2016Guhap82720 Revocation of the designation of a Chinese traveler

A Stock Company

The Minister of Culture, Sports and Tourism

September 28, 2017

November 2, 2017

1. The revocation of the designation of the exclusive travel agent for attracting Chinese group tourists, which the Defendant rendered to the Plaintiff on November 4, 2016, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. From the 1980s, the People's Republic of China (hereinafter referred to as "China") designated a travel-free zone for group tourists in consultation with the government of each country, and introduced a travel permission system (ADS, APvved Datus) to attract and contact Chinese group tourists only by the travel agencies recommended by the country which entered into an agreement with China. China designated the Republic of Korea as "China's country of departure from the Republic of Korea" in May 1998. The representatives of the two countries signed on June 27, 200 and June 27, 200, which contain the results of the negotiations on June 1998 and June 27, 200 (hereinafter referred to as "Non-General of this case"). The main contents of the non-General of this case are as follows:

○○ Chinese side shall have 66 Chinese travel agencies take charge of Korean tourism affairs permitted to Chinese travel agencies, and enter into collective tourist invitation and contact agreements by finding cooperative partnerships among competent and reliable travel agencies recommended by Korean side. ○○ Korean side shall recommend Korean events with credibility and good financial situation and service conditions as Chinese tour tour agencies. 66 Chinese travel agencies designated by the ○○ 66 Chinese branch offices shall take charge of collective tourist visa affairs of the Korean Embassy (consular) of the Korean Embassy (Consular) and the staff in charge shall issue visas as soon as possible, except in extenuating circumstances.

B. In order to implement the designation, management, etc. of the "China's exclusive tour guide (hereinafter "exclusive tour guide") recommended to China in accordance with the instant visa, the Defendant enacted the "Guidelines for the Implementation of the Business of Exclusive Tourers Attractiond by Chinese Organizations" (hereinafter "the instant guideline") in July 1998. After that, the Defendant newly established Article 3-2 of the instant guideline in May 2013, and introduced "the period of designation of exclusive tour guides for which the two-year designation period has expired" as a matter of principle, and "the renewal system of exclusive tour guides for which the designation period has been renewed through reexamination." The Plaintiff was established on March 29, 2005 for the purpose of domestic and overseas travel business, general travel business, etc., and was designated as the exclusive tour guide from the Defendant on April 11, 2006.

D. On March 23, 2016, the Defendant held a Committee for Management of Exclusive Tours and assessed 170 business entities designated as exclusive travel workers in accordance with the evaluation criteria. As a result, the Defendant decided to revoke the designation of exclusive tourers for the total 68 business entities, which are 6 or more points at least 70 points due to administrative dispositions.

E. Accordingly, on March 28, 2016, the Defendant notified 68 business entities that the designation of exclusive travel workers was revoked, and notified that the remaining 102 business entities including the Plaintiff were re-designated as exclusive travel workers on the same day.

F. After that, the defendant found that the identification point due to the administrative disposition of the plaintiff was not included in the subject of revocation of designation even though it was 6 points which are the criteria for revocation of re-designation. On November 4, 2016, the defendant notified the plaintiff on the following grounds (hereinafter referred to as the "disposition of this case").

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1, 2, 5, 6, 20 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition should be revoked as it is unlawful.

1) Violation of the principle of statutory reservation

The exclusive travel agent system that limits the freedom of occupation guaranteed under the Constitution must be based on the formal law within a formal meaning, but it is based on the instant guidelines that are merely administrative rules, not the law. Therefore, the instant guidelines or the exclusive travel agent system based thereon violates the principle of statutory reservation and the principle of parliamentary universality, and the instant dispositions in accordance with the instant guidelines are also unlawful.

2) Violation of duty to publish the disposition standards

Unlike the evaluation criteria for the renewal of exclusive travel workers in 2013, the Defendant prepared the evaluation criteria to not re-designated as exclusive travel workers in cases where the reduction points due to administrative sanctions are at least six points, but did not publish them in advance. It was not possible for the Plaintiff to predict that the administrative sanctions were the basis for the revocation of designation, in addition to the independent reduction factors. Thus, the instant disposition violated Article 20(1) of the Administrative Procedures Act.

