주식회사 한중네트웍(소송대리인 변호사 김동성)

The Minister of Culture, Sports and Tourism (Law Firm Han, Attorneys Kim Won-won)

September 28, 2017

1. The revocation of the designation of the exclusive travel agent for attracting Chinese group tourists, which the Defendant rendered to the Plaintiff on November 4, 2016, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

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 respective governments, and introduced a travel permission system (ADS, APvved Dest Datus) to attract and contact Chinese group tourists only by the travel agencies recommended by the countries which entered into an agreement with China. China designated the Republic of Korea as "China's country of free departure from China" in May 1998. The representatives of the two countries signed the SPS on June 27, 1998 and June 27, 2000 (hereinafter referred to as the "SPS"). The main contents of the SPS list are as follows.

In the main text, ○○ Chinese side, contained in the main text, shall have 66 Chinese travel agents, who are licensed, take charge of Korean tourism business, and shall enter into a collective tourist invitation and reception contract by finding a partner among the competent and reliable travel agents recommended by the Korean side. ○○ Korean side shall recommend the events of the Republic of Korea with a good credit and good financial situation and service situation as a Chinese tourist travel agent. 66 Chinese travel agents designated by the ○○ Chinese side shall designate a person in exclusive charge to take charge of the collective tourist visa business of the Korean Embassy of the Republic of Korea (Korean Embassy) and shall issue a visa as soon as possible when the person in exclusive charge applies for a collective tourist visa to the Korean Embassy of the Republic of Korea (Korean Embassy).

B. In July 1998, in order to implement the designation, management, etc. of the “exclusive tour guide for attracting Chinese organizations and tourists (hereinafter “exclusive tour guide”)” recommended to China according to the instant visa, the Defendant enacted the “Guidelines for the Implementation of Exclusive Tour Services for Attraction of Chinese Organizations and Tourist Operators” (hereinafter “instant guide”). After that, on May 2013, the Defendant newly established Article 3-2 of the instant guide, and introduced the “exclusive tour guide renewal system” to renew the designation of the exclusive tour guide with respect to the tour guide whose designation period expires for two years.

C. On March 29, 2005, the Plaintiff was established for the purpose of domestic and overseas travel business, general travel business, etc. and was designated as a exclusive travel agent on April 11, 2006 by the Defendant.

D. On March 23, 2016, the Defendant held a Committee for Management of Exclusive Tours and assessed 170 business entities designated as exclusive travel workers in accordance with the evaluation criteria. As a result, the Defendant decided to revoke the designation of exclusive tourers for the total 68 business entities, which are 6 or more points at least 70 points due to administrative dispositions.

E. Accordingly, on March 28, 2016, the Defendant notified 68 business entities that the designation of exclusive travel workers was revoked, and notified that the remaining 102 business entities including the Plaintiff were re-designated as exclusive travel workers on the same day.

F. After that, the Defendant found that the Plaintiff’s reduction points due to the administrative disposition was not included in the subject of revocation of designation even though it had 6 points which are the criteria for revocation of designation, and notified the Plaintiff on November 4, 2016 that the designation of exclusive tourers was revoked for the following reasons (hereinafter “instant disposition”).

The reason for the disposition of the name of the ticket company included in the main sentence is at least 6 points at the reduction point due to an administrative disposition, such as employment without qualification for the plaintiff (the reduction point: one corrective order, three points for penalty surcharges or suspension of business: the period of evaluation of renewal, the period of evaluation of renewal, January 2014 or October 2015). The details of the administrative disposition

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1, 2, 5, 6, 20 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition should be revoked as it is unlawful.

1) Violation of the principle of statutory reservation

The exclusive travel agent system that limits the freedom of occupation guaranteed under the Constitution must be based on the formal law within a formal meaning, but it is based on the instant guidelines that are merely administrative rules, not the law. Therefore, the instant guidelines or the exclusive travel agent system based thereon violates the principle of statutory reservation and the principle of parliamentary reservation, and the instant dispositions in accordance with the instant guidelines are also unlawful.

