[1] Whether there is a defect to the extent of revocation solely on the ground that an administrative agency rendered a disposition by applying the pre-public notice of the disposition standard under Article 20(1) of the Administrative Procedures Act in violation of the duty of prior public notice (negative)

[2] In cases where an administrative agency adopts and operates the so-called "Renewal" to review and determine renewal at a certain period after granting a specific right, interest, or status to the other party to the disposition in accordance with the relevant statutes or its own judgment, whether the other party to the disposition has the right to demand a fair review in accordance with reasonable standards as to whether renewal has been renewed (affirmative), and whether the “fair review” in this context is permissible to change significantly to the extent that the other party’s renewal has been decided at the time when the period of review already passed or when a considerable portion of the pre-public notice was passed

[1] Even if an administrative agency made a disposition by applying a pre-public notice of the disposition standard under Article 20(1) of the Administrative Procedures Act in violation of the duty of prior public notice, such circumstance alone alone does not immediately deem that there is any defect to the extent of the grounds for revocation. However, if the standard applied to the pertinent disposition violates a superior statute or the general principles of the law, such as the principle of trust protection, or if specific circumstances exist to deem that it is objectively unreasonable, the relevant disposition may be deemed unlawful. The specific reasons are as follows.

(1) Criteria for disposition determined and publicly announced by an administrative agency pursuant to Article 20(1) of the Administrative Procedures Act are, in principle, administrative rules which have no external binding force, unless there are special circumstances that the disposition was enacted and promulgated with specific delegation by the relevant Acts and subordinate statutes.

② Whether a disposition is legitimate ought to be determined not by whether it conforms to administrative rules, but by whether it conforms to the provisions of upper-tier statutes and legislative purpose. Such circumstance alone does not immediately mean that a disposition is unlawful merely because it violates administrative rules, and the legality of the disposition is not guaranteed merely because it is in accordance with the administrative rules. Inasmuch as the administrative agency’s prior public announcement criteria, namely, whether it is not a critical indicator to determine the legality of the disposition, the application of the standards that an administrative agency did not publish 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 dispositions 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 dispositions under Article 20(2) of the Administrative Procedures Act, and ought to be individually determined depending on specific matters. If an administrative agency can legally take measures only when it has made a prior public announcement of the specific criteria for dispositions in accordance with Article 20(1) of the Administrative Procedures Act, the legality of the disposition becomes excessively unstable and the enforcement of the individual

[2] In a case where an administrative agency adopts and operates the so-called "Renewal System" to review and determine whether to renew after granting a specific right, interest, or status to the other party to the disposition in accordance with the relevant statutes or its own judgment, the other party to the disposition has the right to demand a fair review in accordance with a reasonable standard with the expectation that the renewal will be renewed if the other party satisfies the criteria after obtaining a fair review in accordance with a reasonable standard

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.

Unless there are special circumstances, such as change of minor matters, somewhat unclear and abstract parts of the criteria for review published in advance, and making a significant change to the extent that the renewal of the other party to the disposition should be decided at the time when the period of review has already expired or considerable parts have already elapsed, it would be 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. Therefore, it is not permitted unless there are special circumstances such as the necessity for a significant public interest that makes it inevitable to abolish the renewal itself or reduce the number of the other party to

[1] Article 20 (1) and (2) of the Administrative Procedures Act / [2] Article 20 (1) of the Administrative Procedures Act

[1] Supreme Court Decision 2009Du7967 Decided December 24, 2009 (Gong2010Sang, 262) Supreme Court Decision 201Du10584 Decided September 12, 2013 (Gong2013Ha, 1800) / [2] Supreme Court Decision 2010Du1835 Decided January 13, 201 (Gong201Sang, 349)

주식회사 한중네트웍 (소송대리인 변호사 김동성 외 1인)

The Minister of Culture, Sports and Tourism (Law Firm Han, Attorneys Kim Won-won et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2017Nu84954 decided April 25, 2018

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 criteria for dispositions so that they may be specifically determined and publicly announced in light of the nature of the dispositions concerned. The same shall apply to any modification to the criteria for dispositions.” Article 20(2) provides, “The publication of the criteria for dispositions pursuant to 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 can be seen, allowing an administrative agency to specifically determine and publicly announce a disposition standard is to enhance predictability of the outcome of the relevant disposition, thereby ensuring fairness, transparency, and reliability of administration, thereby preventing arbitrary exercise of its authority by an administrative agency. However, given the nature of the disposition standard, if the disposition standard is to be publicly announced in advance, it would be impossible to achieve administrative purposes or granting discretionary power to an administrative agency within a certain scope, and thus, would be more appropriate for the safety and welfare of the public. In such a case, it may be possible to separately or roughly publicly announce the disposition standard in accordance with Article 20(2) of the Administrative Procedures Act (see, e.g., Supreme Court Decision 2018Du41907, Dec. 13, 2019). Where an administrative agency changes the disposition standard originally publicly announced, the changed disposition standard should be re-published, unless it falls under the exception prescribed in paragraph (2) of the same Article.

