2017Nu7918 Revocation of a license for marine passenger transportation services

A Stock Company

○○ Northern-do ○○

B Representative Director

Attorney Yellow-sik et al., Counsel for the defendant-appellant

Maritime Affairs and Fisheries Office

Litigation Performers C, D, E

Co., Ltd. F

○ ○

G Representative Director

Attorney Lee Jae-in, leapin, Gangwon-do et al., Counsel for the plaintiff-appellant

Daegu District Court Decision 2016Guhap23112 Decided November 29, 2017

May 4, 2018

June 15, 2018

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. The total cost of the lawsuit shall be borne by the Plaintiff, including the part resulting from the supplementary participation.

1. Purport of claim

The defendant's defendant on September 6, 2016 against the defendant's intervenor joining the defendant (hereinafter referred to as "the intervenor") - Ulle

The license for marine passenger transportation services (hereinafter referred to as the "sea route of this case") shall be revoked.

2. Purport of appeal

same as the text entry.

1. Details of the disposition;

A. ① The Defendant is the administrative agency in charge of the license for marine passenger transport services for the instant sea route, ② the Plaintiff obtained a license for marine passenger transport services for the instant sea route from the Defendant on September 3, 2013, and the judgment of revocation of the license on April 14, 2016 (Seoul District Court 2013Guhap3186, Daegu High Court 2014Nu6921 ? Supreme Court 2016Du30293) was revoked as the license became final and conclusive, and ③ the Intervenor acquires a license for transportation services between the major shareholder of H (hereinafter “H”) and its specially related party.

B. Upon the conclusion of the judgment on revocation of the above license, the Defendant issued a public notice on the selection of scheduled coastal passenger transport business operators for the instant service route (hereinafter “instant public notice on the selection of business operators”) in accordance with Article 4(2) of the Marine Transportation Act, Article 3 of the Enforcement Rule of the Marine Transportation Act, and the Enforcement Rule of the Marine Transport Act (Notice of Ministry of Oceans and Fisheries No. 2015 - 220). The Defendant issued a public notice on the selection of scheduled coastal passenger transport business operators for the instant service route (hereinafter “instant public notice on the selection of business operators,” and the following procedure for the selection of business operators). The main contents of the public notice, “the criteria for the assessment of business proposals, and the preparation of guide documents,” are as follows.

C. On June 2016, the Plaintiff and the Intervenor submitted their respective project proposal to the Defendant according to the instant project proposal selection announcement, and the Defendant publicly announced that the Intervenor should be selected as a new maritime passenger transportation service provider on July 1, 2016 as follows.

D. According to each review and evaluation compiled table with respect to the Plaintiff and the Intervenor (hereinafter “the results of the review and evaluation of this case”), the Intervenor received 631 points of the total point of 700 points, which was average of 90.1 points of 700, and the Plaintiff received 574 points of the total point of 700 points and was average of 82 points of the average of 82 points.

E. On July 28, 2016, the Defendant obtained a conditional license from the Intervenor to obtain a license for regular coastal passenger transport services regarding the instant sea route on August 10, 2016 on condition that the Intervenor be equipped with the facilities under Article 5(1)2 of the Marine Transportation Act pursuant to Article 4(4) of the Marine Transportation Act, and then granted a conditional license to the Intervenor on September 6, 2016.

Pursuant to Article 4(1) of the Marine Transportation Act and Article 2(6) of the Enforcement Rule of the Marine Transportation Act, an intervenor granted a license for regular coastal passenger transportation services regarding the sea route of this case as follows (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6 (including branch numbers; hereinafter the same shall apply), Eul's evidence 1 through 8, the purport of the whole pleadings

2. Determination on this safety defense

A. Intervenor’s assertion

According to the public announcement on the selection of a business operator of this case, where the disposition of this case is revoked, subordinate persons with at least 80 points of evaluation of the project proposal without re-public offering shall be selected as a business operator.

