2013Nu986 Revocation of conditional licenses for marine passenger transportation services

Han Forestry Shipping Co., Ltd.

Commissioner of the Regional Maritime Affairs and Port Office

Kuo Shipping Co., Ltd.

Gwangju District Court Decision 2012Guhap4876 Decided May 2, 2013

November 14, 2013

November 28, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The total cost of the lawsuit shall be borne by the Plaintiff, including the cost of supplementary participation.

1. Purport of claim

On September 20, 2012, the defendant revoked the conditional licensing of marine passenger transportation services for the ocean passage between the Hagu-U.S. and the defendant's intervenor (hereinafter referred to as "the intervenor") on September 20, 2012.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff is a corporation established for the purpose of marine passenger transportation business and cargo transportation business, and is engaged in marine passenger transportation business by acquiring a license for each marine passenger transportation business with respect to the service route between the defendant (the first service route of the plaintiff, hereinafter referred to as "the plaintiff's service route") and the service route between the river water-years (the port of call: the math, hereinafter referred to as "the second service route of the plaintiff's service route").

B. On September 20, 2012, the Defendant issued a conditional license for marine passenger transport services (hereinafter “instant disposition”) to the intervenors as indicated below, with respect to the exclusive-brine and brine routes (hereinafter “instant new routes”).

Maritime route: Modden - Vessel operating at port (port port: 100 tons, 100 tons, 5 king conditions per day: The license period on September 20, 2013 (to secure ships, landing facilities and convenience facilities);

[Ground of recognition] Unsatisfy, entry of Gap evidence 2, purport of whole pleadings

2. Judgment on the defendant's main defense

A. The defendant's main defense

As to the plaintiff's assertion that the disposition of this case, which issued a new license for the new sea route of this case, is unlawful, the defendant asserts that the plaintiff is not the direct counter-party to the disposition of this case, and it cannot be said that any legal interests protected by the disposition of this case were infringed due to the lack of competition with the gold Shipping. Thus, the lawsuit of this case is filed by a non-qualified person, and thus, is unlawful.

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 revocation or nullification of the administrative disposition, where the interests protected by law are infringed by the pertinent administrative disposition, and 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 the law, which forms the basis of the beneficial administrative disposition, such as a license or authorization, is aimed at preventing unreasonable management due to excessive competition among the pertinent enterprisers, the existing business entity, who is conducting a business by obtaining a beneficial administrative disposition such as a license, authorization, permission, etc. against another business entity, is entitled to seek the revocation of the relevant administrative disposition, even if the other party to the administrative disposition is not the other party to the administrative disposition (see, e.g., Supreme Court Decision 2009Du10512, Jun. 10, 2010).

According to Articles 4(1) and 5(1)1 of the former Marine Transportation Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same), a person operating a marine passenger transport service shall obtain a license for each service route and shall meet the transport demand criteria prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs as one of the new license criteria. The purport of obtaining a license for each service route is to maintain order in marine transportation and fair competition, and to ensure the safety and convenience of the service route operated by the vessel, thereby promoting the sound development of marine transportation services and improving the convenience of the users (see, e.g., Supreme Court Decision 2008Du17868, Jan. 15, 2009). If the existing service route overlaps with the existing service route and the existing service route are expected to decrease in profits, it is reasonable to deem that the existing service provider and the existing service provider are in a relationship of marine passenger transport service with the existing service provider to seek revocation of the license.

2) Comprehensively taking account of the overall purport of arguments and arguments as a result of Gap evidence 7-2, 3, Eul evidence 16-1, 2, and 3 of Eul evidence 7-2, Eul evidence 16-2, and the field inspection conducted by this court, the plaintiff's new sea route of this case and the plaintiff's first sea route of the plaintiff's first sea route of the air route of this case are located in Kuo-do. However, the new sea route of this case is the starting point of the new sea route of this case. The plaintiff's new sea route of this case, which is the starting point of the new sea route of this case. The plaintiff's new sea route of this case was not completed on September 2, 2012 (the fair sea rate of 54.59%). Even if the school year is completed, the plaintiff's new sea route of this case can not be seen as being located in the new sea route of this case and the plaintiff's new sea route of this case's 30km.

