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

Incheon Coast Guard (Law Firm LLC, Attorneys Choi Han-soo et al., Counsel for the plaintiff-appellant)

February 22, 2017

Incheon District Court Decision 2015Guhap52597 Decided June 23, 2016

1.The judgment of the first instance shall be modified as follows:

A. The part concerning the main claim among the instant lawsuit and the part concerning the revocation of each disposition as stated in the separate claim Nos. 1 and 20 as well as the part concerning the revocation of each disposition as stated in the separate claim Nos. 1 and 1 to 20, respectively, shall be dismissed.

B. The plaintiff's remaining conjunctive claims and selective claims are dismissed, respectively.

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

1. Purport of claim

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.

2. Purport of appeal

A. The plaintiff

In the judgment of the first instance court, the part against the plaintiff shall be revoked. In the first instance court, the defendant's disposition of license for the ferry business against Sejong Shipping on June 5, 2015 shall be revoked. In the first instance court, the defendant's disposition of license for the ferry business against Sejong Shipping on June 5, 2015 shall be revoked entirely. In the second instance, the defendant's disposition of refusal against the plaintiff's application for revocation of license for the ferry business against Sejong Shipping on June 17, 2015 shall be revoked.

B. Defendant

The text of paragraph (1) is as follows.

1. Details of the disposition;

The court's explanation on this part is as stated in Paragraph 1 of Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, on the ground that "No. 5 of the first instance court's ruling" is the same as stated in Paragraph 5 (No. 2) of the first instance court's ruling, except for the following: "No. 5 (No. 11 to No. 4, No. 12) is added to "No. 5 (No. 2)", except for the case where "No. 3 of the first instance court's ruling was changed to a passenger vessel operating at the beginning by changing No. 3 of the first instance court's service to a passenger vessel, which had been operating by pilotage No. 3 of the second instance court to a passenger vessel, but the third Class

2. Judgment on the main defense against the main defense

The court's explanation on this part is identical to the reasoning of Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except where the amended Act No. 5 of the first instance court's fifth is "former Excursion Ship and Ferry Business Act" as "former Excursion Ship and Ferry Business Act". Thus, the court's explanation on this part is consistent with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

3. Judgment on the main defense of the conjunctive claim

(a) Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows: (a) each “former Act” is “former Excursion Ship and Ferry Business Act”; and (b) the reasoning for the first instance judgment is as stated in Article 8(2) of the Administrative Litigation Act; and (c) the main text of Article 420 of the Civil Procedure Act, inasmuch as the reasoning for the first instance judgment is the same as that for the first instance judgment (from 6th to 11th, 6th, 16th, 11th, 6th, 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th

B. Additional parts

○ The following shall be added to “not” of Chapter 7 10:

【 Also, the approval of change on June 5, 2015 does not constitute an independent disposition that is subject to appeal litigation on the ground that the previous business license was written with only the modified contents or issued with only the modified contents including the modified contents while maintaining the identity of the existing business license, and it does not constitute an independent disposition.”

○ 11. The following shall be added to “at least 11.”

"The approval of the change on June 5, 2015 is not merely an act of issuing the existing business license after the dismissal or re-preparation of the existing business license, but it is an administrative disposition that directly affects the rights and obligations of Sejong Shipping by changing the contents of the existing ferry business license for Sejong Shipping."

4. Determination as to the main defense against the selective claim

A. The parties' assertion

The Plaintiff asserts that, on June 17, 2015, the Defendant’s revocation ex officio of the license for the ferry business with respect to Sejong Shipping on June 5, 2015 or the revocation ex officio of both the instant license for the ferry business and the instant approval for the modification thereof, the instant license for the ferry business with respect to the instant sea route owned by Sejong Shipping should be revoked as a whole. Therefore, the Defendant’s rejection disposition against the Plaintiff on June 17, 2015 should be revoked. Accordingly, the Defendant did not have the right to request the Plaintiff to revoke the approval for the modification thereof, and there is no possibility that any change in the Plaintiff’s legal relationship may arise due to the refusal of the application for the revocation of the license for the ferry business of Sejong Shipping, and therefore, the said rejection act does not constitute the disposition subject to the revocation lawsuit.

B. Determination

The selective claim in this case is practically the same as the primary claim and the conjunctive claim, and on the same grounds, the remainder, except the rejection disposition against the revocation disposition against the revocation disposition of the approval of the modification on June 5, 2015, is unlawful, on the grounds as seen earlier in the determination of the main claim and the main defense against the conjunctive claim.