C. Even if an administrative agency took a disposition by applying the pre-public notice of the disposition standard under Article 20(1) of the Administrative Procedures Act in violation of the duty to pre-public notice thereof, such circumstance alone alone does not immediately deem that there was any defect to the extent of the grounds for revocation thereof. However, if the standard applied to the pertinent disposition either violates a superior law or violates the general principles of law, such as the principle of protection of trust, or if specific circumstances exist to deem that it is objectively unreasonable, the relevant disposition may be deemed unlawful. The specific reasons are

(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 by specific delegation under the relevant disposition-based statute.

(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 laws and regulations and legislative purposes (see Supreme Court Decision 201Du10584, Sept. 12, 2013). A disposition is not immediately illegal solely on the ground that it violates administrative rules, but is not immediately illegal solely for such reason (see Supreme Court Decision 2009Du7967, Dec. 24, 2009). The legality of the disposition is not guaranteed merely because it is in accordance with administrative rules. Inasmuch as the standards publicly announced by an administrative agency in advance, namely, whether the administrative agency had known the existence of the administrative rules, can not be 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 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 disposition can be lawfully made only when it has made a prior announcement of the specific criteria for disposition pursuant to Article 20(1) of the Administrative Procedures Act, the legality of the disposition is excessively unstable and the enforcement of an individual statute actually remains

D. In a case where an administrative agency adopts and operates a so-called “Renewal” system to examine and determine whether to renew it at a certain period after granting a specific right, interest, or status to the other party to the disposition in accordance with the relevant statutes 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 a reasonable standard, barring any special circumstances, on the expectation that the renewal will be renewed if it conforms to the standards after obtaining

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 to provide the other party with predictability of the review criteria and methods and to review whether a decision on whether to renew the review has been made fairly in accordance with reasonable standards (see Supreme Court Decision 2010Du1835, Jan. 13, 201, etc.).

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 for attracting Chinese organizations and tourists” recommended to the Government of China (hereinafter “exclusive tour guide”), the Defendant enacted the “Guidelines for the Performance of the Exclusive Tour Business for Attraction of International Tourist Operators” (hereinafter “instant guide”). Around May 2013, the Defendant newly established Article 3-2 of the instant guide, and introduced the “exclusive tour guide renewal scheme” to renew the status of the exclusive tour guide through a review once every two years.

B. The Defendant, around September 2013, around the time of the introduction of the “exclusive travel agency renewal system”, set the criteria to renew the status of the exclusive travel agency in cases where the total points of points according to each evaluation field, items, and index are at least 75 points (hereinafter “previous Criteria”) and announced the same to the exclusive travel agency through the president of the Korea Tour Business Association.

C. On April 11, 2006, the Plaintiff was newly designated as the exclusive travel agent in accordance with 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 for dispositions. At that time, 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 of low-priced goods, sales rate of high-value goods, etc. considered as a replacement in the previous dispositions standards, and reflect them in the evaluation of the renewal system conducted every two years.

D. The Defendant, on March 23, 2016, issued a decision to not renew the status of the exclusive travel agent (hereinafter referred to as “ modified disposition standards”), but applied the renewal review without publicly announcing the previous disposition standards in order to strengthen sanctions against some exclusive travel agents, as well as to partially alter the evaluation field, items, indexes, allocated points, etc. of the previous disposition standards, and ① to less than 70 points or to not renew the status of the exclusive travel agent even among the enterprises with 70 points or more (i) more than 6 points due to administrative disposition (unqualified, etc.).

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 base point for elimination.

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, confirmed the fact that the Plaintiff’s office was eight points due to the Plaintiff’s administrative disposition, and subsequently, confirmed the fact that the Plaintiff’s office 6 points higher than that of the re-designation, and notified the Plaintiff on November 4, 2016 again 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 a case where the previous criteria for dispositions that 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 2, 2014 to December 2, 2015) and then revoked ex officio the re-designation of the exclusive travel agent with respect to the Plaintiff by seriously amending the review criteria around March 23, 2016 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 employment of non-qualified tourers, this is merely a ground 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. The ex post facto modified criteria for dispositions imposing additional sanctions for rejection of renewal in accordance with the changed criteria for dispositions violates the principle that sanctions should be imposed in accordance with the statutes or the criteria for dispositions at the time of the relevant violations (see, e.g., Supreme Court Decision 2015Du50474, Feb. 18, 2016).

C. Therefore, the Defendant’s decision to refuse the renewal of the exclusive travel company against the Plaintiff according to the criteria for ex post facto change is unlawful, barring special circumstances where it is necessary for the public interest to make the number of exclusive travel companies to be abolished or renewed more significantly reduced than the previous ones, or where relevant statutes have been enacted or amended, etc., it is contrary to the legislative intent of the pre-disclosure system of the criteria for disposition standards, and it is against the request for fair review derived from the nature of the renewal system and the due process of law.

4. Nevertheless, the lower court determined that the instant disposition did not err by either violating Article 20(1) of the Administrative Procedures Act or exceeding or abusing discretion in discretionary actions. In so determining, the lower court erred by misapprehending the legal doctrine on the duty to pre-announce the disposition standards under the Administrative Procedures Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

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 Jong-hee (Presiding Justice)