3) Illegality of re-designation criteria

In the event that the reduction points due to administrative disposition is at least 6 points, the defendant uniformly rejected the re-designation of the exclusive travel company. However, even though the number of Chinese tourists has rapidly increased, it is impossible to employ a flexible travel company as well as small and medium-sized travel companies like the plaintiff since December 2014. The plaintiff complied with the relevant laws and regulations, since December 2014, the standard for de-designation of the above re-designation is more sensitive than the criteria for disposition of the Enforcement Decree of the Tourism Promotion Act (3 months of detection at the time of detection) on employment without qualification (3 months of business suspension) or the criteria for disposition expressed by the Ministry of Culture, Sports and Tourism on October 15, 2014 (3-time revocation of the designation of the exclusive travel company). In light of the fact that the de-designation criteria resulted in the revocation of the designation of the exclusive travel company until companies that did not cause a qualitative decline in the tourism industry, it is unreasonable to introduce the re-designation criteria, and it is too inappropriate to achieve the purpose of the plaintiff's trust and trust.

Therefore, the disposition of this case based on the criteria for the revocation of the above re-designation is unlawful.

B. Relevant statutes and regulations

It is as shown in the attached Form.

(c) Fact of recognition;

1) The Defendant, following a public hearing on March 21, 2013, newly established a system for the renewal of exclusive tour operators by newly establishing Article 3-2 of the instant guidelines and introduced the system for the renewal of exclusive tour operators. The Defendant held a public hearing to establish the evaluation standards for exclusive tour operators, July 26, 2013, and sought opinions from exclusive tour operators. In addition, on February 28, 2013 and August 23, 2013, the Defendant held a public hearing on the establishment of the standards for the evaluation of exclusive tour operators and the renewal system under the Association.

2) On September 5, 2013, the Defendant determined the criteria for the evaluation of the renewal system and notified the head of the Association B of the criteria for evaluation of renewal system (hereinafter referred to as “standards for evaluation of renewal system in 2013”) along with guidance on implementation of the renewal system, and the head of the Association announced this on the same day to exclusive tourers. According to the criteria for the renewal system in 2013, the evaluation field, items, indexes, and their marks should be at least 75 points in total in order to be re-designated as exclusive tourers as follows:

A person shall be appointed.

3) On December 5, 2013, the Defendant notified the exclusive travel workers of the results of the implementation of the renewal system (excluding 36 exclusive travel workers less than two years, excluding 143 exclusive travel workers), and announced that the results of attracting, product prices, administrative sanctions, sales volume of low-cost goods, sales rate of high-value goods, etc. will be continuously monitoring and reflected in the evaluation of the renewal system conducted every two years.

4) On October 5, 2015, the Defendant notified the president of the Association B to establish an electronic management system for the efficient management of the events exclusively in charge of China. In the case of the performance records of 2014 and 2015, the Defendant announced that the exclusive tourer will be used for the evaluation of re-designation (re-issuance) in 2015. The B president announced it to the exclusive tourer on the same day.

5) On December 24, 2015, the Defendant announced that the exclusive travel agent may be disadvantaged in the evaluation of relevant items at the time of failure to submit data related to the evaluation of re-designation by January 8, 2016. At the time, the documents requested by the Defendant are “2015 Financial Statements Certification Board (Certified Tax Accountants) for reporting by the National Tax Service,” documents evidencing the performance of the award, such as prior to the recruitment, commendation, and selection of outstanding goods, and documents evidencing the conclusion of the standardized terms and conditions for tour interpreters, and MICE - medical supplies.

6) The Defendant newly prepared the following guidelines for evaluation of renewal systems (hereinafter referred to as the "evaluation criteria for renewal systems in 2016") on March 11, 2016 in order to strengthen sanctions against the increase of harmful effects caused by illegal acts, such as employing some exclusive travel agents without qualification, failing to perform their duty to report unauthorized removal, etc. According to the result of evaluation of the performance for 10 years ( January 2014) (including January 2015), less than 70 points, or more than 6 points reduced due to administrative disposition (including without qualification, etc.) is subject to revocation of designation (hereinafter referred to as the "standards for renewal of this case").

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

7) The Plaintiff was subject to the following administrative dispositions from January 2014 to October 2015.

A person shall be appointed.

8) On March 23, 2016, the Defendant held a Committee for Management of Exclusive Tours to evaluate the exclusive events in accordance with the evaluation standards for the renewal system in 2016, and the Plaintiff was assessed as follows.

A person shall be appointed.

A person shall be appointed.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 4 through 6, 8, and 21, and the purport of the whole pleadings is determined.

