Korea Forest Shipping Co., Ltd. (Law Firm Yang Hun-Ga, Attorney Sung-hwan, Counsel for defendant-appellant)

Incheon Coast Guard (Attorney Kim Sung-cheon, Counsel for defendant-appellant)

May 12, 2016

1. The part of the instant lawsuit and the part of the claim for revocation as to each of the dispositions in the separate sheet Nos. 1 and 20 as stated in the separate sheet No. 1 shall be dismissed.

2. The Defendant’s disposition indicated in [Attachment 1] No. 21 against Sejong Shipping Co., Ltd. on June 5, 2015 is revoked.

3. Of the litigation costs, 95% is borne by the Plaintiff, and 5% is borne by the Defendant, respectively.

The primary purport of the claim: the defendant's disposition of license to engage in the Korea Coast Guard Co., Ltd. (hereinafter referred to as "SPS") on June 5, 2015 shall be revoked.

Preliminary claim: Each disposition listed in the separate sheet No. 1 that the defendant made against Sejong Shipping shall be revoked.

Selective claims: The defendant's rejection disposition against the revocation of the license for the ferry business of Sejong Shipping issued to the plaintiff on June 17, 2015 is revoked.

1. Details of the disposition;

A. On March 4, 199, Sejong Shipping issued an application for the change of the name from the Defendant (the name at that time was “the head of Mancheon Coast Guard,” but the name was changed to “ Mancheon Coast Guard,” following the government organization reorganization on November 19, 2014, Article 3 of the former Excursion Ship and Ferry Business Act (amended by Act No. 9095 of Jun. 5, 2008), and Article 3 of the Enforcement Decree of the same Act, the Ministry of Land, Transport and Maritime Affairs issued an application for the change of the license from 200 to 30 days before the acquisition of the license for the above 19-3 ferry business (hereinafter “instant order”) with each ferry station in Jung-gu, Jung-gu, Incheon, Seo-gu, Incheon, and the North Korean Map from 1 to 2000, 300, 194, 204, 304, 304, 40, 196, 30, 4, etc.”).

B. On January 11, 2003, Sejong Regional Maritime Affairs and Fisheries Office acquired a license for coastal passenger transportation services with the operating area of the service route of this case from the head of Incheon Regional Maritime Affairs and Fisheries Office and operated the service route exclusively from that time.

C. The Ministry of Oceans and Fisheries decided to grant a new passenger transport license to other business operators on the instant sea route as a result of monitoring of coastal passenger ships on board and surveying customer satisfaction with each other, and the Minister of Oceans and Fisheries decided to grant a new passenger transport license to the instant sea route. Accordingly, the head of Incheon Regional Maritime Affairs and Fisheries (the name at that time was changed to the Incheon Regional Maritime Maritime Maritime Maritime Maritime Maritime Maritime Affairs and Fisheries Office, but the name was changed to the Incheon Regional Maritime Maritime Maritime Maritime Maritime Maritime Maritime Affairs and Fisheries Office due to the government organization reorganization around January 2015) decided to open the instant sea route to the new business operator

D. On October 7, 2014, the Plaintiff was selected as a new business operator, and on May 27, 2015, from the head of Incheon Regional Maritime Affairs and Fisheries Office, pursuant to Article 4(1) of the Marine Transportation Act and Article 2(6) of the Enforcement Rule of the same Act, the Plaintiff obtained a license for regular passenger transportation services (including 642 tons, 49 passengers, 86 vehicles) in which the operating area as in the instant service route is referred to as “Yeungdo-do-do-do” (hereinafter referred to as “instant passenger transportation services license”). The Plaintiff obtained a license for regular passenger transportation services (including 642 tons, 49 passengers, and 86 vehicles) from North Do-do-si (including 1 hours at night) to operate the port of call.

E. On June 1, 2015, the Sejong Regional Maritime Affairs and Fisheries Office reported the closure of scheduled coastal passenger transportation services on June 3, 2015 on the grounds of anticipated business deterioration, etc., and closed the business on June 3, 2015. Around that time, on June 1, 2015, the Defendant filed an application for the change of the license to engage in the instant ferry business with the content of “one extension of the number of vessels ferries Dock-Sck-Sckon-Sckon-Sckon-Sckon-Sckon,” and the Defendant received the said application and issued the approval for the change on June 5, 2015.