3) In addition to the statement No. 7-3 and the whole purport of the pleadings as a result of the on-site inspection by this court, the German Government's new sea route of this case, which is the starting point of the new sea route of this case, and the plaintiff's Maar-, which is the port port of the second sea route of this case, are located in the Doldo, and about about about 20 minutes can be moved in the Doldo by Doldo. The Korean Government's new sea route of this case, which is the closing point of the new sea route of this case and the closing point of the plaintiff's second sea route of this case, are located in the Doldo, and about 4.7 km, the distance between two ports is about 8 minutes, and the village bus is operated. Thus, it may be viewed that the plaintiff's new sea route of this case is considerably similar to the plaintiff's new sea route of this case, and therefore, the plaintiff's competition relation is separate from the intervenor's new sea route of this case.

4) Therefore, the plaintiff Han Maritime Transportation is legally infringed on the plaintiff's second sea route due to the disposition of this case. Thus, the plaintiff's eligibility to seek revocation of the disposition of this case is recognized.

3. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The Plaintiff’s second sea route constitutes a sea route considered as the same route as the instant new sea route. Thus, in order for the Defendant to issue a new license on the instant new sea route, the Plaintiff’s transport demand and standard prescribed under Article 5(1)1 of the former Marine Transportation Act and Article 4(1) of the former Enforcement Rule of the Marine Transportation Act (amended by Ordinance of the Ministry of Oceans and Fisheries No. 1 of March 24, 2013; hereinafter the same) should be satisfied. The Intervenor’s disposition of this case that newly issued a license to the Intervenor is unlawful even though the Intervenor’s new sea route does not meet this.

2) The instant disposition is unlawful as it deviatess from and abused discretionary power, in light of the following: (a) there is a problem such as the decrease in the profits of Plaintiff Han Maritime Transport and the inconvenience of users due to the instant disposition, which causes excessive competition among business operators; and (b) the fact that Geum Maritime Transportation did not complete all mooring facilities.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to whether it constitutes the same sea route

1) Article 5(1)1 of the former Marine Transportation Act provides that the commencement of a license for marine passenger transport services shall be examined as to whether the relevant services meet the transport demand standards prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs. Article 4(1) of the former Enforcement Rule of the Marine Transportation Act provides that “The average transport import rate (referring to the estimated import rate based on maximum transport capacity and actual transport capacity; hereinafter the same shall apply) of the total passenger ships (including preliminary passenger ships) already placed on the same sea route as the one for which an application for a license for new marine passenger transport services is filed shall be at least 25/100 even if the passenger ships are included in the relevant sea route for which an application for new license is filed.” Paragraph (3) of the same Article provides that “No transport demand standard shall apply where a passenger ship already placed on the same sea route as that for which an application for new license is filed is deemed to be a new sea route, and it shall be determined and publicly announced by the Minister of Land, Transport and Maritime Affairs as to the same sea route.” Paragraph (4) of the same Article 101 of the former Enforcement Rule provides that “No.

2) Whether the instant notice satisfies the requirements of Article 2(1)1 of the Notice

Since these ports are located in the same administrative district, both those of the Yacheon and the Habami Port, the German ports and Earbari ports are considered difficult for each port to substitute.

First, in full view of the purport of the argument as a whole, evidence Nos. 7-2 and 3 of the evidence Nos. 7-3 and the result of the on-site inspection of this Court, the Habami, which is the closing point of the new route of the new route of this case and the closing point of the Plaintiff’s Paragraph 2 of the Plaintiff’s Paragraph 2 of the same Article, are located in the golddo, and the distance between them is about 4.7 km, the distance between it is about 4.7 km, and the section between the Habami and the Habacheon Port is packed in two-lane from each other, and it is possible to move up to eight minutes by the vehicle, and it is difficult to use the substitute by geographical adjacent to the other.