1) Whether the principle of statutory reservation is violated

The principle of statutory reservation and reservation that a formal legal basis established by the National Assembly is required in the administrative action is not sufficient if the administrative action merely serves as the basis of the law, but rather, it is understood that the area of basic and important meaning for the state community and its members, in particular, the area related to the realization of the fundamental rights of the people, and the area related to the realization of the fundamental rights of the people, should not 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 is not possible to uniformly define what matters to be regulated by the legislators, and only to separately determine the matters in consideration of the importance of benefits or values related to a specific case, the degree and method of regulation or infringement, etc.: Provided, That 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 governed by the law (see, e.g., Constitutional Court en banc Decision 2015Hun-Ba125,

As to the instant case, comprehensively taking account of the following circumstances revealed by the foregoing facts and the purport of the entire pleadings, the designation of exclusive tourers and the revocation of designation, and the guidance of this case cannot be deemed null and void as it goes against the principles of statutory reservation and the reservation of the Council.

(1) According to the Framework Act on Tourism, the Government shall devise basic and comprehensive policies concerning tourism promotion (Article 2), and shall take legislative and financial measures and other necessary administrative measures to implement such policies (Article 5). (Article 5) In order to strengthen overseas publicity, improve entry and departure procedures, and take other necessary measures to promote the attraction of foreign tourists (Article 7), while guiding and supervising tourism business and devise other necessary policies (Article 10) in order to promote tourism business (Article 7).

The Defendant is the competent authority responsible for formulating various measures and policies related to the tourism industry pursuant to the provisions of the Framework Act on Tourism, and entered into an agreement with the Chinese government in accordance with the Roster of this case with the aim of facilitating the attraction of Chinese group tourists. The Defendant prepared the instant guidelines in order to implement the matters stipulated in the agreement, and designated the following exclusive events or revoked the designation of exclusive events.

② The fundamental reason why domestic travel agents, who were not designated as exclusive travel agents, are unable to attract Chinese organization tourists at will, in principle, is that China has adopted the travel permission system that exceptionally permits the overseas mine of its own citizens in accordance with the procedures stipulated in the relevant agreement while prohibiting foreign tourism of its own citizens. Therefore, our legal system cannot be said to be because Korea adopts the permission system that permits the attraction of its own people into Chinese organization. Rather, the exercise of designation is characterized by granting the designated domestic travel agents the right to enter into a contract for attracting Chinese organization tourists.

(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 Acts and subordinate statutes. The contents of such additional clauses 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.

① Even if a travel agent designated as a exclusive travel agent by designating the exclusive travel agent in accordance with the instant guidelines, such act is intended to achieve the administrative purpose of managing qualification for exclusive travel agent to maintain more than a certain level, as prescribed by the instant Round, and is merely an incidental duty to be borne within the minimum extent to maintain the status as a exclusive travel agent. Even if the designation of exclusive travel agent is revoked, the status of exclusive travel agent is lost, and the rights and interests beyond the scope are not infringed. Thus, it cannot be deemed impossible to comply with the instant guidelines, and it does not go against the principle of proportionality and the principle of equality, and it is also difficult to view that the designation of exclusive travel agent as a whole is to restrict the freedom or rights of the people guaranteed by the Constitution, or that the burden is a restriction on essential matters, by significantly increasing the impact of the designation of exclusive travel agent or exclusive travel agent on the domestic market after the completion of the instant Roundbook. Even if the establishment of a legal basis for designating exclusive travel agent or the establishment of a system is no longer necessary due to the need to regulate the establishment of the law and regulations on the travel agent.

6 The plaintiff's position as a exclusive travel agent is also based on the guidelines of this case, so if the guidelines of this case are invalid as the plaintiff's argument, the plaintiff's original ground for the designation as a exclusive travel agent is lost. The part concerning the designation of exclusive travel agents in the guidelines of this case is valid, and there is no reasonable ground to see that only the part concerning the revocation of designation is invalid.

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 can be determined and publicly announced in consideration of the nature of the relevant disposition," and Article 20 (2) of the Administrative Procedures Act provides that "the public announcement of the disposition standards under 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 to be deemed to significantly undermine the

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 administrative agencies. As such, administrative agencies are obliged to establish and publicly announce the disposition standards to the maximum extent possible, insofar as the nature of the pertinent disposition permits (see Supreme Court Decision 20085148, 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 reasons for the revocation of its independent designation shall be deemed within the scope of discretion permitted to the defendant.

However, in determining the procedural illegality of the disposition of this case, the above criteria should be taken into account as to whether the purpose of the Administrative Section 2 was damaged. In full view of the following circumstances revealed by the facts recognized above and the purport of the entire pleadings, the defendant prepared the criteria for the renewal of the 2016 period, which includes the contents of the revocation of designation for a business entity with a reduced of more than 6 points by an administrative disposition, and did not publish them in advance, and the plaintiff as the plaintiff could not have predicted that the designation should be revoked solely on the grounds of the reduction of points. Therefore, it is difficult to view that the defendant guaranteed predictability in administration while rendering the disposition of this case.

