2016 Gohap64746 Revocation of revocation of designation

Ormat International Tour Co., Ltd.

The Minister of Culture, Sports and Tourism

October 19, 2016

December 9, 2016

1. The revocation of the designation made by the Defendant against the Plaintiff on March 28, 2016 is revoked. 2. The litigation cost is assessed against the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The People's Republic of China (hereinafter referred to as "China") has entered into an agreement with a foreign government for the control of the people of the Republic of Korea in its foreign tourist resorts, and only the travel agents designated by that foreign government have designated the Republic of Korea as "China's country of free departure tourism" on May 1998. The Chinese tourism-related ministries and the defendant's side entered into negotiations on the implementation of various relevant issues arising from tourism of Chinese collective tourists in the Republic of Korea on June 6, 1998 and June 27, 2000, and signed an agreement following such negotiations (hereinafter referred to as "non-party list").

B. According to the records of this case, China had the travel agencies in its country take exclusive charge of the organization tourism affairs of the Republic of Korea of Chinese citizens, and these travel agencies have selected a cooperative company from among the travel agencies recommended by the Government of the Republic of Korea and entered into a contract for the recruitment and reception of group tourists. The Defendant established the Guidelines for the Performance of Exclusive Tour Tour Services (hereinafter referred to as the "Guidelines"), and accordingly designated and managed the "exclusive travel agency exclusively in charge of attracting tourists of Chinese organizations" (hereinafter referred to as the "exclusive travel agency").

D. The Plaintiff was established on July 30, 2004 with the primary purpose of arranging domestic and foreign travel business and general travel business, and was re-designated by the Defendant as exclusive travel agent on December 5, 2013. E. The Defendant notified the Plaintiff on March 28, 2016 that the designation of exclusive travel agent was revoked by applying Article 3-2 of the instant Guidelines on the ground that the Plaintiff received less than 70 points, which is the standard renewal point. (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 4, 5, 23 (including relevant numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Relevant provisions

It is as shown in the attached Form.

B. Determination

1) Whether the principle of statutory reservation is violated

A) The Constitution provides the rule of law as one of the basic principles, and the rule of law is the core of the principle that the formal legal basis established by the National Assembly is required in administrative action, namely, administrative action. Furthermore, today’s principle of statutory reservation is not sufficient if administrative action simply provides the basis for law, but rather requires the State community and its members to decide on the essential matters of the nation’s fundamental rights, especially in the area related to the realization of citizens’ fundamental rights. In other words, it is understood that the legislators, a representative of the nation, should not be entrusted to the administration, but should be distributed to the principle of parliamentary reservation. In this case, it can be uniformly defined how the legislators should regulate by law, in consideration of the importance of benefits and values related to a specific case, the degree and method of regulation or infringement, and at least when restricting the freedom or rights of the people guaranteed by the Constitution, the legislators should be subject to the rule of law by itself as to the fundamental matters of the nation’s fundamental rights, and the changes in the freedom of business and the present situation of the nation’s fundamental rights at the time of the enactment of law.

(1) Before July 1998, the first guideline was enacted, there was almost no market for Chinese tourists. However, from 1999 to 2010, the number of Chinese tourists increased considerably from approximately KRW 2.18,00 to approximately KRW 1,80,00, among them, the number of foreign tourists increased from approximately 46,000 to KRW 5,000, and the number of exclusive tourists who are counterparts to group tourists increased from 35, 1998 to 167 companies from 35, 2012. Accordingly, at the time of the enactment of the instant guideline, it may be deemed that there was a significant impact on the number of Chinese group tourists and their exclusive exercise of the right to participate in business or freedom of business in the future. However, it may be deemed that there was a significant impact on the freedom of business or freedom of business of the people who are operating or intend to operate a travel business from 198 to 2010.

(2) Domestic travel agencies must be designated as exclusive travel agents in order for them to travel along the country, etc. to be operated by Chinese organizations, and in the event they attract Chinese organizations applicants without the Defendant’s designation, they cannot be designated as exclusive travel agents in the future or are unable to receive support from tourism funds or government projects (Article 12 of the Guidelines of this case), and designation is revoked.

