2016Guhap58635 Chinese organizations for attracting tourists, and disposition of cancellation of designation as tourers.

(b) cancellation.

National Tour Co., Ltd.

The Minister of Culture, Sports and Tourism

August 19, 2016

September 2, 2016

1. The plaintiff's claim is dismissed.

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

On March 28, 2016, the Defendant revoked the revocation of the designation of the exclusive travel agent for attracting Chinese group tourists.

1. Details of the disposition;

A. From the 1980s, the People's Republic of China (hereinafter referred to as "China") designated an area where group tourists are permitted to travel in consultation with the government of each country in order to control the overseas tourism of its citizens. On June 27, 2000, the People's Republic of China (hereinafter referred to as "China") introduced a travel permission system (ADR, APVV) that allows the Chinese organization tourists to enter into an agreement with China and to enter into contact with each other. On May 1998, China designated the Republic of Korea as "China's free departure tourism country". On June 1998, China designated the Republic of Korea as the defendant, the Ministry of Foreign Affairs and Trade, the Ministry of Foreign Affairs, the Ministry of Construction and Transportation, the Ministry of Foreign Affairs, the Ministry of Construction and Transportation, and the Ministry of Construction and Transportation related officials of the Chinese government, the representative of the Chinese government, composed of the two countries's national leisure countries, the Ministry of Foreign Affairs, and the Minister of Foreign Affairs, on June 27, 2000>

B. The main contents of the records of this case are as follows.

1) The Chinese side shall have 34 Chinese travel agents, who are licensed, take charge of Korean tourism services, and enter into a collective tourist recruitment and reception contract by finding a partnership among the competent and reliable travel agents recommended by the Korean side.

2) The Korean side shall recommend 35 Korean events with credit and with good financial situation and service circumstances as the national tourist travel agency, among those events.

3) 34 travel agencies designated by the Chinese side shall designate full-time personnel to take exclusive charge of the organization tourism visa affairs of the Embassy of the Republic of Korea (consular missions) in the Republic of China, and when those full-time personnel apply for a group tourism visa to the Embassy of the Republic of Korea (consular missions) in the Republic of Korea, the agency will provide convenience and issue the visa as soon as possible, unless there

C. On July 1998, the Defendant enacted the Chinese organization tour guide for attracting tourists (hereinafter “the instant guide”) around July 1998 to implement the designation, management, etc. of the “exclusive tour guide for attracting tourists to China” (hereinafter “exclusive tour guide”).

D. The Plaintiff was established on April 16, 2010 for the main purpose of general travel business and overseas travel business, and was designated as a exclusive travel agent by the Defendant on March 9, 2012.

E. While the Plaintiff, as a exclusive tourer, was engaged in the domestic travel business of Chinese organization tourists, the Defendant issued a corrective order on May 8, 2014 with employment without qualification, imposed a penalty surcharge on November 17, 2014, imposed a corrective order on the Plaintiff on December 30, 2014, and issued a corrective order on the Plaintiff for non-compliance with the report without permission and failure of qualification certificate, applying the reduction point of six points according to the administrative disposition on March 28, 2016 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 4, Eul evidence 1, Eul evidence 21, Eul evidence 25-1 and Eul evidence 25-2, and the purport of the whole pleadings

2. The plaintiff's assertion

A. The instant guidelines merely constitute a mere internal rule that does not have the binding force on the Plaintiff, and thus, are unlawful. (b) The Plaintiff’s low holding ratio due to the characteristics of Jeju-do tourism with a non-legal term. The Plaintiff’s corrective order or imposition of penalty surcharge due to the instant guidelines is due to the violation of the instant guidelines, which is merely a minor part of the said guidelines, and the Defendant’s failure to comply with the instant guidelines is no relation to the public interest of “the eradication of Chinese organization tourism.” However, the Defendant’s execution of the instant disposition, which is not different from the closure of business, is excessively excessive to the degree of the private interest infringed on by it compared to its public interest purpose, thereby deviating from and abusing its discretionary power.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Legal nature of the act of designating exclusive tourmen

The term "administrative disposition", which is the object of an appeal litigation, refers to, in principle, an act of an administrative agency's public law, which directly affects the rights and obligations of the general public by ordering the establishment of rights or the burden of obligations, or giving rise to other legal effects, with respect to a specific matter under the relevant laws and regulations. However, even if the grounds for a certain disposition are stipulated in the administrative rules, if such disposition orders the other party to establish rights or the burden of obligations, or causes other legal effects, and thereby directly affects the other party's rights and obligations, it constitutes an administrative disposition subject to an appeal litigation even in this case (see Supreme Court Decisions 2001Du3532, Jul. 26, 2002; 2003Du10251, Nov. 26, 2004).

The act of designating exclusive tourers is based on the instant guidelines corresponding to the instant non-resident records and administrative rules (this part of the Defendant’s assertion is not acceptable), however, the Defendant asserted that the act of designating exclusive tourers or the instant guidelines are based on Article 8(3) of the Immigration Control Act and Article 11(1) and (2) of the Enforcement Rule of the same Act, but each of the above provisions was prescribed to allow only the representative of the organization to apply for the issuance of the previous group visa. As prescribed by the instant non-resident records, China’s travel agencies, and China’s Embassy, and China’s Embassy or consulates, designated by China to apply for the issuance of group visa, and it cannot be deemed as a ground provision for the designation of domestic exclusive tour events that may attract Chinese group tourists, or the instant guidelines. However, the Defendant concluded the instant non-resident list with China, and obtained permission to attract Chinese group tourists, and it can be concluded only between China and China’s travel agencies that are exclusively in charge of collecting Chinese tourism contracts.

