주식회사 한중네트웍(소송대리인 변호사 안슬기)

The Minister of Culture, Sports and Tourism (Attorney Ansan-si, Counsel for the plaintiff-appellant)

March 28, 2018

Seoul Administrative Court Decision 2016Guhap82720 decided November 2, 2017

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On November 4, 2016, the Defendant revoked the revocation of the designation of the exclusive travel agent for attracting Chinese group tourists.

2. Purport of appeal

The same shall apply to the order.

1. cite the reasoning of the first instance judgment;

The reasoning of this court is that the reasoning of the judgment of the court of first instance is as stated in Article 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act, since the reasoning of this court is the same as that of the judgment of the court of first instance, in addition to the dismissal of a part as stated in the following Paragraph

2. Parts to be dried;

In addition, the number of pages 16 to 10 of the 12th judgment of the court of first instance is as follows.

2) Whether the disposition standards violate the duty of disclosure

A) Relevant provisions and purport

Article 20(1) of the Administrative Procedures Act provides that "the administrative agency shall determine and publicly announce the necessary disposition standards so that they may be in light of the nature of the relevant disposition," and Article 20(2) of the same Act provides that "the public announcement of the disposition standards pursuant to paragraph (1) may not be made in cases where it is considerably difficult in light of the nature of the relevant disposition or where there are reasonable grounds deemed to significantly undermine the safety and welfare of the public."

The purpose of the establishment and publication of such disposition standards is to ensure the transparency and predictability of administration by preventing arbitrary exercise of authority by an administrative agency. Thus, an administrative agency is obligated to establish and publicly announce the disposition standards to the maximum extent possible, insofar as the nature of the disposition so permitted (see Supreme Court Decision 2008Du5148, Aug. 25, 201).

B) In the instant case:

The defendant who manages and operates the exclusive travel agency system shall have considerable discretion in the evaluation items, allocated points, evaluation methods, and detailed calculation methods and criteria for evaluation points of the exclusive travel agency's renewal system, and to revise the evaluation criteria to give administrative sanctions to correct the problems arising from the business behavior of a partial exclusive travel agency or to consider them as grounds for the revocation of its independent designation shall be deemed within the scope of discretion permitted to the defendant.

On the other hand, in determining the procedural illegality of not disclosing the above change in the evaluation criteria, the above criteria should be determined as to whether the purpose of the Administrative Procedures Act is damaged. In full view of the facts acknowledged earlier and the following circumstances revealed by the entire purport of the evidence and arguments, even if the defendant did not publicly announce the evaluation criteria for the renewal of the year 2016 for exclusive travel workers including the plaintiff, such circumstance alone does not lead to arbitrary exercise of authority or failure to guarantee the transparency and predictability of administration in the disposition of this case. Thus, there is no procedural error in violation of Article 20(1) of the Administrative Procedures Act.

① In introducing the exclusive travel renewal system, the Defendant informed the exclusive travel agents, including the Plaintiff, etc. of the criteria for evaluation of the renewal system in 2013, which include “inducing results, financial soundness, compliance with the legal system, high added value, sales of tourism products, and government policy response,” and notified the results of implementation of the renewal system in 2013 (excluding 36 exclusive travel agents less than two years), and notified the re-designation of 121 companies including the Plaintiff, including the Plaintiff, of the results of attracting, product price, administrative sanctions, low-price sales rate, etc., and announced that it should be reflected in the evaluation of the renewal system conducted every two years.

② The assessment standards for the renewal system in 2016 do not differ from the evaluation standards for the renewal system in 2013 or the standards set forth in Article 3-2 of the Business Guidelines in the instant case due to the inducement, financial soundness, compliance with the legal system, and contribution to the development of the tourism industry. Only in the detailed evaluation items, the items regarding the “degree of participation in the electronic management system”, “degree of participation in the public offering,” and “performance of official commendation and official commendation of agencies before public offering,” are additionally reflected, and the evaluation by the administrative sanctions

③ According to the Defendant’s evaluation criteria for the renewal system in 2013, at least 75 points out of 100 can be re-designated as exclusive travel workers, while the 2016 renewal scheme added the administrative sanctions to separate criteria for revocation of designation. It is recognized that the Defendant did not publish them in advance. However, in light of the diversity and complexity of administration, it is deemed that the change of the criteria for imposing administrative sanctions within the scope of discretion permitted to the Defendant to either add the administrative sanctions or to consider them as the reasons for revocation of designation in order to correct the problems arising from the business behavior of the event exclusively in charge of administration, as seen earlier, within the scope of discretion permitted to the Defendant. In the 2013 renewal scheme in 2013, the Plaintiff was aware of the 2013 renewal scheme in which the 2013 renewal scheme was not implemented every 20 years prior to the implementation of the 2013 renewal scheme, and it seems that the Defendant had not been able to reflect the results of the 2013 renewal scheme in its new administrative sanctions.

3) Whether re-designation criteria are unlawful

According to Article 33(1) of the former Enforcement Decree of the Tourism Promotion Act (amended by Presidential Decree No. 27425, Aug. 2, 2016), Article 33(1) and Article 2 subparag. 1(b) and Article 2 subparag. 1-2(f) of the attached Table 1-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 27425, Aug. 2, 2016), the same provision provides that the business type to be reported shall be suspended for four times due to employment without qualification for one year, and if not, three months in the case of business type to be revoked.

As alleged by the Plaintiff, no evidence exists to deem that small and medium-sized tour enterprises, such as the Plaintiff, are unable to employ qualified guides, and the above criteria for re-designation cannot be deemed unlawful solely on the ground that the Plaintiff’s assertion may result in revocation of the designation of exclusive tour enterprises even for those enterprises that did not cause the qualitative degradation of the tourism industry, where the Plaintiff complied with the relevant statutes from December 2014, or where the decrease in the number of decrease caused by administrative disposition exceeds six points.

Therefore, the plaintiff's assertion that the re-designation criteria is illegal is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed as per Disposition.

Judges Park Jong-nam (Presiding Judge)