Korea Tourism-Free Co., Ltd. (Law Firm Mapyeong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 200Na14488 decided May 2, 200

Jeonbuk-gu et al. (Law Firm Barun et al., Counsel for the defendant-appellant)

June 23, 2016

1. The plaintiff's primary and conjunctive claims are all dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff, including the costs incurred by participation.

The primary claim: The defendant confirmed that there is no authorization disposition for modification of the passenger transport business plan issued by the former North Korean corporation on October 6, 2015, and the defendant revoked the approval disposition for modification of the passenger transport business plan on October 6, 2015 with respect to the former North Korean corporation, and the defendant revoked the approval disposition for modification of the passenger transport business plan on

Preliminary Claim: On October 6, 2015, the Defendant’s disposition of approving each change in the passenger transport business plan with respect to the former North High speed Co., Ltd. and the North High speed Co., Ltd., Ltd., and the North

1. Details of the disposition;

A. The plaintiff's status

1) On December 12, 1996, the Plaintiff is a passenger transport business operator commencing the transportation of airport buses with the limited license for intercity bus transportation business from the Defendant, which read “passengers limited (contractors for airport use by overseas travel enterprises)” and “the effective period from December 12, 1996 to December 11, 1999 (3).”

2) On September 30, 1999, the term of validity of the instant limited license expires, the Plaintiff obtained from the Defendant on September 30, 1999 the limited license for passenger transport business (hereinafter “instant limited license”). On July 18, 2000, the Plaintiff received a disposition to authorize the alteration of passenger transport business plan from the Defendant to the Incheon International Airport to extend the closing point of buses from the Incheon International Airport, thereby running the air route 24 times a day from Jeonju-Yan International Airport to 24 times a day, and the air route 23 times a day from Jeonju-Yan International Airport.

B. The instant disposition against the Intervenor joining the Defendant

The Defendant: (a) filed an application with the Defendant for authorization to amend the project plan with respect to the Intervenor’s Intervenor’s Intervenor, who is a direct and extra-city bus transport business entity (hereinafter “ Intervenor”); (b) pursuant to the Defendant’s application with respect to the change of the project plan with respect to the Intervenor, Jeonbuk-high speed, the Defendant: (c) on October 6, 2015, on the part of the Intervenor, the number of flights from Seoul (Seoul) to North Korea; (d) the number of flights, the number of flights, the number of flights, the number of flights, the number of flights, the number of flights, the number of flights, the number of flights, the number of flights, the number of flights, the number of flights, the number of flights, the number of flights, the number of flights, and the number of flights, the number of flights (hereinafter “second routes”); and (d) on the other one day, on the part of the Intervenor, the Defendant reduced the operating segment from the front to the front airport; and (e) extended the passenger transport project plan from Incheon (hereinafter “instant”).

The change in the table number number changes included in the main text after the change in the front of the border line number changes, frequency of the end point points at the end point of Da4-6-5 Seoul (Seoul metropolitan area), the end point at the end point of Da4-6-5 Seoul (Seoul metropolitan area), the high speed of Da4-6-5 Seoul (Seoul metropolitan area, the Gyeongcheonan area, the westan area, the westan area, the westan area, the westan area, the westan area, the west high speed, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area, the westan area of 23, the front speed extension of the westan area prior to 23.

C. Administrative appeal procedures

On November 4, 2015, the Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Central Administrative Appeals Commission, but the Central Administrative Appeals Commission rendered a ruling dismissing the Plaintiff’s claim on May 17, 2016.

D. Progress of the previous lawsuit

On August 12, 2013, the Plaintiff filed a lawsuit against the Defendant on August 12, 2013 against the Intervenor seeking revocation of the passenger transport service plan modification (hereinafter “former Disposition”). On April 15, 2015, the Plaintiff filed a lawsuit against the Defendant on the following grounds: “The previous Disposition was conducted beyond the Defendant’s authority, and its modification was conducted beyond the previous Disposition, and the Intervenor’s previous Disposition was 4 times a day in front, North-west, North-west, 1, and 4 times a day in front, south-west, 1, respectively; and the Intervenor’s three times a day in front, 3 times a day in front, and the remainder was 4 times a day in front, and the passenger transport service plan modification was 5 times a day in front, and the Defendant did not go through consultation with the competent administrative agency, but was found to be unlawful by the Defendant on April 15, 2015, as it did not go through consultation with the Plaintiff 2, 2015.”

