2013Guhap2752 Revocation of revocation of authorization for changes in passenger transport business plan

1. East Passenger Transport Corporation;

2. A mobilized passenger transport company;

3. Passengers who are stock companies.

4. Thai bus for a stock company:

Do Governor of Gyeongnam-do

1. A general passenger transport company;

2. A passenger transport company;

3. A new interest passenger transport company;

March 4, 2014

April 8, 2014

1. All of the plaintiffs' claims are dismissed.

2. The costs of the lawsuit, including the part resulting from the supplementary participation, are assessed against the Plaintiffs.

The Defendant’s disposition of approving the modification of the passenger transport business plan listed in the attached Table 1 issued to the Intervenor (hereinafter referred to as “participating”) on July 25, 2013 is revoked.

1. Details of the disposition;

A. Status of the parties

The plaintiffs have a principal office in Busan City and operate urban buses No. 338 and No. 138-1 in Busan City as indicated below, and the intervenors are trucking business operators operating cross-city buses listed in the annexed Table 1 (hereinafter referred to as the "non-city buses in this case"). The plaintiffs are trucking business operators operating cross-city buses listed in annexed Table 1 at the Gyeongnam-do. The plaintiffs' service route table.

A person shall be appointed.

B. The Defendant’s first authorization on November 4, 2010

1) On November 4, 2010, the Defendant, with the intervenors, issued on November 4, 2010, an approval for the alteration of passenger transport business plan (hereinafter “the first authorization disposition of this case”) to change the route of the passenger transport business plan to pass through the new subway stations located in the Bupyeong-gu Busan, Busan, the Busan, the Busan, and the city bus in the area of the city of the city of the city of the city of the city of the city of the city of the Busan, and it is not possible to carry out tickets and business activities in the area of the city of the city of the city of the city of the Busan.

2) As to this, the Plaintiffs filed a lawsuit seeking the revocation of the initial authorization disposition of this case with the Changwon District Court 2010Guhap4153, and the said court rendered a favorable judgment against the Plaintiff on June 9, 201, on the grounds that “the initial authorization disposition of this case was before being amended by Act No. 11690, Mar. 23, 2013; hereinafter the same shall apply) Article 78(1) of the former Passenger Transport Service Act and the main sentence of Article 5(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 1, Mar. 23, 2013; hereinafter the same shall apply) did not consult with the head of the relevant Busan Metropolitan City Mayor, which was the Mayor/Do Governor, for the reason that it was unlawful.” The said judgment became final and conclusive on May 29, 2012 after the appellate court and the final appeal.

C. The Defendant’s previous authorization on May 9, 2012

1) On April 2, 2012, the intervenors filed an application for authorization to amend the passenger transport business plan with respect to buses outside the city in the Busan metropolitan bus area or the funeral section, and the Defendant made a request to consult with the Mayor of Busan, but the Busan City Mayor consented to the above consultation on April 13, 2012. Accordingly, on April 17, 2012, the Defendant filed an application with the Minister of Land, Transport and Maritime Affairs for the authorization to revise the passenger transport business plan in accordance with Article 78(1) of the Passenger Transport Business Act and Article 5(1) of the Enforcement Rule of the same Act. On May 1, 2012, the Intervenor filed an application with the Minister of Land, Transport and Maritime Affairs for the adjustment of the passenger transport business plan in addition to the conditions that no ticket or business act is conducted in the area of the Busan metropolitan bus area, and notified the Intervenor of the modification of the plan in attached Form 1 of the previous schedule to the Mayor on May 9, 2012.

2) The Plaintiffs filed a lawsuit seeking the revocation of the previous authorization disposition of this case as Changwon District Court 2012Guhap2663, and on October 22, 2013, the previous authorization disposition of this case was rendered on the ground that it was lawful in the reasonableness of disposition as a disposition that goes through lawful procedures, and was rendered a judgment dismissing the Plaintiff’s request. The Plaintiffs are still dissatisfied with and continuing the appellate trial.

D. On July 25, 2013, the Defendant: (a) on July 25, 2013, approved the modification of the passenger transport business plan (hereinafter “instant disposition”) with the content of “after the modification” of the previous 12 times through 30 times as indicated in the Schedule No. 1, the number of flights of the instant route via the new subway station to the intervenors; (b) on July 25, 2013; (c) without any dispute over the grounds for recognition; (d) evidence No. 3-1, 2, 3, and 5-1 through 4; (d) evidence No. 7; and (e) Eul’s evidence No. 1 and No. 1; and (e) the purport of the entire pleadings.