F. On June 8, 2015, the Plaintiff filed an application with the Defendant for revocation of the instant ferry business license with respect to Sejong Shipping on the ground that the instant passenger transport right is infringed upon due to the Defendant’s operation of the ferry business on the same sea route of Sejong Shipping. However, on June 17, 2015, the Defendant sent a reply to the Plaintiff’s rejection of the said application on the ground that the instant license for the ferry business of Sejong Shipping was issued prior to the Plaintiff’s acquisition of the Plaintiff’s passenger transport business license, not the infringement of the right of license under the current law, but the revocation of license under Article 9 of the Excursion Ship and Ferry Business Act.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Gap evidence No. 7, Eul evidence Nos. 1, 2, Eul evidence Nos. 4 through 6 (including cases with serial numbers), and the purport of the whole pleadings

2. Judgment on the main defense against the main defense

A. Summary of the parties' arguments

On May 29, 2015, the Plaintiff: (a) filed an application for the change of the license for a ferry business with the content of increasing one ferry line No. 5 for Sejong Shipping on May 29, 2015; (b) filed an application; and (c) issued a new ferry license by reflecting the changed content to Sejong Shipping on June 5, 2015; and (d) accordingly, the license for a ferry business for which Sejong Shipping initially received on June 5, 2015 was extinguished; and (c) the Defendant filed an application for the revocation of the license for a ferry business with respect to Sejong Shipping on June 5, 2015. Accordingly, the Defendant filed an application for the revocation of the license for a ferry business with respect to Sejong Shipping on June 5, 2015, rather than a new license for change on June 5, 2015; and (c) filed an application for the revocation of the license for a ferry business; and (d) accordingly, (e) filed an unlawful defense by lack of qualifications.

B. Determination

Article 3(1) of the former Enforcement Rule of the Excursion Ship and Ferry Business Act (amended by Act No. 13193, Feb. 3, 2015; effective February 3, 2015; hereinafter “former Act”) provides that “any person who intends to engage in an Excursion ship and ferry business shall obtain a license or report to the head of the competent police station, etc., the head of the competent police station, etc., if the business area is the sea level. The same shall also apply where he/she intends to modify the licensed or reported matters.” According to Article 3 of the former Enforcement Rule of the Excursion ship and Ferry Business Act (amended by Ordinance of the Prime Minister No. 1247, Jan. 27, 2016; hereinafter “former Enforcement Rule”), a person who intends to obtain a license for a ferry business shall file an application for a license for a ferry business with the relevant excursion ship station or ferry wharf along with various evidential documents, and shall submit an application for a license for the aforementioned business and modified matters along with a license and modified documents.

However, in full view of the evidence and the purport of the entire arguments as seen earlier, the Sejong Shipping applied for the change of the license to engage in the ferry business on June 1, 2015 to add Class 5 to the specifications of the vessel, one of the matters of the license to engage in the ferry business on the basis of the following: (a) the Defendant determined that the aforementioned application conforms to the Act, the Enforcement Decree, and the Rules; and (b) notified that he applied for the change of the license to engage in the ferry business on June 4, 2015; and (c) issued a re-preparation of the license reflecting the changed matters on June 5, 2015. In full view of all the above facts, it is difficult to view that the approval of the change on June 5, 2015 for the Sejong Shipping as the first disposition of the license to engage in the ferry business on the basis of the first disposition of the license to engage in the ferry business on the ground that it cannot be deemed that the Defendant changed the content or scope of the license to the extent that it was lost.

Although the Defendant, while issuing a revised approval on June 5, 2015, again prepared and issued a ferry business license that reflects the changed matters to the Sejong Shipping, this merely issued a business license instead of using a business license in accordance with Article 3(5) of the former Enforcement Rule, it cannot be deemed that the Defendant’s revised approval disposition on June 5, 2015 should be evaluated as a new ferry business license disposition.

Therefore, among the plaintiff's lawsuit, the part of the main claim under the premise that the defendant newly issued a license for the ferry business on June 5, 2015 against Sejong Shipping is nonexistent, and therefore there is no disposition subject to revocation. Thus, the defendant's defense pointing this out is illegal, and the above defense is with merit.

3. Judgment on the main defense of the conjunctive claim

A. Summary of the defendant's assertion

1) As to standing to sue

A) From March 4, 1999 to April 14, 2015, the Plaintiff was a person who did not operate a passenger ship on the instant sea route until the approval of change was made. Therefore, there is no legal interest to seek revocation of each of the above dispositions.