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 11, 13, 15, Eul evidence No. 18 (including branch numbers), the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant and the intervenor's defense on this part

The Plaintiff operates a route designated by the competent authority within a limited scope due to public interest needs. As such, there are differences in the scope of duties, mode of operation, methods of operation, and the legal interests to be protected under the relevant Acts and subordinate statutes with the intervenors who are regular bus transportation business entities. The Plaintiff and the Intervenor cannot be deemed as having a competitive business relationship with the Plaintiff on the ground that the routes operated by the Intervenor and some sections of the routes operated by the Plaintiff overlap according to the instant disposition and the part of the routes operated by the Plaintiff. Therefore, insofar as the Defendant rendered the instant disposition lawfully against the witness in accordance with the relevant Acts and subordinate statutes, it cannot be said that the Plaintiff violated the Plaintiff’s direct and specific interests protected by the law,

B. Determination

1) Even if a third party, who is not the other party to an administrative disposition, is not the other party to the administrative disposition, it is entitled to file a revocation lawsuit in which the interests protected by the law are infringed by the pertinent administrative disposition, and the decision of propriety thereof shall be made. If the law, which forms the basis of the beneficial administrative disposition such as license, authorization, permission, etc., aims at preventing unreasonable management due to excessive competition among the pertinent business operators, the existing business operator who conducts business after receiving the same kind of license, authorization, permission, etc., or other beneficial administrative disposition for another business operator in advance, is entitled to seek the revocation of the pertinent administrative disposition even if the other party to the administrative disposition is not the other party to the pertinent administrative disposition such as license, authorization, permission, etc., granted to the relevant competitor (see Supreme Court Decision 9Du6026, Oct. 12, 199).

2) As to the instant case, Article 5(1)1 of the former Passenger Transport Service Act (amended by Act No. 12982, Jan. 6, 2015; hereinafter “passenger Transport Service Act”) provides that “The business plan conforms to the transport demand and supply of transport capacity in the relevant route or business area” as the licensing criteria for passenger transport business is aimed at establishing the order of passenger transport business and promoting the general development of passenger transport business, thereby promoting public welfare and preventing unreasonable management arising from competition among business operators in advance.

In full view of the above adopted evidence and the purport of the whole arguments, the route operated by the plaintiff and the third routes operated by the plaintiff according to the disposition of this case differing from the operation system, such as the location and destination of the stopping place in the Jeonju, and the plaintiff can only transport passengers who intend to use the Incheon Airport for overseas travel, while the intervenors are not limited to passengers. However, as long as the operation route is not so different and the two routes are to transport passengers who want to use the Incheon Airport or its station direction in the Jeonju, and as long as the number of passengers who want to depart from the Republic of Korea using the Incheon Airport are allowed to use the third routes additionally, the disposition of this case is likely to reduce the plaintiff's profit due to the disposition of this case. Accordingly, if the route, operation system, and transportation demand of the plaintiff and the new business operator are overlapping due to the disposition of this case and the plaintiff's profit decrease is expected, it is reasonable to view that the plaintiff and the intervenors are in the competitive business relationship.

Therefore, in light of the legislative purpose of the above Passenger Transport Act, the plaintiff has legal interest in seeking revocation of the disposition of this case. Thus, the defendant and the intervenor's defense of principal safety is without merit.

