(영문) 인천지방법원 2019.1.24.선고 2018구합52741 판결

On April 2, 2018, the defendant made a public announcement for the selection of scheduled coastal passenger transportation service providers (hereinafter referred to as the "public invitation of this case") as follows.

1. Business outline;

Category of ○ Business: Port of scheduled coastal passenger transportation services: E/F or E/G

- Intermediate port of call: None of the operating enterprises;

○ Navigation Distance: 424.9 km (E - F), 592.6 km (E - G)

2. A person who intends to operate a passenger transportation business or passenger transportation business under the Marine Transportation Act after preparing his/her qualification for application and proposal, shall not have the grounds for disqualification under Article 8 of the same

○ Proposal shall be prepared in accordance with the evaluation standards for project proposals and the instruction form for preparation.

4. Methods of evaluating proposals;

○ Points according to the evaluation credit rating (management status), vessel security plan (age, performance, etc.) with the capacity to implement the project (45 points), the project plan (55 points), etc.

From among the business operators with an arithmetic mean of at least 80 points by aggregating the evaluation scores of each examiner in accordance with the evaluation criteria for the business operator, one highest score braille shall be selected.

5. The head of the OH coastal passenger wharf may grant a final license upon fulfilling the conditions after a conditional license, taking into account the fact that it is possible to use the current international passenger wharf after the transfer to a new international passenger wharf ( June 2019). The evaluation data shall be prepared and submitted in accordance with the evaluation criteria and guidance guidelines for the project, and no objection shall be raised if any disadvantage arises due to lack of documents, etc. at the time of the evaluation. The evaluation criteria and guidance for the project proposal [general matters] shall be prepared.

5. Selection of business operators;

Examination [The evaluation items and evaluation criteria for proposal] shall be comprised of not less than seven external experts who constitute the ○ Business Operator Selection Committee according to the detailed evaluation criteria

A person shall be appointed.

* New shipbuilding includes vessels which do not operate with only a trial run, vessels under construction, and vessels scheduled to be built.

* The details of administrative disposition, such as marine accident history and penalty surcharge, have occurred for the last three years.

* Change in Category I. Business Plan (55 points)

1. The age (25 points) of the vessel that is planned to secure the vessel;

A person shall be appointed.

* The term "age of a vessel" means the period that elapsed from the date when the vessel was advanced (Article 2 of the Enforcement Rule of the Ship Safety Act).

* Criteria for Calculation of Age: Calculation on the basis of the timing for assessing project proposals

*) 24 points for a vessel of which age is one year, 15 points for a vessel of which age is 10 years.

3. Vessel mooring facilities and passenger services (10 points);

○ Securing the right to use the vessel mooring facilities (5 points)

A person shall be appointed.

* Determination in accordance with consultation with local governments or documentary evidence of approval for use of vessel mooring facilities

4. A temporary establishment or a reduction point (within three points);

○ The number of marine accidents and administrative dispositions (-3 points): The last three years.

A person shall be appointed.

With respect to the existence of marine accidents, the Maritime Safety Tribunal's request for cooperation or inquiry on its website

· Number of administrative dispositions (related to the Marine Transportation Act), such as penalty surcharges, suspension of business, revocation of licenses, etc.

B. From April 4, 2018 to April 23, 2018, the Defendant’s Defendant’s Defendant’s selection of and conditional licensing for marine passenger transport service providers in D service routes received project proposals from seven applicants, including the Plaintiff and the Defendant’s Intervenor, from the seven applicants, to April 23, 2018, and examined the selection committee of marine passenger transport service providers comprised of seven designated members on April 27, 2018. On April 30, 2018, the Defendant: (a) on the ground that the Defendant’s Intervenor’s 80 or more assessment points based on detailed assessment criteria, the Defendant’s highest number (24 points of passenger ships, 5 points of securing the right to use vessel mooring facilities; and (b) the Defendant’s Defendant’s Defendant’s 2 as a regular passenger transport service provider in D service routes; and (c) rendered the instant disposition of the instant conditional passenger transport service license (hereinafter referred to as “instant disposition”).

(A) Contents of the license;

○ Inputs: 24,748 tons a passenger capacity of 1,500 passenger ships (1), 120 vehicles, 22.3 knotss at speed.

○ Operation Program: Three kings per week (Sedo 6 Circuit 6)

(b) Terms of license: Reference to attached conditions;

○ Period: Within one year from the Conditional License Date (Conditional License Terms)

-To submit the results of review services of an authorized institution, such as the examination of marine traffic safety in accordance with four vessels mooring and landings, using tugboats for the safe contact of vessels when bad weather.

[Ground of recognition] Nos. 4, 5, Eul's evidence No. 8, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Unlike the initial announcement that the examination process of the selection committee of the business operator following the public offering of this case contains not less than 7 external experts, a public official belonging to the defendant is undergoing the examination process as the chairperson of the selection committee as the business operator, two executives and employees of the J (hereinafter referred to as the “J”) who are not the defendant joining the procedure of business explanation and questioning and response as the officers and employees of the defendant joining the defendant, and the committee members of the selection committee receive the business proposal of the applicant company on the date of the examination, and the committee members of the selection committee receive the business proposal of the applicant company on the date of the examination, and it is unlawful in the process of the examination, such as the process of the examination, such as the project explanation by each applicant company and the questioning and response by 15/10 on the date of the examination. Thus,

2) In the process of examining and evaluating the project proposal in accordance with the detailed evaluation criteria (hereinafter “instant standard”) set forth in the instant public offering by the selection committee members of illegal business entities, the instant disposition based on the unlawful evaluation results is unlawful as follows.

