2016Nu59166 Demanding revocation of the designation of a tourman exclusively in charge of China

Gold Tour Co., Ltd.

The Minister of Culture, Sports and Tourism

Seoul Administrative Court Decision 2016Guhap58710 decided July 25, 2016

February 17, 2017

March 17, 2017

The judgment of the first instance shall be revoked.

The plaintiff's claim is dismissed.

All costs of the lawsuit shall be borne by the plaintiff.

Purport of claim

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

Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

[Reasons for Recognition] A1-4, B-1, 4, 5 (including branch numbers in case of additional number), the purport of the entire pleadings

A. The People's Republic of China (hereinafter referred to as "China") has entered into an agreement with a foreign government for the control of its citizens in a tourist destination outside China, and only the travel agents designated by that foreign government may attract Chinese collective tourists. China designated the Republic of Korea on May 1998, and Chinese tourism-related ministries and agencies in China and the defendant on June 6, 1998 and June 27, 2000 signed an agreement on the implementation plan for various relevant issues arising from tourism in the Republic of Korea of Chinese collective tourists (hereinafter referred to as the "SIB") and signed an agreement on the negotiation (hereinafter referred to as the "SIB").

B. According to the Round of this case, China had a travel company in its country take exclusive charge of the organization tourism business of the Chinese people in the Republic of Korea, and these travel companies have selected a cooperative company among the travel companies recommended by the Government of the Republic of Korea and entered into a contract for the recruitment and reception of group tourists. The Defendant established the Guidelines for the Promotion of Exclusive Tour Services for Chinese Organization Tourist (hereinafter referred to as the "Guidelines"), and accordingly designated and managed a travel company exclusively in charge of attracting Chinese organization tourists (hereinafter referred to as the "exclusive travel company"). The Plaintiff was a company established on May 18, 2005 for the main purpose of general travel business and domestic and foreign travel business, and was re-designated on December 5, 2013.

D. On March 28, 2016, the Defendant issued a disposition to revoke the designation of a exclusive travel agent by applying Article 3-2 of the instant guidelines on the ground that the result of the review for the renewal of a "exclusive travel agent" against the Plaintiff was less than a list of qualified guides compared to the record of custody, the electronic management system has more than 0 items, and the electronic management system has been reported, and 10 points have been reduced by receiving an administrative disposition."

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The violation of the principle of statutory reservation infringes on the freedom of occupation, which is a fundamental right under the Constitution, by allowing only the travel agencies designated by the defendant to conduct the domestic tourism business of this Chinese people, without legal services. Furthermore, according to the Tourism Promotion Act, the designation of exclusive travel agencies is in violation of the Constitution and the laws and regulations. Furthermore, since the designation of exclusive travel agencies is restricted to handle the travel agencies and imposes duties on the designated exclusive travel agencies in accordance with the instant guidelines, it does not constitute a beneficial administrative act that gives benefit to the designated travel agencies. Ultimately, the instant disposition is unlawful as it seriously infringes on the Plaintiff’s freedom of occupation in accordance with the instant guidelines, which is not contrary to the relevant laws and regulations, and thus should be revoked.

(2) Since the violation of the provision on the renewal of exclusive tour operators prescribed in the instant guidelines is based on the instant guidelines, the “record of administrative disposition” as one of the criteria for the renewal of exclusive tour operators under Article 3-2 of the above guidelines shall be deemed to mean the record of administrative disposition in accordance with the above guidelines. However, the records of administrative disposition, which became the basis for the main points among the evaluation items of the instant disposition, are most records of administrative disposition in accordance with the Tourism Promotion Act, which is contrary to the criteria for the calculation of the given points, and thus, the instant administrative disposition is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination on the assertion of violation of the principle of statutory reservation

(1) The legal nature of the designation of exclusive tourers is, in principle, an administrative disposition that directly affects the rights and obligations of the general public by ordering an administrative agency to establish rights or impose obligations on a specific matter under the laws and regulations or giving rise to other legal effects. However, even if the grounds for any disposition are stipulated in the administrative rules, if such disposition is an act that directly affects the rights and obligations of the other party by ordering the other party to establish rights or impose obligations on the other party, or causing other legal effects, it constitutes an administrative disposition that is subject to appeal litigation even in this case (see, e.g., Supreme Court Decisions 2001Du3532, Jul. 26, 2002; 2003Du10251, Nov. 26, 2004; 2003Du10268, Nov. 26, 2004). The grounds for designating exclusive tour operators in China are stipulated in the instant non-exclusive tour guide, which is the administrative agency responsible for the management of the Republic of China's internal tour tour guidelines.