3. Judgment as to the plaintiff's primary claim for confirmation of non-existence

A. The plaintiff's assertion

The Intervenor: (a) obtained a license for passenger transport business from the Defendant on April 7, 2015; and (b) applied for the instant business plan modification; and (c) received the instant disposition from the Defendant on October 6, 2015. However, the Defendant revoked the said new license granted to the Intervenor’s former North High speed Terminal on January 20, 2016; and (b) revoked the previous disposition for revocation of the license for passenger transport business as of July 3, 2015. The instant disposition is based on the new license issued as of April 7, 2015. Since the said new license disposition was revoked ex officio by the Defendant, the instant disposition was eventually nonexistent.

B. Determination

In light of the above facts, the Plaintiff’s revocation of the license for passenger transport business on April 7, 2015 by the Intervenor, and the instant disposition was issued by the Defendant on October 6, 2015. The Defendant revoked the Plaintiff’s license for passenger transport business on January 20, 2016, and at the same time revoked the previous license for passenger transport business on July 3, 2015 to the former North High-speed Terminal, Co., Ltd., Ltd. on the ground that the Plaintiff’s revocation of the license for passenger transport business on April 7, 2016 to the former North High-Speed Terminal, the Plaintiff’s revocation of the license for passenger transport business on April 7, 2015, did not appear to have any reason to deem that the Plaintiff’s revocation of the license for passenger transport business on April 20, 2015 to the former North High-speed Terminal, Co., Ltd. and the Plaintiff’s revocation of the license for passenger transport business on April 7, 2015.

4. Judgment on the remaining claims of the Plaintiff

A. The plaintiff's assertion

The instant disposition is unlawful due to the following defects, and thus should be revoked.

1) Claim that the system division and reduction extension are impossible simultaneously to take measures.

The Guidelines for Handling Passenger Transport Service Personnel and License Affairs (hereinafter “Guidelines”) enacted with the delegation of the Passenger Transport Act and the Enforcement Rule provides for the strict division, reduction, extension, and establishment of a new route. The intervenors stated the two routes in the modification of the instant business plan as “system division”, “system division”, and “system division” with respect to the third routes, but if the first route is “system division”, it should be divided into the “Seoul (Seoul)-Interju” or “Seoul-ju” rather than the two routes or three, and if the first route is changed into the second route, the third route does not exist. If the first route is “Reduction” and the first route is changed into the third route, it cannot be deemed to exist if the first route is changed into the third route, and only the third route falls under the “section division” of Article 7,500,000,000,0000,000,0000,000,0000,000,000,000,00,00.

Therefore, although the modification of the business plan of this case, which changes the first route to the second route and the third route, is apparent, the defendant made the disposition of this case that makes it impossible to establish the first route at the same time without going through the procedures such as demanding supplementation of the defects in the entries, and simultaneously makes it impossible to establish the first route at the same time. This goes against the criteria for modification of the business plan prescribed in the relevant Acts and subordinate statutes.

2) Violation of Article 32(2)6 of the Enforcement Rule of the Passenger Transport Act

Pursuant to Article 32(2)6 of the Enforcement Rule of the Passenger Transport Act, an increase or decrease in the frequency of operation of routes extending over at least two Cities/Dos beyond a certain standard shall be changed after the participation of the relevant cross-country bus transportation business entity or the competent authority in an investigation of transport demand, etc. for the relevant operation system. The instant disposition is to reduce the frequency of operation of the first route three times each (3.3% reduction of the existing frequency of operation) and to establish three routes each (200% increase or decrease in the frequency of operation of the first route and three routes each (200% increase or decrease in the frequency of operation of the first route and three routes). Therefore, it is necessary to undergo the procedures for a transport demand survey pursuant to the said provision, since the number of increases or decreases in the frequency of operation of the first route and three routes

Nevertheless, the Defendant issued the instant disposition without going through any process of transport demand survey.

3) Violation of Article 7 subparag. 1 of the Work Process Guidelines

The third route is "long extension," but its substance is "the establishment of a new operation system", and when two or more enterprises apply for the operation system newly established pursuant to Article 7 subparagraph 1 of the Work Process Guidelines, the defendant shall apply to the points converted according to the distribution rate, such as the annual altitude, performance of instructions, etc. of the newly established operation system, and the distribution of the frequency of operation shall also be calculated in accordance with the formula prescribed in the above provision.

