2016Guhap3000 Revocation of the revocation of the designation as a travel agent exclusively in charge of attracting Chinese organizations and tourists

Yang Life Tour Co., Ltd.

The Minister of Culture, Sports and Tourism

August 18, 2016

October 6, 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 organizations tourists, which was made against the Plaintiff on March 28, 2016.

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 foreign tourism. On June 27, 2000, the People's Republic of China (hereinafter referred to as "China") introduced a travel permission system (ADS, APvvved Dest Datus) which allows only the travel agencies recommended by the country which entered into an agreement with China to enter into an agreement with China to enter into contact with Chinese group tourists. On May 1998, China designated the Republic of Korea as the "China's Voluntary Tourism State". The defendant, the Ministry of Foreign Affairs and Trade, the Ministry of Foreign Affairs and Trade, the Ministry of Construction and Transportation, the Ministry of Foreign Affairs, and the Ministry of Construction and Transportation-Related Officers of China, which consists of the representative of the Republic of Korea, and the representative of China, which made up an agreement on various negotiations related to tourism of Chinese group tourists in the Republic of Korea 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 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. In July 1998, the Defendant enacted the Guidelines for the Implementation of the Exclusive Tour Business for Attraction of Tourist Operators (hereinafter referred to as the “Guidelines”) in order to implement the designation, management, etc. of the 'Specialized Tour Operators' recommended to China in accordance with the Round of this case.

D. On August 3, 2010, the Plaintiff was designated as a exclusive tourer from the Defendant and has been in charge of the domestic travel business of Chinese collective tourers.

E. In May 2013, the Defendant revised the instant guidelines by newly establishing Article 3-2 of the instant guidelines, and subsequently introduced a "exclusive travel agent renewal system" to the travel agent whose designation period has expired by two years, and accordingly, introduced a "exclusive travel agent renewal system" to the travel agent whose designation period has expired by reexamination.

F. On September 1, 2013, the Defendant conducted a re-examination on 143 exclusive tour operators with the exception of business entities with a designated period of less than two years among the 179 exclusive tour operators, and decided to revoke the designation of 22 business entities among them, and notified the designated business entities with prior notice and hearing procedures, and notified the relevant facts on December 5, 2013.

G. On December 24, 2015, the Defendant evaluated the performance from January 2014 to October 2015, and sent a letter to request the re-designation of 170 exclusive tour operators to submit relevant data. On March 23, 2016, the Defendant held a Committee for Management of Exclusive Tour Workers to hold a meeting of the Committee for Management of dedicated Tour and issued a letter to request the re-designation of 68 exclusive tour operators according to the criteria for revocation of designation, even if 70 points or more are less than 6 points due to administrative disposition (unqualified, etc.).

H. On March 28, 2016, the Defendant revoked the designation of exclusive tourers with respect to the Plaintiff on the ground that the evaluation score for the two-year evaluation results of the Plaintiff was less than 58 points and less than 70 points as indicated below (hereinafter “instant disposition”).

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence 3-1, 2, Eul evidence 4, Eul evidence 1, Eul evidence 3-1 through 7, Eul evidence 4-1 through 9, Eul evidence 5-1 through 11, Eul evidence 20-23, Eul evidence 25-1 and Eul evidence 25-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The purport of the plaintiff's assertion

1) Violation of the principle of statutory reservation

The instant disposition revoking the designation of the exclusive travel agent against the Plaintiff is based on the instant guidelines, which are only the internal guidelines of the administrative agency, and does not have any legal basis. Therefore, it is unlawful in violation of the principle of statutory reservation.

2) A deviation from or abuse of discretionary power

The provisions related to the electronic management system are newly established only after the period from January 1, 2014 to October 16, 2015, 2015, which is the period subject to evaluation, and it is merely an introduction for administrative convenience, and even if there was no sufficient adjustment and preparation period, it is inappropriate to reflect the evaluation that the applicant did not have the ability to perform by using the electronic management system. Furthermore, in addition, in the case of cruise tourists entering Jeju-do, the Plaintiff is running a business for cruise tourists who entered Jeju-do, while the number of cruise tourists did not reach the rate of attracting foreign currency transactions is less than the number of tourists residing in the Republic of Korea due to the nature of the time for resolving the board and lodging on the board and staying in the Republic of Korea, and it is unfair to assess the price per capita by dividing the foreign currency transaction amount by the unit price per person, which is too unfavorable to the Plaintiff, such as the Plaintiff.

As such, the defendant's evaluation method is unfair, on the other hand, the plaintiff is unable to attract Chinese tourists due to the disposition of this case, and the contract with Chinese tourists, which has been detained, is revoked, and the transactional relationship with Chinese side is interrupted, etc. Therefore, the disposition of this case is in violation of the principle of proportionality, and is in violation of the principle of proportionality, thereby abusing and abusing discretionary power.

B. Details of the instant guidelines

It is as shown in the attached Form.

C. Determination

1) Whether it violates the principle of statutory reservation

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 designation of exclusive tourers would be based on the instant non-uses and the instant guidelines corresponding to the administrative rules. However, the Defendant entered into the instant non-uses with China, following which the non-uses of this case were followed.

In other words, domestic travel agents, who were not designated as exclusive travel agents in accordance with the Chinese travel permission system, are prohibited from attracting Chinese group tourists, and only domestic travel agents designated as exclusive travel agents and recommended by the defendant, have the status to enter into a recruitment contract for Chinese organization tourists. Therefore, the designation of exclusive travel agents is an act that creates the legal effect of establishing the right to enter into a contract for attracting Chinese group tourists, and constitutes an administrative disposition that is subject to appeal litigation, and such designation of exclusive travel agents is basically a creation of a certain right or status, and constitutes a beneficial administrative act.

