2014Guhap21358 Revocation of revocation of a license for marine passenger transportation services

A Stock Company

Commissioner of the Regional Maritime Affairs and Port Office

September 24, 2014

November 14, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On May 30, 2014, the Defendant revoked the revocation of the B Maritime Passenger Transport Business License for the Plaintiff.

1. Details of the disposition;

A. On March 13, 2013, the Plaintiff was established for the purpose of coastal passenger and coastal cargo transportation business, and entered into a charter agreement with C Co., Ltd. (hereinafter referred to as “C”) to charter D’s gross tonnage (3,403G/T, the date of building May 1, 1996, the number of passengers is 855, the navigational speed is 35Ks, and hereinafter referred to as “instant vessel”) monthly 348,00,000 won.

B. On May 6, 2013, the Plaintiff: (a) obtained a license for marine passenger transport services (hereinafter “instant business license”) with regard to the service route B from the Defendant as the subject vessel; (b) pursuant to Article 4(1) of the Marine Transport Act; and (c) operated marine passenger transport services (hereinafter “instant business”). On May 1, 2014, the Defendant issued a prior notice of disposal (a notice of holding a hearing) to the Plaintiff; (b) held a hearing on May 20, 201; and (c) notified the Plaintiff of the revocation of the instant business license for the following reasons (hereinafter “instant disposition”).

Article 19 (1) 5 of the Marine Transportation Act (the number of passenger ships owned below the licensing standards under Article 5 (1) 5 of the same Act (the number of passenger ships owned below the licensing standards under Article 5 (1) 5 of the same Act) (hereinafter referred to as "reasons for disposal"): The Plaintiff leased a ship between operators of marine passenger transportation services or leased a ship from a rental business operator registered with a vessel leasing business operator for a fixed period of not less than one year, and the Plaintiff leased the ship for a period of not less than one year. The Plaintiff, who was not a rental business operator registered with a vessel leasing business operator without operating a vessel leasing business, shall not engage in marine passenger transportation services and revoke the license for E marine passenger transportation services (the date of November 2013), Article 19 (1) 8 of the Non-registration of the Vessel Charter Services Act (the date of commencement of vessel leasing services within one month from the date of commencement of operation under a business plan), Article 19 (1) 1 of the 19 (1) 1 of the Marine Transportation Act (the date of operation Order under Article 2013 (hereinafter referred to 1) of the Act)

[Ground of recognition] Facts without dispute, Gap evidence 1, 3-5, 7-2 Eul evidence Nos. 1 and 22, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff’s failure to comply with the Defendant’s order of operation is not due to the Plaintiff’s intentional or negligent act but due to the fact that the instant vessel chartered from C was executed to auction the vessel or to keep the guard. The failure of the instant vessel was due to the occurrence of defects, such as the damage of engines due to the bad maintenance of EXE Co., Ltd. (hereinafter “EE engines”) which was entrusted with repair of the said vessel. The Plaintiff requested the Defendant to review by furnishing vessel materials related to F to put a substitute vessel. However, the Defendant did not provide the Plaintiff with an opportunity to put a substitute vessel into the Plaintiff on the ground of its decision of provisional disposition which was entirely irrelevant to the Plaintiff. In light of the fact that the instant vessel’s failure to take part in the instant vessel, the instant vessel’s failure to take part in the instant vessel at least on a short-term basis by the Plaintiff’s domestic shipping industry, and that it was unreasonable for the Plaintiff to take part in the instant vessel inspection at the request of the Plaintiff to take part in the instant vessel inspection at a more time than the Plaintiff’s new vessel inspection.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) On August 14, 2013, a creditor SE Engine filed an application for the auction of the vessel related to the instant vessel owned by the debtor C (Seoul District Court Port Branch 1) and filed an application for the preservation of vessel depreciation (the same supportJ) at the same time. On the 16th of the same month, the said court rendered a decision to commence the auction and made a decision to keep the vessel at the same time (hereinafter referred to as “instant voluntary auction decision, etc.”)