A group tour contract can be concluded only between the company and the company. In other words, a domestic tour agent who was not designated as a exclusive tour agent pursuant to the Chinese travel permission system is prohibited from attracting Chinese group tour visitors. The defendant is designated as a exclusive tour agent and has the status to enter into an event of China and a recruitment and contact contract for group tour visitors only in the Republic of Korea recommended by China. Therefore, the designation of exclusive tour agent is an act of creating a legal effect that creates the right to enter into a contract for attracting Chinese group tour applicants and constitutes an administrative disposition that is subject to appeal litigation. Such designation of exclusive tour agent is an act of creating a certain right or position, and at least, it does not constitute a beneficial administrative act in the case of the designated party.

(2) The designation system of exclusive tourers and the validity of the instant guidelines

(A) The principle of statutory reservation and reservation that the National Assembly requires the formal legal basis for administrative action is not sufficient if the administrative action simply provides the legal basis, but rather is understood to include the area of basic and important meaning for the state community and its members, in particular, the area pertaining to the realization of the fundamental rights of the people, not to be entrusted to the administration, but to the demand that the legislators, the representative of the people, make a decision on the essential matters thereof. However, it cannot be uniformly determined in consideration of the importance of benefits or values related to a specific case, and the degree and method of regulation or infringement. However, 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 be regulated by law (see Constitutional Court Decision 2015Hun-Ba125, 290, Jun. 30, 2016). In full view of the facts acknowledged in accordance with the purport of the entire pleadings and the following circumstances, it cannot be deemed that the designation of the National Assembly's exclusive travel system and the guidelines of this case are invalid.

1) According to the Framework Act on Tourism, the Government shall devise the basic and comprehensive policies on tourism promotion (Article 2), and shall take legislative and financial measures and other necessary administrative measures to implement such policies (Article 5). In order to facilitate the attraction of foreign tourists, the Government shall strengthen overseas publicity, devise entry and departure procedures, improve the entry and departure procedures, and take other necessary measures (Article 7), and guide and supervise the tourism business and take other necessary measures in order to promote the tourism business (Article 10). The Defendant is among the competent authorities that are obligated to devise various measures and policies related to the tourism business as prescribed by the Framework Act on Tourism.

For the purpose of facilitating the attraction of group tourists, the Government of China entered into an agreement with the Government of this case in accordance with the Round of this case, and prepared the instant guidelines in order to implement the matters prescribed in the agreement, and followed the designation of a group tour and the revocation of designation pursuant to the provisions of Articles 3 and 3-2. 2) Domestic travel agents are prohibited from attracting Chinese group tourists at will, in principle, due to the adoption of a travel permission system to allow the overseas tourism of Chinese nationals only in countries where the agreement was entered into, and exceptionally, the country where the agreement was entered into has been entered into, the travel permission system to allow the overseas tourism of Chinese nationals according to the procedures stipulated in the agreement. Therefore, our legal system does not restrict the freedom of occupation or the freedom of business for the people who operate or intend to operate the travel business.

3) An act of designating exclusive tourers is beneficial to the other party, and its legal nature belongs to discretionary act, and in such discretionary act, an additional condition, time limit, burden, etc. may be attached to achieve administrative purposes, unless otherwise expressly provided for in the relevant laws and regulations. The contents of such additional notes are able to implement, comply with the principle of proportionality and the principle of equality, and are not detrimental to the essential effect of an administrative disposition.

4) Even if a travel agent designated as a exclusive travel agent by designating a exclusive travel agent in compliance with the instant guidelines and determining the result of evaluation and determination of the revocation of designation, this is to achieve the administrative purpose of managing the qualification for exclusive travel agents to maintain their qualification above a certain level as prescribed by the instant non-exclusive travel agent, and the duty is limited to the duty incidental to the duty to maintain the status as a exclusive travel agent within the minimum limit, and even if the designation of exclusive travel agent is revoked, the right or interest going beyond the said scope is not infringed. Thus, it cannot be deemed as either impossible to implement the instant guidelines or contrary to the principle of proportionality and the principle of equality. It is also difficult to view that the designation of exclusive travel agent and the revocation of designation as a whole is to restrict the people’s freedom or rights guaranteed by the Constitution or to limit the burden on the essential matters of restriction.

