2016Guhap58970 Revocation of revocation of the designation of a travelr exclusively in charge of attracting tourists in China

Action of Claim

A

The Minister of Culture, Sports and Tourism

August 19, 2016

September 9, 2016

1. The plaintiff's claim is dismissed.

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

On March 28, 2016, the Defendant revoked the revocation of the designation of the exclusive travel agent for attracting Chinese collective tourists.

1. Details of the disposition;

A. From the 1980s, the People's Republic of China (hereinafter referred to as "China") designated an area where group tourists are permitted to 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, APVV) which allows the Chinese organization tourists to enter into an agreement with China and to enter into contact with each other. On May 1998, China designated the Republic of Korea as "China's free departure tourism country". On June 1998, China designated the Republic of Korea as the defendant, the Ministry of Foreign Affairs and Trade, the Ministry of Foreign Affairs, the Ministry of Construction and Transportation, the 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 two countries's national leisure countries, the Ministry of Foreign Affairs, and the Minister of Foreign Affairs, on June 27, 2000>

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 the Korean tourism business of the Chinese travel agents, 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 full charge of the organization tourism visa affairs of the Embassy of the Republic of China (consular missions) and, when those full-time personnel apply for a group tourism visa to the Embassy of the Republic of China (consular missions) of the Republic of Korea, provide convenience and issue the visa as soon as possible, unless there are special circumstances.

C. On July 1998, in order to implement the designation, management, etc. of the "China's exclusive tour guide (hereinafter referred to as "exclusive tour guide") recommended to China in accordance with the instant visa, the Defendant enacted the Guidelines for the Implementation of the Business of Exclusive Tourers Attraction of Chinese Organizations (hereinafter referred to as the "Guidelines") around July 1998. D. The Plaintiff is operating a tour guide as B, and the Plaintiff was designated as a exclusive tour guide by the Defendant on February 26, 2014.

E. On March 28, 2016, the Plaintiff rendered a disposition to revoke the designation of the exclusive travel agent pursuant to Article 3-2 of the Guideline (hereinafter “instant disposition”) on the grounds that the Plaintiff was given more than six points of reduction due to the following administrative dispositions, following prior notice of the Plaintiff, submission of opinions, and hearing procedures.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1, 20, 21, 23, and 24 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) According to the guidelines of this case, although the scope of capital or sales, price unity and planning capacity, failure to submit data, and scale of foreign exchange income compared to the number of invited persons are not prescribed as the cause of a disciplinary measure, the defendant has evaluated the scope of capital or sales, price consistency and solicitation items in the disposition of this case as the subject of a disciplinary measure. The reason for refusal of renewal in accordance with the guidelines of this case, which cannot be viewed as a legal order, should be limited to the minimum extent, and the plaintiff has invested a large amount of capital under the trust that there is no more strong sanctions except for the disciplinary measure stipulated in the guidelines of this case. The disposition of this case is unlawful because it constitutes deviation or abuse of discretionary power.

2) Not only did the Defendant did not publish the criteria for renewal evaluation and the points that may have been revoked, but also did not have the opportunity to vindicate or present opinions on the lower of the items subject to renewal evaluation, and thus the instant disposition is procedurally unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Validity of the instant guidelines and the nature of the instant disposition

A) 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 designation of exclusive tourers would be based on the instant non-uses and the instant guidelines corresponding to the administrative rules. However, the Defendant entered into the instant non-uses with China, following which the non-uses of this case were followed.

In other words, domestic travel agents, who were not designated as exclusive travel agents in accordance with the Chinese travel permission system, are prohibited from attracting Chinese group tourists, and only domestic travel agents designated as exclusive travel agents and recommended by the defendant, have the status to enter into a recruitment contract for Chinese organization tourists. Therefore, the designation of exclusive travel agents is an act that creates the legal effect of establishing the right to enter into a contract for attracting Chinese group tourists, and constitutes an administrative disposition that is subject to appeal litigation, and such designation of exclusive travel agents is basically a creation of a certain right or status, and constitutes a beneficial administrative act.

B) The principle of statutory reservation and the principle of parliamentary reservation that a formal legal basis established by the National Assembly is required for the designation system of exclusive travel agents and the effective administrative action of the instant guidelines, not merely if administrative action is based on the legal basis, but also requires the State community and its members to decide on its essential matters, in particular, not for the area pertaining to the realization of the fundamental rights of the people, but for the nation’s community and its members. However, it is difficult to uniformly define what matters to be regulated by the legislators cannot be determined, and only can it be determined individually in consideration of the importance of 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 self-regulation by law (see, e.g., Constitutional Court en banc Decision 2015Hun-Ba125, Jun. 30, 2016).

