Cases
209Guhap980 Revocation of revocation of a license for marine passenger transportation services
Plaintiff
A Stock Company
Defendant
Head of Mapo regional Maritime Affairs and Port Office
Intervenor joining the Defendant
1. B
2. C:
Conclusion of Pleadings
October 15, 2009
Imposition of Judgment
December 17, 2009
Text
1. The plaintiff's claim is dismissed.
2. All costs of lawsuit, including costs incurred by participation, shall be borne by the Plaintiff.
Purport of claim
The defendant's disposition of refusing to grant the plaintiff's license for marine passenger transport services on January 23, 2009 shall be revoked.
Reasons
1. Details of the disposition;
A. On February 28, 2006, the Plaintiff entered into an investment agreement for the construction of a marine transportation network with the Newanan-gun, with respect to the construction of a Nacheon-gun marine transportation network within the jurisdiction where the Newan-gun was promoting the expansion of the foundation for the revitalization of the tourism industry, the Plaintiff entered into a 'investment agreement for the construction of a marine transportation network after the Yan-gun, a Dacheon-gun, where the Plaintiff is operating along the service route in the Newan-gun, with the first phase project cost of KRW 20 billion, business size of at least two superhigh speed lines, including multi-speed excursion ships, and at the time, the Newan-gun agreed to promptly perform various authorizing and permitting businesses, such as a license for marine passenger transportation, on behalf of the Plaintiff,
B. On February 28, 2006, the Newan-gun applied for a license for regular air transportation services for the section D-E. F-G-H (hereinafter “instant sea route”) on behalf of the Plaintiff (hereinafter “instant application for license”). However, on April 18, 2006, the Defendant did not permit the Plaintiff to use the vessel’s scheduled air transportation services for the purpose of using the vessel’s scheduled air transportation services for the purpose of using the vessel’s scheduled air transportation services. However, there is no concern that the average loading rate on the route of application for the license would cause conflicts between the vessel and the vessel’s scheduled air transportation services for the purpose of using the vessel’s basic air transportation services for the purpose of using the vessel’s scheduled air transportation services for the purpose of using the vessel’s scheduled air transportation services (hereinafter “former Marine Transportation Act”) and the vessel’s scheduled air transportation services for the purpose of using the vessel’s scheduled air transportation services for the purpose of using the vessel’s scheduled air transportation services, and there is no concern that the vessel’s existing air transportation facilities will increase significantly by reason.
C. Accordingly, the Plaintiff filed a lawsuit seeking revocation of the initial disposition as the court 2006Guhap2299. On August 31, 2006, the court held that the application for the license of this case was not only appropriate for transport demand, but also for the vessel mooring facilities of the port area due to the application of the license of this case, due to the temporary increase of users' use of vessel mooring facilities, which may cause little inconvenience that may occur in other traffic facilities. Furthermore, even if there is little room for shortage of vessel mooring facilities, the application of this case can be permitted under Article 4(5) of the Marine Transportation Act on condition that the Defendant can secure vessel mooring facilities which are short of time set forth a certain period of time, on condition that the vessel mooring facilities be secured, but the application of this case can not be seen as being unlawful since the application of this case would prevent the Plaintiff from using the vessel mooring facilities at issue due to the increase of flight frequency, and the introduction of the vessel mooring facilities of this case would also hinder the Plaintiff's use of the sea traffic safety report of this case.
D. However, the Defendant appealed as the Gwangju High Court 2006Nu2212 against the instant judgment, but the Gwangju High Court concluded the pleadings on June 28, 2007 and dismissed the Defendant’s appeal on July 26 of the same year, and the Supreme Court dismissed the Defendant’s appeal on December 11, 2008, thereby making the instant judgment final and conclusive.
E. As the judgment of this case became final and conclusive, the Defendant re-dispositioned on January 23, 2009 with respect to the instant application for license. On April 10, 2007, when the enforcement rules of the Marine Transportation Act were amended, the previous disposition under Article 4(3) [Attachment 1] of the Enforcement Rules of the Marine Transportation Act should be determined whether the instant application for license satisfies the transport demand standards under Article 4 of the Enforcement Rules of the Marine Transportation Act, instead of the previous management guidelines, since the criteria for transport demand prescribed in the management guidelines were accepted under Article 4(3) [Attachment 1] of the Enforcement Rules of the Marine Transportation Act. The instant disposition was rejected on the ground that the average boarding and the loading rate for the instant application for license are 25% and the license standards are below the licensing standards.
