(영문) 서울행정법원 2016.9.9.선고 2016구합59379 판결

On March 28, 2016, the Defendant revoked the revocation of the designation of a Chinese travel agent with exclusive responsibility against the Plaintiff.

Reasons

1. Details of the disposition;

A. From the 1980s, the People's Republic of China (hereinafter referred to as "China") designated an area permitted for group tourists' travel in consultation with the government of each country in order to control the overseas tourism of its citizens. On June 27, 2000, the People's Republic of China (hereinafter referred to as "China") introduced the travel permission system (ADR, APvvved Datus) which allows the Chinese organization tourists to be invited and contacted only by the countries that entered into an agreement with China. China designated the Republic of Korea as "China's country of departure from China" on May 1998, and the Republic of Korea was designated as the defendant, the Ministry of Foreign Affairs and Trade, the Ministry of Ministry of Ministry of Ministry of Foreign Affairs, the Ministry of Construction and Transportation, and the Ministry of Construction and Transportation related officials of the Chinese Government, the representative of the Chinese Government composed of the defendant, the Republic of China's National Female Bureau, the Ministry of Foreign Affairs, the Ministry of Foreign Affairs, and the Minister of Construction and Transportation, respectively, to negotiate various negotiations related to tourism of Chinese organizations.

B. The main contents of the records of this case are as follows.

1) The Chinese side shall have 34 Chinese travel agents, who are licensed, take charge of Korean tourism services, and enter into a collective tourist invitation contract by finding a partnership among the competent and reliable travel agents recommended by the Korean side.

2) The Korean side shall recommend 35 Korean events with credit and with good financial situation and service circumstances as the national tourist travel agency, among those events.

3) 34 travel agencies designated by the Chinese side shall designate full-time personnel to take exclusive charge of the organization tourism visa affairs of the Embassy of the Republic of Korea (consular missions) in the Republic of China, and when those full-time personnel apply for a group tourism visa to the Embassy of the Republic of Korea (consular missions) in the Republic of Korea, the agency will provide convenience and issue the visa as soon as possible, unless there

C. On July 1998, the Defendant enacted the Chinese organization tour guide for attracting tourists (hereinafter “the instant guide”) around July 1998 in order to implement the designation, management, etc. of the “China organization tourers exclusively in charge of attracting tourists” recommended to China according to the instant visa.

D. The Plaintiff, which was established for the main purpose of general travel business, was designated as a exclusive travel agent by the Defendant, and was re-designated around December 2013.

E. On March 28, 2016, the Plaintiff rendered a disposition to revoke the designation of an exclusive tourer for attracting Chinese group tourists pursuant to Article 3-2 of the Guidelines (hereinafter “instant disposition”) on the grounds that the Plaintiff received less than 70 points, which are the standard points for renewal, through prior notice, submission of opinions, and hearing procedures, on the grounds that the Plaintiff was a exclusive tourer for Chinese group tourists.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 1, 23 and 25 (including branch numbers), the purport of the whole pleadings

2. The plaintiff's assertion

A. The instant guidelines are invalid in violation of the principle of statutory reservation because they violate the principle of statutory reservation, and the instant dispositions based on the invalid guidelines are unlawful.

B. procedural illegality

In rendering the instant disposition, the Defendant did not publicly announce in advance the disposition standards concerning the renewal of exclusive travel workers.