B) At the time when the Plaintiff acquired the instant passenger transportation license, Sejong Shipping had already been operating two vessels and one passenger vessel on the instant passenger transportation service route. As such, even if Sejong Shipping discontinued its business of Class 5 passenger transportation services and operated the said vessel to a ferry business after obtaining approval for change from the Defendant on June 5, 2015, there is no change in the number of vessels operating on the instant passenger transportation route. Therefore, since the Plaintiff did not violate any interest due to the Defendant’s approval for change on June 5, 2015, the Plaintiff did not have the standing to seek revocation of the said disposition.

2) As to the eligibility for action

Upon receipt of an application for change of the license to engage in the ferry business, the Defendant is merely taking the instant approval for change within the meaning of accepting the report after determining whether the requirements for the report are satisfied pursuant to the Excursion Ship and Ferry Business Act and the relevant statutes. Therefore, each of the instant approval for change

B. Judgment on the lack of standing to sue

1) Even if a third party, who is not the other party to an administrative disposition, has the right to file a revocation lawsuit where the interests protected by law have been infringed due to such disposition, and it is entitled to obtain the decision of propriety thereof. However, the interests protected by the above law, refers to the direct and specific interests protected by the law based on the pertinent disposition, and do not constitute cases where it is indirect or factual, or economic interests (see Supreme Court Decision 96Nu14906, Apr. 25, 1997, etc.).

For instance, where the Act, which forms the basis of the beneficial administrative disposition such as license, authorization, permission, etc., is aimed at preventing unreasonable management due to excessive competition among the relevant business entities, it is intended to prevent unfair management due to other business entities, and where the existing business entities or among those who have applied for the beneficial administrative disposition such as license, authorization, permission, etc., which are operated by being subject to the same type of beneficial administrative disposition such as license, authorization, permission, etc., in advance, or one of those who have applied for the same type of license, authorization, permission, etc., are bound to be decided by non-authorization, non-authorization, permission, etc., of the other business entity (so-called multi-party relationship) (see, e.g., Supreme Court Decision 200Du1960, Feb. 16, 1900).

2) In light of the foregoing legal doctrine, the amended Act provides that “ferry business” refers to a sea area with a ferry and ferry wharf, which is engaged in transporting passengers and things on inland waters or the sea areas prescribed by Presidential Decree, and which is not subject to the application of the Marine Transportation Act.” The former Enforcement Decree of the Excursion Ship and Ferry Business Act (amended by Presidential Decree No. 26931, Jan. 22, 2016; hereinafter “former Enforcement Decree”) upon delegation of the aforementioned provision provides that “FC” under Article 2 subparag. 2 of the former Enforcement Decree of the Excursion Ship and Ferry Business Act (amended by Presidential Decree No. 26931, Jan. 22, 2016; hereinafter “the former Enforcement Decree”) is relatively short of the distance between land and island, and where a passenger ship under the Marine Transportation Act does not run (including a sea area between one island on which a passenger ship is operated and another island on

In addition, Article 7 (2) 1 of the former Enforcement Decree, which designates the business area of an excursion ship/ferry pursuant to Article 8 (1) of the amended Act, provides that "in the event of determining a port of call within the business area of an excursion ship/ferry, such port of call shall not be likely to infringe on the business rights of a marine passenger transport service provider pursuant to the Marine Transportation Act." Since each of the above provisions is a provision to protect the existing business rights of a marine passenger transport service provider subject to the Marine Transportation Act, the benefit as an existing marine passenger transport service provider without being infringed on the business rights shall be deemed to be legally protected beyond a mere economic and indirect interest.

However, the amended Act limits the ferry business in the sea area where a passenger ship under the Marine Transport Act is operated, and does not stipulate the restriction on issuance of a license for a ferry business or the grounds for revocation thereof later after obtaining a license for a ferry business. Examining the whole of the relevant provisions organic and systematic provisions, it is difficult to view that each of the above provisions aims to protect a person from being infringed on the operating profits which he/she had engaged in due to a change in the issuance of a license for a new passenger transport business or a license for a passenger transport business under the existing Marine Transport Act, and to directly protect the existing passenger transport business operator from the business area where the ferry business is already conducted.