G. The representative, inside director, and the person in charge of management of the company's company director, and the person in charge of the company's management are prohibited from engaging in the business of exclusive tour operators within two years after the cancellation (Article 9(6) of the Guideline). In addition, the Chinese government received the list of exclusive tour operators designated by the defendant and sent them to the Chinese company traveling on the Chinese side, and seems to have engaged in the business of transmitting tourists only between the company traveling on the Chinese side and the company traveling on the Chinese side (Article 5-2, No. 11 and No. 23-2, No. 5-2). Thus, the Chinese company's travel business against the Chinese company tourists is actually being operated as a patent or a permitted system as a result of the defendant's designation of the company, and the freedom of business or the freedom of business of the people operating the travel business within the scope is restricted. In addition, considering the situation, the exclusive travel system is no more effective but more than the national assembly's domestic law enacted by the 190s Constitution.

(3) Considering the impact of the designation of the Defendant’s exclusive travel agent and revocation of such designation on the interests of the people who operate or intend to operate the travel business, at least the elements to be considered when the Defendant designates the exclusive travel agent and cancels the designated exercise (see, e.g., reference materials submitted by the National Assembly) are required under the law, and such elements are included in the draft of the Travel Business Act, which was promoted by the National Assembly (see, e.g., Supreme Court Decision 2009Do148, Apr. 2, 2009).

(4) The defendant asserts that the instant guidelines are supplementary administrative rules with external binding force in combination with superior laws such as the Immigration Control Act and the Framework Act on Tourism.

However, Article 8(3) of the Immigration Control Act and Article 11(1) and (2) of the Enforcement Rule of the same Act (see attached Form) do not delegate the authority to devise various measures and policies related to the promotion of tourism, the attraction of foreign tourists, and the guidance and supervision of tourism business to the defendant, as well as the representative of the organization, and as prescribed by the Protocol of the Network of this case, the exclusive tourer designated by China can apply for the issuance of group visas at the Korean Embassy or a consular mission designated by the defendant, together with the exclusive tour event designated by the defendant, and do not delegate the authority to determine the matters necessary for the designation of exclusive tourer. In addition, Articles 2, 5, 7, and 10 of the Framework Act on Tourism (see attached Form) do not merely delegate the authority to establish specific matters concerning the designation of exclusive tourer. Therefore, it cannot be deemed that the above provisions cannot be deemed a ground provision that can be designated by the defendant or a ground provision of this case, and the guidelines of this case cannot directly affect the public rights and administrative rules.

(5) The Tourism Promotion Act only prescribes that a travel business is registered with the competent authority in order to run a travel business by meeting the statutory requirements (Article 4(1) and (3) and Article 3(1)1 of the Tourism Promotion Act). However, the instant guidelines allow only some travel agencies designated by the Defendant among general travel agencies under the Tourism Promotion Act, which are designated by the Defendant, to operate a business for Chinese organization tourists, and thus create a special travel agency’s status that is not stipulated in relevant Acts and subordinate statutes, such as the Tourism Promotion Act. This is not permissible for the Defendant to destroy the system leading to the Constitution, laws, Presidential Decree, and Ordinance of the Ministry of Information through internal administrative rules.

(6) If the Defendant allows the revocation of the designation of the exclusive travel agent in accordance with the instant guidelines, the court may not continuously control the Defendant’s operation of the travel business against Chinese organization tourists as a patent or a permit system in violation of the Tourism Promotion Act, etc. without any separate legal basis. Such a result is inconsistent with the principle of separation of powers, which covers not only the party’s subjective relief of rights, but also the function of an appeal litigation aimed at controlling the objective illegality of administrative action, and the check of the administration of the judiciary.

(7) The Defendant asserts that the validity of the instant guidelines may be denied, causing confusion in the travel business or tourism business in connection with the attraction of Chinese group tourists, and that it is expected that the instant visa, which is an agreement entered into with China, will no longer be complied with, and that diplomatic friendship will be expected. However, the determination on whether the instant visa exists, which is the circumstance alleged by the Defendant, and whether the instant visa violates the principle of statutory reservation and the principle of parliamentary reservation under the Constitution is not different. If the Defendant renounces the control over the Defendant on the ground of such circumstance, the fact that the designation of the exclusive tourer would be an employee. Moreover, the Defendant may submit a bill pursuant to Article 52 of the Constitution, and thus, the Defendant should not be held liable for the enactment of the Act on the Designation