Therefore, the defendant's defense on this part is justified within the above scope of recognition.

5. 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) In order to constitute a ferry business subject to the application of the excursion ship and ferry business Act in relation to the estuary or non-sea areas, passenger ships for which a license for marine passenger transport business under the Marine Transport Act is not operated (the requirements for sea trees under the former part of Article 2 subparag. 2 of the Excursion Ship and Ferry Business Act). Thus, the instant sea route (the scope of sea areas other than the mouth or mouth) of this case (the scope of sea areas) began to operate passenger ships under the Marine Transport Act on February 2, 2003, and it does not constitute the sea area where a ferry business under the Excursion Ship and Ferry Business Act may be conducted under the Excursion Ship and Ferry Business Act. Nevertheless, the Defendant issued the approval for change on June 5, 2015, stating that the Defendant added a new vessel to the Sejong Shipping as a new ferry. This is the same as granting a license for a ferry business to the wholly added vessel, which is in violation of Articles 3 and 2 of the former Excursion Ship and Ferry Business Act, and Article 2 of the former Enforcement Decree.

2) To constitute a ferry business governed by the Excursion Ship and Ferry Business Act, a vessel of less than five tons, a vessel not capable of transporting more than 13 passengers, a vessel driven only by oars or sail (in accordance with the requirements not subject to the Marine Transportation Act, the size of the vessel) or passengers and things must be an act of transporting passengers or passengers and things (the latter part of Article 2 subparag. 2 of the Excursion Ship and Ferry Business Act, Article 3), and Article 2 subparag. 5 of the Excursion Ship and Ferry Business Act may be used only for maritime passenger transport services under the Marine Transport Act with a capacity of 409 tons and a capacity of 348 passengers, and a vessel cannot be used as a vessel in a ferry business under the Excursion Ship and Ferry Business Act. Thus, the approval of change on June 5, 20

3) ① A ferry business operator is capable of operating vessels from time to time, whereas a maritime passenger transportation business operator is bound to operate vessels according to the regular schedule of navigation, ② the maritime passenger transportation business operator was scheduled to operate vessels at night in shifts with the Plaintiff, but the Plaintiff’s right to operate vessels was infringed upon due to the disposition of approval for change on June 5, 2015, because the Plaintiff’s right to operate vessels was accumulated as a result of the return of a license for the maritime passenger transportation business operator, and the said disposition is unlawful.

B. Relevant statutes

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

C. Determination

1) Article 3(1) of the former Excursion Ship and Ferry Business Act provides that “a person who intends to engage in ferry business shall obtain a license from, or report to, the competent authority in accordance with the size of the ferry or the business territory prescribed by Presidential Decree. The same shall also apply to any modification to a license or report.” Article 4-2 of the same Act provides that “The competent authority shall examine whether the age of the ferry owned by the applicant for the license to engage in ferry business meets the criteria prescribed by Presidential Decree ( Subparagraph 1) and whether the vessel, facilities, equipment, and human resources owned by the applicant for the license to engage in the ferry business meet the criteria prescribed in Article 4 ( Subparagraph 2).” Article 27 of the same Act provides that “The competent authority may order the ferry business operator to improve or modify the number of passengers on board, loading weight, operating hours, number of operations, business territory, ferry, or facilities.”

Article 3 of the former Enforcement Decree provides that “A person who intends to engage in a ferry business pursuant to Article 3(1) of the Act shall have ships, facilities, equipment, and human resources meeting the standards prescribed in Article 5 and file a report with the competent authority, as prescribed by Ordinance of the Prime Minister,” among ships the gross tonnage of which is at least five tons, ships the seating capacity of which is at least 13 persons (paragraph (2)), and ferry business, the business territory of which is at least 2 nautical miless (paragraph (3).” Article 4 of the former Enforcement Decree provides that “a person who intends to engage in a ferry business pursuant to Article 3(1) of the Act shall have ships, facilities, equipment, and human resources meeting the standards prescribed in Article 5 and shall file a report with the competent authority.” Article 19 of the former Enforcement Decree provides that “The competent authority may adjust the standards prescribed in Articles 14(1), 17(1), 17(2), and 18(1) of the former Enforcement Decree, in consideration of the depth, sailing distance, traffic volume, etc.”