3) According to the health stand, the aforementioned evidence, and the purport of the entire arguments with respect to the instant case, ① Sejong Shipping was engaged in a ferry business under the Excursion Ship and Ferry Business Act after obtaining a license for the instant ferry business from March 4, 199, and was engaged in a ferry business under the Excursion Ship and Ferry Business Act on January 11, 2003; ② among them, the Minister of Maritime Affairs and Fisheries decided to grant a license for the instant passenger transport business to another business operator on March 27, 2014, the Minister of Maritime Affairs and Fisheries issued a public announcement of the selection of the Plaintiff as a new business operator on May 27, 2015, and the Plaintiff was permitted to use the instant passenger transport business as a marine passenger transport business operator subject to the instant passenger transport business after May 27, 2015; ③ the Defendant was permitted to use the instant cargo transport business under the instant Act on May 16, 2015, and the Defendant was permitted to change the scheduled passenger transport business on May 27, 2015, 2015.

In light of the above facts, even if the Plaintiff suffered business difficulties due to the instant ferry business license and the instant ferry business license, which it acquired on March 4, 1999, from July 2, 199 to April 14, 2015, due to the approval of change from July 2, 20199 to April 14, 2015, its operating profits cannot be deemed as direct and specific interests legally protected. Thus, the Plaintiff cannot be deemed as infringing on any legal interests due to the instant ferry business license and the approval of change from July 2, 199 to April 14, 2015. Therefore, the Plaintiff’s claim for revocation of the instant ferry business license and the instant approval of change from July 2, 199 to April 14, 2015, is unlawful, since the Plaintiff did not have standing to sue.

On the other hand, although the plaintiff operated a passenger ship on May 27, 2015 with a license for the instant passenger transport service, the defendant received an application for modification of the license for the passenger transport business with the content of the license for the three Class 5 ferries, which would no longer be used for the instant passenger transport business, for the purpose of using the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-use of the non-commercial cargo.

This part of the defendant's defense is justified within the scope of the above recognition.

C. Determination on the assertion of lack of eligibility

According to the relevant provisions such as Article 3(1) of the amended Act, Article 3(1) of the amended Act, and Article 3(4) and (5) of the former Enforcement Rule, an application for change of a license for a ferry business under Article 3(1) of the amended Act provides that an application for change of the license for a ferry business shall be made only when the legal effect of changing the content of the beneficial administrative act, such as a license, is granted, and it is required to attach documentary evidence so that the change can be confirmed, and the application for change shall be approved, and a written or re-written license shall be issued. In light of this, an application for change of the license for the above ferry business is a report requiring acceptance, and it is reasonable to see that such act is an administrative disposition subject to appeal. On different premise, the Defendant’s defense

4. Whether a disposition for approval of change on June 5, 2015 (attached Form 1 No. 21) is lawful

A. Summary of the plaintiff's assertion

1) As the instant sea route begins with the passenger ship operation under the Marine Transport Act, no longer falls under the sea area where the ferry business under the Excursion Ship and Ferry Business Act may take place. Nevertheless, the Defendant issued a disposition to change the approval on June 5, 2015 to add a new vessel to Sejong Shipping as a ferry. This is an illegal disposition against Article 3 and 2 of the Excursion Ship and Ferry Business Act and Article 2 of the Enforcement Decree of the Excursion Ship and Ferry Business Act, as it is the same as granting a license to engage in the ferry business for an substantially added vessel.

2) Class 5 can only be used as a large passenger ship with a capacity of 409 tons and a capacity of 348 passengers, and a ship cannot be used as a ship in a ferry business under the Excursion Ship and Ferry Business Act. Thus, a disposition to change the approval of the change on June 5, 2015, adding a ferries, is unlawful.

(b) Related statutes;

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

1) Article 2 Subparag. 1 of the Revised Act provides that ferry business is engaged in the business of transporting passengers and things on inland waters or the sea areas prescribed by Presidential Decree with ferry boats and ferry wharfs, and that is not subject to the application of the Marine Transportation Act. Article 3(1) of the Revised Act provides that the business subject to a license and reporting depending on the scale of an excursion ship/ferry or the business area shall be divided into those subject to a license and reporting depending on the scale of an excursion ship/ferry or the business area. According to Article 27 of the Revised Act, the competent authority may order an excursion ship/ferry business operator to restrict the number of passengers on board, to prevent danger and injury, or to change the business area, if

In addition, Article 2(1) of the former Enforcement Decree provides that the sea area where a passenger ship pursuant to the Marine Transport Act does not operate with respect to “Article 2(1)(f) of the former Enforcement Decree” is stipulated as the requirements for an intermediate port of call, and Article 7(2) of the former Enforcement Decree provides that “the business rights of another marine passenger transport business operator shall not be infringed on by the intermediate port of call.” The purpose of this provision is to regulate the relationship with the marine passenger transport business operator subject to the Marine Transport Act.