2) Violation of duty to publish the disposition standards

Unlike the evaluation criteria for the renewal of exclusive travel agents in 2013, the Defendant prepared the evaluation criteria that did not re-designated as exclusive travel agents in cases where the reduction points due to administrative sanctions are not less than six points, but did not publish them in advance. The Plaintiff could not anticipate that the administrative sanctions were the criteria for the revocation of designation, in addition to the factors for the reduction of designation. Thus, the instant disposition violated Article 20(1) of the Administrative Procedures Act.

3) Illegality of re-designation criteria

In the event that the reduction points due to administrative disposition is at least 6 points, the defendant uniformly rejected the re-designation of the exclusive travel company. However, even though the number of Chinese tourists has rapidly increased, it is impossible to employ a flexible travel company as well as small and medium-sized travel companies like the plaintiff since December 2014. The plaintiff complied with the relevant statutes, since December 2014, the standard of decline in the re-designation is more sensitive than the criteria for disposition of the Enforcement Decree of the Tourism Promotion Act on Employment without Qualifications (3 months of detection at the time of discovery) (3 months of business suspension) or the criteria expressed by the Ministry of Culture, Sports and Tourism on October 15, 2014 (3-time revocation of the designation of the exclusive travel company) higher than the criteria for disposition expressed as news report materials (3-time detection), the criteria for decline in the re-designation are unreasonable, and it is too inappropriate to introduce the re-designation and to achieve the purpose of renewal, and it is too inappropriate to achieve the plaintiff's trust and trust.

Therefore, the disposition of this case based on the criteria for the revocation of the above re-designation is unlawful.

B. Relevant statutes and regulations

It is as shown in the attached Form.

(c) Fact of recognition;

1) The Defendant newly established Article 3-2 of the instant Guidelines on May 20, 2013 through a public hearing on March 21, 2013, and introduced the system for the renewal of exclusive tour operators. On July 26, 2013, the Defendant held a public hearing to establish the standards for the evaluation of exclusive tour operators’ renewal systems and heard opinions from exclusive tour operators. Moreover, on February 28, 2013 and August 23, 2013, the Defendant held a public hearing on the establishment of the standards for the evaluation of exclusive tour operators and the renewal system under the Korea Tour Business Association.

2) On September 5, 2013, the Defendant determined the criteria for the evaluation of a renewed system and notified the head of the Korea Tour Business Association of the following matters of the criteria for evaluation of a renewed system (hereinafter referred to as “standards for evaluation of a renewed system in 2013”) along with guidance on implementation of a renewed system, and the head of the Korea Tour Business Association notified the same on the same day to exclusive

According to the evaluation criteria for the renewal system in 2013, the evaluation field, items, indexes and their marks should be at least 75 points in total in order to be re-designated as exclusive travel workers and to be dedicated travel workers as follows:

The rating of 15 points classified as the rating of the evaluation score of the list area included in the main text and the rating of attracting tourists for 82 years - the financial stability of the financial soundness of the relevant travel company -5 point operating income for -5 point operating income for 2 years, without permission of tourists complying with the legal system, for -2 years, the average exclusion rate of 10 points and 15 points for the number of administrative administrative dispositions -2 years - the ratio of the attracting of qualified tourists to 10 points for the number of years - the ratio of the attracting of high-value-value-added tourism, such as medical tourism for selling tourist products, MICE tourism, cosmetic tourism, etc. - the ratio of the selling of high-value-value-value-added products to 15 points for the government policy response - whether the high-value-value-value-value-value-added product is reasonable - if press reports and industry reputation, etc. of the contents that cause social products are bad - - 10 points in total attendance - - 10 points.

