(영문) 대구고등법원 2018.6.15.선고 2017누7307 판결

The judgment of the court of first instance is revoked. The defendant's disposition to issue non-scheduled coastal passenger transportation services (hereinafter referred to as "license disposition of this case") against the intervenor joining the defendant on July 23, 2015 (hereinafter referred to as "participating") confirms that the disposition to issue non-scheduled coastal passenger transportation services is null and void. In the first instance, the defendant's disposition to modify each business plan on April 21, 2017 and June 15, 2017 (hereinafter referred to as "the first disposition to approve changes", "the second disposition to change the title", "the second disposition to change the title", and all of these dispositions are revoked in all preliminary cases.

Reasons

1. Details of the disposition;

A. On June 19, 2012, the Plaintiff obtained a license for regular coastal passenger transportation services from the Defendant (hereinafter “instant sea route”) on July 20, 2015, and obtained a renewed license on July 20, 2015. The main contents are as follows.

A person shall be appointed.

B. On July 23, 2015, the Intervenor obtained a license for non-regular coastal passenger transportation services on the instant service route from the Defendant (the instant license disposition), and the main contents are as follows.

A person shall be appointed.

C. On September 13, 2016, the Defendant changed the vessel subject to the instant license disposition from 'Salgorahhh' to 'New Alleyh' as follows, and revised the maritime passenger transport business plan to 'New Alleyh'.

1. Approval of the business plan for marine passenger transportation services: The type of the services: Ulleung-dong passenger transportation services; 3. Approval of the modification of the ○ licensed vessel operation hours: attached 2 (Adjustment due to the change of the operating hours of substitute vessels);

D. On April 21, 2017, the Defendant: (a) changed the vessel subject to the instant license disposition from the “New Alley Lone Star to the “wastn Lake” to the “wastn subparagraph,” and (b) changed the maritime passenger transport business plan (a). At the time, the license is indicated only as the “illegal operation frequency” column; and (c) did not entirely state the matters concerning the schedule of operation time.

A person shall be appointed.

E. On June 15, 2017, the Defendant, on the part of the intervenors, changed the vessel subject to the instant license disposition from 'Swegn,' to 'Swegn,' even if 'Swegn,' (the 'Swegn, the name before the change'). At the time, the Defendant also stated the 's license' as the 'number of navigation hours' only as the 'number of navigation hours', and did not stipulate at all the matters concerning the schedule of navigation hours.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4 (including provisional number; hereinafter the same shall apply), Eul evidence 4, the purport of the whole pleadings

2. Whether the instant license disposition is invalid

A. The plaintiff's assertion

Although the Defendant issued an intervenor a license for non-regular coastal passenger transportation services on the instant service route formally, the Defendant issued a license for regular coastal passenger transportation services by operating it in accordance with a specified service schedule. Accordingly, even though the intervenor is guaranteed to operate a regular coastal passenger transportation services in substance while operating it, it is not subject to restrictions on regular passenger transportation services under the Marine Transportation Act, such as the minimum service period of the vessel or the restriction on suspension of business pursuant to the formal non-scheduled license. This is illegal as granting a license for regular and non-scheduled coastal passenger transportation services at will in violation of the Marine Transportation Act, which allows the Defendant to issue a license for regular and non-scheduled coastal passenger transportation services, and accordingly infringes on the Plaintiff’s right to operate the Plaintiff’s existing regular passenger transportation services on the instant service route. Accordingly, the instant license constitutes the invalidity of the validity of the pertinent license, because

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Relevant legal principles

○ In order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient. The defect is a serious violation of the important part of the law, and objectively apparent. In determining whether the defect is significant and apparent, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see, e.g., Supreme Court Decision 2005Du14363, Jun. 30, 2006).

