2016Guhap58710 Demanding revocation of the designation of a Chinese travel agent

Gold Tour Co., Ltd.

The Minister of Culture, Sports and Tourism

May 27, 2016

July 25, 2016

1. The revocation of the designation of the exclusive travel agent for attracting Chinese group tourists, which the Defendant rendered to the Plaintiff on March 28, 2016, shall be revoked.

2. The costs of the lawsuit are 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 on a non-net containing an agreement following such negotiations (hereinafter referred to as "non-net of this case").

B. According to the Round of this case, China had a travel company in its country take exclusive charge of the organization tourism business of the Republic of Korea of Chinese citizens, and these travel companies have selected a cooperative company among the travel companies 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 Promotion of Exclusive Tour Services (hereinafter referred to as the "Guidelines"), as prescribed by the Round of this case, and accordingly designated and managed the "China's Organization Tourist Tour Promotion" (hereinafter referred to as the "exclusive travel company"). The Plaintiff was a company established on May 18, 2005 for the main purpose of general travel business and domestic and foreign travel business, and was re-designated on December 5, 2013.

D. On March 28, 2016, the Defendant issued a disposition to revoke the designation of a exclusive travel agent by applying Article 3-2 of the instant guidelines (hereinafter “instant disposition”) on the ground that the result of the review for the renewal of the exclusive travel agent’s license (hereinafter “exclusive travel agent”) was less than the holding of a multi-use tour compared to the holding record, the electronic management system was more than 0, and 10 points were reduced after receiving an administrative disposition.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1, 4, 5 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant guideline violates the Tourism Promotion Act that allows only the company designated by the Defendant to carry out the domestic tourism business of Chinese people without legal basis, thereby infringing on the freedom of occupation, which is a fundamental right under the Constitution, and that allows the travel business to run freely if it is registered with certain requirements. Therefore, the instant guidelines are unconstitutional and illegal administrative rules. Therefore, the instant disposition based on the instant guidelines should be revoked illegally (the Plaintiff did not claim specific grounds for the disposition presented by the Defendant).

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) 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. Furthermore, today’s principle of statutory reservation is not sufficient if administrative action simply establishes the legal basis, 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 the fundamental rights of the people, but rather requires the legislator, the representative of the nation, to make a decision on the essential matters of the nation’s own. In this case, it is difficult to uniformly define what kind of matters to be regulated by the law, and it is not possible to separately determine the importance of the benefits or values related to a specific case, the degree and method of regulation or infringement, but at least when restricting the freedom or rights of the people guaranteed by the Constitution, there is no change in the freedom of business and the reason for the change in the designation of the nation’s fundamental rights in accordance with the Constitution, and there is no reason for the legislation of the National Assembly’s guidelines on the freedom of business.

① Prior to July 1998 when the instant guideline was first enacted, there was almost no market for the travel business against Chinese tourists. However, from 1999 to 2010, the number of Chinese tourists increased considerably from approximately 2.18,00 to about 5.15,00 among them, the number of foreign tourists increased from about 46,00 to 5.15,00, and the number of exclusive tourists who are counterparts to group tourists increased from 35, 1998 to 167, 2012.1) Accordingly, at the time of the enactment of the instant guideline, it may be deemed that there was a large impact on the number of Chinese group tourists and their exclusive exercise of the right to participate in the travel business or the freedom of their business in the future. However, it may be deemed that the current management system of Chinese tourists has not been significantly affected by the current operation of the business by the market.

② In order for domestic travel agencies to conduct their business for more than one Chinese group tour operator, it must be designated as the Defendant’s exclusive tour operator (the Korean consular official, etc. residing in China, who is not a exclusive tour operator, is deemed to refuse to issue a visa to Chinese group tour operator who is attracting Chinese group tour operator who is not a general tour operator). When attracting Chinese group tour operator without the Defendant’s designation, it cannot be designated as a exclusive tour operator in the future or may not receive the tourism fund or government business support (Article 12 of the Guideline of this case). The Chinese government seems to have received a list of exclusive tour operators designated by the Defendant and sent them to Chinese group tour operators, and have them handle the business of sending tourists only between the events of sending, and the exclusive tour operator (Article 5-11 of the Guideline of this case). Accordingly, the Korean tour business market against Chinese group tour operator is practically operating as a permitted travel system by entering and leaving the business according to the Defendant’s designation, and the freedom of business operation or the freedom of business operation of the people is restricted within the scope of business operation.

In addition, considering the fact that the proportion of Chinese group tourists in the domestic travel market is significantly increasing as seen above, the designation system of exclusive tour operators should no longer be entrusted to the defendant's internal administrative rules, but be operated based on the laws enacted by the National Assembly.

③ Considering the impact of the designation of the Defendant’s exclusive travel agent and the 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 cancel the designated event are based on the law (including the aforementioned contents in the establishment of the travel business law, which was promoted by the National Assembly). The elements to be considered are also included in the establishment of the travel business law, which has been promoted by the National Assembly (Evidence 6), and to the extent, can be recognized as complying with the principle of statutory reservation and the principle of parliamentary reservation. At present, there is no standard to determine whether the contents of the instant guidelines are legitimate or not, since the Act on the Grounds of

④ To operate a travel business, the Tourism Promotion Act only provides that the person satisfies the statutory requirements and does not require the competent authorities to permit or authorize the travel business. However, the instant guidelines allow only some travel enterprises designated by the Defendant among general travel enterprises under the Tourism Promotion Act, which are not stipulated by relevant Acts and subordinate statutes, such as the Tourism Promotion Act. It is not permissible for the Defendant to undermine the system leading to the Constitution, Acts, Presidential Decree, and Ordinance of the Ministry through internal administrative rules. Fifth, past rulings that recognized the legality of the disposition on the revocation of the designation of exclusive travel enterprises do not abuse or abuse discretion, but did not directly determine whether the instant guidelines violate the principle of statutory reservation under the Constitution. Nevertheless, it seems that the instant guidelines do not have any direct binding force on the part of the public (see, e.g., the instant guidelines).

3. Conclusion

The plaintiff's claim is justified 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

1) 58,78,80 pages submitted by the Defendant