[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, 5, Gap evidence 4-1, 2, and 3, the purport of the whole pleadings
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
(1) In light of the contents of Article 30(1) and (2) of the Administrative Litigation Act, in a case where a decision to revoke a rejection disposition which is the object of a lawsuit for revocation becomes final and conclusive on the grounds of illegality under the substantive law, the administrative agency which has issued the relevant rejection disposition shall, in principle, accept the application and make a new rejection disposition on the grounds of the reasons before the closing of arguments at the court of fact-finding proceedings shall not conflict with the binding force of the final and conclusive judgment. Thus, even if the application for the instant license falls short of the criteria for transport demand under Article 4(3) [Attachment 1] of the amended Enforcement Rule of the Marine Transportation Act, this is a reason that has already existed before the closing of arguments at the court of appeal as to
(2) In taking a disposition in accordance with the instant judgment, the Defendant shall not determine whether the transport demand standard is satisfied in accordance with the enforcement rules of the amended Marine Transportation Act for the following reasons.
(A) In principle, an administrative disposition, such as permission, etc., should be taken in accordance with the relevant laws and regulations at the time of disposition and should not be complied with at the time of the application. However, where the criteria for permission are changed after the application for permission, if there are extenuating circumstances to deem it reasonable to apply the laws and regulations at the time of the application for permission, such as the case where the permission is delayed and the criteria for permission are changed by delay without any justifiable reason, an administrative disposition should be taken exceptionally under the relevant laws and regulations at the time of the application for permission. Notwithstanding the provisions of Article 6(2) of the Guidelines for Management, the Defendant calculated the average loading rate by intention or gross negligence on the ground that the application for permission does not meet the criteria for transport demand, and the Defendant intentionally delayed the confirmation of the judgment in this case on behalf of the Defendant Intervenor, who is the existing business operator even after the judgment in favor of the Plaintiff was rendered, and thus, the Defendant has become subject to the amendment of the relevant Acts
(B) Even in cases where the relevant statute was amended, the application of the amended law, which was enforced at the time of the disposition, should be based on the standard set by the amended law, unless otherwise specified in the transitional provision. However, in the application of the amended law, in cases where the public trust in the existence of the statute prior to the amendment is recognized to be more worthy of protection than the public interest demand for the application of the amended law, the application of the amended law may be restricted to protect the public trust. Accordingly, the Plaintiff made an application for the license in this case to the Defendant after putting a huge amount of funds in trust in the existence of the Marine Transportation Act and the management guidelines prior to the amendment and meeting the requirements for facilities prescribed by the relevant law. On the other hand, the public interest grounds for the Defendant’s non-permission in the initial disposition are revealed to be without merit by the judgment of this case. Accordingly, the application of the amended law to
(3) In calculating the average boarding and loading rate under Article 4 [Attachment 1] of the Enforcement Rule of the Marine Transportation Act, the Defendant erred in the calculation as follows. As such, the average boarding and loading rate offered by the Defendant based on the instant disposition is inappropriate, and the application for the instant license satisfies the transport demand standard if re-calculated in accordance with the relevant Acts and subordinate statutes by modifying the error.
(A) In light of all the circumstances, such as the fact that the transportation record in 2006 among the passenger transport records (Evidence No. 2) presented by the FP Defendant as the evidentiary materials for the instant disposition was entered in the passenger transport records (Evidence No. 12) submitted to this court in the course of litigation for the revocation of the original disposition, compared to the transport record in 2006, it is difficult to view the above passenger transport record as a reliable material.
(B) CP
① Even though the hours from 30 minutes before sunrise to 30 minutes after sunset in the case of Carpet (I, J, K, L, and M), the Defendant considered such hours as one day’s operation hours. Meanwhile, the Defendant calculated the number of navigation hours per day by 780 minutes in the lawsuit seeking revocation of the initial disposition, and the number of navigation hours per day after 90 minutes in the lawsuit seeking revocation of the initial disposition. In this case, the number of navigation hours is 160 minutes, while the number of navigation hours per day is less than 160 minutes, and the number of navigation hours per day is less than 4 times in the calculation of the number of navigation hours per day. Considering the navigation hours for the maintenance of vessels, the number of navigation hours per day is less than 4 times in the calculation of the number of navigation hours per day, the number of navigation hours per day is less than 50 days in the case of N and0 owned by Defendant Intervenors, and the number of navigation hours per day is more than 30 times in the case of each passenger.