Therefore, the defendant's exclusive travel agent 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). The government shall take legislative and financial measures and other necessary administrative measures to implement such policies (Article 5). (Article 5) In addition, the government shall strengthen overseas public relations, improve entry and departure procedures and take other necessary measures to promote the attraction of foreign tourists (Article 7), and also shall guide and supervise the tourism business and take other necessary measures (Article 10). The defendant is a competent authority that is obligated to take various measures and measures related to tourism as prescribed by the Framework Act on Tourism to promote the attraction of Chinese collective tourists.

As long as the government of this case entered into an agreement with the government of this case, the defendant prepared the guidelines of this case for the enforcement of the provisions of the agreement, and designated events to be exclusively in charge of the travel. ② The fact that domestic travel agents are prohibited from attracting foreign tourists in principle, and exceptionally, they adopted the permission system for overseas tourism only for the countries which entered into the agreement. The fact that our legal system adopts the permission system for the attraction of foreign tourists. Thus, the designation of exclusive travel agents does not restrict the freedom of occupation or the freedom of business to the citizens who run or intend to run the travel business. ③ The designation of exclusive travel agents is merely characterized by giving the designated domestic travel agents the right or status to enter into a contract for attracting Chinese organizations, and it is not necessary to establish separate legal grounds because the designation of exclusive travel agents itself is not supported by the government's budget, and thus, it cannot be viewed that the exclusive travel agent's act constitutes a profit-making act, which is a violation of the law, and thus, it cannot be viewed that the designation of exclusive travel agents is void within the administrative purpose of this case.

C) Whether the revocation of the designation of the exclusive travel agent is impossible in the absence of legal grounds

Although there was no particular defect at the time of the disposition, or there was no separate legal ground for the withdrawal of the disposition, the disposition agency which rendered the disposition may withdraw the disposition by a separate administrative act which makes it invalid if there was a change in circumstances that no longer necessary to continue the original disposition, or if a need for important public interest arises. However, even if the disposition is revoked or withdrawn, the exercise of the right of revocation, etc. is determined by comparison and comparison with the disadvantage suffered by the other party only when there is a need for important public interest or a need for protection of a third party's interest, which would justify the infringement of the right of vested interests. If the disadvantage that the other party becomes more than the need for public interest, the disposition is in itself unlawful (see Supreme Court Decision 2003Du7606, Jul. 22, 2004). This case's disposition is unlawful, even if it was designated as the exclusive travel of the plaintiff and becomes invalid after the designation, in light of the legal principles as to the revocation of the designation of the plaintiff.

2) Determination on the first argument

A) Facts of recognition

(1) The Defendant held a public hearing on exclusive travel workers in March and July 2013, and introduced a system for renewal of exclusive travel workers after holding a public hearing on exclusive travel workers under the Korea Tour Business Association, February and August 2013.

(2) The Defendant introduced a renewal program for exclusive travel workers on September 6, 2013, and notified the president of the Korea Tour Business Association of the renewal items and allocated points thereof on the same day. The president of the Korea Tour Business Association announced it to the exclusive travel workers on the same day, and notified at least 75 out of the maximum of 100 points as a result of evaluation according to each item of assessment, the company should be re-designated as a exclusive travel agent, and notified the submission of evaluation documents for implementation of the renewal program by September 23, 2013. The main contents of the above detailed evaluation criteria are as follows.

(1) Atten (15 points in attraction of tourists) ② Financial soundness (5 points in financial safety, 5 points in operating income) ② Compliance with the legal system (10 points out of without permission of tourists, 15 points in administrative sanctions, and 10 points in 200), and the No.4 higher-value tourism product sales (15 points in medical tourism, MICE tourism, cosmetic tourism, etc.).

(3) On December 5, 2013, the Defendant notified the exclusive tourer who had at least 75 points in total under the above evaluation criteria that he/she re-designated as a exclusive tourer, and announced that he/she will continuously monitor the results of attracting, product prices, administrative sanctions, low-price goods, sales rate of high-value goods, etc. and reflect them in the evaluation of the renewal system conducted every two years.

(4) On February 26, 2014, the Plaintiff submitted a written oath to faithfully comply with the instant guidelines at the time of designation as the exclusive travel agent.

(5) The Defendant expressed the criteria for new designation of exclusive tourers on March 20, 2015, and the contents are as follows.