3) On December 5, 2013, the Defendant notified the exclusive travel workers of the results of the implementation of the renewal system (121 re-designations, including the Plaintiff, among 143 exclusive travel workers less than two years, excluding 36 exclusive travel workers) on December 5, 2013, and announced that the results of attracting, product prices, administrative sanctions, sales volume of low-priced products, sales ratio of high-priced products, etc. will be continuously monitoring and reflected in the evaluation of the renewal system conducted every two years.

4) On October 5, 2015, the Defendant: (a) notified the head of the Korea Tour Association of the establishment of an electronic management system for the efficient management of events exclusively in charge of Chinese tour; (b) notified the exclusive tourers to enter the performance of each company; and (c) notified the results of entering the performance in 2014 and 2015, it was expected to be used for the evaluation of re-designation (Renewal) in 2015; and (d) the president of the Korea Tour Business announced the exclusive tourers on the same day.

5) On December 24, 2015, the Defendant announced that the exclusive travel agent may be disadvantaged in the evaluation of relevant items at the time of failure to submit data related to the evaluation of re-designation by January 8, 2016. At the time, the documents that the Defendant requested to submit are “Evidence of Financial Statements to be Reported by the National Tax Service, Certification of Certified Tax Accountants (Certified Tax Accountants)”, documents that the Defendant requested to submit are “proving evidence, such as the signing of standard terms and conditions for tour interpreters,” companies-tourism interpreter standard terms and conditions, and the attraction of high-class goods and local products, including MICE and medical services.”

6) In order to strengthen sanctions against illegal acts, such as employing a certain exclusive tourer without qualification, failing to perform his/her duty to refrain from unauthorized transfer duty, etc., the Defendant newly prepared the following guidelines for evaluation of renewal systems (hereinafter “evaluation standards for renewal systems in 2016”) on March 11, 2016, which became final and conclusive on March 11, 2016. According to the evaluation results of ① (i) evaluation of performance for two years (from January 2014 to October 2015), less than 70 points, or (ii) revocation of designation of exclusive tourers with at least six points reduced due to administrative dispositions (unqualified, etc.) even if 70 points are above 70 points.

At least 10,000,000 won for each company to participate in education for the promotion of the electronic management system at the 15th degree of participation in the promotional zone of tourists, the evaluation index of evaluation of the list and the scale of attracting tourists - the scale of attracting Chinese organizations - the scale of 15 points for the promotional stability of finance (standard: 200 million won) - the scale of sales (average 4.4 billion won) 5 points for the promotional zone of tourists - the degree of participation of the electronic management system at the 15 point for the promotional zone of tourists - The participation of the electronic management system at the 10th level of investment ratio of the tourism industry development - the minimum inducement rate - the minimum inducement rate of investment - the planning ability of evaluation for each company: 20 points of investment evaluation - 10 points for each company, such as award, commendation commendation, commendation commendation of the Minister of Culture, Sports and Tourism, and the selection of outstanding products - the average corrective order or suspension of business operation - 15.

7) The Plaintiff was subject to the following administrative dispositions from January 2014 to October 2015.

A corrective order on May 13, 2014, which was issued on September 22, 2014; the penalty surcharge of March 2, 2015; the penalty surcharge of March 2, 2015; the penalty surcharge of December 24, 2014;

8) On March 23, 2016, the Defendant held a Committee for Management of Exclusive Tours to evaluate the exclusive events in accordance with the evaluation standards for the renewal system in 2016, and the Plaintiff was assessed as follows.