The plaintiff received an average of 82 points in the examination and evaluation of this case. On the ground that the "Safety Management Plan for Business Performance" among the items of assessment was selected and appointed as a safety control agency pursuant to Article 21-5 (2) of the Marine Transportation Act, the plaintiff received 8 points from 7 examiners to 63 points out of 70 points in total, and received 63 points out of 70 points in total, and 7 points out of 7 points in total, on the ground that there are portable rooms and toilets for disabled persons inside a passenger ship.

L, however, is a ship manager under Article 33 of the Marine Transportation Act, and is not qualified as a safety control agency under Article 51 of the Maritime Safety Act, and the oil room does not fall under the transportation convenience facility, and the toilets for persons with disabilities do not meet the installation and standards prescribed by the laws and regulations for mobility disadvantaged persons. The evaluation score for the plaintiff is less than 72 points on average [ = 504 ( = 574 - 63 - 70/70].

Therefore, even if the disposition of this case is revoked, the plaintiff cannot be a subordinate person who can be selected as a business operator, so there is no legal interest in seeking revocation of the disposition of this case to the plaintiff.

C. Determination

1) When several persons who have applied for a beneficial administrative disposition, such as permission, etc., which is the relevant legal principles, are bound to result in a disposition such as permission, etc. against one party due to non-permission, etc., a person who has not received a disposition such as permission, etc., is entitled to standing to seek revocation of the relevant disposition even though the other party to the disposition, such as permission, etc., was not the other party to the disposition, which was taken against the police officer: Provided, That where the possibility of accepting the plaintiff's application is excluded from the beginning due to an obvious legal disorder, there is no legitimate interest to seek revocation of the relevant disposition (see, e.g., Supreme Court Decisions 2009Du8359, Dec. 10, 2009; 2013Du147, Jul. 1

According to the relevant legal principles, the status of standing to sue is accepted as to his/her application.

In light of the relevant legal principles, the Plaintiff has a legal interest in seeking the revocation of the instant disposition, and the evidence submitted by the Defendant or the Intervenor alone is insufficient to recognize that “the possibility of accepting the instant application is excluded from the beginning due to the apparent legal trouble of the Plaintiff.” Therefore, the Intervenor’s safety defense is without merit.

① The Plaintiff and the Intervenor participated in the instant procedures for the selection of enterprisers, and the Plaintiff was deprived of the instant disposition against the Intervenor due to the instant disposition against the Intervenor.

② Since the Plaintiff received an average of 82 points as a result of the instant review and evaluation, if the instant disposition against the Intervenor is revoked, the Plaintiff is highly likely to be selected as an enterpriser without any public offering of re-tender.

③ In order for the Plaintiff to be recognized as having “a clear legal disability that could not be cited from the beginning,” the Plaintiff could not participate in the instant procedures for the selection of a business entity prior to the exercise of the Defendant’s discretionary power pursuant to Article 5 of the Marine Transportation Act due to the grounds for disqualification under Article 8 of the Marine Transportation Act, etc., or the Plaintiff could not accept the relevant application due to the legal apparent grounds for disqualification. However, the evidence submitted by the Intervenor alone is insufficient to acknowledge that the Plaintiff has such circumstances

④ The defects of the review and evaluation results asserted by the Intervenor are difficult to be deemed as falling under the above “a clear legal obstacle”, and it is merely a part that may be at issue in the process of issuing a license for maritime transportation business to the Plaintiff (the registration of the conduct of coastal passenger transportation business on February 22, 2018, which the Intervenor is at issue, shall not be at issue in the future proceedings because the registration of the conduct of coastal passenger transportation business on February 22, 2

⑤ Even if the Plaintiff’s business plan is deemed inappropriate under Article 5 of the Marine Transportation Act and thus, cannot obtain a license pursuant to the public announcement of the selection of the instant business operator, the Plaintiff’s new business operator selection procedures will cease to exist when the instant disposition is revoked, and the Plaintiff is likely to participate in the relevant procedure and be selected as a scheduled coastal passenger transportation business operator.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it constitutes deviation or abuse of discretionary power for the following reasons.