C. substantive illegality

Although the Defendant possessed a total of 24 qualification 24 persons, including 16 persons softs, the Defendant mistakend the Plaintiff’s qualification number as eight persons. The Plaintiff, prior to February 29, 2016, entered all 7 items of performance report data into the electronic management system, and subsequently abused and abused discretion in rendering the instant disposition, such as misunderstanding of the number of performance reports as zero.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Whether it violates the principle of statutory reservation

1) Legal nature of the act of designating exclusive tourmen

The term "administrative disposition", which is the object of an appeal litigation, refers to, in principle, an act of an administrative agency's public law, which directly affects the rights and obligations of the general public by ordering the establishment of rights or the burden of obligations, or giving rise to other legal effects, with respect to a specific matter under the relevant laws and regulations. However, even if the grounds for a certain disposition are stipulated in the administrative rules, if such disposition orders the other party to establish rights or the burden of obligations, or causes other legal effects, and thereby directly affects the other party's rights and obligations, it constitutes an administrative disposition subject to an appeal litigation even in this case (see Supreme Court Decisions 2001Du3532, Jul. 26, 2002; 2003Du10251, Nov. 26, 2004).

The act of designating exclusive tourers is based on the instant guidelines corresponding to the instant non-nets and administrative rules (this part of the Defendant’s assertion is without merit. However, the Defendant asserted that the act of designating exclusive tourers or the instant guidelines are based on Article 8(3) of the Immigration Control Act and Article 11(1) and (2) of the Enforcement Rule of the same Act, but each of the above provisions was prescribed to allow only the representative of the organization to apply for the issuance of the previous group visa. As prescribed by the instant non-nets, it is only for the Chinese travel agent designated by China to apply for the issuance of group visa at the Korean Embassy or consulates, and it cannot be deemed as the basis provision for the designation of domestic exclusive tourers or the instant guidelines. However, the Defendant’s assertion is basically an act of establishing the instant non-harbors with China to attract Chinese organizations, and thus, constitutes an administrative disposition to enter into a domestic tour tour contract with China upon obtaining a permit to enter into a contract with China to attract foreign organizations, and it can be concluded only between the Korean travel agent and the Chinese company taking exclusive charge in Chinese.

2) The designation system of exclusive tourers and the validity of the instant guidelines

The plaintiff asserts that the designation system of exclusive tour operators is not based on legislative grounds and that the implementation in accordance with the instant guidelines is contrary to the principle of statutory reservation and the reservation of the Council.

The principle of statutory reservation and reservation that a formal legal basis established by the National Assembly is required in the administrative action is not sufficient if the administrative action merely serves as the basis of the law, but rather, it is understood that the area of basic and important meaning for the state community and its members, in particular, the area related to the realization of the fundamental rights of the people, and the area related to the realization of the fundamental rights of the people, should not be entrusted to the administration, but to the demand that the legislators, the representative of the people, make a decision on the essential matters thereof. However, it is not possible to uniformly define what matters to be regulated by the legislators, and only to separately determine the matters in consideration of the importance of the benefits or values related to a specific case, the degree and method of regulation or infringement, etc.: Provided, That when restricting the freedom or rights of the people guaranteed by the Constitution at least, the legislators on the essential matters of the restriction must be governed by the law (see, e.g., Constitutional Court en banc Decision 201

Therefore, as to whether the defendant's exclusive tourr designation system and the guidelines of this case are contrary to the principle of statutory reservation and parliamentary reservation, (1) According to the Framework Act on Tourism, the government shall devise basic and comprehensive policies on tourism promotion (Article 2), and shall take legislative and financial measures and other necessary administrative measures to implement such policies (Article 5), and shall also take other necessary measures to strengthen overseas publicity, improve entry and departure procedures and promote the attraction of foreign tourists (Article 7), and establish other necessary measures (Article 10). The defendant shall guide and supervise the tourist business and take other necessary measures to foster the tourist business (Article 10), as prescribed by the Framework Act on Tourism.

