2017Nu84954 Revocation of the designation of a tourer exclusively in charge of China

A Stock Company

The Minister of Culture, Sports and Tourism

Seoul Administrative Court Decision 2016Guhap82720 decided November 2, 2017

March 28, 2018

April 25, 2018

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On November 4, 2016, the Defendant revoked the revocation of the designation of the exclusive travel agent for attracting Chinese group tourists.

2. Purport of appeal

The same shall apply to the order.

1. cite the reasoning of the first instance judgment;

The reasoning of this court is that the reasoning of the judgment of the court of first instance is identical to the reasoning of the judgment of the court of first instance, except for the dismissal of a part as set forth in paragraph (2) below, and therefore, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The number of pages 16 to 10 of the 12th written judgment of the court of first instance shall be as follows.

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 can be determined and publicly announced in consideration of the nature of the relevant disposition," and Article 20 (2) of the Administrative Procedures Act provides that "the public announcement of the disposition standards under 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 to be deemed to significantly undermine the

The purpose of the establishment and publication of such disposition standards is to ensure the transparency and predictability of administration by preventing arbitrary exercise of authority by an administrative agency. As such, an administrative agency is obligated to establish and publicly announce to the maximum extent possible the disposition standards (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 within the scope of discretion permitted to the defendant.

On the other hand, in determining the procedural illegality of not disclosing the above change in the evaluation criteria, the above criteria should be based on whether the purpose of the Administrative Procedures Act is damaged. In full view of the facts acknowledged earlier and the following circumstances revealed by the entire purport of the evidence and arguments, even if the defendant did not publicly announce in advance the evaluation criteria for the renewal system in 2016 for exclusive travel workers including the plaintiff, such circumstance alone does not lead to arbitrary exercise of authority or failure to guarantee the transparency and predictability of administration in the disposition of this case. Thus, it cannot be said that there is no procedural error in violation of the provisions of Article 20(1) of the Administrative Procedures Act.

① In introducing the exclusive travel renewal system, the Defendant informed the exclusive travel agents including the Plaintiff, etc. of the evaluation criteria for the renewal system in 2013, which is composed of "induction result, financial soundness, compliance with the legal system, high added value, sales of tourist products, and government policy response, and notified the results of the implementation of the renewal system in 2013 (excluding 36 exclusive travel agents less than two years), and notified the re-designation of 121 companies including the Plaintiff, including the Plaintiff, of the results of attracting, product price, administrative sanctions, low-price sales rate, etc., and announced that it should be reflected in the evaluation of the renewal system conducted every two years.

The evaluation criteria for the renewal system in 2016 are not significantly different from the evaluation criteria for the renewal system in 2013 or the standards set forth in Article 3-2 of the business guidelines in this case due to the inducement, financial soundness, compliance with the legal system, contribution to the development of the tourism industry, and only the items related to the participation of the electronic management system in the detailed evaluation items, the participation level of the public subscription award and the performance of the agency commendation are additionally reflected.

③ According to the Defendant’s evaluation standards for the renewal system in 2013, at least 75 points out of 100 can be re-designated as exclusive travel workers, while the Defendant added the administrative sanctions to the standards for renewal system in 2016 on a separate basis for revocation of designation. It is recognized that the Defendant did not publish them in advance. However, in light of the diversity and complexity of administration, it is deemed that the change of the standards for imposing administrative sanctions within the scope of discretion permitted to the Defendant to either add the administrative sanctions or to consider them as a ground for revocation of designation in order to rectify the problems arising from the business behavior of the administrative sanctions, as seen earlier, in 2013, the number of administrative sanctions received for 2 years in 2013 as one of the items for renewal evaluation, and the Plaintiff had been aware of such evaluation standards for the renewal system in 2013, which was not yet implemented every 20 years prior to the implementation of the renewal system in 2013, which did not seem to have been reflected in the new evaluation standards for renewal of administrative sanctions since 2010 years.

3) Whether re-designation criteria are unlawful

According to Article 33(1) of the former Enforcement Decree of the Tourism Promotion Act (amended by Presidential Decree No. 27425, Aug. 2, 2016); Article 2 subparag. 1(b) and Article 2 subparag. 2 of the attached Table 1(b) of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 27425, Aug. 2, 2016), where the reported type of business is disclosed four times due to employment without qualification, three months in the case of the reported type of business, and in other cases, three months in the case of the notification type of business; however,

As alleged by the Plaintiff, no evidence exists to deem that small and medium-sized tour enterprises, such as the Plaintiff, are unable to employ qualified guides, and the above criteria for re-designation cannot be deemed unlawful solely on the ground that the Plaintiff’s assertion may result in revocation of the designation of exclusive tour enterprises even for those enterprises that did not cause the qualitative degradation of the tourism industry, where the Plaintiff complied with the relevant statutes from December 2014, or where the decrease in the number of decrease caused by administrative disposition exceeds six points.

Therefore, the plaintiff's assertion that the re-designation criteria is illegal is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed as per Disposition.

The presiding judge, Park Jong-nam

Judges Kim Gin-han

Judges are accommodated in judges;