Furthermore, Article 3(5) of the former Enforcement Rule provides that, with respect to the modification of the license for the ferry business, the matters to be changed shall be examined as almost the same standard as the license for the ferry business by stipulating that the modification shall be approved if it is deemed that the matters to be changed are in conformity with the Act, the Enforcement Rule and the Rules. In full view of each of the above provisions, the issue of whether to permit the ferry business license and the modification of the license shall belong to the discretion of the administrative agency, but in consideration of the purpose of each of the above provisions, the determination of sea routes within the business area for safe sailing

2) In light of the aforementioned legal principles, in light of the following circumstances acknowledged by the health team, the aforementioned evidence, and the purport of the entire pleadings, the Defendant’s approval of the change on June 5, 2015 to allow the addition of Class III 5 used for passenger transportation services to the three-party passenger transport services is the same as granting a benefit to the Defendant to engage in the business of operating a new vessel with a new vessel within a business area for which no license for a ferry business under the Excursion Ship and Ferry Business Act is granted with a passenger ship under the Marine Transport Act. Accordingly, the Plaintiff’s existing maritime passenger transport business operator’s goodwill is likely to be infringed, and thus, is against the purport of Article 2 subparag. 2 and Article 3 of the amended Act, and thus, is unlawful. The Plaintiff’s first assertion was rejected, as long as the Plaintiff’s first assertion was accepted, the second assertion is

① Although the Plaintiff’s marine passenger transport business and the ferry business of Sejong Shipping are different from the underlying law, the type of navigation of a passenger ship and a ferry is different from that of the same sea route, the Plaintiff’s operation of the same sea route is limited to 383 tons, 290 passengers, 38 passengers’ number, 583 tons, 348 passengers’ number, 348 passengers’ number, 348, and 30 vessels are different from that of the passenger ship. As long as the subject of use overlaps, the Plaintiff’s operation profit is reduced as the Plaintiff’s operation profit is added to the ferry business of Sejong Shipping.

② The Plaintiff, a marine passenger transport business operator under the Marine Transport Act, can operate a passenger ship only during the prescribed business hours and frequency. On the other hand, Sejong Shipping, a ferry business operator, can operate a ferry from 30 minutes before sunrise to 30 minutes before sunset, or from 30 minutes before sunrise to 21:30 minutes before sunrise. In fact, the Plaintiff asserts that, using the aforementioned differences, Sejong Shipping has obstructed the Plaintiff’s business as a marine passenger transport business operator by frequently operating Nos. 3, 5, and 7 at any time immediately before the Plaintiff’s departure time during a large number of hours. Under such circumstances, the Defendant’s approval of the change on June 5, 2015, which was approved to allow Sejong Shipping to use No. 5 as a passenger ship under the Marine Transport Act, is deemed to have been made without considering the concerns about the Plaintiff’s infringement on the Plaintiff’s business rights.

③ The Defendant asserts to the effect that the Plaintiff’s right is not infringed on as it included the passenger ship used for the instant service in the instant sea route in the instant passenger transport business, since it closed the instant sea route and used it for the instant passenger transport business. The Defendant asserted to the effect that, as a result, the Plaintiff would not be subject to any infringement on the right of the Plaintiff. Although the Plaintiff, as a result of the closure of the instant sea-going passenger transport business, the Plaintiff would benefit from the reduced number of competitive passenger transport operators by closing the instant sea-going passenger transport business, this is merely an anti-private profit, and this does not result in the Plaintiff’s duty to make an increase in the number of ferries equal to that of the reduced number of the passenger ships of Type 3 passenger transport business, and the Plaintiff’s existing sea-going passenger transport business right as a passenger transport businessman is guaranteed

3) This part of the Plaintiff’s assertion is reasonable, and the Plaintiff’s selective claim is deemed based on the premise that the primary and conjunctive claim is entirely dismissed, and thus, it cannot be determined separately.

5. Conclusion

Therefore, since the part of the lawsuit in this case as to the cancellation claim against each disposition listed in Nos. 1 and 20 of the separate claim is unlawful, each of the plaintiff's remaining conjunctive claim is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment]

Judges Dominsung (Presiding Judge)