Nevertheless, the Defendant issued the instant disposition without calculating the conversion points for each participant or calculating the frequency of operation in accordance with the formula.

4) Violation of Article 7 subparag. 3 (b) of the Work Process Guidelines

Pursuant to Article 7 subparagraph 3 (b) of the Work Process Guidelines, division and reduction of the operation system shall be limited to the extent that it can promote transportation convenience for users. The first route is for the transportation convenience of passengers in pregnant rooms and Jeonju, Seoul, but the first route is for the transportation convenience of passengers. However, due to the disposition of this case, the number of the operation frequency of the first route has decreased by 33% or the number of the operation frequency of the first route has decreased, causing inconvenience to residents who have previously used it. The disposition of

(v) argument that it is a overlapping disposition of impossibility of performance.

Until the judgment of the court becomes final and conclusive, the previous disposition of this case is still valid due to the process of administrative disposition. Nevertheless, the defendant re-issued the same route as the previous disposition of this case with respect to the intervenors. This is impossible to implement it as a duplicate disposition on the same route.

(vi) the deviation and abuse of discretionary authority;

Under the judgment that it is difficult for the Defendant to operate regular route buses on the route from the Jeonju to the Mancheon Airport due to the influence of demand, etc., the Defendant issued the instant limited license to the Plaintiff in order to resolve the users’ inconvenience in traffic, and this is not entirely intended for the Plaintiff’s private interest, and thus, there is a trust interest in the Plaintiff that the Plaintiff has a certain priority in relation to the said route compared to the general transport business operator.

Therefore, in order for the defendant to allow the overlapping operation of regular bus routes from the front line to the Incheon Airport, there are special circumstances, such as that the plaintiff's transport capacity alone is not sufficient to cope with the increased transport demand or that the plaintiff is causing damage to the residents by using the exclusive status of the above route. Even if the plaintiff is currently in operation, the plaintiff's transport demand for the above route can be met, and even if there is such demand, the plaintiff can sufficiently respond to the above demand, but the defendant allowed the intervenors to operate the third route overlapping with the above route without any objective basis on the above special situation, without any objective basis, through the disposition of this case, without regard to the above special situation, the defendant allowed the intervenors to operate the third route overlapping with the above route. Furthermore, the defendant was revoked by the court's decision and the previous disposition of this case was made again in the same way as the previous disposition while the lawsuit was pending, even though the previous disposition was revoked, and the operation of the previous disposition was suspended.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the amendment to the instant business plan constitutes extension of reduction

A) Relevant legal principles

Article 11(1) of the former Passenger Transport Service Act (amended by Act No. 8511 of Jul. 13, 2007 and enforced January 13, 2008; hereinafter “Transportation Service Act”) provides that the person who has obtained a license for passenger transport business shall obtain authorization from the Minister of Construction and Transportation or the Mayor/Do Governor when he/she intends to modify the business plan. Article 11(4) of the same Act provides that the procedures, standards, and other necessary matters for modifying the business plan under the provisions of paragraphs (1) through (3) of the same Article shall be prescribed by the Ordinance of the Ministry of Construction and Transportation. Article 31(5) of the former Enforcement Rule of the Passenger Transport Service Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 4 of March 14, 2008; hereinafter “Enforcement Rule of the Passenger Transport Service Act”) provides for the new operation route or the new extension of the operation route from the new operation route to the new operation route (amended by the Ordinance of the Ministry of Construction and Transportation or the Mayor/Do Governor.

In light of the fact that the processing process guidelines separately provide for a “short extension” from “short extension,” and that it is possible to simultaneously file an application for reduction and an application for extension at the same time or annually because there is no separate provision that restricts the frequency or period of modification of the business plan unless it falls under the grounds for restriction on modification of the business plan as provided by Article 11(3) of the Passenger Transport Service Act, the extension of the reduction is not substantially the same as obtaining authorization for extension from the reduced place after simply obtaining authorization for the reduction, but rather, the extension of the reduction is not substantially the same as obtaining authorization for extension from the reduced place.” (see Supreme Court Decision 2009Du10512, Jun. 10, 2010).

