2018Guhap54273 Revocation of revocation of approval for modification of a business plan

A Limited Liability Company A

Law Firm LLC (LLC)

Attorney Park Chang-hwan

The Director of Incheon Regional Maritime Affairs and Fisheries

Law Firm Roon, Counsel for the plaintiff-appellant

[Defendant, Appellant]

June 13, 2019

July 4, 2019

1. The instant lawsuit shall be dismissed.

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

In August 29, 2018, the Defendant’s disposition of non-permission to change the B service route business plan issued to the Plaintiff is revoked.

1. Details of the disposition;

A. On July 21, 2006, the Plaintiff obtained a license for maritime passenger transportation services (port route C, name of vessel: D) from the Defendant, and obtained a license for regular passenger transportation services (port route F, name of vessel: G) on May 22, 2017 from the Defendant in order to separate and operate the roadway line that operates by distinguishing the roadway line that operates from the roadway line that operates. In order to operate, the Plaintiff obtained a license for regular passenger transportation services (port route B, name of vessel: H: hereinafter “instant license”).

B. On the B sea route, I Co., Ltd. (hereinafter “T”) was operating with a license for marine passenger transportation services from the Defendant. However, in 2017, the Plaintiff, I Co., Ltd., and J Co., Ltd. (hereinafter “J”) made an agreement with the Defendant on August 30, 2017, including the agreement on the adjustment of the operation hours of passenger ships on the B sea route, which was attached to “the agreement” (hereinafter “instant agreement”). The Plaintiff prepared a 200 improved passenger ships (K; hereinafter “the instant vessel”) with respect to the instant passenger transportation services, and prepared an additional agreement on August 14, 2018, to replace the Defendant with the scheduled passenger transportation services (hereinafter “the instant agreement”) and then make an additional application for the instant passenger transportation services (hereinafter “the instant agreement”).

D. On August 29, 2018, the Defendant rendered a disposition rejecting the Plaintiff’s application on the ground that the Plaintiff’s application for modification of the business plan did not meet the requirements under Article 5 of the Marine Transportation Act and Article 8 of the Enforcement Decree of the same Act (hereinafter “instant disposition”). The instant vessel seeking to put the pertinent route into the route does not meet the existing criteria for ensuring convenience and transportation stability, such as reducing the convenience of use and the convenience of transportation, by comparing with the existing improved speed vessels operated on the route, the number of passengers is at least 70% (28 / 200) compared to the existing improved speed vessels.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5.10, 14 (including branch numbers), the purport of the whole pleadings

2. Determination on this safety defense

A. The parties' assertion

1) The plaintiff's assertion

In the event that the plaintiff operates the ship of this case on the sea route B, it is anticipated that the number of users would be less than the number of the ship of this case when most of the navigations, such as usual days, and in the case of weekends, it is the plan to increase the number as shown in the business plan attached to the plaintiff's application for the modification of the business plan, and the agreement was made with M to lease one spare line from Co., Ltd. in preparation for the situation, and in 2020, it is expected that a number of 320 new comfortable lines will be put in, so there is no problem of securing the convenience of use and transportation stability that the defendant concerns. Therefore, the disposition of this case is unlawful since there is no ground for the disposition of this case.

Even if the plaintiff's application for change of business plan does not meet the legal requirements.

Even if the Defendant was able to demand the Plaintiff to supplement the deficiencies before rendering the instant disposition, the instant disposition was immediately taken without taking such measures, and the Plaintiff suffered enormous disadvantages due to the instant disposition, such as the Plaintiff’s management crisis, etc., and thus, the instant disposition was unlawful as it violates the principle of proportionality, and thus is in violation of the discretionary power.

2) The defendant's main defense

The Plaintiff’s application for the change of the Plaintiff’s business plan is premised on the validity of the instant license, and the effect of the instant license ceases to exist as the Plaintiff filed a report on the discontinuance of the instant license while the instant lawsuit was pending and received. As such, there is no benefit to seek the cancellation of the instant disposition.

B. Determination on the Defendant’s main defense

1) A lawsuit seeking the revocation of an administrative disposition is a lawsuit seeking the restoration to the original state by excluding any unlawful state arising from such disposition, and protecting or remedying the rights and interests infringed or interfered with such disposition. Thus, even if such disposition is revoked, there is no benefit in a lawsuit seeking the revocation of such disposition if it is impossible to restore it to the original state (see, e.g., Supreme Court Decision 95Nu17403, Jan. 24,

2) According to the purport of Gap evidence Nos. 18 through 22, Eul evidence Nos. 6-1, and Eul evidence Nos. 6-2, and the purport of the whole pleadings, on September 21, 2018, the plaintiff submitted an application to the defendant for authorization of modification of a business plan for one year from September 29, 2018 to September 28, 2019 on the ground of business deterioration following the decline in sales in relation to the license of this case. The defendant granted permission for six months of business suspension to the plaintiff. The plaintiff submitted an application to the defendant for authorization of modification of a business plan for additional closure for six months from April 6, 2019 to October 5, 2019. The defendant rejected the application to the plaintiff on the ground that the period exceeds the limit of suspension under Article 18(4) of the Marine Transportation Act, and the plaintiff can be acknowledged as having decreased in sales due to the decrease in sales as to the defendant's notice of April 29, 2019.

An application for the change of a business plan under Article 12(4) of the Marine Transportation Act can only be filed by a person who holds a license for coastal passenger transportation services. As such, if the license becomes invalid, the authorization for change of a business plan related to the license would also be impossible if the license becomes invalid. However, as long as the Plaintiff received and publicly announced a report on the business closure of the license, the Plaintiff’s license of this case was already invalidated, and thus, even if the instant disposition is revoked, the authorization for change of a business plan pursuant to the Plaintiff’s application for the change of a business plan related to the instant

3. Conclusion

It is decided as per Disposition by the assent of all participating Justices to dismiss the instant lawsuit.

The full completion of the presiding judge;

Judge Laos

Judges Park Jae-sung

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.