○ In a case where an administrative disposition was taken by applying the provisions of a certain Act to a certain legal relationship or fact-finding, there is no room for dispute over the interpretation of the said provision because the legal doctrine clearly stated that the said provision cannot be applied to such legal relation or fact-finding, and thus, if an administrative agency takes the disposition by applying the said provision, it shall be deemed that the defect is significant and obvious. However, if there is room for dispute over the interpretation of the said provision because the legal doctrine is not clearly revealed as to the legal relation or fact-finding, it cannot be said that even if an administrative disposition was taken by an erroneous interpretation and a mistake of the fact of the requirements for the disposition, it cannot be said that the defect is evident (see, e.g., Supreme Court Decision 2009Du282

D. Determination

1) According to the former Marine Transportation Act (amended by Act No. 14748, Mar. 21, 2017; hereinafter referred to as the "former Marine Transportation Act"), regular coastal passenger transportation services are services that operate along a specified service route and schedule between domestic ports (Article 3 subparag. 1); and non-regular coastal passenger transportation services are services that operate without complying with a specified schedule between domestic ports (Article 3 subparag. 2). However, as seen earlier, on July 23, 2015, the Defendant issued the instant license for non-scheduled coastal passenger transportation services to the intervenors on July 23, 2015, and issued the instant license for non-scheduled coastal passenger transportation services to the intervenors on “number of navigations” column of “number of navigations” (the same as “number of non-scheduled one day per day and one day per hour,” and Article 3 subparag. 2 of the former Marine Transportation Act provides that the instant license violates Article 3 subparag. 3 of the former Maritime Transportation Act.

2) However, in light of the following circumstances that can be seen by comprehensively taking account of the aforementioned facts, the aforementioned quoted evidence, and each of the statements in subparagraphs B and B Nos. 1 through 15, it is insufficient to recognize that the instant license disposition constitutes an invalidation of abrupt, as the above defects are significant and apparent. Thus, the Plaintiff’s assertion on this part is without merit.

① On March 31, 2015, the Defendant made it clear that the Defendant is a public invitation to select an operator of passenger transportation services who will not engage in inland navigation. Of the instant license’s license, “type of business” was indicated as “non-regular coastal passenger transportation services” in the “type of the instant license,” and Paragraph 19 of the said license’s condition stated that “it shall use mooring facilities and not interfere with regular coastal passenger transportation services,” which is an existing passenger vessel, at the time when the instant passenger vessel is not scheduled to contact (including where the instant passenger vessel is scheduled to contact with a change in its business plan) and that the instant license is subordinate to the instant regular license. Therefore, the instant license disposition is merely an issuance of a license that is formally and practically denied all, and cannot be deemed an issuance of a substantive regular license.

② The instant sea route constitutes a case where it is not necessary to ensure the continuity of navigation because it is mainly used for tourism and is related to the transportation of island residents. The Minister of Oceans and Fisheries also designated the instant sea route as an irregular sea route when publicly announcing the coastal passenger transportation route pursuant to Article 5-2 of the former Marine Transportation Act and Article 5-2(1) of the Enforcement Rule thereof on July 6, 2015.

③ According to the “Ulleung-gun’s Ordinance on the Management of the Natural Protection Area of Dokdo Island (Ordinance No. 1757, Oct. 17, 2014), the audience of Dokdo shall enter the wharf of Dongdo (Article 2 subparag. 3 and 5), the viewing hours are limited from 8:0 to 19:0 (Article 6); the number of passengers available for entering the port is maximum 470 (Article 9(1)); and the number of passengers’ vessel entering the port of Dongdo is limited to not more than 10 times in principle on May and June, 200 (Article 9(2)). In addition, in the case of the instant sea route of this case, the number of passengers’ vessels entering the port of Dongdo is limited to not more than 10 times per day, and only one vessel entering the port of Dongdo is bound to embark and disembark by taking into account the frequency of operation or the frequency of operation freely, including the frequency of operation of passenger transport service operators.

④ On September 7, 2011, the Plaintiff succeeded to a license for non-scheduled passenger transportation services in the instant service route from Dokdo Tourism Shipping, and operated the scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopics from September 17, 2015 until the said license was revoked. The current scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopicsc

⑤ In the case of scheduled coastal passenger transportation services, the minimum period of operation of a vessel (Article 10 of the former Marine Transportation Act) or the period of suspension of operation (Article 18 of the former Marine Transportation Act) is to ensure that the operation of the vessel is determined thoroughly taking into account the fact that the operation of the vessel is almost the only means of transportation for the island citizens. Therefore, insofar as the Defendant deemed unnecessary to limit the operation of the vessel on the instant sea route and issued the instant license by designating the type of non-scheduled coastal passenger transportation services as the type of the instant service, it is difficult to deem that the aforementioned restrictive

Furthermore, the schedule of operation hours of irregular licenses is only a subordinate relationship to be changed as a result of the change of scheduled operation hours of licenses (see Article 13 of the above licensing conditions). Therefore, it is difficult to view that the existence of the schedule of operation hours alone constitutes a regular license.