The number of appraisal points (15 points) of 11 (10 points) of the scale of attracting tourists (10 points) of the scale of attracting financial stability (15 points) and 2 (5 points (15 points) of the amount of financial stability 10 points (10 points) of the capital stock of financial stability 10 points (10 points) of the scale of attracting tourists included in the main text and 5 points (5 points) of the participation in the electronic management system at 10 (10 points) of the participation in the participation of the 10 (10 points) of the 10 (10 points) of the 2014-201 unit price per person of the investment rate of the tourism industry development (10 points) of the 10-10 unit price per person of the year 2015 (10 points) and the aggregate of 85 points (10 points) points (10 points) points (10 points) points and 87 points (10 points) points (10 points) points (10 points)

[Ground of recognition] Facts without dispute, entry of evidence Nos. 4 through 6, 8, and 21, the purport of the whole pleadings

D. Determination

1) Whether the principle of statutory reservation is violated

The principle of statutory reservation and parliamentary reservation that the basis of the formal law established by the National Assembly is required in administrative action is not sufficient if administrative action simply serves as the basis of law, but rather, it is understood that the area of basic and important meaning for the state community and its members, in particular, the area related to the realization of the fundamental rights of the people, and the area related to the realization of the fundamental rights of the people, should not be entrusted to the administration, but to the demand that the legislators, the representative of the people, make a decision on the essential matters thereof. However, it is not possible to uniformly define what matters to be regulated by the legislators, and only to separately determine matters in consideration of the importance of benefits or values related to a specific case, the degree and method of regulation or infringement, etc.: Provided, That when restricting the freedom or rights of the people guaranteed by the Constitution at least, the legislators on the essential matters of the restriction must be governed by law (see, e.g., Constitutional Court en banc Decision 2015Hun-Ba125,

As to the instant case, comprehensively taking account of the following circumstances revealed by the foregoing facts and the purport of the entire pleadings, the designation of exclusive tourers and the revocation of designation, and the guidance of this case cannot be deemed null and void as it goes against the principles of statutory reservation and the reservation of the Council.

(1) According to the Framework Act on Tourism, the Government shall devise basic and comprehensive policies concerning tourism promotion (Article 2), and shall take legislative and financial measures and other necessary administrative measures to implement such policies (Article 5). In order to strengthen overseas publicity, improve entry and departure procedures, and take other necessary measures to promote the attraction of foreign tourists (Article 7), while guiding and supervising tourism business and devise other necessary policies (Article 10) in order to promote tourism business.

The Defendant is the competent authority responsible for formulating various measures and policies related to the tourism industry pursuant to the provisions of the Framework Act on Tourism, and entered into an agreement with the Chinese government in accordance with the Roster of this case with the aim of facilitating the attraction of Chinese group tourists. The Defendant prepared the instant guidelines in order to implement the matters stipulated in the agreement, and designated the following exclusive events or revoked the designation of exclusive events.

② The fundamental reason why domestic travel agents, who were not designated as exclusive travel agents, are unable to attract Chinese organization tourists at will, in principle, is that China has adopted a travel permission system that permits foreign tourism only to countries where the agreement was concluded in accordance with the procedures stipulated in the agreement, and thus, our legal system cannot be said to be the reason that our country adopts the permission system for attracting Chinese organization tourists. Rather, designation of exclusive travel agents has the character of giving the designated domestic travel agents the right to enter into a Chinese organization tour attraction contract.

(3) An act of designating exclusive tourers is beneficial to the other party, and its legal nature belongs to discretionary act, and in such discretionary act, an additional condition, time limit, burden, etc. may be attached to achieve administrative purposes, unless otherwise expressly provided for in the relevant Acts and subordinate statutes. The contents of such additional clauses are able to implement, comply with the principle of proportionality and the principle of equality, and are not detrimental to the essential effect of an administrative disposition.

④ Even if a travel agent designated as a exclusive travel agent by designating the exclusive travel agent in compliance with the instant guidelines, the mere fact is to achieve the administrative purpose that he/she manages the qualification for exclusive travel agent to maintain more than a certain level, as prescribed by the instant non-exclusive travel agent’s protocol. Even if the designation of exclusive travel agent is revoked, his/her status as a exclusive travel agent is lost, and his/her rights and interests going beyond the scope are not infringed. Thus, it cannot be deemed impossible to perform the instant guidelines, or contrary to the principle of proportionality and the principle of equality, and it is difficult to view that the designation system of exclusive travel agent as a whole is to restrict the freedom or rights of the people guaranteed by the Constitution or to restrict its essential matters.