2. Determination on this safety defense

A. The defendant's main defense

Even if the number of the cross-city bus routes of this case via the new subway station increases due to the disposition of this case, the cross-country bus routes of this case are authorized under the conditions that only passengers get on or get off in the new subway station at the time of the previous approval disposition of this case, and that they do not do business act, and it cannot be deemed that they are concurrently subject to transportation demand, or transportation because they overlap with the passenger bus routes of this case. Accordingly, the plaintiffs have indirect, factual, and economic interest in the disposition of this case, and therefore there is no legal interest to seek the revocation thereof.

B. Determination

1) A third party, who is not the other party to an administrative disposition, is entitled to a decision of the propriety thereof by filing an administrative litigation seeking the cancellation or nullity of the administrative disposition, where the interests protected by law are infringed by the pertinent administrative disposition. The term "legal interests" refers to cases where there are individual, direct, and specific interests protected by the relevant laws and regulations and regulations, and in general, where a law which is the basis of a beneficial administrative disposition such as a license or authorization and permission, generally aims at preventing unreasonable management due to excessive competition among the pertinent business entities, it is for the purpose of preventing such unreasonable management due to the pertinent administrative disposition. The existing business entity, which is conducting a business after receiving the same type of beneficial administrative disposition such as a license, authorization, permission, etc., for another business entity, is entitled to a decision of revocation of the relevant administrative disposition (see Supreme Court Decision 2007Du23811, Mar. 27, 2008).

2) The plaintiffs are Busan Metropolitan City bus transportation operators who operate the section from Multispo to Busan Metropolitan City bus terminals from Plan to Plan City bus terminals. The plaintiffs are Busan Metropolitan City bus transportation operators who operate the section from Plan to Plan City bus (hereinafter "the city bus of this case") No. 138-1 to 138-1 operating the section from Plan-si to Busan Metropolitan City bus terminals. The intervenors are Busan Metropolitan City bus transportation operators who operate the section from Plan to Busan Metropolitan City bus terminals (hereinafter "the city bus of this case"). The previous authorized dispositions of this case led to the operation of the bus section from Plan City bus of this case to the Plan City via Busan Metropolitan City bus terminals, and the frequency of operation increases to 30 times in total by the disposition of this case.

According to the above facts, the bus routes of this case and the bus terminals of the plaintiffs, the number of which operation of the city bus of this case increased due to the disposition of this case, overlap between the new subway station and the bus terminals of Busan Western and Busan. Accordingly, in order to bring passengers on board from the new subway station to Busan Western bus terminals, which are Busan Western bus stations, for the purpose of getting passengers on board from the new subway station to the new subway station, or passengers using the city bus of this case who used the city bus of this case to the new subway station from Busan Western, Busan, Busan, which is an end point in Busan, and Busan, for the purpose of going to the new subway station from the regular subway station to the new subway station, the number of passengers on board the bus of this case who used the city bus of this case who used the city bus of this case to the new subway station can easily use the bus of this case in the new subway station and the increased number of operation days. Accordingly, the economic interests of the plaintiffs and the intervenors of the plaintiffs can sufficiently be protected in light of the empirical rule.

Therefore, since the plaintiffs' legal interest in seeking cancellation of the disposition of this case is recognized, the defendant's main defense is without merit.

3. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The instant disposition is a disposition that expands the frequency of operation in the previous authorization disposition in the instant case, and thus, the instant previous authorization disposition, which serves as the basis of the instant disposition, is unlawful, and thus, is also unlawful.

2) The instant disposition is a disposition on the 'operation system' that increases the frequency of operation of routes extending over Busan Metropolitan City and Gyeongnam-do, and the increase in the frequency of operation falls under the modification of the business plan of passenger transport business as stipulated in Article 78(1) of the Passenger Transport Business Act, and does not fall under the proviso of Article 5(1) of the Enforcement Rule of the same Act. Therefore, the instant disposition was unlawful since the instant disposition was issued without going through consultation with Busan Metropolitan City pursuant to Article 78(1) of the same Act and the main sentence of Article 5(1) of the Enforcement Rule of the same Act, even though it was necessary to take the instant disposition after going through consultation with the Busan Metropolitan City, and thus, the instant disposition was unlawful. 3) The instant disposition increased by 150% by the Defendant within one year from the date on which the previous authorization was issued by the Defendant, which is in accordance with

As a result of the increase and decrease in the number of flights exceeding 10% per annum, the number of flights should be changed after the participation of the relevant cross-country bus transport business entity or the competent authority and investigation of the transport demand, etc. for the relevant operation system. Nevertheless, the Defendant issued the instant disposition without properly investigating the transport demand, etc. for getting on and off the new subway station, and thus, the instant disposition was unlawful.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) As to the first argument

The plaintiffs asserted that the previous authorization disposition of this case, which is the basis of the disposition of this case, is unlawful.

