the administrative disposition that was taken due to the violation, such as employment without qualification, non-compliance with the report of omission without permission, and thus, 6 points, which are the basis for revocation.

F. On March 28, 2016, the Defendant first notified the Plaintiff that he re-designated the exclusive travel agent as the exclusive travel agent, but thereafter, it later confirmed that the reduction points due to the Plaintiff’s administrative disposition is 8 points, and thereafter, 6 points, which are the criteria for the revocation of re-designation, are above 6 points, i.e., the criteria for revocation of re-designation. On November 4, 2016, the Defendant notified the Plaintiff that the re-designation of exclusive travel agent was revoked ex officio (hereinafter “instant disposition”).

3. Examining these facts in light of the legal principles as seen earlier, the following determination is possible.

A. The modified criteria for dispositions, regardless of their total points, require the rejection of renewal of the status of the exclusive travel agent solely on the basis of the fact that at least six points have been reduced by an administrative disposition. It constitutes cases where the previous criteria for dispositions, which have been decided to renew based on the total points, have been significantly changed. In addition, the Defendant already changed the two-year review period (from January 23, 2014 to December 2015) and then revoked the re-designation of the exclusive travel agent on March 23, 2016 by seriously amending the review criteria and applying the modified review criteria.

B. Although the Defendant asserts that certain exclusive tourers need to strengthen sanctions against the increase in the number of violations, such as the employment of unqualified tourers, the Defendant merely constitutes grounds for strengthening the control of violations and implementing strict sanctions as prescribed by relevant statutes, such as the Tourism Promotion Act, and it is difficult to view that there is a serious public interest need for considerable reduction in the number of designated tourers by modifying the criteria for dispositions publicly announced by the Defendant in relation to the renewal system of exclusive tourers. An additional sanction of rejection according to the changed criteria for dispositions ex post facto changes is against the principle that sanctions should be imposed in accordance with the statutes or the criteria for dispositions at the time of the relevant violations, not with regard to the violation (see, e.g., Supreme Court Decision 2015Du50474, Feb. 18, 2016). Accordingly, the Defendant’s decision to refuse the renewal of exclusive tourers in accordance with the changed criteria for dispositions after the ex post facto change should be deemed to have been made significantly more or more than the previous number of exclusive tour enterprises abolished or renewed. Therefore, the essence of the amendment of due process should be made.

4. Nevertheless, the lower court determined that the instant disposition was not erroneous in violation of Article 20(1) of the Administrative Procedures Act or in excess of or abused discretion at discretion. In so determining, the lower court erred by misapprehending the legal doctrine on the duty to make a prior announcement of the disposition standards under the Administrative Procedures Act, thereby adversely affecting the conclusion of the judgment. The allegation contained

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hwan

Justices Park Sang-ok