B) In light of the aforementioned legal principles, the health zone, the content of the instant project plan modification is as follows: (a) the number of flights “Seoul (Seoul) to the front line, the number of flights 1 to the front line, the number of flights 9 times a day prior to the Intervenor’s order, and the number of flights 9 times a day prior to the Intervenor’s order; and (b) the Intervenor’s order to reduce the number of flights 6 times a day, respectively (this refers to the reduction included in the contents of the reduction extension); (c) for three times a day each of the rest, the operation section from the front line to the front line, and the extension of the operation section from the front line to the Incheon International Airport. As such, it constitutes the extension of the reduction of Article 2 subparag. 2 (b) of

C) As to this, the legal definition provisions that serve as the basis of administrative disposition should be more strictly interpreted. In light of the work process guidelines, the term “a reduction”, which is the requirement of “a short extension”, refers to the result of the abolition or reduction of part of the operation system concerned, and at the same time, the cause of extension is the cause of extension. The extension of reduction according to the Plaintiff’s interpretation is to abolish the entire section of “Seoul (Seoul)-Bju” as the basis of the first route of this case (nine times each), and to extend the abolished section to the “Acheon Airport-Bju” section (nine times each), respectively.

In light of the above legal principles and relevant Acts and subordinate statutes, the following circumstances revealed: ① the extension of operation by the Plaintiff’s interpretation is substantially the same as the extension of operation by the reduced point after simply obtaining the approval of the reduction; ② the extension of operation by the Plaintiff’s interpretation is not in line with the legislative intent of relevant Acts and subordinate statutes, such as the establishment, extension, reduction, etc. of routes and operation systems to promote the convenience of residents; ② the extension of operation by the operator of the operation of the route to flexibly respond to transport demand and transport capacity; ② The Plaintiff’s interpretation provides for the extension of operation by the number of times from the first route of this case to the Seoul (Seoul) to the three main sectors; and the extension of operation by the residents at least three times after the reduction of the operation frequency of the existing section of this case to the three main sectors, and the extension of operation frequency by the residents at least three times after the reduction of the operation frequency of the existing section of this case to the effect that the extension of operation frequency by the first route of this case to the Seoul (Seoul) to the first section of this case constitutes a reduction of operation frequency to the three existing section of operation frequency.

2) The argument that the system division and extension of the system are impossible simultaneously to take measures.

Although it is impossible for the Plaintiff to take simultaneous measures, the instant disposition that approved the modification of the instant business plan, which was conducted by combining the system division and the extension of the system division, is unlawful. However, the legality of the modification of the business plan should be determined not by the expressions indicated in the application for modification of the business plan and the written disposition, but by the contents of the modification of the substantive business plan. As seen earlier, the content of the modification of the business plan of this case constitutes a reduction extension, and the Plaintiff’s above assertion is without merit.

3) Violation of Article 32(2)6 of the Enforcement Rule of the Passenger Transport Act

On the premise that the content of the modification of the instant business plan constitutes the reduction of the first line and the new establishment of the third line, the Plaintiff asserted that the instant disposition was unlawful without undergoing the procedure under Article 32(3)6 of the Enforcement Rule of the Passenger Transport Act. However, as seen earlier, it cannot be deemed that there was a change in the existing operation system of the Intervenor due to the instant disposition, and the frequency of operation of the said operation system is the same as that of the previous one, and the Plaintiff’s assertion is without merit.

4) Violation of Article 7 subparag. 1 of the Work Process Guidelines

The plaintiff asserts that the defendant's disposition of this case is illegal on the premise that the substance of the third route corresponds to the establishment of the operation system without complying with Article 7 subparagraph 1 of the work process. However, as seen above, the third route of this case constitutes the extension of reduction, not the establishment of the operation system, and the plaintiff's argument is without merit.

