(영문) 서울행정법원 2016.9.9.선고 2016구합60546 판결

On March 28, 2016, the Defendant revoked the revocation of the designation of a Chinese travel agent with exclusive responsibility against the Plaintiff.

Reasons

1. Details of the disposition;

A. From the 1980s, the People's Republic of China (hereinafter referred to as "China") designated an area permitted for group tourists' 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 the travel permission system (ADR, APvvved Datus) which allows the Chinese organization tourists to be invited and contacted only by the countries that entered into an agreement with China. China designated the Republic of Korea as "China's country of departure from China" on May 1998, and the Republic of Korea was designated as the defendant, the Ministry of Foreign Affairs and Trade, the Ministry of Ministry of Ministry of 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 defendant, the Republic of China's National Female Bureau, the Ministry of Foreign Affairs, the Ministry of Foreign Affairs, and the Minister of Construction and Transportation, respectively, to negotiate various negotiations related to tourism of Chinese organizations.

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 invitation 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 in order to implement the designation, management, etc. of the “China organization tourers exclusively in charge of attracting tourists” recommended to China according to the instant visa.

D. The Plaintiff was established on May 19, 201 for the main purpose of general travel business, etc. and was designated as a exclusive travel agent by the Defendant on March 9, 2012, and was re-designated on or around December 2013. E. On the grounds that the Plaintiff, as a exclusive travel agent, was at least six points due to an administrative disposition following prior notice and the submission of opinions, the Defendant issued a disposition against the Plaintiff on March 28, 2016 to revoke the designation of a exclusive travel agent for attracting Chinese collective tourists (hereinafter “instant disposition”).

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence 9, 10 evidence, Eul evidence 1, 22, 25 evidence (including branch numbers), the purport of the whole pleadings

2. The plaintiff's assertion

A. The instant guidelines are invalid in violation of the principle of statutory reservation because they violate the principle of statutory reservation, and the instant dispositions based on the invalid guidelines are unlawful.

B. procedural illegality

In rendering the instant disposition, the Defendant did not publish in advance the criteria for disposition regarding the renewal of exclusive travel agents, and did not present the reasons for the disposition in detail.

In light of the fact that the Defendant’s 6 points reduction based on the Plaintiff’s past administrative disposition and the Defendant’s 6 points revocation of the designation of the exclusive travel agent on the ground of the fact of the decrease, which is not only unfair double restriction, but also constitutes the Defendant’s prior notification prior to the instant disposition, and that the Defendant’s 15 point out of the 15 point out of the fact of the disposition, as one of the grounds of the prior notification, set forth in the actual evaluation table, the Defendant granted the 15 point out of the 20th day of the 20th day on the 20th day on the 20th day on the 20th day on the 15th day on the 20th day on the 20th day

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Whether it violates the principle of statutory reservation

1) 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-nets and administrative rules (this part of the Defendant’s assertion is without merit. However, the Defendant’s act of creating the instant non-exclusive tour guide with China, or based on Article 8(3) of the Immigration Control Act and Article 11(1) and (2) of the Enforcement Rule of the same Act. However, each of the above provisions stated that only the representative of the organization may apply for the issuance of the previous group visa, as prescribed by the instant non-nets, is to provide the basis for allowing China to apply for the issuance of group visa at the Korean Embassy or consulate of the Central Embassy of China, and it cannot be deemed as the basis for designating the domestic exclusive tour program that can attract Chinese group tourists or the instant guidelines. However, the Defendant’s act of creating the status of exclusive tourers with China, which is basically an act of obtaining permission to attract Chinese organizations to enter into a domestic tour contract with China, and thus constitutes an act of creating the status of exclusive tour applicants with China, which is an act of being recommended by the Defendant to enter into a domestic tour contract with China.

2) The designation system of exclusive tourers and the validity of the instant guidelines

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 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 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 be determined by the legislators themselves, who are the representatives of the people, not by the administration. However, it is not possible to uniformly define what is the matter to be regulated by the legislators, and only can it be determined individually 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, Jun.

Therefore, the defendant's exclusive travel agent designation system and the guidelines of this case are contrary to the principle of statutory reservation and parliamentary reservation. ① According to the Framework Act on Tourism, the government shall devise basic and comprehensive policies on tourism promotion (Article 2). The government shall take legislative and financial measures and other necessary administrative measures to implement such policies (Article 5). (Article 5) Other necessary measures shall also be taken to strengthen overseas public relations, 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 measures (Article 10), as prescribed by the Framework Act on Tourism.

In light of the above legal principles, the mere fact that there is no need to establish a free travel network agreement with the government of China for the purpose of facilitating the attraction of Chinese group tourists. The defendant prepared the guidelines of this case for the implementation of such agreement, and designated events exclusively. ② The fact that domestic tour agents are prohibited from arbitrarily attracting Chinese group tourists in principle, and exceptionally, adopt the permission system for overseas tourism only for the country to which the agreement was concluded. The legal system of Korea is not because it adopts the permission system for attracting Chinese group travel itself, but it is not a restriction on the freedom of occupation or freedom of business for the people who operate or intend to run the business. ③ The exclusive travel agency's designation is not a mere nature that grants the right or status to enter into a free travel network agreement to the domestic company to whom it is designated, and the exclusive travel agency's exclusive travel is not in compliance with the above legal principles, and thus, it is not necessary to establish separate legal grounds because the exclusive travel agency's designation itself does not violate the principle of free travel policy. ④ Even if the exclusive travel agency's designation is not in compliance with the law.