⑤ After the completion of the instant visa, the number of Chinese organizations tourists or exclusive tourers increased significantly, thereby resulting in a significant increase in the impact of designating exclusive tourers on the domestic tour business market, and the designation of exclusive tourers and revocation of designation should not be entrusted only to the decision of the administration, but also to the extent that there is a need to be incorporated into the law enacted by the National Assembly, this is ultimately a matter of the Council’s decision.

Even if there is a need for such legislation, if the legal effect cannot be granted to the designation of exclusive tourers and the revocation of such designation on the sole ground that there is no legal basis, there is confusion in the travel business or tourism business related to attracting Chinese organizations and tourists, which is no longer able to observe the records of this case, which is an agreement entered into with China, and it is expected that the side effect is no longer possible to attract Chinese organizations and tourists.

(6) Since the fact that the Plaintiff has been holding the position as a exclusive travel agent is also based on the guidelines of this case, if the guidelines of this case are null and void as asserted by the Plaintiff, the original ground for the designation as a exclusive travel agent would be lost. The part concerning the designation of a exclusive travel agent in the guidelines of this case concerning the designation of the exclusive travel agent is valid, and there is no reasonable

2) Whether the disposition standards violate the duty of disclosure

A) Relevant provisions and purport

Article 20(1) of the Administrative Procedures Act provides that "the administrative agency shall determine and publicly announce the necessary disposition standards so that they may be in light of the nature of the relevant disposition," and Article 20(2) of the same Act provides that "the public announcement of the disposition standards pursuant to paragraph (1) may not be made in cases where it is considerably difficult in light of the nature of the relevant disposition or where there are reasonable grounds deemed to significantly undermine the safety and welfare of the public."

The purpose of this system is to ensure transparency and predictability in administration by preventing arbitrary exercise of authority by administrative agencies. Thus, administrative agencies are obligated to establish and publicly announce the standards for dispositions to the maximum extent possible (see Supreme Court Decision 2008Du5148, Aug. 25, 201).

B) In the instant case:

The defendant who manages and operates the exclusive travel agency system shall have considerable discretion in the evaluation items, allocated points, evaluation methods, and detailed calculation methods and criteria for evaluation points of the exclusive travel agency's renewal system, and to revise the evaluation criteria to give administrative sanctions to correct the problems arising from the business behavior of a partial exclusive travel agency or to consider them as reasons for the revocation of its independent designation shall be deemed to have within the scope of discretion permitted to the defendant.

However, in determining the procedural illegality of the instant disposition, the determination should be based on whether the above purpose of the Administrative Procedures Act was damaged. In full view of the facts recognized and the following circumstances revealed by the purport of the entire pleadings, the Defendant prepared an assessment standard for the renewal system in 2016, which includes the contents that the revocation of designation should be revoked by an administrative disposition for a business entity with at least six points, and did not publish it in advance, and it appears that the Plaintiff could not have predicted that the revocation of designation should be revoked by only the reasons for the reduction in the place of residence. Therefore, it is difficult to deem that the Defendant guaranteed predictability of administration while rendering the instant disposition.

Therefore, the disposition of this case is in violation of Article 20 (1) of the Administrative Procedures Act.

(1) If the designation of a specialized travel agent is revoked, it is important to determine the revocation of the designation of a specialized travel agent in China as a specialized travel agent because it is impossible for the specialized travel agent in charge of attracting Chinese group tourists. As such, the travel agent who intends to be designated as a specialized travel agent and the specialized travel agent who has been designated must be notified of the requirements for designation, revocation of designation, etc. in advance. On the other hand, it is necessary to change the requirements for the designation of a specialized travel agent and the revocation of designation as a specialized travel agent depending on changes in market conditions and resolution of problems arising from the operation of the system. However, considering the meaning of the travel agent who intends to attract Chinese group tourists, the defendant shall guarantee predictability of the criteria by notifying the exclusive travel agent in advance.