Then, according to the above evidence, the reading, which is the starting point of the new sea route of this case, and the maspies, which are the port of the plaintiff's second sea route of this case, are located in the solar chart, and the distance between them is about 1.1km, but it can be recognized that the width of the road between Germany and Espares is about 3.3m to 3m.6m, the width of the road between Germany and Espares is about 3.3m to spare, and that the road leading to Germany's port is difficult to drive a vehicle because it is narrow, so the reading and Espare are geographically adjacent, but it seems difficult to use a substitute.

Therefore, the part of the new sea route of this case and the part of the plaintiff's Mabcheon among the new sea route of this case cannot be deemed to meet the requirements of Article 2 (1) 1 of the Notice of this case ( even if the requirements of subparagraph 1 of the Decree are met, it cannot be deemed to be the same sea route since the requirements of subparagraph 2 of Article 2 (3) of the Decree were not met as follows.

3) Whether the instant notice satisfies the requirements of Article 2(1)2 of the Notice

The Plaintiff’s users of the second sea route from around 2010 to around 2012 occupy at least 80% of the tourists, and the passengers using the second sea route are approximately 0.18% of the passengers using the second sea route. As such, it appears that the Plaintiff’s primary users of the passenger ship operating the second sea route of this case are tourists of the new age-Wing section, while it appears that the primary users of the instant passenger ship operating the second sea route of this case appear to be the tourists of the new age-Wing section, the main users of the instant sea route of this case appear to be the island residents, such as Doldo, Doldo, and Geumdo, in light of the relevant sea route. Thus, it cannot be said that the main users of the relevant passenger ship overlap.

The plaintiff argued that the main users of the relevant passenger ship will overlap by using the intervenor's passenger ship at the port of Germany, since it is expected that the construction of the sea bridge between Dolsan and Dolsan will be completed and opened around 2015, and thereafter, the plaintiff's main users will overlap. However, according to the Eul's evidence 16-1, 2, and 3 as well as the on-site inspection results of this court, the above annual school construction rate is 54.59% around September 201, and the plaintiff's argument that the above year school construction will be completed as of December 30, 2014, even if the above year school construction is scheduled to go through around 200 and the above year school construction will be completed by 100,000,000,000,0000,0000,000,0000,000,000,000,000,00,000.

Therefore, the new sea route of this case and the plaintiff's second sea route cannot be anticipated to overlap or overlap with the main users of the passenger ship. Thus, the new sea route of this case and the plaintiff's second sea route of this case did not meet the requirements of Article 2 (1) 2 of the Notice.

4) Sub-determination

Ultimately, the new sea route of this case and the plaintiff's second sea route cannot be viewed as the same sea route. Accordingly, the plaintiff's assertion that the new sea route of this case must meet the transport demand standard is without merit.

F. Whether the instant disposition deviates from or abused discretionary power

According to the provisions of Articles 4 and 5 of the former Marine Transportation Act, a license for marine passenger transport business is granted to a specific person the right or interest. It belongs to a discretionary act that should be determined by comprehensively taking into account the transport demand of the sea route in question, suitability of mooring vessel facilities, etc., safety of marine traffic, convenience of users, etc. However, even if an administrative agency's discretionary act is an act of discretion, it is unlawful as it is an abuse of discretion if it is conducted based on misunderstanding of facts, etc. or violates the principle of proportionality or the principle of equality, etc., and it is not subject to revocation because it is unlawful (see, e.g., Supreme Court Decisions 9Du8589, Jul. 27, 2001; 2007Du18215, Dec. 11, 200). The Plaintiff's assertion that the new sea route in question and the Plaintiff's new sea route in question cannot be seen as the same as the Plaintiff's new sea route in question and its new sea route in light of the increase of convenience.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and 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, senior judge and assistant judge

Judges Jin Jae-in

Judge Kim Sung-sung

A person shall be appointed.

A person shall be appointed.