On the other hand, Article 3(3) of the former Enforcement Rule provides that "the competent authority upon receipt of an application for a license for a ferry business or a report on a ferry business shall issue a business license in attached Form 2 or a business report certificate in attached Form 3 where it deems that the application or report is in conformity with the Act, the Enforcement Decree and the Rules," and Article 3(5) of the former Enforcement Rule provides that "if it is deemed that the application for a license for a ferry business or the report on a report on a change in the ferry business is in conformity with the Act, the Enforcement Decree and the Rules

In full view of the above provisions, unlike the case of the report on ferry business, the issue of whether to permit a ferry business license and the issue of modification of the license is a beneficial administrative act granting a specific person the right or interest, and thus, it belongs to the discretionary act that should be determined by comprehensively taking into account the vessel, facilities, equipment, human resources, etc., and it also belongs to the discretion of the administrative agency to determine whether to establish the criteria for a ferry business license within the scope prescribed by the relevant laws and regulations, so long as the competent administrative agency’s determination of the criteria is objectively unreasonable and unreasonable, the administrative

2) However, Article 2 Subparag. 2 of the former Excursion Ship and Ferry Business Act provides that “ferry business is engaged in the business of transporting passengers and things on inland waters or on the sea prescribed by Presidential Decree with ferry and ferry wharf, and is not subject to the application of the Marine Transportation Act.” Article 2 of the former Enforcement Decree provides that “a passenger ship under Article 2 Subparag. 2 of the former Excursion Ship and Ferry Business Act shall not be operated.” Article 7(2)1 of the former Enforcement Decree provides that “the business of a maritime passenger transport service provider shall not be likely to infringe on the maritime passenger transport service provider’s right pursuant to the Marine Transportation Act due to any interim open port,” and Article 7(2)1 of the former Enforcement Decree provides that “the permission of a ferry business license and the matters of a license shall be determined by the detailed criteria in consideration of the relationship with the maritime passenger transport service provider if the business area is sea, and the administrative agency’s examination of whether a license or an amendment to the license is permitted, barring special circumstances where an application for a license or an amendment to the license is obviously made.

3) First, as the instant sea route is in operation of passenger ships for which a license for marine passenger transport business was obtained under the Marine Transport Act, we examine whether the instant sea route does not meet the requirements under item (c) of the former Excursion Ship and Ferry Business Act.

According to Article 2 subparag. 2 of the former Excursion Ship and Ferry Business Act and Articles 2 and 7(2)1 of the former Enforcement Decree of the Excursion Ship and Ferry Business Act, a ferry business license is not allowed in the sea area where passenger ships pursuant to the Marine Transportation Act are operated.

However, it is difficult to view that the disposition of a passenger ship under the Marine Transport Act is unlawful retroactively because there was no particular defect at the time of the administrative disposition, considering the following: (a) the restriction on issuance or revocation of a license for a ferry business is not stipulated in the first time after obtaining a license for a passenger business; (b) the purport of the above provisions is not to protect a person from being infringed upon by the issuance of a license for a new passenger business under the Marine Transport Act; and (c) it is difficult to view that the purpose of the above provisions is to protect the existing passenger transport business operator’s operating income from the new entry into the business area in which a ferry business is already carried out; (d) it is difficult to view that the former Enforcement Decree of the Passenger Transport Business Act is unlawful retroactively because there was no change of circumstances after the administrative disposition; (e) it is necessary for the public interest to revoke the license even if there is a defect in a beneficial administrative disposition; and (e) it is very strong that the need for public interest to prevent the occurrence of disadvantage to the parties concerned; and (e) it can not be deemed that the former passenger transport business operator’s license under Article 2 of the former Enforcement Decree.

Therefore, this part of the plaintiff's assertion is without merit.

4) Next, we examine whether a vessel of less than five tons in ferry business, a vessel which is unable to transport more than 13 passengers, or a vessel which is driven only by oars or sails, should be used in ferry business.

Article 3 of the former Excursion Ship and Ferry Business Act classifys those subject to a license and those subject to a report according to the size of the ferry or the business area. Article 3 of the former Enforcement Decree of the former Enforcement Decree of the Excursion Ship and Ferry Act provides that “a vessel with a gross tonnage of at least five tons, a vessel with a seating capacity of at least 13 passengers, among those vessels with a gross tonnage of less than five tons, and a ferry business with a business territory of at least 2 nautical miless, shall be subject to a license for the ferry business not falling under any of those cases.” Article 18(1)4 proviso of the former Excursion Ship and Ferry Business Act and Article 11 of the former Enforcement Decree of the former Enforcement Decree of the Excursion Ship and Ferry Business Act provide that “a vessel with a capacity of at least 50 passengers, and a vessel with a seating capacity of at least 10 passengers, with a seating capacity of at least 10 passengers for every 10 passengers,” and Article 20 of the former Enforcement Decree of the Excursion Ship and Ferry Act provides that “a ferry business shall be more than 10 passengers.”