② Since the Defendant first implemented the renewal system at around 2013, notified the exclusive travel agents including the Plaintiff at the time of the first implementation of the system, to reflect the results of attracting occupants, product prices, administrative sanctions, etc., it is reasonable to deem that the Plaintiff as the Plaintiff was expected to have cancelled the designation only when the assessed points for each of the evaluation factors conducted at around 2016 were below the standard points for the implementation of the renewal system at around 2013. In addition, even if it was anticipated that the Plaintiff could have predicted that there may be changes in the evaluation factors and the allocation points for the purpose of supplementing the market situation and the operation of the system, such changes should be deemed to have been changed within the framework of the evaluation criteria for the renewal system in 2013. Thus, even if at the time of the Plaintiff’s act of violation at the time of the instant disposition, the Plaintiff’s act of violation was not subject to the revocation of designation, and it should be deemed to have exceeded the limit of the independent revocation of designation.

(3) According to the instant guidelines, where the exclusive travel agent is unable to renew due to the implementation of the renewal system (Article 3-2) and where a certain violation was committed (Article 11), it would be at a disadvantage subject to the revocation of designation only, and the history of administrative sanctions would act as an aggravated factor in determining the administrative sanctions pursuant to Article 11 and attached Table 2 of the instant guidelines. In the evaluation of the renewal system in 2013, it is only one of the evaluation factors for calculating the evaluation score. As such, it is reasonable to deem that the Plaintiff was difficult to expect the revocation of designation only with the administrative sanction in the evaluation of renewal, unless the revocation of designation is granted with the administrative sanction aggravated by the administrative sanction.

④ In the operation of a partial exclusive contribution event, problems such as non-qualified employment, operation of low-quality shopping products have been pointed out, and the defendant, as a measure to solve these problems even at the time of formulating the evaluation criteria for the renewal system in 2013, set up evaluation criteria that reflect the dual contribution in the evaluation scores.

Although it seems that the same problem has continuously occurred and the need for the preparation of countermeasures has continuously been raised, it is difficult to view that the Plaintiff could have predicted the degree of increase in the percentage of marks allocated to the administrative sanctions after the evaluation of the renewal system in 2013, even though the Plaintiff could have predicted the degree of increase in the percentage of marks allocated to the administrative sanctions, it is difficult to view that the administrative sanctions alone could have anticipated the revocation of designation.

Furthermore, the discussion on the rational operation of the exclusive travel agency system has continued by discussing the countermeasures against the government, strengthening the management of exclusive travel agencies, and strengthening the sanctions, but it is difficult to find out the circumstance that the defendant notified the exclusive travel agency including the plaintiff that he/she will have a separate reason for revocation of administrative sanctions or strengthen the disadvantage caused by administrative sanctions.

⑤ Meanwhile, even if the assessment standard for the renewal system in 2016 including the newly established standard was published in advance, the Plaintiff was already subject to administrative sanctions prior to that date, and thus, it would not have been able to prepare for the disposition in this case. However, this result was that the Defendant had already applied the penalty points to the company that received the penalty points as administrative sanctions prior to the establishment of the new standard in this case. The Plaintiff, as the Plaintiff, received penalty points pursuant to the administrative sanctions prior to the implementation of the new standard, was able to obtain the re-designation in accordance with the newly established standard in this case, which would not have been anticipated to have been able to obtain the re-designation, and thus, it would be contrary to the purport of Article 20(1) of the Administrative Procedures Act.

C) Sub-decision

Therefore, the instant disposition is unlawful without having to determine the remainder of the Plaintiff’s remaining arguments, as it is procedural defect in violation of the duty of publication of the disposition standards.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

(attached Form omitted)

Judges, Circuit (Presiding Judge) Lee Jong-hee and Kim Young-il (it is impossible to sign and seal due to illness);