5) Violation of Article 7 subparag. 3 (b) of the Work Process Guidelines

The Plaintiff asserts that the disposition of this case causes traffic inconvenience to the residents using the first route, but the content of the modification of the business plan of this case constitutes the extension of the reduction prescribed in the form of extension, not the division and reduction, and is not subject to the regulation of Article 7 subparagraph 3 (b) of the Work Process Guidelines because it does not cause any change in the operational system. The Plaintiff’s assertion

6) The assertion that it is a overlapping disposition of impossibility of performance.

The plaintiff asserts that the execution itself is impossible due to the overlapping disposition of the same contents as the previous one of the valid dispositions of this case. As seen earlier, the previous dispositions of this case and the previous dispositions of this case are different in terms of the route and operation system, and the previous dispositions of this case are conducted beyond the defendant's authority. Although the modification of the previous dispositions constitutes the establishment of a new route, the previous dispositions of this case are revoked due to the reason that there is a defect that has not gone through the consultation procedure with the relevant administrative agencies, even though the modification of the previous dispositions constitutes the establishment of a new route, there is no such defect in the dispositions of this case. Even if the dispositions of this case are overlapped, the defendant can cancel part of the overlapping dispositions ex officio and resolve them.

(vii) the deviation and abuse of discretionary authority;

Inasmuch as the Plaintiff has a trust interest in giving a certain degree of priority to the above routes compared to a general transport business operator, the Defendant’s transport capacity alone to allow a general transport business operator to operate the routes from the Jeon Mancheon Airport requires special circumstances, such as the Plaintiff’s transport capacity cannot meet the increased transport demand or the Plaintiff’s damage to residents by taking advantage of the exclusive status of the above routes. According to the aforementioned evidence and the overall purport of the arguments and arguments, it is determined that the above special circumstances exist, and thus, the instant disposition is lawful.

① In granting a limited license to the Plaintiff, the Defendant limited the scope of the Plaintiff’s business to only the Plaintiff’s “contractor using an airport of an overseas travel business entity,” and the Plaintiff filed a lawsuit seeking its revocation on the ground that the Plaintiff was not only an overseas travel business entity’s contractor, but also an ordinary passenger, which was subject to a disposition of imposition of a penalty surcharge from the Defendant, and the Plaintiff’s judgment against the Plaintiff became final and conclusive. However, according to the fact that the judgment against the Plaintiff became final and conclusive, the trust benefits expected through the instant limited license may not include the right to transport overseas travelers (hereinafter “general overseas tourers”) and the transport users irrelevant to the overseas travel (hereinafter “general transport users”) who are not through the travel business entity.

② Although the demand for passengers from a general overseas tourr who intends to go to Incheon Airport in Jeonju has significantly increased compared to the year 2008, in the case of a general overseas tourr and a general transport user other than a contractor using an airport of an overseas travel company, there is no traffic convenience using buses from Jeonju to Incheon Airport, and there is a special circumstance to permit a bus transport business entity to operate overlapping services with the bus transport business entity for the convenience of transportation of residents.

③ Since the limited license was granted in 1999, the Plaintiff exclusively operated the route “Yju- Mancheon Airport.” Although local residents’ demand for transportation has continuously increased to Incheon International Airport, the Plaintiff’s choice of means of transportation was restricted to guarantee the Plaintiff’s business priority, resulting in damage to local residents. As such, the Defendant issued the instant disposition for the purpose of providing various public transportation services by supplementing the limitation of transportation by the Plaintiff’s limited license to the Do residents and the users visiting North Korea to gather less, convenient, convenient, and diverse public transportation services. Therefore, rather than the need to protect the exclusive interest that the Plaintiff enjoy, the level of public interest that can be achieved by meeting the transport demand of local residents is greater.

④ As seen earlier, the instant dispositions and the instant dispositions are different in terms of their route and operation system, etc., and the mere fact that the instant dispositions were made during the course of a lawsuit on the previous dispositions cannot be deemed to have exceeded and abused the discretionary power.

5. Conclusion

Therefore, all of the plaintiff's main and ancillary claims are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Park Chang-hee (Presiding Judge)