(8) Based on Article 3-2 of the Guidelines of this case, the Defendant is operating the exclusive travel agent renewal system based on Article 3-2, and the exclusive travel agent is qualified as the exclusive travel agent for two years from the relevant company upon the application for re-designation by the relevant company, and the exclusive travel agent is not designated as the exclusive travel agent if it satisfies certain requirements, and the exclusive travel agent is not qualified as the exclusive travel agent if it fails to meet such standards. In light of the method of operating the exclusive travel agent renewal system, the instant disposition is identical with the Plaintiff’s rejection disposition against the application for re-designation and is distinguishable from the withdrawal of the beneficial administrative act by nature (in fact, revocation of designation based on Article 11 of the Guidelines of this case is deemed to fall under the withdrawal of the beneficial administrative act). Even if the instant disposition is deemed to be a withdrawal of the beneficial administrative act, it is unlawful since the instant disposition of the Defendant’s exclusive travel agent re-designation based on the guidelines of this case, which violated the principle of statutory reservation, and thus, it is not appropriate to have a separate legal basis for revoking 2064.

C) Therefore, the instant disposition based on the instant guidelines, which is unconstitutional, is unlawful. The Plaintiff’s assertion on this part is with merit.

(ii) the existence of procedural defects;

A) According to Article 21(1) and (4) of the Administrative Procedures Act, where an urgent disposition is required for the safety and welfare of the general public, (2) where a certain disposition is to be taken when there is no qualification required under statutes, etc. or when there is no qualification required under statutes, etc., and where it is objectively proven by the court’s trial, etc., the fact that the qualification is nonexistent or extinguished is not necessarily required when a certain disposition is to be taken. (3) Where an administrative agency imposes an obligation on a party or imposes a disposition restricting his/her rights and interests, it shall notify the party of the matters under each subparagraph of Article 21(1) of the Administrative Procedures Act, such as the title of the disposition, the fact that the disposition is to be taken, the fact that the disposition is to be taken, and the legal basis thereof, and the method of disposition when an opinion is not submitted. In addition, according to Article 22(3) and (4) of the Administrative Procedures Act, an administrative agency shall give the party an opportunity to present his/her opinion other than a hearing or public hearing when imposing an obligation on the party or restricting his/her rights and interests.

B) Each of the following facts may be found either in dispute between the parties or in full view of the respective entries and arguments in Gap evidence Nos. 2, 3, and Eul evidence Nos. 20 and 21 (including the relevant branches), and the purport of the whole arguments:

(1) On March 4, 2016, the Defendant notified the Plaintiff that the revocation of the exclusive travel agent’s designation is scheduled, and notified the Plaintiff of the submission of the tax invoice in 2014, 2015, 2015, 200, 200, and 2015, 2015.

(2) From March 10, 2016 to March 14, 2016, the Plaintiff submitted to the Defendant a list of total tax invoices by customer and by seller in 2015, a list of virtual operating status and qualification standard terms and conditions, and financial statements in 2015.

(3) As above, the Defendant assessed the renewal system by reflecting the data additionally submitted by the Plaintiff, and calculated the Plaintiff’s evaluation score as 60 points.

(4) On March 28, 2016, the Defendant notified the Plaintiff of “2014, 2014, 2015, 2015, 20, 20, 20, and 20, 2015, 2015, without submitting the financial statements.”

(5) On March 28, 2016, the Defendant issued the instant disposition, and sent a renewal evaluation sheet stating the Plaintiff’s points to the Plaintiff on the e-mail.

C) According to the above facts, prior to rendering the instant disposition that is a disposition that restricts the Plaintiff’s rights and interests, the Defendant did not notify the Plaintiff of “less the standard points for renewal, which is the facts constituting the grounds for the instant disposition,” and the Plaintiff did not have been given an opportunity to present its opinion to the Defendant regarding the grounds for the instant disposition prior to rendering the instant disposition. There is no evidence to prove that the Defendant had an exceptional reason for omitting prior notification and granting an opportunity to present its opinions pursuant to each subparagraph of Article 21(4) of the Administrative Procedures Act, or that the Plaintiff clearly indicated that he would waive the opportunity

D) Therefore, the instant disposition is procedural defect that did not omit prior notification and provide an opportunity to present opinions to the Plaintiff. In this respect, the instant disposition is unlawful. The Plaintiff’s assertion on this part is well-grounded.

3) Sub-determination

The instant disposition should be revoked because it is unlawful without examining the remaining arguments of the Plaintiff.

3. Conclusion

The plaintiff's claim of this case is reasonable, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.

The presiding judge and decoration;

Judges Lee Dong-gu

Judge Lee Ho-hoon