2) On September 6, 2013, the Korea Development Institute, a creditor foundation, (hereinafter referred to as the “Korea Development Institute”) filed an application for provisional injunction on the instant business license with the debtor C and the third debtor as the Republic of Korea (hereinafter referred to as the same support), and the said court rendered a decision of acceptance of provisional injunction on October 10 of the same month (hereinafter referred to as the “decision of provisional injunction”). Meanwhile, on October 14, 2013, C filed a lawsuit seeking confirmation of the existence of the obligation against EEX engines (hereinafter referred to as the “instant support”), and is currently pending in the lawsuit.

3) The Plaintiff filed an application with the Defendant for the suspension of business of this case on the grounds that the Plaintiff was unable to pay vessel repair expenses due to temporary business management reasons of C, and the Defendant filed an application for the suspension of business of this case on five occasions with respect to the instant business, respectively, for the suspension of business under Article 18 of the Marine Transportation Act (the period of suspension of business from September 1, 2013 to February 28, 2014). On February 19, 2014, the Plaintiff notified the Plaintiff that the period of the said suspension of business expires, and thus, the Plaintiff should normally operate the instant vessel from March 1, 2014.

4) On February 28, 2014, the Defendant issued an order to improve the marine passenger transport service providing that the Plaintiff shall comply with the minimum operation period of the vessel under Article 10 of the Marine Transport Act pursuant to Article 14 subparagraph 10 of the said Act, as the Plaintiff did not comply with the Plaintiff’s request for operation, and on March 17, 2014, issued an order to commence operation under the service plan pursuant to Article 13(2) of the Marine Transport Act on March 6, 2014.

5) On November 15, 2013, the Administrator of the Regional Maritime Affairs and Port Office revoked C’s license for maritime passenger transport services (E), and C did not operate vessel leasing services to the Defendant or the Administrator of the Regional Maritime Affairs and Port Office within two months thereafter.

6) On April 7, 2014, the Defendant urged the Plaintiff to issue an operation order under the said business plan, and at the same time, revoked C’s license for marine passenger transport services (E) as of November 15, 2013, and C did not have a record of vessel leasing services, etc., the Defendant notified C of the fact that the Plaintiff’s passenger vessel holding capacity fell short of the Plaintiff’s passenger vessel holding capacity pursuant to Article 5(1)5 of the Marine Transportation Act.

7) On May 9, 2014, the Plaintiff entered into a contract for the purchase of F (the gross tonnage of 2,292G/T, the building date of 2004.7.7. hereinafter referred to as the "alternative vessel of this case") at KRW 2.7 billion, and on the 20th of the same month, the Plaintiff requested an examination by attaching a contract for the purchase of a ship, a temporary ship station certificate, a ship photograph, etc. to substitute the instant substitute vessel to the Defendant. However, on the 26th of the same month, the Defendant notified the Plaintiff that it is impossible to authorize the alteration of the business plan (ship replacement) on the ground of the instant decision on temporary injunction regarding the instant vessel.

8) Meanwhile, the photograph (No. 9) of the substitute vessel of this case submitted by the Plaintiff at the time of the request for the above review was not destroyed, but the Defendant confirmed on June 9, 2014 that the substitute vessel was considerably damaged (No. 10).

9) On May 29, 2014, the Defendant notified C to the chief of the Portal Police Station that C is subject to punishment under Article 56 subparag. 2 of the Marine Transportation Act on the ground that “C registered vessel leasing business, etc. under the former part of Article 33(1) of the Marine Transportation Act with the Plaintiff on the revocation of a license for marine passenger transportation business (E), and that C did not comply with the vessel leasing business despite having entered into the instant vessel leasing business agreement with the Plaintiff,” which was later subject to punishment under Article 56 subparag. 2 of the Marine Transportation Act.

10) On August 26, 2014, the Defendant sent a reply to the effect that the instant substitute vessel is unable to operate under Article 17 of the Ship Safety Act due to the lack of a ship inspection certificate under Article 8 of the Ship Safety Act. On the other hand, according to the reply of the president of the Korean Institute of Ship Promotion to the Defendant on August 26, 2014, the instant substitute vessel was unregistered in advance.