In light of the above legal principles, the mere fact that there is no need to establish a free travel network agreement with the government of China for the purpose of facilitating the attraction of Chinese group tourists. The defendant prepared the guidelines of this case for the implementation of such agreement and designated events. (2) The domestic travel company cannot arbitrarily attract Chinese group tourists is adopting a travel permit system that permits foreign tourism only to the country where the agreement was entered into, in principle, under the procedures stipulated in the agreement. The legal system of Korea is not because it is an incidental restriction on the freedom of occupation or freedom of business to the people who run or intend to run the business. (3) The exclusive travel company's act of designating the exclusive travel company merely provides the domestic travel company with the rights or status to enter into a travel contract, which is not contrary to the legal principles of free travel, because it is impossible for the designated travel company to carry out the policy of this case. (4) Even if the exclusive travel company's act of free travel is not contrary to the legal principles of free travel, it does not violate the legal principles of free travel policy of this case.

3) A disposition agency which rendered an administrative act as to whether the revocation of the designation of the exclusive travel agent is impossible in the absence of any particular defect at the time of the disposition, even if there was no separate legal ground for the revocation of the designation after the disposition, and where there was no need to continue the original disposition, or where there was a need for the important public interest, it may revoke the designation by a separate administrative act which would lose its validity: Provided, That where the cancellation or withdrawal of the beneficial administrative disposition is made, it would infringe the right of the people already assigned. Thus, even if there is a ground for revocation, the exercise of the right of revocation, etc. is determined by comparing and comparing with the disadvantage that the other party receives only when there is a need for the important public interest to justify the infringement of the right of vested, or when there is a need to protect the interests of a third party. If the disadvantage that the other party receives is more than the need for the public interest due to the disposition, it itself is unlawful (see Supreme Court Decision 2003Du7606, Jul. 22, 2004).

B. Whether procedural illegality is procedural

1) Facts of recognition

A) The Defendant held a public hearing on exclusive travel workers in March and July 2013, and held a public hearing on exclusive travel workers under the Korean Diplomatic Association, and introduced a system for renewal of exclusive travel workers after holding a public hearing on exclusive travel workers in February and August 2013.

B) The Defendant introduced a renewal program for exclusive travel workers on September 6, 2013, notified the president of the Korea Tour Business Association of the matters of renewal evaluation and allocation. The president of the Korea Tour Business Association notified the exclusive travel workers of the results of evaluation according to the evaluation items on the same day, and notified the companies with at least 75 points out of 100 as a full-time travel workers to submit evaluation documents for implementation of the renewal program until September 23, 2013. The main contents of the above detailed evaluation criteria are as follows.

(1) Atten (15 points in attraction of tourists) and (2) compliance with the Financial Soundness (Financial Safety 5 points and 5 points in operating income) legal system (10 points out of without permission of tourists, 15 points in administrative sanctions, and 10 points in multi-qualified rate). (4) higher-value tourism product sales (15 points in medical tourism, MICE tourism, cosmetic tourism, etc.), and government policy response (10 points such as price adequacy 15 points, and whether social property are caused).

C) On December 5, 2013, the Defendant notified that exclusive travel agents, including the Plaintiff, who had at least 75 points in total under the above evaluation criteria, have been re-designated as exclusive travel agents, and announced that the results of attracting, product prices, administrative restructuring, low-cost goods, sales rate of high-value goods, etc. will be continuously monitoring and reflected in the evaluation of the renewal system conducted every two years.

D) On September 23, 2015, the Defendant held an explanatory meeting using the electronic management system, and the Plaintiff’s employee participated in it. On October 5, 2015, the Defendant notified the head of the Korea Tour Business Association of the establishment of an electronic management system to enter the company’s performance, and notified the exclusive tourer of the establishment of the electronic management system to enter the company’s performance in the year 2014 and 2015, the Defendant was scheduled to utilize it for the re-designation in the 2015 evaluation. The president of the Korea Female Business Association notified the exclusive tourer of this on the same day.

E) On December 24, 2015, the Defendant publicly announced that the exclusive travel agents may be disadvantaged in the evaluation of relevant items at the time of failure to submit data related to the re-designation by January 8, 2016. At the time, the documents requested by the Defendant are “Financial Statements Certification Institute for Reported by the National Tax Service (Certified Tax Accountants)” 2015, documents evidencing the performance of award, such as official commendation and selection of outstanding goods, and documents evidencing the conclusion of standard terms and conditions for business tour interpreters and tour guide, and MICE1) medical records.

