2012Guhap599 The revocation of revocation of the application for a license for marine passenger transportation services

United States Shipping Corporation

The Administrator of the Masan Regional Maritime Port Office

The entry in the attached list is as shown in the attached list.

June 14, 2012

August 16, 2012

1. On January 3, 2012, the Defendant’s rejection of an application for a license for marine passenger transportation services rendered against the Plaintiff on January 3, 2012 is revoked.

The same shall apply to the order.

1. Basic facts and circumstances of dispositions;

A. On December 5, 2011, the Plaintiff filed an application with the Defendant for a license for regular coastal passenger transportation services (hereinafter referred to as the “instant application”). On December 5, 201, the Plaintiff filed an application with the Defendant for a license for regular coastal passenger transportation services (hereinafter referred to as the “instant application”).

B. The vessel mooring facilities of the funeraldo, the final port of the instant sea route, consisting of 795 meters at the entrance of the Republic of Korea (Ministry of Environment), 958 square meters at the entrance of the port owned by the Republic of Korea, and 2 floating bridges (hereinafter “the instant landing site”) connected to the said landing site (hereinafter “the instant landing site”). On June 22, 201, the instant landing site is classified into the instant landing site under the Korea Sea Park Planning (Ministry of Environment Notice No. 2011-102), and the purpose of the permission to occupy and use public waters at the time of the establishment of the said landing site was “the installation of floating bridge for floating boats” with the consent of the owner of the Do Park, the Do Park, the Do Park, the owner of the instant landing site, and the Plaintiff obtained the permission to use and use the remaining land and the permission to use the public property at a cost from the Do Park and the Plaintiff.

D. Regarding the instant application on January 3, 2012, the Defendant rendered a non-permission disposition (hereinafter “instant disposition”) on the ground that: (a) the instant application was made on January 3, 2012; (b) the instant funeral service, which is the final destination of the instant sea route, was determined and publicly announced as the Korea Sea National Park under the Natural Parks Act; and (c) the mooring facilities (the instant mooring facilities) scheduled to be used by the Plaintiff were determined and publicly announced as the excursion ship wharf; and (d) the passenger ship cannot be opened for the purpose of be connected with the excursion ship upon obtaining a permit for occupation and use of public waters from the Tong-si, the management agency of public waters; and (b) it is impossible for the Defendant to use the park facilities, such as the water wharf and plant site, or install additional passenger ship dealing facilities, such as the floating bridge (hereinafter “instant disposition”).

[Ground of recognition] Gap's 1, 2, 4, 5, 13 through 16, 19, 20, 22, Eul's 1, 4, 5, and 6, the witness's testimony, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

A) There is no difference between the vessel mooring facilities under the Marine Transportation Act and the vessel wharf under the Excursion Ship and Ferry Business Act in that the vessel is a facility landing the vessel for passengers to get on and off the vessel, and there is no circumstance to deem that the instant vessel cannot be on and off the instant landing place.

B) Since the size of the Plaintiff’s passenger ship intended to operate is larger than that of the sight line currently adjacent to the instant landing place, there is no safety problem in the contact.

C) The Plaintiff was issued a written consent to ship entry and a written consent to the use of the floating bridge from the side of the funeraldo Maritime Park.

D) Regular passenger ships need to be operated in order to transport tourists visiting the Funeraldo Maritime Park’s demand on the side of the Funeraldo Maritime Park and the Funeraldo Maritime Park’s marine park.

2) Defendant and the Intervenor’s assertion

A) i) The instant landing place is classified as the excursion ship wharf; ii) the purpose of permission to occupy and use public waters with respect to the floating bridge of the said landing place is the floating line; iii) the Korea Coast Guard, the ownership and management manager of the instant landing place, and the Korea Coast Guard, the Korea Coast Guard, the Korea Coast Guard, the Dong Office of the National Park, and the Tong Office of the instant landing place, cannot use the instant landing place except the floating line. Thus, the instant landing place cannot be executed on the instant landing place.

B) Even if the Plaintiff obtained the Plaintiff’s consent to entrance and use of the instant landing place on the side of the Funeraldo Maritime Park, insofar as the Korea National Park Service, the ownership and management manager of the instant landing place, opposed to the use of passenger ships at the Sea Maritime Park Dong Office and Tong-young City, it is impossible to contact passenger ships in reality.

C) There is no demand of residents for regular passenger ships for which a regular passenger ship route is required to be permitted.