11) On September 11, 2014, the Plaintiff entered into a sales contract with K (the Korean class, the gross tonnage of 5,360G/T, and the number of passengers) for KRW 3.5 billion from the CFF Co., Ltd., Ltd., and confirmed on September 12, 201 that the Defendant applied for the approval for the change of the instant business plan (the change of the instant vessel to K), and that the Defendant was not subject to the authorization for the change of the business plan due to the instant disposition on the 15th of the same month.

12) Meanwhile, the instant vessel and the instant vessel’s B operation record from April 2006 to April 8, 2006 are merely 306 days in total. The Plaintiff, after obtaining the instant business license, operated the instant vessel 29 days in total between May 6, 2013 to May 29, 2014 (No. 20 days in total) and residents, such as Ulllle Gun residents, are urged to extend B passenger ships.

13) On May 29, 2014, global sea transportation entered into a contract for remodeling of the instant substitute vessel (a license agreement for remodeling of alinium and landing service) with the Human Heavy Industries Co., Ltd. (hereinafter “Scintain Heavy Industries”). However, the Human Heavy Industries is unable to carry out construction due to drawings, supply delay, etc. of Onnuri marine transportation. Although it was granted a down payment of KRW 160 million out of the amount of KRW 176 million from global marine transportation, it was returned to the Marine Transportation which received KRW 60 million out of the amount of KRW 160 million.

14) According to the respective titles of the Plaintiff and C (No. 7) of the Plaintiff and C, the Plaintiff’s president, the managing director, M, and C’s president and the managing director are the same as M.

【In the absence of dispute over the grounds for recognition, Gap’s evidence 2 through 5, 12, 13 evidence, Eul’s evidence 2 through 10, 16, 20, and 26 evidence (including each number), the fact-finding results with respect to the Human Heavy Industries Co., Ltd. of this court, the purport of the whole pleadings

D. Determination

Article 19 (1) of the Marine Transportation Act provides that the Minister of Oceans and Fisheries may order a passenger transportation service provider to cancel his/her license or authorization under Article 12 (2), to suspend all or part of his/her business with a fixed period not exceeding six months, or to impose a penalty surcharge not exceeding 30 million won, if the provider of passenger transportation services fails to meet the licensing standards under Article 5 (1) 5 (excluding cases where the standards are satisfied within two months from the date of failure), if the operator fails to commence operation within one month from the date of commencement of operation on the business plan under Article 13 (1) (subparagraph 5), or if he/she violates Article 13 (2) (subparagraph 8).

Meanwhile, Article 5 (1) 5 of the Marine Transportation Act provides that when the Minister of Oceans and Fisheries intends to grant a license for marine passenger transport services, he/she shall examine whether the number of passenger ships, etc. owned and the age of such passenger ships, etc. owned are in conformity with the standards prescribed by Ordinance of the Ministry of Oceans and Fisheries. Article 5 (1) [Attachment 2] and Article 5 (2) of the Enforcement Rule of the Marine Transportation Act provides that a vessel to be included in the number of passenger ships owned by a business owner and a vessel determined and publicly announced separately by the Minister of Oceans and Fisheries under the name of a business owner. Article 4 (1) of the Enforcement Rule of the Marine Transportation Act provides that a vessel to be included in the number of passenger ships owned in the number of passenger ships owned by a business owner under Article 4 (3) shall be subject to an order of a marine passenger transport service provider under Article 2 (1) 4 of the Marine Transportation Act, and Article 5 (1) 2 of the Enforcement Rule of the Marine Transportation Act provides that the Minister of Oceans and Fisheries shall order the passenger transport service provider to operate a vessel for more than one year.

In light of the above facts and the aforementioned evidence, the plaintiff did not meet the licensing standards under Article 5 (1) 5 of the Marine Transportation Act, and did not commence operation within one month from the date of commencement of operation on the business plan under Article 13 (1). Since the plaintiff violated the defendant's business plan under Article 13 (2), the grounds for disposition are legitimate, and even when considering various circumstances asserted by the plaintiff, it cannot be deemed that the disposition of this case is excessively harsh and thus violates the principle of proportionality, and thus, it cannot be deemed that the plaintiff deviates from and abused discretionary power.

