(영문) 대구지방법원 2017.10.17.선고 2017구합21441 판결

1. Of the instant lawsuit, the part of the Defendant’s primary and conjunctive claim against the Intervenor’s Intervenor regarding the disposition of modifying the business plan on April 21, 2017 is dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Purport of claim

1. On July 23, 2015, the Defendant’s disposition to issue a non-regular coastal passenger transportation service license to the Intervenor joining the Defendant (hereinafter “ Intervenor”) on July 23, 2015 is confirmed to be invalid.

2. As to the disposition to modify the project plan issued by the Defendant against each participant on April 21, 2017 and June 15, 2017:

(a) identify that each of the above dispositions primarily is null and void;

B. Preliminary revocation of each of the above dispositions

Reasons

1. Details of the disposition;

A. On July 2015, 2015, the Plaintiff obtained a license for regular coastal passenger transportation services (hereinafter referred to as “internal passenger transportation services”) with the following contents from the Defendant and continues to operate the vessel until now.

A person shall be appointed.

B. On March 2015, the Intervenor participated in the public notice on the selection of a new passenger transportation service provider of the instant service route and was selected as a new service provider of the instant service route on July 23, 2015 (hereinafter referred to as “instant license issuance disposition”). On July 23, 2015, the Intervenor obtained a license for irregular passenger transportation services (hereinafter referred to as “instant license issuance disposition”).

(O) Number of navigations: Two kings per day, one king per day, and the time table for navigation shall be as shown in attached Table 1 of the time table for navigation.

C. On September 13, 2016, the Defendant, on September 13, 2016, revised the following contents to the intervenors:

A person shall be appointed.

D. On April 21, 2017, the Defendant issued a modified authorization for the maritime passenger transport business plan with the following content to the intervenors (hereinafter “instant modified authorization”).

A person shall be appointed.

E. On June 15, 2017, the Defendant rendered an intervenor a revised authorization for the maritime passenger transport business plan (hereinafter referred to as "the second revised authorization of this case") with the following contents as follows, and "the first and second revised authorization of this case" was "each revised authorization of this case", and "each disposition of this case and each of the modified authorization of this case" was "each disposition of this case".

A person shall be appointed.

[Ground of recognition] The fact that there is no dispute, Gap's evidence 1 through 3 (including each number in case of additional number), Gap's evidence 4-4, Eul's evidence 4, and the purport of whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. Summary of the plaintiff's assertion

1) Illegality of the instant license issuance disposition

The Defendant issued a license for non-scheduled passenger transportation services by allowing the Intervenor to operate the vessel in accordance with a certain schedule while issuing the license for this case, which is a license for non-scheduled passenger transportation services. Accordingly, the Defendant arbitrarily created the third-party passenger transportation services which are not in accordance with the Marine Transportation Act. Accordingly, the Intervenor breached the restrictive provisions under the Marine Transportation Act, such as the limitation on the minimum period of operation of the vessel to the regular passenger transportation service provider, and infringes on the existing passenger transportation service provider’s business rights. Thus, the instant license issued disposition is null and void because its defect is

2) Illegality of each of the instant modified dispositions

A) The primary argument

As long as the license issuance disposition of this case is null and void as a matter of course, each modification disposition of this case against the intervenor under the premise that the license issuance disposition of this case is valid is null and void.

B) Preliminary assertion

Even if the license issuance disposition of this case is not null and void, the provisional disposition on each of the changes in this case in itself is unlawful for the following reasons.

(1) The instant revised approval disposition was conducted without examining whether the transportation stability for the stable maintenance of the instant sea route, including the period of alternative input in wastgn, the transportation plan in ELdo, etc., and each of the instant revised approval disposition was conducted without examining whether the safety of vessels and convenience in the use of vessels was deteriorated due to differences in age, speed, speed, etc. between Snishz and the substitute vessels. Thus, the instant revised approval disposition did not meet the requirements for the revised approval of the business plan required under Article 12 of the Marine Transportation Act and Article 8 subparag. 1 and 3 of the Enforcement Decree of the said Act.

(2) Each of the instant modification orders issued by the Intervenor who has substantially obtained a license for regular passenger transportation services is in violation of Article 10 of the Marine Transportation Act regarding the limitation of the minimum period of service of a regular passenger transportation service provider to the vessel, to which the Defendant inputs a vessel, other than Salgora, into a substitute vessel, without operating Salgora for at least one year.