① In full view of the provisions of relevant Acts and subordinate statutes, such as Articles 4 and 5 of the Marine Transportation Act, and the developments leading up to the announcement of the selection of the instant service provider and the details of the announcement, the Defendant rendered the instant disposition granting a license to provide regular passenger transport services to the intervenors, who are not existing service providers, in order to prevent harm caused by the monopoly operation of the instant service route, to promote the convenience of users of routes, and to guarantee a third party’s opportunity to participate in the business.

② The results of the instant review and evaluation regarding the Intervenor are as follows: “The program for human resources input” as “the capacity to implement the project.”

In other words, the captain, crew, and ticket personnel, who are assessed on the premise that they are the employees belonging to the Intervenor, are actually employees belonging to H or all employees belonging to the both companies. Thus, the points on the part on which the captain and crew are secured should be reduced entirely, and the points on the part on which the captain and crew are secured should be reduced by 50% or more. The points on the part on which the land personnel are secured should be reduced by 50% or more.

C. Relevant statutes

Attached Form 3 is as shown in the "relevant Acts and subordinate statutes".

(c) Fact of recognition;

In full view of the above quoted evidence, evidence of Nos. 7 through 21, and evidence Nos. 1 to 20, the following facts are recognized.

1) H was established on February 11, 2014, and thereafter engaged in maritime passenger transportation business as a major business, and the location of the principal office at ○○○ City.

B) After its establishment on April 9, 1986, the intervenor has been engaged in civil engineering, construction, electricity and packing as a major business, and has its head office at ○○○ City.

C) The composition of the Intervenor and H’s shareholders is as follows. M is between the father and N, and the Intervenor and H are between the companies established by a person with special interest of each major shareholder.

D) On July 1, 2015, H used Hoh to operate the Dokdo route. On June 10, 2016, the Intervenor entered into a bareboat charter (a bot boat agreement, Baat Catar) with H to borrow K at KRW 1.388 billion each year between H on June 10, 2016.

E) On June 15, 2016, theO, the representative director of H, joined the Intervenor’s executive officers (general executive officers of the Shipping Division), and participated in the procedures for explaining the project proposal on July 1, 2016.

F) The Intervenor’s corporate register was registered only for the shipping business on June 2, 200 with the Intervenor’s shipping-related business objectives. The Intervenor’s corporate register added vessel operation business, passenger scheduled service, and Internet service business on September 7, 2016.

G) The Intervenor operated the Internet homepage (www. daezer.co. co. kr). At the same time, the Intervenor introduced only civil engineering, construction, and landscaping services in column, but did not introduce passenger transportation services, and all services related to passenger transportation, including reservations and guidances, provided on the H’s website (www. dazer.com). The representative phone number in the ticket room used it as existing H.

H) According to the list of rights held by H and the Intervenor during the period from September 8, 2016 to July 31, 2017, the list of the ticket holders and the list of rights held by each source: (a) the list of ticket holders of both companies overlaps with a large number of parts; (b) the H’s employees issued the boarding ticket of the Intervenor’s passenger ship or opposed it on an ordinary basis.

2) According to the Intervenor’s business proposal submitted by the Intervenor at the time of the announcement on the selection of the instant business entity (hereinafter “instant business proposal”), the Intervenor’s organization is as follows, and the Intervenor newly established the Korea Transportation Business Headquarters on June 1, 2016, and subsequently employed P as the chief of the Korea Transportation Business Headquarters on June 15, 2016 andO as the managing director, respectively.

B) The main contents of the “plan for human resources investment” portion among the evaluation items of the project proposal of this case are as follows.

- 11 - 11) - 7 seafarers and 3 reserve seafarers, who are indicated in the status of securing seafarers, were in the past H as seafarers on board the K. b. 3) The employees other than the chief officer, and 4) the employees indicated in the Ulle Business Office, from among the employees of the business team, were in the H from September 8, 2016 to July 31, 2017. The results of the instant review on the Intervenor were as follows. (d) The employees indicated in the business team were in the position of H prior to the preparation of the instant project proposal, and were registered as H’s ticket sales members from September 8, 2016 to July 31, 2017.) The results of the instant review on the Intervenor were as follows, and were assessed as the average point of 1, 190 points at a point of 631.