B) The principle of statutory reservation and the principle of parliamentary reservation that a formal legal basis established by the National Assembly is required for the designation system of exclusive travel agents and the effective administrative action of the instant guidelines, not merely if administrative action is based on the legal basis, but also if it is sufficient to say that the state community and its members have a fundamental and important meaning, in particular, an area pertaining to the realization of the fundamental rights of the people, and the need for the legislators, who are the representatives of the people, to decide on the essential matters. However, it is not possible to uniformly define what matters to be regulated by the legislators, and it is only possible to separately determine by taking into account the importance of the 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 voluntarily regulate by law (see, e.g., Constitutional Court en banc Decision 2015Hun-Ba125, Jun. 30, 2016).

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) In addition, the government shall strengthen overseas public relations, improve entry and departure procedures and take other necessary measures to promote the attraction of foreign tourists (Article 7), and also shall guide and supervise the tourism business and take other necessary measures (Article 10). The defendant is a competent authority that is obligated to take various measures and measures related to tourism as prescribed by the Framework Act on Tourism to promote the attraction of Chinese collective tourists.

6) Since the government of this case entered into an agreement with the government of this case, the defendant prepared the guidelines of this case in order to implement the matters stipulated in the agreement and designated events by the government of this case. 2) The fact that domestic travel agents are prohibited from attracting foreign tourists in principle, and exceptionally, they adopted the permission system for overseas travel only for the countries which entered into the agreement. The legal system of Korea is not to restrict the freedom of occupation or freedom of business for the people who run or intend to run the travel business. 3) The designation of exclusive travel agents is merely characterized by giving the rights or status to enter into the agreement of Chinese travel agents, and it is not necessary to establish a separate legal basis because the designation of exclusive travel agents is not in itself supported by the legislation of this case. 4) The mere fact that the designation of exclusive travel agents is not in compliance with the legislative guidelines of this case to ensure that the exclusive travel agent is not in compliance with the legislative guidelines of this case, and it is not contrary to the legislative guidelines of this case and thus, it cannot be viewed that the exclusive travel agent's legal nature belongs to the other party and discretion.

C) If there is no legal basis for the revocation of the designation of the exclusive travel agent, the disposition agency, which conducted an administrative act as to whether it is impossible to cancel the designation of the exclusive travel agent, may, even if there was no particular defect at the time of the disposition, and even if there was no separate legal basis for the withdrawal after the disposition, withdraw it by a separate administrative act which would lose its validity where there was a change in circumstances where it is no longer necessary to continue the original disposition, or where it is necessary for the important public interest. However, in the case of cancellation or

Even if there are grounds for revocation, etc., the exercise of the right of revocation, etc. shall be determined by comparing and comparing the disadvantages suffered by the other party only when it is necessary for the important public interest to justify the infringement of the right of vested interests or when it is necessary to protect the interests of a third party. In a case where the disadvantages, etc. suffered by the other party are enormous than necessary for the public interest due to such disposition, the exercise of the right of revocation, etc. itself is unlawful (see, e.g., Supreme Court Decisions 2003Du7606, Jul. 22, 2004; 2003Du10251, Nov. 26, 2004).

The disposition of this case is a withdrawal of the act of designating the plaintiff as the exclusive travel agent but loses its validity according to the circumstances that occurred after the designation. In light of the legal principles as seen earlier, even if the defendant did not have any legal grounds in designating the plaintiff as the exclusive travel agent, the disposition of this case cannot be viewed as unlawful merely on the ground that the defendant did not have any legal grounds in making a decision to withdraw it.

D) Sub-committee

Therefore, the disposition of this case is not illegal because it violates the principle of statutory reservation, and the plaintiff's assertion on this part is not accepted.

2) Whether the discretion is deviates or abused

(5) It is unlawful to view that the Plaintiff’s prior evaluation results are less than 1 per head of the Si/Gun/Gu under the premise that it is difficult to use the previous evaluation results for the sake of public interest, and that it would be less than 1/3 of the evidence and evidence No. 7; 1/3 of the evidence No. 9; 11/3 of the evidence No. 10; 1 through 12; 1/3 of the evidence No. 12; and 14-1 through 17; 18-2 of the Si/Gun/Gu under the premise that it is difficult to use the previous evaluation results for each head of the Si/Gun/Gu under the premise that it is difficult to use the previous evaluation results for each head of the Si/Gun/Gu under the premise that the previous evaluation results are less than 1/100, 2/18-1, 19-2, and 3-2 of the Si/Gun/Gu under the premise that the previous evaluation results are less than 1/3 of the Si/Do under the following circumstances.

In full view of the following facts: (a) the introduction of the shape of a flag-type tourism to prevent such loss as excessive shopping commission is recognized as legitimate as it was introduced to prevent it; (b) the Plaintiff’s operation as a exclusive travel agent against Chinese tourists, etc. is restricted due to the instant disposition; but (c) the Plaintiff is not subject to any restriction in conducting general travel agency business; (d) it is reasonable to deem that the need for public interest to operate the exclusive travel agency system in a sound and orderly manner is greater than the disadvantage suffered by the Plaintiff due to the instant disposition, and therefore, it is difficult to deem that the instant disposition was in violation of the law of deviation from and abuse of discretion.

Therefore, we cannot accept this part of the plaintiff's assertion.

3. 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, Yoon-sung

Judges Kim Jae-han

Judges Civil Service Bureau

1) Since the date of disposition stated in the complaint’s purport is obvious that it is a clerical error, such correction shall be made ex officio.