5) Even if the designation of exclusive tourers and the revocation of such designation are not simply entrusted to the judgment of the administration because the designation of exclusive tourers and the revocation of such designation are increased due to the significant increase in the number of exclusive tourers in China after the completion of the instant visa, and it is necessary to incorporate the system into the law enacted by the National Assembly, not to simply leave the decision of the administration, but to regulate the designation of exclusive tourers and the revocation of such designation, if the designation of exclusive tourers and the revocation of such designation cannot be legally effective on the ground that there is no legal basis in the present situation where the legal basis is not prepared, there is a legislative gap, and there is confusion in the travel business or tourism business related to the attraction of Chinese collective tour visitors, which is a contract entered into with China, and it is expected that the instant visa cannot be

(3) Even in cases where there are no legal grounds for revocation of designation of exclusive travel agents, the disposition agency, which conducted an administrative act, may withdraw the designation of exclusive travel agents, even if there was no particular defect at the time of the disposition, and even if there was no separate legal ground for revocation of the designation after the disposition, if there was a change in circumstances that became unnecessary to continue the original disposition, or if there was a need for important public interest, it would infringe on the people's vested rights. However, even if the cancellation or withdrawal of the beneficial administrative disposition, the exercise of the right of revocation, etc. is limited to the case where there is a need for important public interest to justify the infringement of the vested rights, or where it is necessary to protect a third party's interests, it shall be determined by comparing and comparing with the disadvantage that the other party receives, and it is in itself unlawful (see Supreme Court Decision 2003Du7606, Jul. 22, 2004).

(4) The theory of lawsuit

The plaintiff's assertion is without merit since the disposition of this case violates the principle of statutory reservation.

D. Determination on the assertion of violation of the provision on the renewal of exclusive travel agents

(1) Article 3-2 (Renewal of Exclusive Tour) was newly established by the revision in May 2013 of the instant guidelines. The foregoing provision provides that "The Minister of Culture, Sports and Tourism shall grant the designated exclusive tour operator qualification as a exclusive tour operator once every two years through a re-examination, taking into account the records of attracting tourists, government tourism policy response, financial soundness, records of administrative disposition, rate of unauthorized leaveers' occurrence (A), etc. (as a result of the re-examination for the renewal of exclusive tour operator, 3-2, B, 3-5, 4-5, 4-6). Meanwhile, the Defendant's ground for the instant disposition against the Plaintiff refers to 0,00 electronic management system, 10,000 won, 2.10,000 won, 2.10,000 won, 10,0000 won, 2.2.1,010,000 won, 3.2,014,000,000 won, which violated the above provision against the Plaintiff.

(2) Specific determination

The exclusive travel renewal system was introduced to facilitate the withdrawal of events to be held in exclusive charge by strictly holding the designation of a new exclusive tour event with the aim of resolving the problems that undermine the image of the national and the Korean tourism industry due to low-end tourism, such as excessive shopping coercion for Chinese tourists, allocation of low-end accommodation outside the Seoul Metropolitan area, etc. (e.g., the combination of sanctions under the Tourism Promotion Act and sanctions under the instant guidelines was discussed as one of the measures to improve low-end tourism awareness (e.g., measures to impose more strong administrative sanctions in connection with the instant guidelines if a person is employed without qualification or intentionally violated a travel contract). The public hearing materials (e.g., the materials (e., the materials) provided by the Defendant against the travel company by providing them with the “general evaluation index, not the instant guidelines” as a basis for evaluation of compliance with the comprehensive travel program.

In light of the purport of the introduction of the above system and the contents of discussions for this purpose, the "record of administrative disposition" under Article 3-2 of the Guidelines of this case shall be interpreted as the "record of administrative disposition" as the exclusive tourer responsible for the act detrimental to the dignity of the national tourism industry, and it shall be interpreted as the overall administrative disposition taken by the act harmful to the dignity of the national tourism industry. Therefore, the plaintiff's assertion that the above administrative disposition is limited to the administrative disposition in accordance

3. Conclusion

Therefore, the plaintiff's claim is without merit. The judgment of the court of first instance, which received the plaintiff's claim, is unfair. Thus, the judgment of the court of first instance is revoked, and the plaintiff's term is dismissed. It is so decided as per Disposition

The presiding judge, the full-time judge

Judges Supbing

For the purpose of judge sex impulse