(C) The weighted average value, not the weighted average value of seven vessels already operated on the route D/H, should be regarded as the expected average passenger fares of the vessel applying for a license.
(D) The Plaintiff did not temporarily put the vessel for which the license application is applied, but instead, put one first and the two remaining vessels are planned to be put in order in consideration of future transport demand. Therefore, it is unreasonable that the Defendant calculated the CP value by calculating the number of navigationable vessels per day for all three vessels for which the license application is filed in six times each, and calculating the CP value.
(b) Related statutes;
The entries in the attached Table-related statutes are as follows.
C. Determination
(1) Whether the instant disposition conflicts with the binding force of the instant judgment
According to Article 30 (2) of the Administrative Litigation Act, when a ruling revoking the rejection disposition by an administrative agency becomes final and conclusive, an administrative agency that has issued the rejection disposition is obligated to re-examine the previous application in accordance with the purport of the ruling. However, the administrative agency that is the party of the final and conclusive judgment can make a new disposition by supplementing the grounds for illegality stated in the final and conclusive judgment, and the validity of the administrative disposition is determined based on the facts at the time when the administrative disposition is taken. Thus, when the law is revised and implemented after the rejection disposition, the administrative agency may render a ruling rejecting the previous application for the new reasons. Thus, the defendant's disposition on the ground that the application does not meet the criteria for transportation demand and suitability pursuant to Article 4 [Attachment 1] of the Enforcement Rule of the Marine Transportation Act amended after the original disposition does not conflict with the binding force
(2) Whether the Defendant’s re-dispositions pursuant to the instant judgment should be determined by the Marine Transport Act and the Guidelines for Management before the amendment.
(A) The issue of granting a license for marine passenger transport services under Article 4 of the Marine Transport Act is that it belongs to the discretion of an administrative agency, unless otherwise prescribed by law, in the area requiring technical and professional judgment regarding the transport demand of the sea route in question, suitability of mooring vessels, etc., safety of marine transportation, user convenience, etc. Meanwhile, as acknowledged earlier, the defendant, as recognized earlier, did not err in the average loading coverage rate of the sea route in this case, but did not meet the transport demand standard prescribed by the Marine Transport Act and the management guidelines, concerns about the suitability of vessel mooring facilities in the port of call, concerns about the accidents in marine transportation and port of call, users' convenience without significant improvement, and rather, concerns over the occurrence of competition and conflict between the business operators. Thus, in light of the above circumstances, the defendant's first disposition rejecting the application for the license of this case on the ground that the defendant did not immediately issue the permission application for the license of this case after the issuance of the judgment of this case, and filed an appeal and appeal on purpose of the defendant's Intervenor, which is the existing business operator.
(B) Article 5 subparag. 1 of the former Maritime Transportation Act, Article 6 of the management guidelines, Article 5(1)1 of the current Maritime Transportation Act, and Article 4 [Attachment Table 1] of the Enforcement Rule of the Maritime Transportation Act provide that commencing the relevant business as one of the requirements for licenses for marine passenger transport services shall be different from the detailed criteria for calculation and calculation methods by the Minister of Oceans and Fisheries (amended by the previous Act and subordinate statutes) or the Ordinance of the Ministry of Oceans and Fisheries (amended by the Ministry of Oceans and Fisheries). Article 4(1) of the amended Enforcement Rule of the Maritime Transportation Act provides that when calculating the average number of passenger ships already placed on a license application route for the last three years and the average number of passenger ships already placed on a license application route, it shall be determined whether the average number of ships placed on board and the carrying rate including the spare vessel should be determined on the basis of the average number of passenger ships and the carrying rate. Thus, the sound development of marine transport services and the smooth transport of passengers and cargo, thereby enhancing user convenience and contributing to public welfare.