F) On March 4, 2016, the Defendant notified the Plaintiff of the fact that the instant disposition was the cause of the instant disposition (which was lower than the number of attracting people, was not reported on the record of the electronic management system), and conducted the hearing on March 18, 2016. On March 29, 2016, the Defendant sent a renewal evaluation sheet stating the Plaintiff’s score as the main date.

[Ground of recognition] Judgment Nos. 3 through 5, 7, 13, 20 through 23, and the purport of the whole pleadings 2)

Article 20(1) of the Administrative Procedures Act provides that "the administrative agency shall determine and publicly announce the necessary disposition standards in detail in light of the nature of the relevant disposition," and Article 20(2) of the same Act provides that "the public announcement of the disposition standards under paragraph (1) of the same Article need not be made in cases where it is substantially difficult in light of the nature of the relevant disposition or where there are reasonable grounds that it is deemed that the public announcement of the disposition standards under paragraph (1) significantly undermine the safety and welfare of the public." The purpose of the system of establishing and public announcement of the disposition standards lies in preventing arbitrary exercise of authority by the administrative agency, thereby ensuring the transparency and predictability of administration. Thus, the administrative agency is obliged to establish and publicly announce the disposition standards to the maximum extent specifically permitted by the nature of the relevant disposition (see Supreme Court Decision 2008Du5148, Aug

In determining the procedural illegality of the disposition of this case, the above criteria should be examined as to whether the purpose of the Administrative Procedures Act was damaged, and the facts that the plaintiff re-designated as the exclusive travel agent in 2013 are as mentioned above, and the purport of the above facts and the entire arguments can be seen as follows: ① the defendant has announced the evaluation criteria at the time of renewal system implemented in 2013 and has been continuously reflected in the future. The plaintiff already re-designated as the exclusive travel agent in 2013 can be seen as being notified of the above evaluation criteria; ② The contents of the evaluation criteria for renewal at the time of 2013 and the renewal evaluation criteria for 2015, which are the premise of the disposition of this case, are most similar, and the contents of the evaluation criteria for renewal at the time of 2013, are also additionally reflected, and ③ the defendant is also expected to use the evaluation management system newly introduced on October 5, 2015.

In full view of the fact that the above additional items could have been sufficiently predicted to be reflected in the evaluation because the request for submission of data related to evaluation on December 24, 2015 was made for the presentation of evaluation, and that the above additional items were requested to be reflected in the evaluation; ④ although the system of the identification system according to the administrative disposition was somewhat changed but the administrative sanctions were reflected in the evaluation of the administrative sanctions, the above evaluation system was not any difference from the time of the renewal of 2013, and it was not a matter that the plaintiff was notified in advance, and the above evaluation system could have been prepared for the plaintiff. ⑤ Since the specific allocation of the evaluation criteria is deemed to have considerable discretion for the defendant in light of administrative diversity and complexity, it is difficult to view that the defendant did not arbitrarily exercise its authority in the disposition of this case or that the plaintiff did not guarantee transparency and predictability of administration. Thus, the plaintiff's assertion that the defendant violated Article 20 (1) of the Administrative Procedures Act is without merit.

C. Whether there is substantive illegality

In light of the following facts: ① the Plaintiff appears to have entered only 7 cases of entry into the electronic management system, and could not be deemed to have completed a substantial performance report; ② the Plaintiff submitted only his/her identification card and qualification certificate with respect to the Plaintiff and 16 persons, unlike 8 persons exclusively dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to 16 persons; ③ the instant disposition is revoked only dedicated to dedicated to dedicated to dedicated to dedicated tour dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to her, and thus, it cannot be deemed that the Plaintiff’s disposition in this case is deviation or abuse of discretion.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.