3) A disposition agency which rendered an administrative act as to whether the revocation of the designation of the exclusive travel agent is impossible in the absence of any particular defect at the time of the disposition, even if there was no separate legal ground for the revocation of the designation after the disposition, and where there was no need to continue the original disposition, or where there was a need for the important public interest, it may revoke the designation by a separate administrative act which would lose its validity: Provided, That where the cancellation or withdrawal of the beneficial administrative disposition is made, it would infringe the right of the people already assigned. Thus, even if there is a ground for revocation, the exercise of the right of revocation, etc. is determined by comparing and comparing with the disadvantage that the other party receives only when there is a need for the important public interest to justify the infringement of the right of vested, or when there is a need to protect the interests of a third party. If the disadvantage that the other party receives is more than the need for the public interest due to the disposition, it itself is unlawful (see Supreme Court Decision 2003Du7606, Jul. 22, 2004).

B. Whether procedural illegality is procedural

1) Facts of recognition

A) The Defendant held a public hearing on exclusive travel workers in March and July 2013, and held a public hearing on exclusive travel workers under the Korean Diplomatic Association, and introduced a system for renewal of exclusive travel workers after holding a public hearing on exclusive travel workers in February and August 2013.

B) The Defendant introduced a renewal program for exclusive travel workers on September 6, 2013, notified the president of the Korea Tour Business Association of the matters of renewal evaluation and allocation. The president of the Korea Tour Business Association notified the exclusive travel workers of the results of evaluation according to the evaluation items on the same day, and notified the companies with at least 75 points out of 100 as a full-time travel workers to submit evaluation documents for implementation of the renewal program until September 23, 2013. The main contents of the above detailed evaluation criteria are as follows.

15 points for attracting tourists (15 points for attracting tourists) ② Financial soundness (Financial Safety 5 points and 5 points for operating income) ② Compliance with the legal system (10 points for leaving tourists without permission, 15 points for administrative sanctions, 10 points for qualified applicants)

(4) sales of high-value tourism products (15 points, such as medical tourism, MICE tourism, cosmetic tourism) p.m. (10 points, such as price harmony 15 points and whether social water has been caused)

C) On December 5, 2013, the Defendant notified that exclusive travel agents, including the Plaintiff, who had at least 75 points in total under the above evaluation criteria, have been re-designated as exclusive travel agents, and announced that the results of attracting, product prices, administrative restructuring, 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.

D) On September 23, 2015, the Defendant held an explanatory meeting using the electronic management system, and the Plaintiff’s employee participated in it. On October 5, 2015, the Defendant notified the head of the Korea Tour Business Association of the establishment of an electronic management system to enter the company’s performance, and notified the exclusive tourer of the establishment of the electronic management system to enter the company’s performance in the year 2014 and 2015, the Defendant was scheduled to utilize it for the re-designation in the 2015 evaluation. The president of the Korea Female Business Association notified the exclusive tourer of this on the same day.

E) On December 24, 2015, the Defendant publicly announced that the exclusive travel agents 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. The documents that the Defendant requested to submit at the time are '2015 Financial Statements Certification Institute for Reporting to the National Tax Service (Certified Tax Accountants)', 'Evidence Documents for Reporting to the National Tax Service', 'the documents that the Defendant requested to submit, 'the documents that prove the results of award, such as the signing of the standardized terms and conditions for tour interpretation guide, 'the documents that present companies-tourism interpretation guide', and MICE1

F) On March 4, 2016, the Defendant notified the Plaintiff of the fact that the Plaintiff was the cause of the instant disposition (if the number of confined persons was lower than the number of confined persons, 6 points at the discretion of the administrative disposition reduction), and the Plaintiff presented his opinion to the Defendant on March 18, 2016. The Defendant sent the renewal evaluation sheet stating the Plaintiff’s points to the Plaintiff on March 31, 2016 immediately after the instant disposition.

[Reasons for Recognition] Gap's evidence Nos. 8, Eul's evidence Nos. 3 through 5, 7, 13, 20 through 22, and the purport of the whole pleadings

2) Determination

A) Article 20(1) of the Administrative Procedures Act provides that an administrative agency shall take the necessary disposition standard in nature of the pertinent disposition.

In light of the foregoing, Article 2(2) provides that "the public announcement of the disposition standards under paragraph (1) of the same Article shall be made in a specific manner, and the public announcement of the disposition standards may not be made in cases where there are reasonable grounds to believe that it is substantially difficult in light of the nature of the relevant disposition or that it substantially undermines the safety and welfare of the public." The purpose of this system is to ensure transparency and predictability in administration by preventing the 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, as long as the nature of the relevant disposition permits it (see Supreme Court Decision 2008Du5148, Aug. 25, 201).