B. Relevant legislation

Article 4 of the former Marine Transportation Act (amended by Act No. 11480, Jun. 1, 2012)

(1) A person who intends to operate marine passenger transportation services shall obtain a license for each service route by type of services under Article 3. A license from the Minister of Land, Transport and Maritime Affairs shall be granted for each service route: Provided, That in cases of non-regular coastal passenger transportation services pursuant to subparagraph 2 of Article 3, a license may be granted for two or more service routes, including the two or more service routes, and in cases of non-regular overseas passenger transportation services, cruise passenger transportation services, and combined marine passenger transportation services (limited to cases of providing services under subparagraphs 2 or 4 and

(2) The Minister of Land, Transport and Maritime Affairs may, when granting a license under paragraph (1), grant the license only to the scope, period, fixed number, etc. of marine passenger transport services (hereinafter referred to as "fixed license"), as prescribed by

(3) A person who intends to obtain a license under paragraph (1) shall submit an application accompanied by a business plan to the Minister of Land, Transport and

(4) When the Minister of Land, Transport and Maritime Affairs grants a license under paragraph (1), he/she may do so on condition that the facilities, etc. under Article 5 (1) 2 and 5 be installed within the period prescribed by Ordinance

Article 5 (Licensing Criteria)

(1) When the Minister of Land, Transport and Maritime Affairs intends to grant a license for marine passenger transportation services, he/she shall examine whether the business plan submitted under Article 4(3) complies with the following

1. Commencement of the relevant service shall meet the transport demand criteria prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs;

3. Commencement of the relevant services shall not cause any concern over hampering the safety of marine traffic;

4. The relevant services shall have an operation plan suitable for the convenience of users;

5. The meaning of terms used in this Act for the quantity of passenger ships owned and the age of such ships shall meet the standards prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs shall be as follows:

1. “유선사업"이란 유선 및 유선장(遊船場)을 갖추고 하천, 호소(湖沼) 또는 바다에서 고기잡이, 관광, 그 밖의 유락(遊樂)을 위하여 선박을 대여하거나 유략하는 사람을 승선시키는 것을 영업으로 하는 것으로서 『해운법」을 적용받지 아니하는 것을 말한다.

2. The term "lane business" means a business with a Do electric power station and a ferry wharf, which is engaged in transporting people or transporting people and goods in rivers, lakes and marshes, or the sea areas prescribed by Presidential Decree, but is not subject to the application of the Marine Transportation Act;

3. The term "excursion ship wharf and ferry wharf" means a facility for safely mooring excursion ships and ferries (hereinafter referred to as "excursion ship/ferry") to allow passengers to embark and disembark, and a convenience facility for passengers;

1) According to Articles 4 and 5 of the former Marine Transportation Act, a license for the marine passenger transport service is granted to a specific person the right or interest. The license is subject to discretionary action that should be determined by comprehensively taking into account the transport demand of the sea route in question, suitability of mooring vessels and mooring facilities, safety of marine transportation, convenience of users, etc. However, even if the discretionary action by an administrative agency is conducted based on mistake of facts, etc., or in violation of the principle of proportionality or the principle of equality, etc., it is illegal as it deviates from or abused the discretionary authority, and thus its revocation shall not be exempted (see, e.g., Supreme Court Decisions 9Du8589, Jul. 27, 2001; 2007Du18215, Dec. 11, 2008).

2) Determination as to whether a passenger ship cannot be on the arrival of the instant passenger ship

Article 5 (1) of the former Marine Transportation Act provides that "a vessel mooring facility shall be defined as "a vessel mooring facility" and "a vessel mooring facility" shall be defined as "a vessel mooring facility" and "a vessel mooring facility" and "a vessel mooring facility" shall be defined as "a vessel mooring facility" and "a vessel mooring facility" and "a vessel mooring facility" shall be defined as "a vessel mooring facility" and shall not be defined as "a vessel mooring facility" under the Marine Transportation Act, and shall be defined as "a vessel mooring facility" and "a vessel mooring facility", if the vessel mooring facility is appropriate for the size of the facility and its surrounding environment, and shall be defined as "a vessel mooring facility" and "a vessel mooring facility" under the Marine Transportation Act.

In this case, even if the arrival site of this case is classified as the excursion ship wharf for the purpose of the public notice of the Ministry of Environment or the defendant's permission to occupy and use the public waters, such circumstance alone alone does not make the application of this case deemed unlawful, and the defendant should have practically examined whether the application of this case is a vessel mooring facility appropriate for the application of this case by taking into account the size of the landing site of this case, surrounding environment, current status of use, etc., and it is difficult to view that the defendant sufficient examination of this case alone, and there is no counter-proof otherwise.

3) Determination as to the assertion of shortage in demand for passenger ships

With respect to an appeal seeking the revocation of an administrative disposition, from the perspective of the substantive rule of law and the protection of confidence in the people who are the other party to an administrative disposition, a disposition agency may add or change other reasons only to the extent that the original reason and basic facts are identical to those of the original disposition, and it is not allowed to assert as the grounds for disposition on the ground that there are separate facts not recognized as identical to the basic facts (see, e.g., Supreme Court Decision 2007Du17359, Feb. 12, 2009). Since the shortage of demand for passenger ships did not constitute the grounds for the disposition in this case, the aforementioned assertion cannot be deemed identical to the original reason for disposition and basic facts.

4) Sub-committee

Therefore, the instant disposition is unlawful.

3. Conclusion

If so, the plaintiff's claim of this case is justified and accepted.

The presiding judge shall be appointed from among the judges;

Judges Jeon Soo-tae

Judges Park Jong-dae

A person shall be appointed.