A) According to the former Enforcement Rule of the Marine Transportation Act (amended by the Ministry of Oceans and Fisheries Notice No. 2018-91, Aug. 14, 2018), the term “public notice on coastal shipping” (hereinafter “public notice of this case”) provides for the criteria for assessing the selection of coastal passenger transport service providers, etc., and provides that “the criteria for assessing the age of coastal passenger ships shall be 25 and more than 20 years and less than 5 and less than 1 year of age shall be 1 points,” and the difference between the appraisal items shall be 1 points.” The Defendant is determined as the detailed criteria for assessing the age of passenger ships in this case, unlike the contents of the public notice of this case, as the criteria for assessing the age of coastal passenger ships in this case, the Defendant shall be 25 points which are less than 1 year and less than 1 year in favor of the Intervenor, and accordingly, it shall be evaluated as 23 points in this case in accordance with the Defendant’s public notice of this case.

B) In the instant criteria, 10 points are allocated to the security items, such as vessel mooring facilities, and the Intervenor joining the Defendant should secure at least 211m wharfs at least 185m in the length of the vessel and at least 26m in the width of the vessel, and thus, it was not possible to safely raid and raid the vessel’s seat No. 180m in length, which was 44m in length.

C) The instant standard provides that three points shall be reduced in cases where a marine accident has occurred within the last three years. The Defendant’s Intervenor did not decrease even though the vessel belonging to the J, which is the same as the Defendant’s Intervenor, was able to take part in the marine accident on March 30, 2018.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) In light of the following circumstances, it cannot be deemed that there was an error of law in the examination procedure, such as the examination procedure by the Committee for Selection of Business Entities following the instant public offering, in view of the following circumstances, in which Eul’s written evidence Nos. 1, 2, B, and 3, 4, 5, and 7 (including paper numbers) are admitted to the overall purport of the pleading.

① In the process of the examination of the business operator selection committee, the director of the seafarer maritime safety division belonging to the defendant as the chairperson of the business operator selection committee was to proceed with the examination procedure, but he did not participate in the substantive examination and evaluation other than the examination procedure, and seven external members were to examine and evaluate the business proposal, so it cannot be deemed that there was an error in the structure of the business operator selection committee and the process of the examination.

② In the process of the examination of the Business Operator Selection Committee, K and L who participated in the procedures for the business explanation, questioning, and response by applying company as an officer or employee of the Intervenor joining the Defendant at the time, were in office as an officer or employee of the Intervenor joining the Defendant (K concurrently held office as an officer or employee of the Intervenor joining the Defendant joining the Defendant), and K and L cannot be deemed unlawful to have participated in the examination procedures as an officer

(3) There is no reason to deem that the members of the business selection committee have failed to examine and evaluate the project proposal in the process of examination by the business selection committee.

2) As to the unlawful assertion of evaluation contents

A) Article 2 subparag. 1 of the Enforcement Rule of the Ship Safety Act provides that "the age of a vessel means the period from the date when the vessel is advanced." The public notice of this case is 25 points, "the age of a vessel exceeding 20 years shall be assessed to not more than 5 points, and the score difference between 1 year and 20 points shall be assessed to not more than 1 point." Thus, the new vessel, which is set out in the evaluation criteria of the public notice of this case, seems to include a vessel of less than 1 year (if it is not seen as above, it would result in unreasonable results that both a vessel of 24 years and 25 years old are assessed to 0 points, and that the public notice of this case violates the evaluation criteria of the vessel of this case, which is less than 2 years old and 25 years old and later, the public notice of this case shall be deemed to have been made to have been made to have the same meaning as the public notice of this case’s 25 years old and new vessel as the evaluation criteria of the vessel of this case."

B) The secured portion of vessel mooring facilities

The criteria of this case are as follows: (a) whether it is possible to obtain the right to use mooring facilities with five points assigned to the "right to use mooring facilities" item and determined to be evaluated according to the documentary evidence of consultation with local governments or approval to use the vessel; (b) the Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s request to conduct an assessment service of ship mooring operations on the 44th line (4 parts) and the 62th line (6 parts) of the Defendant Intervenor’s Intervenor’s auxiliary vessel to conduct an assessment service on February 2018; and (c) on February 5, 2018, the Defendant’s request was made to NN Do Governor on the 44th line and 62 line line to use the vessel’s 4th line and 62 line; and (d) the Defendant’s request was made on February 20, 2018, with the results of the above assessment service to consider whether it is possible to use the vessel’s 4th line and 62th line’s 4th line.

C) As the part of the history of marine accident is a separate legal entity, and there is no evidence to acknowledge that it is practically the same legal entity, the vessel’s marine accident history under the J cannot be deemed as the marine accident history of the vessel belonging to the Defendant joining the Defendant. Therefore, deeming that the Defendant’s Intervenor did not have the marine accident history, which is the cause of decrease, to comply with the instant standard.

3) Whether the instant disposition is lawful

The instant disposition is lawful because it does not err in the process of examining the process of the business operator selection committee, and its contents comply with the evaluation criteria of the instant notice and the instant standards.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.