(3) The instant modification disposition goes against the purport of the implementation of the prior public offering system, such as passenger transportation licenses, in order to enhance the safety of vessels and induce excellent enterprises in the safety field to enter the passenger transportation services, by granting additional points to the vessels that follow all of the vessels in the age, speed, seating capacity, etc. compared to the vessels subject to the instant license issuance disposition.

(4) Each of the instant modified dispositions was abused and abused the scope of discretion by the Defendant’s input of a substitute vessel in a state short of safety standards, such as the age, capacity, speed, etc. of the vessel that the Defendant voluntarily established based on the exercise of discretion through the prior public offering procedure.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

1) The existing license system for marine passenger transportation services was operated as a kind of earlier-application system that issues a license on the condition that the applicant will secure ships, facilities, etc. by examining whether the applicant satisfies the licensing standards within a given period of time, and was issued a license unless there are special reasons, if the transport demand standards are satisfied.

2) On July 28, 2004, Dokdo Tourism Co., Ltd. obtained a service route from the Defendant as the instant service route, and obtained a license for irregular passenger transportation services with the target vessel’s seals, and operated a business in accordance with the following service hours schedule, and the Plaintiff succeeded to the aforementioned license on September 7, 201.

A person shall be appointed.

3) On June 4, 2012, the Plaintiff obtained a separate license for regular passenger transportation services from the Defendant for the service route of this case, and has been operating the vessel until now after obtaining a separate license for regular passenger transportation services with the target vessel pin.

4) On June 26, 2014, the Minister of Oceans and Fisheries, upon the sinking of the Sewol ferry on March 26, 2014, promoted the reorganization of the aforementioned license system as part of the innovation plan for safety management of coastal passenger ships to prevent the recurrence of marine accidents. However, prior to the amendment of the Marine Transportation Act, prior to the amendment of the Marine Transportation Act, he/she notified the head of a regional maritime affairs and port office, etc.

5) On March 6, 2015, the Defendant publicly announced the selection plan for non-scheduled passenger transportation business operators of the instant service route in accordance with the aforementioned policy. The Intervenor participated therein and was selected as a new business operator on April 24, 2015, and was subject to the instant disposition to issue the instant license from the Defendant on July 23, 2015. According to the instant disposition to issue the instant license, the date of construction on October 11, 201 (Decree 3 years and 6 months; hereinafter the same shall apply); the navigation speed is 38 knotss; the passenger capacity is 442 persons; the time table is as indicated in the attached Table 1 Navigation Hours.

6) On June 10, 2016, the Intervenor entered into a charter agreement with Daedo Construction Co., Ltd., which is a vessel subject to the instant disposition of issuing the instant license, to put salkhs into the service route between port and port operated by Daedo Construction Co., Ltd.

7) The Intervenor decided to put New Alleys into a vessel replacing Sallass on the instant service route, and obtained a modified authorization for the maritime passenger transport business plan from the Defendant on September 13, 2016, with the same content.

8) On January 11, 2017, the Intervenor sent to the Defendant a written request for cooperation on the following grounds: (a) on January 11, 2017, the Intervenor agreed to make an alternative ship for the expiration of the charter period of New Zealand’s shipping; (b) however, the said vessel’s arrival in the Republic of Korea and departure from the Republic of Korea requires considerable time to make an operation; and (c) on March 29, 2017, the Intervenor reported to the Defendant on the current status of the implementation plan to purchase the Swegng’s head as a temporary alternative ship for the delay of the transport

9) On September 13, 2016, the Defendant restricted the Intervenor’s input date to November 15, 2016, among the amendment authorization for the maritime passenger transport business plan, and notified the Intervenor to impose a penalty surcharge pursuant to Article 19 of the Marine Transport Act on the ground that the Intervenor’s failure to put the substitute vessel within two months after the lapse of the time limit for input, on January 17, 2017, on the ground that the Intervenor’s failure to put the substitute vessel within two months after the lapse of the time limit for input.

10) On April 21, 2017, the Defendant rendered a disposition to modify the first of this case to the Intervenor’s license vessel from New Alley to Swegn (297 gross tons). The date of construction of Swegn’s lake is January 1, 1995 (the age of 20 January 1, 1995), the number of passengers is 344, and the navigation speed is 28 knots.