In full view of the above provisions, in order to carry on a ferry business by using a vessel of less than five tons, a vessel not exceeding 13 passengers, a vessel operated only by oars or sails, and a vessel with a gross tonnage of more than five tons, and a vessel with a capacity of more than 13 passengers among vessels with a gross tonnage of less than 5 tons, it is required to obtain a license from the competent administrative agency to carry on a ferry business. It cannot be deemed that only a vessel of less than five tons, a vessel not exceeding 13 passengers cannot be transported, or a vessel driven only by oars or sails, with a capacity of more than 13 passengers.

Therefore, the plaintiff's assertion on this part is without merit.

5) Lastly, as the Plaintiff’s goodwill was infringed due to the approval of change on June 5, 2015, we examine whether it is illegal due to deviation and abuse of discretionary power.

A) Although the Plaintiff’s marine passenger transport services and the chip transport business are different in its underlying law, the type of navigation of passenger ships and ferry is different from the same sea route. However, according to the Plaintiff’s evidence Nos. 6, Party A’s evidence Nos. 7, and Party B’s evidence Nos. 5 (including the number of branches), if the chip transport is a vessel used for the ferry business on the instant sea route, the 319 tons, the number of passengers’ number of 287, the 319 tons, the 493 tons, the number of passengers’ number of 493, the 493, the 348 passenger number, the 348 passenger number, the 348 passenger ship (the 3rd class No. 1, the 3rd class No. 1, the 3rd class No.), and the 3rd class No. 5, the 3rd class vessel’s new type of navigation rights can only be subject to overlap with the Plaintiff’s new type of navigation rights.

B) However, considering the following circumstances: (i) the Ministry of Oceans and Fisheries determines to open a license for other operators to promote the improvement of passenger services by entering the port, as the result of the investigation of detailed passenger ships on board the 5th vessel operation route and the fact that the 5th vessel's operating route vessel's operating capacity and the 5th vessel operation vessel's operating capacity were entirely indicated on the 5th vessel operation route; (ii) the head of Incheon Regional Maritime Affairs and Fisheries issued a public announcement on March 27, 2014 that the 5th vessel operation vessel operation vessel's operating capacity and the 5th vessel operation vessel's operating capacity and the 5th vessel operation vessel's operating capacity and the 5th vessel operation vessel's operating capacity and the 5th vessel operation vessel's operating capacity and the 1st vessel operation vessel's operating capacity and 5th vessel operation vessel's operating capacity and 4th vessel operation vessel's operating capacity and 5th vessel operation vessel's operating capacity and 5th vessel operation permit and 5th vessel operation approval.

Even if it interferes with the plaintiff's business by operating a ship at any time immediately before the departure time of the plaintiff without complying with the prescribed operation time schedule as alleged by the plaintiff, it cannot be viewed as a reason for making the disposition under Article 27 of the former Excursion Ship and Ferry Business Act or the reason for administrative disposition and criminal punishment accordingly, it cannot be viewed as a reason for making the approval of change on June 5, 2015 itself illegal.

Therefore, the plaintiff's assertion on this part is without merit.

6) For the foregoing reasons, the Plaintiff’s preliminary and selective claims on the premise of the foregoing cannot be deemed unlawful on June 5, 2015. Therefore, all of the Plaintiff’s preliminary and selective claims cannot be accepted.

6. Conclusion

Therefore, the part concerning the main claim among the lawsuit in this case and the part concerning the revocation claim against each disposition in the separate claim Nos. 1 through 20 of the separate sheet No. 1 and the part concerning the revocation claim against each disposition in the separate claim as stated in the separate sheet No. 1 or 20 of the separate sheet No. 1 are unlawful. Thus, each of the plaintiff's refusal claim against the revocation claim is dismissed, and the remainder of the plaintiff's preliminary and selective claims are dismissed as they are without merit. The judgment of the court of first instance that accepted the defendant's appeal and changed the judgment

[Attachment]

Judges Cho Jong-tae (Presiding Judge)