2014Guhap4337 Revocation of revocation of the designation of a travelr exclusively in charge of attracting tourists in China

A

The Minister of Culture, Sports and Tourism

June 20, 2014

July 18, 2014

1. The plaintiff's claim is dismissed.

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

On February 11, 2014, the Defendant revoked the revocation of the designation of the exclusive travel agent for attracting Chinese group tourists.

1. Basic facts and circumstances of dispositions;

A. The People's Republic of China (hereinafter referred to as "China") designated the country of tourism in which China may travel for the control of its citizens in a foreign tourist destination, and made it possible for China to attract and contact its organization tourists only with the travel agencies recommended by the government of that country. China designated the Republic of Korea on May 1998 as "China's country of free-of-state tourism". China's tourism-related ministries and the defendant side negotiated negotiations on how to implement various related issues arising from the tourism of Chinese organization tourists in the Republic of Korea on June 6, 1998 and June 27, 2000, and signed a copy of the network containing an agreement following such negotiations (hereinafter referred to as "non-party copy").

C. According to the Round of this case, 66 Chinese travel agents are required to take full charge of the organization tourism business of the Republic of Korea of Chinese citizens, and these travel agents were selected from among travel agencies recommended by the Government of the Republic of Korea, and enter into a group tour service contract. 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 tour agent for attracting tourists of Chinese organizations" (hereinafter referred to as the "exclusive tour agent"). Meanwhile, on January 14, 2009, the Plaintiff registered the business as the trade name "B" (hereinafter referred to as the "the travel agent of this case"), and was designated as the exclusive tour agent from the Defendant in 2011.

D. The Plaintiff, as a full-time tourer, was unable to accept all of the tourer’s capabilities as the instant tourer due to the rapid increase in the number of Chinese tourists, while conducting the travel business in the Republic of Korea. As a result, the Plaintiff entered into a note of understanding with the Mick Co., Ltd. (hereinafter “Maz”) on January 12, 2013, and made it difficult to accept the travel within the Republic of Korea among the Chinese group tourists recruited by the instant tourr.

E. On December 3, 2013, the head of the Cheongju Immigration Office notified the Minister of Justice of the violation of the instant guidelines by entrusting the management of 162 Chinese group tourers at his/her own custody to a master tourr who did not have been designated as a master tourr. On December 11, 2013, the Minister of Justice requested the Defendant to impose sanctions against the instant tourr.

F. On December 30, 2013, the Defendant: (a) on the ground that the instant travel agent, who is the primary travel agent, lent the name to a non-designated general travel agent; (b) issued a disposition revoking the designation of the exclusive travel agent pursuant to Article 11(3)2 of the instant Guidelines (hereinafter “instant disposition”); (c) on February 11, 2014, the Plaintiff rendered a disposition revoking the designation of the exclusive travel agent pursuant to Article 11(3)2 of the instant Guidelines (hereinafter “instant disposition”); (d) without any dispute; (e) the Plaintiff did not have a ground for recognition; (c) the evidence Nos. 1 (including each number number); (d) the evidence Nos. 24; and (e) the purport of the entire pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant guide only provides for the grounds for revocation of the designation of a non-designated general tour operator where the name of the events exclusively in charge is leased (hereinafter referred to as the “title name”) and does not prohibit the Plaintiff from subcontracting part of his duties. The Plaintiff entered into a memorandum of understanding with the master and the Plaintiff’s management and supervision, and subcontracted only the progress of the tour in Korea to some Chinese group tourists recruited by the Plaintiff. The master, in its own name, did not constitute the case of the name of the name of the Chinese group tour prohibited by the instant instruction.

2) Since Chinese organization tourists rapidly increased in 2013 and exceeded the capacity of the instant travel agency, some of them were subcontracted to the Masters, the Plaintiff managed and supervised the Masters by having the Masters pre-consulted with all of their duties, etc., and the Masters have been newly designated as the exclusive travel agent by the Defendant on February 2014. The instant travel agent was not subject to sanctions once designated as the exclusive travel agent, and was carrying out the tourism business of Chinese organization tourists in good faith without being subject to sanctions. In light of the above, the instant disposition was excessively harsh and constitutes an unlawful act of deviating from and abusing discretionary authority.

B. Relevant provisions

Article 2 (Definitions of Terms) of the Guidelines for the Implementation of the Business of Exclusive Tourers in China is defined as follows:

(1) The term "China's collective tourist" means an organization comprised of at least three Chinese tourists, who will bear the expenses of Chinese tourists in accordance with the "Plan for the Management of Travel for Residents of China" and who intend to temporarily travel the Republic of Korea.

The term "exclusive tourer" means the "exclusive tourer with exclusive responsibility for Chinese tourists" designated by the Ministry of Culture, Sports and Tourism after deliberation and resolution by the Committee for Management of Exclusive Tours in China, which is designated by the Ministry of Culture

(3) The term "Association" means the Korea Tour Business Association (KSA).

Article 3 (New Designation of Exclusive Tourers)

(1) The Minister of Culture, Sports and Tourism may designate a travel agency deemed qualified as a specialized travel agency from among travel agencies licensed for general travel business, taking into account the financial status, plans to attract Chinese tourists, plans to secure qualified foreign tourists, past administrative records, and other relevant facts, as a new specialized travel agency.

Article 3-2 (Renewal System for Exclusive Tourers)

(1) The Minister of Culture, Sports and Tourism shall grant qualification as a full-time tourer once every two years through a reexamination, taking into consideration the results of attracting tourists, response to the Government tourism policy, financial soundness, records of administrative disposition, rate of occurrence of unauthorized deserters, etc. to the designated full-time tourer.