11) On June 15, 2017, the Defendant issued a prior notice to the Intervenor on April 15, 2017, on the ground that the Plaintiff did not put a substitute vessel by April 15, 2017 with respect to the Intervenor, on the ground that the date of construction of the instant case was May 1, 199 (Ordinance 15, Nov. 1, 199), the passenger capacity was 414, and the navigation speed was 32 knots; 12) on April 17, 2017, the Defendant issued a second advance notice to impose a penalty surcharge on the Intervenor on the ground that the substitute vessel was not put in by April 15, 2017, on the part of the Intervenor, and that the vessel was below the vessel possession volume.

13) A total of six vessels, including the Plaintiff’s Afin and the Intervenor’s ELdo, as well as Cfind, Cfind, 1, 3, and 5, operating only the instant sea route, are operating each of the instant sea route on a day (4, including Pfind and L. also), a shooting day, or a weekend (1).

On the other hand, Dokdo is limited to only one facility that can see ships, and there is a significant change in the surrounding maritime situation such as weather and wave.

【Ground of recognition】 The fact that there has been no dispute, Gap's 1 through 3, 5, 12, 14 (including each number; hereinafter the same shall apply), Eul's 5 through 13, 15, Eul's 1 through 4, the purport of the whole pleadings, and the purport of the whole pleadings

D. Determination as to the legitimacy of the main and conjunctive claim regarding the authorization for modification of the first of this case among the lawsuit of this case

ex officio, we examine the legitimacy of the instant part of the lawsuit.

Where an administrative disposition that changes an existing administrative disposition is followed, where a subsequent disposition is entirely replaced with a previous disposition or is substantially modified with a major part, the previous disposition shall lose its effect, and only a subsequent disposition shall be subject to appeal litigation, except in extenuating circumstances.

See Supreme Court Decision 2015Du295 Decided November 19, 2015, etc.

According to the above facts, due to the Defendant’s second modification disposition on June 15, 2017, the Defendant’s second modification disposition of the instant case, which was authorized by the first modification disposition of the instant case, it can be known that the Defendant’s wagin’s wagin, a licensed vessel, was replaced by Eldo and is currently in operation up to now. As such, the second modification disposition of the instant case, which is a subsequent disposition, is entirely replaced by the first modification disposition of the instant case, becomes invalid, and only the second modification disposition of the instant case, which is a previous one, becomes subject to appeal litigation.

The primary claim seeking confirmation of invalidity of the authorization for modification of the first of this case is merely seeking confirmation of the past legal relations or legal relations, and there is no interest in confirmation, and there is no interest in the lawsuit seeking cancellation of the above disposition since the preliminary claim seeking cancellation of the above disposition is merely the cancellation of the disposition already invalidated. There is no special circumstance that the authorization for modification of the first of this case is still subject to appeal despite the authorization for modification of the second of this case.

Therefore, the part of the lawsuit of this case concerning the main and ancillary claim for the authorization of modification of the first of this case is unlawful.

C. Determination as to the illegality of the instant license issuance disposition

1) Relevant legal principles

In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect violates the important part of the law and is objectively apparent, and in determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration of the specificity of the specific case itself (see, e.g., Supreme Court Decision 94Nu4615, Jul. 11, 1995).

2) Determination

In full view of the facts acknowledged earlier in light of the relevant legal principles and the purport of the entire pleadings, there are serious defects in the instant disposition of license issuance, and such defects are objectively apparent. Therefore, the Plaintiff’s assertion on this part is without merit.

A) According to Article 3 subparag. 1 and 2 of the Marine Transportation Act, Article 3 subparag. 1 and subparag. 2 of the former Guidelines for Management including License for Coastal Transport (repealed by the Ministry of Land, Transport and Maritime Affairs No. 2008-479, Sept. 4, 2008) of the former Guidelines for Coastal Transport (repealed by the Ministry of Land, Transport and Maritime Affairs No. 2008-479), where it is necessary to ensure the convenience of residents and the continuity of navigation, a regular passenger transport business license for each navigational route should be granted for each navigational route, and where it is not necessary to secure the continuity of navigation due to the nature of the necessity of water delivery, and it is reasonable for the Defendant to issue a non-scheduled passenger transport business license to the Intervenor.