D. Determination

1) Relevant legal principles

According to Article 4 (1) and (4) of the Marine Transportation Act, a person who intends to operate a marine passenger transport service shall obtain a license from the Minister of Oceans and Fisheries for each service route by type under Article 3, and the Minister of Oceans and Fisheries shall grant a license under paragraph (1), as prescribed by Ordinance of the Ministry of Oceans and Fisheries, to strengthen safety of Article 5 (1)

Under Article 5(1) of the Marine Transportation Act, the competent administrative agency may grant a license or attach other conditions necessary for passengers on the condition that the facilities, etc. under subparagraphs 2 and 5 of the said paragraph are to be installed. In addition, when it intends to grant a license for marine passenger transport services, it shall examine whether the business plan submitted by the relevant business operator conforms to the nature of transport demand in the relevant service route and whether the relevant service route is appropriate, (2) whether commencing the relevant service is not likely to undermine the safety of marine traffic, (3) whether it establishes an operation plan suitable for the convenience of users in operating the relevant service, (4) whether the number of passenger ships, etc. in possession, the age and operation capacity of passenger ships, etc., and the capital stock, etc. meet the standards

In full view of these provisions, the license for the above marine passenger transport service is a beneficial administrative act that grants a specific person the right or interest, and is subject to discretionary action that should be determined by comprehensively taking into account the transport demand of the service route, the suitability of mooring facilities, the safety of marine transportation, the convenience of users, etc. The establishment of the criteria for the license for the marine passenger transport service and the determination of whether the criteria are satisfied within the scope prescribed by the relevant laws and regulations belongs to the discretion

Therefore, as long as the competent administrative agency’s evaluation of the matters related to the review as stipulated in relevant statutes or public announcements seems objectively unreasonable or unreasonable, the administrative agency’s intent should be respected as much as possible (see Supreme Court Decision 2013Du13440, Jul. 10, 2014, etc.).

2) The main point of the Plaintiff’s assertion is whether or not the intervenor’s discretion to examine the intervenor as a new enterpriser is deviation from or abuse of discretion. The main point of this part of the Plaintiff’s assertion is that the existing enterpriser cannot participate in the selection procedure of the new enterpriser, and only the new enterpriser may participate in the selection procedure of the new enterpriser. Since the intervenor is a company in fact the same as H, which is an existing enterpriser, and thus is not a new enterpriser, the Defendant’s determination of the intervenor as a new enterpriser constitutes a deviation or abuse of discretion to grant a license for maritime passenger transportation service providers. Thus, the determination of the intervenor as a new enterpriser is objectively reasonable and reasonable, and is an important issue of this part as to whether only the new enterpriser may participate in the selection procedure of the instant case. Before examining the issues as to whether only the new enterpriser

B) According to the facts acknowledged earlier, the above quoted evidence and the purport of the whole pleadings, the Intervenor’s major shareholder (100% of the equity ratio) as the father of H’s major shareholder (100% of the equity ratio), the Intervenor and H are co-related parties to each major shareholder. The Intervenor engaged in the construction business, etc. mainly within the company established by the parties to each major shareholder. The Intervenor started preparing for the instant maritime passenger transport business only after H’s rejection of the application for the modification of the internal passenger transport business plan on the instant sea route. The Intervenor’s corporate registry was registered only for the first ( June 2, 200) shipping business purpose on the Intervenor’s corporate registry, and the Intervenor’s employees were registered only for the instant passenger transport business, for the first time on September 1, 2016, and for the first time on which the Intervenor provided the maritime transport information service to the vessel’s representative director, for the first time on which the Intervenor had been employed by the Defendant, and for the first time on the vessel’s general vessel operation of H.

C) However, in light of the following circumstances that can be seen by comprehensively taking into account the facts of recognition as seen earlier, the above quoted evidence, and the respective statements in Eul-B and Eul-B evidence, and the purport of the entire pleadings, it is insufficient to recognize that the Defendant’s evaluation of the Intervenor as a new business entity in the instant selection procedure constitutes deviation or abuse of discretionary power by losing the objective rationality and validity, and thus, the Plaintiff’s allegation in this part is without merit.