3. Whether the authorization of modification of each of the instant dispositions is legitimate

A. The plaintiff's assertion

1) The primary argument

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

2) Preliminary assertion

Even if the licensing disposition of this case is not null and void, each modification disposition of this case should be revoked on the following grounds.

A) Since each of the instant dispositions was conducted without examining whether the stability of vessels and convenience in use would be undermined due to differences in the age, speed, speed, etc. of vessels between Sshacks and substitute vessels, each of the instant dispositions did not meet the requirements for authorization for change of business plans required under Article 5(1)3 and 4 of the former Marine Transportation Act and Article 8 Subparag. 1 of the former Enforcement Decree of the Marine Transportation Act (amended by Presidential Decree No. 28335, Sept. 19, 2017; hereinafter “former Enforcement Decree of the Marine Transportation Act”).

B) The instant disposition constitutes a substantial issuance of a license for regular coastal passenger transportation services, and thus, the limitation on the minimum period of vessel operation under Article 10 of the former Marine Transportation Act applies to intervenors. The instant disposition authorizing the Intervenor to input the instant vessel by replacement of another vessel, which did not navigate New Alley and Swegs on the instant sea route for at least one year, constitutes a violation of Article 10 of the former Marine Transportation Act.

C) The instant modification disposition is inconsistent with the purport of the implementation of each of the instant licenses, such as licenses for passenger transportation services, etc., to enhance the safety of vessels by granting additional points to new shipbuilding vessels and safety-related excellent enterprises, etc., and induce excellent business operators to enter the new passenger transportation services, etc., in comparison with Sshackra, which is the vessel subject to the instant license disposition.

D) Since the instant modification disposition puts 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 discretionary power through the prior public offering procedure, it exceeded and abused the scope of discretionary power.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

1) On October 11, 2011, Snick, 38G/T, the date of construction (three years and six months of age at the time of disposition), 38 knots, passenger capacity of 442, and at the time of business selection examination, the Intervenor was at the age of 12/15, speed of 5/5, passenger capacity of 3,75/5. 2) on June 10, 201, Snick Raz was set at the charter period for the Dan Construction Co., Ltd., Ltd., and the Intervenor was no longer able to navigate the instant sea route. Accordingly, the Intervenor filed an application to the Defendant for the revision of the business plan after September 13, 2016, and changed the business plan from September 13, 2016 to 16, the Intervenor was no longer prepared to replace 16,000,000 on the instant sea route to 16. 16. 16. 20

3) On January 11, 2017, the Intervenor notified the Defendant on January 11, 2017 that he would put Sto the Defendant into the substitute vessel of New Alley, and that he would seek cooperation since the actual port of entry requires considerable time. On March 29, 2017, the Intervenor reported the current status of the implementation plan to purchase S to the Defendant with temporary substitute vessels due to the delay in transportation of the said vessel.

4) On January 17, 2017, the Defendant notified the Intervenor that he would take the second administrative disposition on March 29, 2017, when he/she did not put the substitute line by the deadline for license under Article 5(1)5 of the former Marine Transportation Act, and two months (from November 16, 2016 to January 15, 2017) have passed after failing to meet the criteria for license under Article 5(1)5 of the former Marine Transportation Act. At the same time, the Defendant issued a prior notice of disposition that he/she would take a penalty surcharge under Article 19 of the former Marine Transportation Act, and at the same time urged the obligor to faithfully implement matters in accordance with the delivery and takeover plan of the substitute vessel, and notified the Intervenor that he/she would take the second administrative disposition if he/she did not put the substitute line by the deadline. 5) On March 29, 2017, the Intervenor would delay to arrive at the Busan Port, so that he/she would purchase the current status of the alternative line from 14.