Article 8 (Scope of Functions of Exclusive Involvingrs)

(1) Exclusive tourers shall be responsible for the performance of overall duties related to one of the activities performed by Korean group tourists of China who are recruited and sent by exclusively tourers on Chinese side (hereinafter referred to as "China official").

Article 11 (Sanctions against Exclusive Tourers)

(3) The Minister of Culture, Sports and Tourism may revoke the designation of exclusive travel agents where they fall under any of the following subparagraphs:

1. Where it causes an accident of escaping from China by intention or public offering;

2. Where he/she lends his/her name in the name of a non-designated general travel agency;

3. Where the registration of travel business is revoked, in violation of the Tourism Promotion Act;

4. Where the person has been confined to less than 100 persons in the last one year.

5. Where he/she suspends his/her business for at least six months.

6. Attraction and proceeding of Chinese organizations and tourists during the period of suspension of business.

7. When he/she has been subject to suspension of business on at least three occasions;

8. In the case of a Korean travel agent who sells unreasonable low-price products in its territory and who continues to hold such events after informing us of the events by Korea, and then designates such events as an unfair travel agent, in the case of a Korean travel agent who continues to conduct such transactions.

Article 12 (Prohibition of Attraction of Undesignated Tourr as China) The travelr shall not attract Chinese group tourists without being designated as a exclusive tourr.

1) Determination on the first argument

A) Whether the instant guidelines are legally effective

The Plaintiff asserts that his act does not constitute “titleing” as a requirement for the revocation of the designation of the exclusive travel agent in this case’s guidelines. As such, whether the instant guidelines have legal effect and thus, can be a basis for the instant disposition. The instant guidelines constitute administrative rules, which provide for matters necessary for the designation, management, and operation of the events exclusively responsible for the tourism of the Republic of Korea for Chinese group tourists. Generally, the administrative rules only have effect within the administrative organization, but do not have external binding power. However, in exceptional cases where the provisions of statutes grant authority to determine specific matters of the statutes to a specific administrative agency without specifying the procedure or method of the exercise of such statutes, if the administrative rules specifically stipulate matters that are the contents of the statutes in the form of administrative rules, the administrative rules become effective as an order externally binding law (see, e.g., Supreme Court Decision 200Do2502, May 23, 1995). However, if the administrative rules are inconsistent with the principle of equality or equality, the administrative rules are not in force under the principle of discretionary authority.

However, the guidelines of this case were enacted according to the non-legal records of this case, which are not the law and were not delegated by the law, and thus, it cannot be recognized that the guidelines of this case were effective as a legal order. However, Gap evidence 5, 24, Eul evidence 3-1, Eul evidence 4, Eul evidence 7, Eul evidence 9-1, Eul evidence 10-2, Eul evidence 12-1, Eul evidence 12-2, Eul evidence 12-1, 13-2, Eul evidence 15-2, and Eul evidence 15-2. The guidelines of this case were enacted on July 7, 1998, and were enforced for a long time, but the new guidelines of this case were enforced by the Ministry of Justice to ensure that the new guidelines of this case were enforced by taking into account the following circumstances:

B) the existence of the reasons for the disposition

Thus, it is reasonable to view that the instant tourr's domestic travel business held by the Chinese tourr from the Chinese tourr constitutes the name lending under the instant guideline. ① The instant guideline was prepared on the basis of the instant visa. It is reasonable to see that the instant visa refers to all of the activities related to the trip within the Republic of Korea. ② Article 3 of the instant guideline is able to designate the exclusive tourr in consideration of the financial status, the plan to attract Chinese tourist, the plan to secure qualified tourist, and the past administrative records, and the fact that the exclusive tourr is allowed to renew the current status of the exclusive tourr, taking into account the above circumstances into account. Article 3-2 of the guideline provides that the exclusive tourr's exclusive tourr's exclusive travel business is allowed to be conducted within the Chinese tourr's country, and that the exclusive tourr's exclusive tourr's exclusive travel business is allowed to be conducted within the scope of his/her own business, and that the exclusive tourr's exclusive tourr's exclusive travel is allowed to be conducted within the scope of his/her business designated guidelines.

2) Determination on the second argument

In cases where a beneficial administrative disposition is cancelled or withdrawn, it would infringe upon the people's vested vested rights. Thus, even if there are grounds such as cancellation, the exercise of the right to cancel shall be determined by comparing it with the disadvantage that the other party receives, only when it is necessary for the important public interest to justify the infringement of vested rights or when it is necessary to protect a third party's interests (see Supreme Court Decision 2003Du7606, Jul. 22, 2004).

On the other hand, the plaintiff was designated as a exclusive travel agent from 2011 and was well aware of the contents and purport of the guidelines of this case. However, the plaintiff allowed a third party to perform the business of travel in Korea, and the number of Chinese group tourists subcontracted by this method is considerable to the number of the subcontracted Chinese group tourists (Cheongju Immigration Office disclosed the fact that the plaintiff entrusted the management of Chinese tourist, and the plaintiff sent 8,000 Chinese number of Chinese number of 27,000 Chinese number of Chinese number of more than 27,000 Chinese number of Chinese number of tourists he opened in 2013 to the master, so it is difficult to strictly control the illegal acts of Chinese group tourist without permission, employment of unqualified list, and shopping coercion of tourists. Since the disposition of this case is revoked only, it is difficult to see that the plaintiff's disposition of this case continues to be taken into account when considering other reasons such as the plaintiff's abuse of discretion.

3. Conclusion

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

Appointment of presiding judge or judge;

Judgment Notarial decoration

Judges Kim Tae-hee