① On February 11, 2014, H is a company established on February 11, 201, and mainly engages in marine passenger transportation services at ○○○○○○, and its major shareholders are N, and its executives and employees are approximately 72. On the other hand, the Intervenor is a company under the Commercial Act, which is established on April 9, 1986, and mainly engages in civil and construction works and construction works at ○○○○○○, its major shareholders are M, and its executives and employees are approximately 199 ( approximately 28 persons in relation to vessel operation). As such, both companies are companies under the Commercial Act, which basically have separate legal personality, and are not identical in the form and content of the legal entity.

② If an existing company establishes a new company substantially identical in its form and content for the purpose of evading debts, etc., the establishment of the new company is abuse of the company system in order to achieve an unlawful purpose, such as evading debts of the existing company. Thus, the assertion that the above two companies have a separate legal personality is not permissible in principle. This legal doctrine applies to cases where a company uses another company actually identical in the form and content of the existing company for the purpose of evading debts, etc. In such cases, whether the existing company has used the legal personality of another company for the aforementioned purpose shall be determined by comprehensively taking into account all the circumstances such as the management status or asset status at the time of closure of the existing company, the existence and degree of assets useful for another company, the existence of assets transferred from the existing company to the existing company, and the payment of reasonable consideration if there is assets transferred from the existing company to another company (see Supreme Court Decision 2010Da19472, May 13, 2011, etc.).

Examining the relationship between H and the Intervenor in light of the aforementioned legal principles, both companies cannot be deemed as the same company in substance as the form and content of both companies, depending on the change in the shareholder composition, location of the main office, capital stock, establishment year, main business objectives, etc. In addition, there is no evidence to acknowledge that there was assets transferred from H, an existing business entity, or that there was no reasonable price previously paid.

Therefore, it is not against the principle of trust and good faith to assert that the intervenor has a legal personality separate from H, an existing business entity.

③ In full view of the provisions related to the Marine Transportation Act and the developments leading up to the announcement of the selection of a new business operator of the instant sea route and the content of the announcement, the Plaintiff asserts that the determination of whether a new business operator of the instant sea route constitutes a new business operator is not based on the form of legal personality, and that the existing business operator is judged to have lent only the name of another company for the purpose of obtaining double licenses, or that both companies may exercise influence over the management due to the fact that it is closely related to a special-related company, etc., and that fair competition would not be achieved, the Plaintiff’s interpretation of each subparagraph of Article 5 of the

However, in light of the relevant legal principles as seen earlier, even in full view of the developments leading up to the announcement of the selection of a business entity in this case and the content of the announcement, it seems that there is no ground to extend the scope of recognition of substantial identity with the existing business entity, as alleged by the Plaintiff, to the company, related company, or affiliate company established by a related party.

In addition, in light of the type, contents, etc. of both companies as seen earlier, it is difficult to recognize that only the name was lent to the intervenors with the purpose of acquiring double licenses by H, an existing business entity, solely based on the facts acknowledged as above and the descriptions of Gap Nos. 1 through 21.

Therefore, the plaintiff's above assertion cannot be accepted.

④ The Intervenor participated in the selection of the instant business entity by chartering H from H on June 10, 2016, but this is only limited to bareboat charter (a bareboat charter) and the captain and crew of the vessel were employed as the employee of the Intervenor until August 31, 2016.

⑤ On August 19, 2016, H and intervenors have concluded a mutual business agreement with each other on the management of vessels of the other party, support and increase of crew members, rights and reservations related to business, entry into and departure from ships, and other administrative affairs during the charter period, and solely on such circumstances alone cannot be readily concluded that both companies are substantially the same companies.

(6) On the contrary, the proceedings for the selection of enterprisers in the instant case shall respect the intentions of the administrative agencies that regard the intervenors as new enterprisers and examine them.