(C) Therefore, it is lawful to determine whether the Defendant satisfies the transport demand standard in accordance with the amended Enforcement Rule of the Marine Transportation Act, which is the Act and subordinate statutes at the time of the disposition in re-disposition in accordance with the instant judgment
(3) Whether there was an error in the average boarding and loading rate calculated by the Defendant
(A) Comprehensively taking account of the overall purport of the arguments as to Gap evidence Nos. 12 and Eul evidence Nos. 12 and Eul evidence Nos. 2, the documents concerning the transportation records of passengers prepared by the head of the PUnionD branch established under the law and sent to the defendant. Gap evidence Nos. 12 stated the passenger transportation records from July 1, 2004 to June 30, 2007 by dividing the passenger transportation records from July 1, 2004, 2005, and 206, while Eul evidence Nos. 2 stated the same facts as the passenger transportation records from Dec. 1, 2005 to Nov. 30, 2008 by dividing the number No. 310, Dec. 1, 2006 to Nov. 30, 2008; however, there is no evidence to acknowledge the difference between Gap evidence No. 12 and Eul evidence No. 310, Dec. 11, 2006>
(B) If the Plaintiff’s assertion does not limit the number of daily operation hours from 30 minutes before sunrise to 30 minutes after sunset, the average number of daily operation hours of the carpet shall be reduced by five times. Thus, the number of daily operation hours of the carpet shall be reduced by the average number of operation hours. Meanwhile, the number of daily operation hours of the ship existing on the instant service route is divided by the number of operation hours per day. The annual average number of operation hours of 780 minutes per day. The number of operation hours of the ship existing on the instant service route is 160 minutes per day, and the number of operation hours of 7 vessels existing on the instant service route between D/H is 160 minutes per day. Thus, even if the number of operation hours of the said vessel is considered four times, it shall not be deemed that 35 minutes per day may be used as anchorage hours for the maintenance of vessels, crew’s rest, passenger boarding, etc., in light of the aforementioned circumstances.
In addition, comprehensively taking account of the overall purport of the arguments in Eul evidence No. 8, Q, an incorporated association, issued each ship inspection certificate on May 29, 2007, stating that the number of passengers is 194 with respect to L on June 14, 2007, that the number of passengers is 200 persons with respect to M on June 14, 2007, and that the defendant accepted each report on the change of the maritime transportation business plan with the above content, and therefore, the defendant did not unfairly calculate the number of passengers with respect to the above two.
On the other hand, Article 4 [Attachment 1] of the Enforcement Rule of the Marine Transportation Act provides that the CP shall provide an annual passenger transport capacity as of the date of application for a license; FP shall provide an average fare per passenger of port passenger ships as of the date of application for a license; CP and FP shall be calculated on the basis of the facts as of the date of application for a license. Thus, even if L and M are legally changed after the date of application for a license in this case, it shall be calculated on the basis of the average number of passengers before the change, since it is changed after the date of application for a license in this case; CP and FP value of TP value, which were put on around 207 after the date of application for a license in this case, shall be excluded from the calculation; however, in general, it is not against the purport of the first disposition of the CP and FP value as of the date of application for a license in the above [Attachment 1] provision that the administrative agency should calculate the average number of passengers on the basis of the facts as of the date of application for a license in this case.
(C) Article 4 [Attachment 1] 2-c) of the Enforcement Rule of the Marine Transportation Act provides that the fP (1-b.7) provides that the fP (the estimated average fP of the vessels applying for a license) shall apply to the average fP of the passengers per passenger of the existing passenger vessels as of the date of application for a license in the case of vessels similar to those of the current passenger vessels. Thus, the Defendant’s calculation of the average fP value per passenger vessel after calculating the average fP value is justifiable in accordance with the above Enforcement Rule. Meanwhile, the CP is the annual passenger transport capacity expected to provide the vessel for the license application. Considering the purport of the argument in Gap evidence 2-3, the Plaintiff’s 2-4 of the above Enforcement Rule is merely 30% of the total 60% of the number of vessels at the time of application for a license application for a license application for a license application for a 30% of the total 30% of the number of vessels, 30% of the average 60% of the number of vessels and the 360% of the number of vessels.
(D) Therefore, in calculating the average boarding and loading rate, the defendant seems to have lawfully calculated it in accordance with the relevant laws and regulations, and no other error in calculation is found otherwise.
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.
Judges
The presiding judge, the senior judge;
Judges Kim Gin-Un
Judges Kim Gung-Un
Attached Form
A person shall be appointed.
A person shall be appointed.
A person shall be appointed.
A person shall be appointed.
A person shall be appointed.
A person shall be appointed.