Therefore, the disposition of this case is in violation of Article 20 (1) of the Administrative Procedures Act.

(1) If the designation of a dedicated tourman is revoked, it is more important to determine the revocation of the designation of a dedicated tourman who is engaged in attracting Chinese organizations and tourists. As such, the requirements for designation, revocation of designation, etc. shall be notified in advance to the travel agencies that intend to be designated as a dedicated tour operator and the travel agencies that have been designated as a dedicated tour operator. On the other hand, it is necessary to change the requirements for designation and revocation of designation as a dedicated tour operator in accordance with changes in market conditions and resolution of the problems arising from the operation of the dedicated tour system. However, considering the meaning of the travel agencies that the designation of dedicated tour operators intends to engage in attracting Chinese organizations, the defendant shall guarantee predictability of the criteria by notifying it in advance.

② Since the Defendant first implemented the renewal system at around 2013, notified the exclusive travel agents including the Plaintiff at the time of the first implementation of the system, to reflect the results of attracting offers, product prices, administrative sanctions, etc., it is reasonable to deem that the Plaintiff was expected to cancel the designation only when the assessment points for each of the evaluation factors implemented at around 2016 were less than the standard points for each of the evaluation factors in accordance with the renewal system implemented at around 2013. Furthermore, even if it was anticipated that the Plaintiff may also be able to change the evaluation factors and to supplement the operation of the system, it should be deemed that the modification was made within the framework of the assessment criteria for the renewal system in 2013. Thus, it should be deemed that the Plaintiff’s act of violation at the time of the instant disposition was not subject to the alteration of designation, and it should be deemed that the application of the system retroactively exceeds the limit of the independent revocation of designation.

(3) According to the instant guidelines, where the exclusive travel agent is unable to renew due to the implementation of the renewal system (Article 3-2) and where a certain violation was committed (Article 11), it would be at a disadvantage that is revoked only, and the history of the administrative sanction is an aggravated factor in determining the administrative sanction in accordance with Article 11 and attached Table 2 of the instant guidelines. In the evaluation of the renewal system in 2013, it is unreasonable to deem that the Plaintiff was unable to expect the revocation of designation only with the history of the administrative sanction in the evaluation of the renewal system as long as the administrative sanction has not been revoked by being aggravated according to the history of the administrative sanction.

④ In the operation of a partial exclusive contribution event, problems such as non-qualified employment, operation of low-quality shopping products have been pointed out, and the defendant, as a measure to solve these problems even at the time of formulating the evaluation criteria for the renewal system in 2013, set up evaluation criteria that reflect the dual contribution in the evaluation scores.

Although it seems that the same problem has continuously occurred and the need for the preparation of countermeasures has continuously been raised, it is difficult to view that the Plaintiff could have predicted the degree of increase in the percentage of marks allocated to the administrative sanctions, even though it was difficult to say that the Plaintiff could have predicted the degree of increase in the percentage of marks allocated to the administrative sanctions after the evaluation of the renewal system in 2013.

Furthermore, it seems that the government has continued discussions on the rational operation of the exclusive travel agency system by discussing its countermeasures against the government, strengthening the management of exclusive travel agencies, and strengthening sanctions, but it is difficult to find out that the defendant notified that the exclusive travel agency, including the plaintiff, will have independent reasons for revocation of administrative sanctions, or strengthen disadvantages caused by administrative sanctions.

6) Meanwhile, even if the assessment criteria for the renewal system in 2016, which includes the newly established criteria of this case, had already been published in advance, it was not possible to prepare for the disposition of this case because it had already been subject to administrative sanctions. However, this result was derived from the Defendant’s retroactively applying the same to the company that had already been given the penalty as an administrative sanction before the establishment of the newly established criteria of this case. The company that received the penalty points pursuant to the administrative sanction prior to the implementation of the said criteria, as the Plaintiff, was expected to have been able to obtain the re-designation only by simply calculating the assessment criteria and predicting the point only when it satisfies the total assessment criteria, which would not have been anticipated to have been able to obtain the re-designation. Accordingly, this is contrary to the purport of Article 20(1) of the Administrative Procedures Act.

C) Sub-decision

Therefore, the instant disposition is unlawful without having to decide on the remainder of the Plaintiff’s assertion, as it is procedural defect in violation of the duty of publication of the disposition standards.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

Chief Judge, Senior Judge and Circuit

Judge Shee-hee

Judges Kim Young-young-man's disease and a signature or seal impossible;

The presiding judge

Judges