(1) The current status of enterprises (scale of capital, sales amount, personal travel records for the last two years, current status of employees of the dedicated department, current status of employees of the dedicated department, current status of qualification deposit), ② Attraction Planning (Connection with business with Chinese related agencies, connection with business with Korean agencies, prize and commendation performance, continuity and competitiveness of attraction), ③ Ability to constitute travel goods (whether the composition of goods, product composition, price rationality according to product composition), No.42 visit (current status and operating status of travel business establishment), and No.

(6) On September 23, 2015, the Defendant held an explanatory meeting using the electronic management system, and the Plaintiff’s employee was present. 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 it stated that the exclusive tourer would be able to utilize it in the evaluation of re-designation in 2015 in the case of performance entry records in 2014 and 2015. The president of the Korea Female Business Association announced it to the exclusive tourer on the same day.

(7) On December 24, 2015, the Defendant publicly announced that the exclusive travel agent may be disadvantaged in the evaluation of relevant items at the time of failure to submit data related to the evaluation of re-designation by January 8, 2016. The documents requested by the Defendant at the time are “2015 Financial Statements Certification Institute for Reporting by the National Tax Service (Certified Tax Accountants)”, “Evidence for the selection of outstanding certified tax accountants prior to the public offering,” and “Evidence for the conclusion of standard terms and conditions for tour interpretation and guide,” and “Evidence for the attraction of additional goods and local products, such as MICE and medical services.”

(8) On March 4, 2016, the Defendant notified the Plaintiff of the fact that the instant disposition was the cause of the instant disposition (2014, failure to submit a tax invoice in 2015, 2015, and 9 points at the discount of foreign currency transactions and administrative disposition in 2015), and conducted the hearing procedure on March 18, 2016, and sent a renewal proposal, stating the Plaintiff’s acquisition points, as its main date, on March 30, 2016.

[Reasons for Recognition] Determinations Nos. 2 through 5, 7, 11, 20, 21, 23, and 24 of Eul and the purport of the whole pleadings

In light of the above facts, i.e., ① the Defendant already expressed the evaluation criteria at the time of renewal of the system implemented in 2013, announced that the above evaluation criteria will continue to be reflected in the future, ② the newly introduced electronic management system's participation is expected to be used in the evaluation, ② the evaluation criteria for renewal at the time of 2013 (hereinafter referred to as the "existing evaluation criteria for renewal") and the evaluation criteria for renewal in 2015, which are the premise for the disposition of this case, are most similar, and the degree of participation in the electronic management system, additional items for the performance of the official commendation and official commendation, ③ the Plaintiff appears to have been designated as the exclusive travel agent in 2014, where the existing evaluation criteria for renewal were applied, and the Plaintiff did not appear to have been designated under the strict criteria, considering the existing evaluation criteria for renewal in 20 years, and ④ the new evaluation criteria for renewal in 20 years, which are more complicated than the Defendant's new evaluation criteria for renewal in 20 years.

3) According to the reasoning of the evidence Nos. 20 and 21 of the judgment on the second argument, the Defendant, upon prior notice to the Plaintiff on March 4, 2016, stated “2014, the failure to submit a tax invoice in the year 2015, 2015, 9 points in the number of foreign currency transactions in the year 2015, and 9 points in the administrative disposition reduction.” The Plaintiff participated in the hearing proceedings on March 18, 2016, and at the time of the hearing, participated in the hearing proceedings, and stated his/her opinion on the submission of tax invoice by the presiding official, foreign currency transactions in the year 2015, and multiple administrative dispositions.”

In light of the following circumstances, the above facts and the overall purport of the oral argument can be seen as : ① the Defendant already expressed the existing evaluation criteria similar to the evaluation criteria for renewal in 2015; ② the price consistency items were included in the criteria for renewal, the criteria for renewal in 2015, the criteria for new designation of exclusive travel agents in 2015, as well as the documents submitted by the Plaintiff to the Defendant for renewal evaluation; ③ even though the prior notice of the instant disposition only stated the "2014, the submission of tax invoice in 2015, the number of foreign currency transactions in 2015, the number of foreign currency transactions in 2015, and the number of administrative disposition reduction points, which are similar to the evaluation criteria for renewal in 2015, and the determination of the allocation and renewal points, etc. of each item appears to fall under the discretion of administrative agencies; ② The price consistency items were continuously included in the criteria for renewal evaluation; ④ the Plaintiff’s statement of opinion that did not have been submitted to the Plaintiff in the course of public hearing.

3. Conclusion

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

The presiding judge, judges, full-time council

Judges Nam Sung-woo

Judges Gin Jae-in

1) Price consistency consists of the unit price of custody per person in 2014 (10 points) and the unit price of custody per person in 2015 (10 points), and the unit price per person in 2015 shall be foreign currency.

It is the amount calculated by dividing the number of inmates from the future amount.