B) Also, considering that the previous Dokdo Tourism Co., Ltd.: (a) had a certain operating time table even at the time when the Defendant operated a non-scheduled passenger transportation service license with the vessel subject to the instant passenger transportation license, and (b) Articles 2, 5, 6, and 9 of the Ordinance on the Management of the Natural Protection Area of Dokdo Island (Ordinance No. 1757, Oct. 17, 2014), excluding the helicopter that entered Dokdo Island Island, the number of entrance tickets is limited to the entry of the said wharf via the landing on the wharf; (c) the number of entrance tickets of the said wharfs is limited to not more than 470 persons each time from 8 to 19 hours each time; and (d) the number of entrance tickets of the Dokdo area is limited to not more than 19 hours each time; and (e) it is necessary to ensure the safe navigation of the vessel by allocating the arrival time of the vessel operating the instant passenger transportation service to each vessel due to the unique characteristics of the navigational situation in the Dokdo area.

C) The Plaintiff asserts that the Plaintiff’s disposition of issuing the instant license was the result of the Intervenor’s evasion of various restrictions, such as the minimum service period limitation, suspension of business, etc. against the scheduled coastal passenger transport service providers under the Marine Transport Act. However, considering the fact that the Intervenor’s non-scheduled coastal passenger transport service license is merely a reflective effect following the Intervenor’s acquisition of the non-scheduled coastal passenger transport service license, and that the Plaintiff, who operates the instant scheduled passenger transport service license, can only suspend business solely with the Defendant’s notification and the subsequent Defendant’s publication,

D) Relevant statutes, such as the Marine Transportation Act, do not explicitly prohibit or punish a passenger transportation service provider operating a ship in accordance with a specified navigation schedule.

F. Determination as to the illegality of the authorization of modification of the second disposition of this case

1) Judgment on the main argument

As seen earlier, the instant license issuance disposition cannot be deemed to be null and void as a matter of course.

On a different premise from that of the former, the latter’s primary assertion is without merit without any need to examine any further.

2) Determination on the conjunctive assertion

A) Whether the requirements for the change of business plan are satisfied

According to the above facts, the second modification disposition of this case satisfies all the criteria prescribed in Article 5 (1) 2 through 5 of the Marine Transportation Act, Article 8 (1) 1 of the Enforcement Decree of the same Act, Article 5 of the Enforcement Decree of the same Act, and attached Table 2 of the Enforcement Rule of the same Act, such as the operation plan, the quantity of passenger ships owned, etc. owned, the order of the passenger ships, etc. and their navigation ability, etc., and it does not seem to have any other reason for violating the above criteria. Thus, the plaintiff's assertion

B) Whether the limitation on the minimum operating period of the vessel under Article 10 of the Marine Transportation Act is violated

As seen earlier, since the instant disposition taken to issue a license for an irregular passenger transportation business is a non-regular passenger transportation business entity, Article 10 of the Marine Transportation Act does not apply to intervenors, which are the regular passenger transportation business entity. Therefore, on a different premise, the aforementioned part of the Plaintiff’s assertion is without merit.

C) Whether the prior public offering system has been violated

As seen earlier, the authorization for modification of Article 2 of the instant case is the authorization for modification of a business plan with respect to the replacement or modification of a licensed vessel. It is a disposition that is conducted in accordance with the procedures and standards separate from the prior public offering system, such as a new license for coastal passenger transportation services and a license for coastal passenger transportation services in the event of an increase of coastal passenger transportation services. Moreover, as seen earlier, the second authorization for modification of a business plan of this case satisfies the requirements for modification of a business plan under the Marine Transportation Act.

D) Whether the discretion is deviates or abused or not

In full view of the above facts and the purport of the entire arguments, the following circumstances are as follows: ① even if the defendant designated an intervenor as a new business operator of the service route of this case through prior public offering such as a license for coastal passenger transportation services, and issued the license of this case to the intervenor, it is difficult to view that the above circumstance alone established the limit of discretionary power to only a vessel with the age and performance similar to Scraz in rendering the approval for modification of the second of this case, considering the background leading up to the second of this case and the reasons for the change, etc., it is difficult to view that the modification of the second of this case did not establish the limitation of discretionary power to only the vessel with the capacity of Scraz and performance; ② The modification of the second of this case satisfies the requirements for modification of the service plan of this case under the Marine Transportation Act, and there is no evidence to prove that the above disposition is likely to undermine the transportation stability of the service route of this case, or the safety of marine transportation; ③ the defendant made two times the time limit for modification of the license of this case to the defendant.

3. Conclusion

Therefore, the part of the lawsuit of this case, which seeks confirmation of invalidation and revocation as to the disposition of modification of the first of this case, is unlawful, and it is dismissed. The remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.