The plaintiff's above assertion is without merit.

① Since C, the owner of the instant vessel, was revoked on November 15, 2013, not a vessel vessel vessel leasing business registration within two months after C’s license for marine passenger transportation business (E), the instant vessel cannot be included in the Plaintiff’s passenger vessel possession of the instant business license pursuant to Article 4(1) of the Public Notice on Coastal Shipping prescribed by the Enforcement Rule of the Marine Transportation Act.

On September 1, 2013 to February 28, 2014, the Plaintiff obtained permission for the suspension of business of this case from the Defendant on five occasions on the grounds that the Plaintiff was unable to pay vessel repair expenses due to temporary business management reasons, and was unable to operate the instant vessel due to voluntary auction decision, etc., and the Plaintiff failed to operate the instant vessel on March 1, 2014, which is the date of commencement of operation.

The Defendant, on March 6, 2014, did not operate the instant vessel until now, even though the Plaintiff issued an operation order under the business plan pursuant to Article 13(2) of the Marine Transportation Act to the Plaintiff.

㉣ 원고는 온바다해운으로부터 이 사건 대체선박을 매수하여 2014. 520. 피고에게 대체선박으로 가능한지를 검토요청하였으나, 이 사건 대체선박은 그 무렵 상당 부분 파손되어 있었음에도 원고는 위 검토요청 시 파손되지 아니한 상태의 사진을 첨부하여 제출하였고, 나아가 위 대체선박은 선박검사증서 등이 없는 선박으로서 선급에 미등록되어 있어 선박안전법 제17조에 따라 항해에 사용이 금지되어 있다.

The marine transportation, which is the transferor of the substitute vessel, entered into a contract for remodeling the substitute vessel with the Human Heavy Industries, but the progress of construction is not adequate due to the non-cooperation of the Ongoing Shipping.

The records of B operation of the instant vessel and the instant vessel that had been granted a license for alternative transfer are about 306 days from April 2006 to around 8 years, and the Plaintiff operated the instant vessel for 29 days from May 6, 2013 to May 29, 2014 after obtaining the instant business license. As such, the instant vessel was operated for 29 days from May 6, 2013 to May 29, 201, causing inconvenience to the use of marine traffic by the users of the said route, and the Ullllung-gun calls for the extension of B passenger vessels.

Each of the instant provisional dispositions regarding each of the instant vessels was issued regarding each of the instant licenses, and C is currently pending litigation by filing a lawsuit to confirm the existence of an obligation against SEX engines, and it seems difficult to resolve the relevant disputes, such as the instant vessel, in a short period.

It seems that the Plaintiff and C have been fully aware of the internal situation of C as the Plaintiff was the same as the president and the manager of the regular business.

The issue of illegality of administrative disposition in the administrative litigation against a defendant is to be determined on the basis of statutes and facts at the time the administrative disposition was taken (see, e.g., Supreme Court Decision 2007Du1811, May 11, 2007). The circumstances such as the purchase of a new substitute vessel after the disposition of this case by the plaintiff cannot be considered in determining the legitimacy of the disposition of this case.

The plaintiff asserted that the defendant made the disposition of this case for an unlawful purpose under the Cr. Cr. Cr. Cr. and Cr. Cr., but there is no evidence to acknowledge it.

㉪ 해운법은 여객의 원활한 운송을 도모함으로써 이용자의 편의를 향상시키고 국민경제의 발전과 공공복리의 증진에 이바지하는 것 등을 목적으로 하는데, 이 사건 사업과 관련된 분쟁으로 위 사업의 운항구간의 여객선등 이용자의 해상교통 이용에 불편을 야기하고 있으므로 조속히 여객운송사업이 재개되어야 할 필요성이 있다.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge and the judge in order;

Judges' heavy defects

Judges Kim Gun-chul