Domestic travel agencies which are not designated as exclusive travel agencies are prohibited from attracting Chinese organizations tourists, and only domestic travel agencies designated as exclusive travel agencies by the defendant and recommended to China.

The designation of exclusive tourers is an administrative disposition that generates legal effect that establishes the right to enter into a contract for attracting Chinese group tourists, which is subject to appeal litigation, and such designation of exclusive tour operators is basically a creation of a certain right or status and constitutes a beneficial administrative act.

B. The designation system of exclusive travel agents and the validity of the guidelines of this case

The plaintiff asserts that the designation system of exclusive tour operators is not based on legislative grounds and that the implementation in accordance with the instant guidelines is contrary to the principle of statutory reservation and the reservation of the Council.

The principle of statutory reservation and parliamentary reservation that a formal legal basis established by the National Assembly is required in an administrative action is not sufficient if the administrative action merely serves as the basis of 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, and the degree and method of regulation or infringement. 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 law (see, e.g., Constitutional Court en banc Decision 2015Hun-Ba

Therefore, as to whether the defendant's exclusive tourr designation system and the guidelines of this case are contrary to the principle of statutory reservation and parliamentary reservation, the government shall devise basic and comprehensive policies on tourism promotion (Article 2). Under the Framework Act on Tourism, legislative and financial measures and other necessary administrative measures shall be taken to implement such policies (Article 5), and other necessary measures shall also be taken to strengthen overseas public relations, improve entry and departure procedures and take other necessary measures (Article 7), and guide and supervise tourism business and take other necessary measures (Article 10) in order to promote tourism business. (2) The defendant is authorized to enter into agreements with the government of China with the authority to devise various measures and measures related to tourism business as prescribed by the Framework Act on Tourism with the aim of promoting the attraction of Chinese collective tourers, and (3) the defendant shall prepare the guidelines of this case to implement such agreements, and (4) designate the events of this case to be exclusively in charge, and (4) designate the events to attract foreign tourist voluntarily among the domestic tour organizations that are not allowed to attract foreign tourists.

8) The mere fact that an agreement was concluded by the State to grant permission for overseas tourism pursuant to the procedures set forth in the agreement is that, in principle, it is not because the legislative system of Korea adopts the permission system for overseas tourism. The mere fact that the exclusive travel system itself does not restrict the freedom of occupation or the freedom of business to the citizens who intend to operate the business. Rather, the exclusive travel system does not have the nature of giving the designated local government the right to enter into the contract, and the designation itself does not require any separate legal basis, and the legal nature of the exclusive travel system is beneficial to the other party, and the exclusive travel system does not violate the law, and thus, it is not necessary to establish a separate legal basis for the revocation of the designation of the exclusive travel system, even if the exclusive travel system does not violate the law, and thus, it cannot be deemed that the exclusive travel system of this case is invalid for the mere reason that the exclusive travel system would not violate the law of this case to ensure that the exclusive travel system would not have any effect.

(d) Whether the discretion has been exceeded and abused;

1) The instant guidelines constitute administrative rules, which provide for matters necessary for the designation, management, and operation of the Republic of Korea tourism. Generally, administrative rules only have effect within the administrative organization, but do not have external binding force. However, in cases where the delegated administrative agency grants specific authority to specify specific matters in the relevant statutes and regulations without specifying the procedures or methods for the exercise of its authority in the form of administrative rules, such administrative rules are combined with those of the administrative rules so that the administrative guidelines can become effective as an order with external binding force (see, e.g., Supreme Court Decision 97Nu1915, Jun. 9, 198). If the instant guidelines were enacted to ensure that the designation of the Ministry of Justice is not carried out for a certain period of time, and thus, the administrative rules, which are guidelines for the enforcement of the instant guidelines, are inconsistent with those of the Ministry of Justice, and thus, are not in violation of the principles of equality and quality control of the relevant administrative agency, and thus, the administrative agency’s measures are not in violation of the principles of equality and enforcement of the guidelines (see, e.g.

2) Furthermore, the Plaintiff was designated as a exclusive travel agent from 2012 to have well known the contents and purport of the instant guidelines. However, the Plaintiff was subject to a corrective order or penalty surcharge due to employment without qualification, failure to report without permission, failure of qualification certificate, etc., the act of violation itself is an unlawful behavior, which eventually leads to an important public interest evaluation element. After the Defendant’s final evaluation with materials reflecting the hearing results, it was held by the Committee for Management of Exclusive Tour Agents present at the above agencies and deliberated on the matters related to the re-designation based on the evaluation of the exclusive travel renewal system. The Plaintiff’s 2-year evaluation results of the above deliberation, and 70 or more companies with 6 or more points out of the above 2-year evaluation results, and the Plaintiff’s 6 or more exclusive travel agencies’ 6 or more points were revoked due to the revocation of designation, and the Plaintiff’s 2-year exclusive travel organization’s 30 or more grounds for revocation of designation of the Plaintiff’s 2-year exclusive travel business, etc. have no other reasons for the Plaintiff’s revocation of the Plaintiff’s business of this case’s tort.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge, the Deputy Judge;

Judges Cho Sung-sung

Judges Kim Young-young