3) According to the facts acknowledged prior to the Intervenor’s actual evaluation score less than 80 points, and the aforementioned quoted evidence and the purport of the whole pleadings, the examination evaluation results of the Intervenor are as follows: “The part of “the securing of reserve manpower for the captain and crew of passenger ships” among “the capacity to implement the project” gives 61 points in total; “The captain and crew of the Intervenor secured by the participant is the person operating the H in the past; all the captain and crew members are the persons operating the H in the past; all the captain and crew members are the persons operating the H in the past; the five employees of the business team and seven employees of the Ulsan branch office, among the land personnel secured by the Intervenor; the five employees of the business team and seven employees of the Ulsan branch office, from September 8, 2016 to July 31, 2017, are recognized.

B) However, in light of the following circumstances that can be seen by comprehensively taking account of the aforementioned facts acknowledged, the above quoted evidence, Eul evidence, and Eul evidence Nos. 21 through 27, and the purport of the entire arguments, it is insufficient to recognize that the facts of the captain, crew members, and ticket holders secured by the Intervenor are merely H employees, or employees belonging to both companies, or that the Defendant granted 61 points to the part of the "plan for securing the crew crew and reserve crew members" of the "plan for securing the crew members" of the "plan for securing the crew members" of the Intervenor's ability to implement the instant project in the process of selecting the Intervenor, and giving 32 points to the part of the "whether the adequate crew members such as the ticket personnel are secured", and it is not sufficient to find that the Plaintiff violated or abused discretionary power by losing reasonableness and validity. Therefore, this part of the Plaintiff's assertion is without merit.

① Since the Intervenor chartered H from H to participate in the selection of the instant business entity, the Intervenor seems to have no choice but to succeed to the master and crew as they were. On August 31, 2016, which was issued on September 6, 2016, the Intervenor entered into an employment contract with the captain and the crew and entered into both with the captain and the crew.

② However, on August 31, 2016, the Intervenor entered into a vessel and crew management contract with Q Q Co., Ltd. (a ship manager who vicariously performs the duties of crew management, etc. pursuant to Article 2 subparag. 9 of the Marine Transportation Act; hereinafter “ Q Q”). Since the Intervenor entered into a vessel and crew management contract with Q on the part of the Intervenor’s management duties of K and its crew members, the Intervenor is in charge of the actual crew management of Q Q.

Q, in addition to the Intervenor, has entered into a management agreement with the vessel of about 150 and its crew members, which accounts for about 150 vessels, including H. In case where crew members are forced to leave and fill the short-term leave between the crew members of another vessel, the problem of cross-board boarding between the crew members of another company may arise.

In light of these circumstances, it is difficult to view the above cross-board-related act as a temporary work agency business under Articles 2 subparag. 1, 2, 6, and 5(3)3 of the Act on the Protection, etc. of Temporary Agency Workers. In addition, it is insufficient to recognize that such cross-board-board-related act should not be considered as a temporary work agency business under Article 2 subparag. 1, 2, 6, and Article 5(3)3 of the Intervenor’s Act.

③ Since H and intervenor entered into a mutual business agreement on August 19, 2016 and cooperates with each other in the vessel management of the other party, the support and increase of crew members, the right of issuance and reservation related to business, the entry and departure of ships, and other administrative affairs during the charter period of K, so there is a case where any of the ticket holders belonging to a company is registered in duplicate in the list of ticket holders of the other party company.

In light of the relationship between the two companies and the characteristics of the instant service route or the business size, it is insufficient to recognize that only such mutual business agreement and the act of supporting the work accordingly should be reduced by more than 50% of the Intervenor’s evaluation score of the part of “to secure adequate land manpower, such as ticket personnel” among the Intervenor’s “Plan for Human Resources Investment.”

④ Considering the above circumstances, the administrative agency’s intent to conduct an examination as seen earlier should be respected as to the Intervenor’s capacity to implement the instant project in the process of selecting the business entity.

4. Conclusion

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

Judge fixed-use of judges

Judges Kim Tae-tae

Judge Lee Jin-soo

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.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.