In determining the procedural illegality of the disposition of this case, it should be examined as to whether the above purpose of the Administrative Procedures Act was damaged, and the facts that the plaintiff re-designated as the exclusive travel agent in 2013 are as seen above, and the defendant announced the above evaluation criteria at the time of renewal system implemented in 2013 and continuously reflected the above evaluation criteria in the future. (i) The plaintiff already re-designated as the exclusive travel agent in 2013 can be seen as being notified of the above evaluation criteria, (ii) the contents of the evaluation criteria for renewal at the time of 2013 and renewal of 2015, which are the premise of the disposition of this case, are almost similar, and (iii) the contents of the evaluation criteria for renewal at the time of 2013 and the contents of the evaluation criteria for renewal at the time of 2015 are additionally reflected, and (iv) the defendant is also expected to use the evaluation management system newly introduced on October 5, 2015.

In full view of the fact that the above additional items could have been sufficiently predicted to be reflected in the evaluation because the request for submission of data related to evaluation on December 24, 2015 was made for the presentation of evaluation, and that the above additional items were requested to be reflected in the evaluation; ④ although the system of the identification system according to the administrative disposition was somewhat changed but the administrative sanctions were reflected in the evaluation of the administrative sanctions, the above evaluation system was not any difference from the time of the renewal of 2013, and it was not a matter that the plaintiff was notified in advance, and the above evaluation system could have been prepared for the plaintiff. ⑤ Since the specific allocation of the evaluation criteria is deemed to have considerable discretion for the defendant in light of administrative diversity and complexity, it is difficult to view that the defendant did not arbitrarily exercise its authority in the disposition of this case or that the plaintiff did not guarantee transparency and predictability of administration. Thus, the plaintiff's assertion that the defendant violated Article 20 (1) of the Administrative Procedures Act is without merit.

B) Meanwhile, Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall provide the basis and reasons for a disposition to the relevant party when rendering such a disposition, and the purport is to exclude the arbitrary decision of the administrative agency and to enable the relevant party to properly cope with the administrative remedy procedure. Therefore, if the relevant grounds and reasons are sufficiently known to the relevant party, and if it does not interfere with either party’s appeal and moving into an administrative remedy procedure, the disposition cannot be deemed unlawful even without specifically stating the grounds and reasons for the disposition (see, e.g., Supreme Court Decision 2015Du2024, Sept. 10, 2015).

In light of the following circumstances, the Plaintiff re-designated as the exclusive travel agent in 2013 as seen earlier, and the Plaintiff’s overall purport of the above facts and arguments, i.e., the Plaintiff received prior notice of the disposition prior to the disposition prior to the disposition of this case and presented its opinion thereon. ② The instant disposition is indicated as a ground provision in Article 3-2 of the Guideline, which includes items for renewal assessment, such as records of attracting tourists, response to government tourism policy, and financial soundness, and ③ the prior notice of the disposition of this case contains the 6 points below the holding ratio compared to the number of attractings, the reduction of the holding ratio, the reduction of the holding ratio of qualification to the number of attractings, and the Defendant sent an evaluation table stating points by evaluation items after the disposition of this case, it is reasonable to deem that the Plaintiff did not interfere with the Plaintiff’s moving to the administrative remedy procedure due to objection to the disposition of this case. Therefore, there is no error in the misapprehension of the Plaintiff’s duty of presentation of reasons for this part.

C. Whether there is substantive illegality

The detailed contents of the assessment items, allocation method, method of assessment, and method and criteria for calculation of assessment points are, in principle, assigned to the Defendant’s unique policy or autonomous judgment, which is the competent authority, and they belong to a wide range of discretion. However, it shall be deemed unlawful only where the method or criteria violate the Constitution or laws, lack of reasonableness and lack of objective legitimacy, or where it is determined that the method or criteria were considerably unreasonable or unreasonable in light of the purpose of the assessment in this case, the purpose of the assessment in question, and the purport of the relevant Acts and subordinate statutes, etc. (see Supreme Court Decision 2005Da66770, Dec. 13, 2007).

(1) Since the violation itself is an illegal behavior and eventually leads to the trend of national image and the dissatisfaction against Chinese travelers, the number of administrative dispositions, etc. is serious.

In light of administrative diversity and complexity, it seems that the defendant has broad discretion to allocate specific points to the defendant regarding the criteria for evaluation. ② Notwithstanding that the plaintiff was well aware of the contents and purport of the guidelines of this case since 2012, it was subject to corrective orders or imposition of penalty surcharges due to employment without qualifications, failure to report without permission, failure of qualification certificate, etc. (see subparagraph 23). ③ Since 15 points are granted to the plaintiff's list list No. Gad, the "low holding ratio of qualification" is merely a reason for prior notice, and it cannot be deemed that the plaintiff is a reason for the disposition of this case. ④ The defendant held a Committee for Management of Exclusive Tour with the result of the hearing and deliberated on the matters related to re-designation under the evaluation of exclusive travel agency, which were attended by various agencies, and it is hard to view that the plaintiff's disposition of this case was revoked as an administrative disposition of this case for more than 70 points or less than 70 points since it was revoked as an administrative disposition of this case's exclusive travel agency.

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.