However, there is no specific reason for illegality. Rather, as seen earlier, it is recognized that the previous authorization disposition of this case, which the defendant received and processed the notice of acceptance of the mediation proposal by the Minister of Land, Transport and Maritime Affairs, is legitimate as a disposition that goes through lawful procedures, and thus, the plaintiffs' above assertion is

2) As to the second argument

A) Article 78(1) of the Passenger Transport Business Act and the main text of Article 5(1) of the Enforcement Rule of the same Act provide, in principle, “Where a route extends over at least two Cities/Dos, the Mayor/Do Governor having jurisdiction over the passenger transport business of a route shall consult with the relevant Mayor/Do Governor in advance to authorize, register, or order the modification of a business plan related to the construction or modification of a route or the modification of a business plan.” Meanwhile, Article 5(1) proviso 2(b) of the Enforcement Rule of the same Act provides, “Where a route extends over the Special Metropolitan City, Metropolitan City, or Special Self-Governing City is related to a route, a route may be newly established or extended to the Special Metropolitan City, Metropolitan City, or Special Self-Governing City, and except where a starting point or a terminal point is altered within the jurisdiction of the Special Metropolitan City, Metropolitan City, or Special Self-Governing City without consultation with the relevant Special Metropolitan City Mayor, Metropolitan City Mayor or Special Self-Governing City Mayor.”

B) As seen earlier, the instant disposition extends the frequency of operation of cross-country bus routes from the Busan Western bus terminal to the Busan Western subway Station, and the Defendant did not consult with the Busan Metropolitan City Mayor in advance, while rendering the instant disposition.

However, the extension of the frequency of operation is long from two or more Cities/Dos, but it is not a case where the route is established or extended to the Busan Metropolitan City, which is related to the route extending over the Busan Metropolitan City, which is a Metropolitan City, or a case where the starting point or the ending point is set up in the jurisdiction of Busan Metropolitan City, or changes the starting point or ending point within the jurisdiction of Busan Metropolitan City, and thus constitutes a reason for exclusion from prior consultation in accordance with Article 5(1)2(b) of the Enforcement Rule of the Passenger Transport Business Act. Therefore, the defendant does not need prior consultation with the head of Busan Metropolitan City prior to making the disposition

Therefore, the plaintiffs' above assertion against this is without merit.

3) As to the third argument

A) According to Article 32(2)6 and Article 33(1)3(a) of the Enforcement Rule of the Passenger Transport Business Act, when a business plan is modified, where the number of flights exceeds 10% per annum for each operator operating the pertinent operating system, the increase or decrease in the number of flights over two or more Cities/Dos is made after the relevant cross-country bus transport business operator or the competent authorities participate in and investigate the transport demand, etc. for the pertinent operating system.

B) The number of non-city buses increased by 10% per annum according to the instant disposition is as seen earlier. Thus, prior to the instant disposition, the Defendant constitutes the competent authorities of non-city bus transportation business operators under Article 3(1) of the Enforcement Rule of the Passenger Transport Business Act. As to whether the transportation demand, etc. was surveyed in relation to the non-city bus routes prior to the instant disposition, the number of non-city bus buses increased by 0% per annum for each of the instant non-city bus bus services by 6 months prior to the instant disposition. Considering that the number of non-city bus buses increased by 10 days prior to the instant disposition, it is reasonable to view that the non-city bus bus services increased by 10 days prior to the instant disposition, the Defendant and non-city bus cooperatives have been subject to the instant temporary inspection of the number of non-city bus services on July 4, 2013, and the number of non-city bus services in addition to the scheduled non-city bus services operated by 10 days prior to the instant disposition, it is reasonable to recognize the number of non-city bus services.

Therefore, the plaintiffs' above assertion is without merit.

4. Conclusion

If so, all of the plaintiffs' claims are without merit, they are dismissed. It is so decided as per Disposition.

The presiding judge, judge, Gimhae

Judges Lee Jae-hwan

Judges Kim Gin-young