6) Nevertheless, by April 15, 2017, the Intervenor did not put a substitute on the instant sea route, and the Defendant issued a prior notice on April 17, 2017 that the Intervenor would impose a secondary penalty surcharge on the Intervenor due to the shortage of the amount of vessel possession pursuant to Article 5(1)5 of the former Marine Transportation Act.

7) On April 21, 2017, the Defendant issued a disposition to grant authorization for the first modification of a licensed vessel to an intervenor on April 21, 2017. The Defendant: (a) on January 1, 1995, the total tonnage of 297G/T; (b) the date of construction; (c) the navigation speed of 28 knots; and (d) the number of passengers 344. The Defendant issued a disposition to grant authorization for the second modification of a licensed vessel to the Intervenor on June 15, 2017; (d) the date of the construction; (e) the total tonnage of 668G/T; (e) the date of the construction; (e) the date of the construction; (e) the date of the construction; (e) the date of the construction; (e) January 1, 199; and (e) the date of the construction; (e) the number of passengers at issue; (e) the date of the construction; (e) the date of construction; (f) the date of the construction;

D. Whether the part of the lawsuit of this case pertaining to the first modification disposition is legitimate

1) Relevant legal principles

Where an administrative disposition that changes an existing administrative disposition is followed, in cases where a subsequent disposition is entirely substituted with a previous administrative disposition or is substantially modified with a major part, the previous disposition loses its effect, and only a subsequent disposition is subject to appeal litigation (see, e.g., Supreme Court Decision 2015Du295, Nov. 19, 2015).

2) Determination

According to the above facts, each of the instant licenses changes only to the “ship subject to the instant licenses,” and the vessel was changed to the “waitin,” due to the first license modification disposition, and the said vessel was changed to the “waitin,” even with the second license modification disposition. Accordingly, the vessel subject to the instant license disposition is currently EL even EL, and the Intervenor was no longer able to operate the wait in the instant service route.

In light of these circumstances in light of the above legal principles, the first revised disposition, which is the previous one, shall be deemed to have been completely replaced and extinguished by the second revised disposition, and it cannot be deemed that only a part of the content is added, withdrawn, or changed on the premise that the second revised disposition is still effective.

Therefore, the first disposition for the first modification is invalid, and only the second disposition for the second modification is subject to an appeal litigation. Therefore, the first disposition for the first modification of the lawsuit in this case should be dismissed in entirety as it is unlawful.

E. Whether the second authorized disposition is lawful

1) Judgment on the main argument

As seen earlier, the instant license disposition cannot be deemed as null and void as a matter of course. As such, the Plaintiff’s primary assertion that the instant license disposition is null and void as a matter of course is without merit.

Even if the number of flights and the part of the time schedule stated in the instant license disposition are significant and clear, according to the respective statements in Gap evidence 3 and Eul evidence 4, the Plaintiff’s above assertion premised on the existence of the above defect is without merit without further review, on April 21, 2017, or on the certificate of June 15, 2017, 2017, i.e., "the number of flights" is indicated as "the number of flights" and the number of flights and the number of flights already extinguished at the time of the first authorization disposition. Thus, the above defect is merely a defect that does not exist at the time of the second authorization disposition.

2) Determination on the conjunctive assertion

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

According to the above facts, ELD also satisfies the requirements of 20 years or less of the age limit of 18 January, 198 (Article 5(2) of the Enforcement Rule of the Marine Transportation Act) at the time of the second authorization for the change of the number of passenger ships (Article 5(1)2 of the Enforcement Rule of the Marine Transportation Act). The total tonnage of 668 tons meets the requirements of 100 tons of the number of passenger ships owned (Article 5(1)

Therefore, the second modification disposition satisfies all the criteria prescribed in Article 5(1)2 through 5 of the Marine Transportation Act, Article 8 subparag. 1 of the Enforcement Decree of the same Act, Article 5 and attached Table 2 of the Enforcement Rule of the same Act, such as its operation plan, the number of passenger ships, etc., the age and capacity of passenger ships, etc., and the ability to operate such passenger ships, and the second modification disposition is insufficient to reverse the above judgment on the sole basis of the fact that the age, capacity, and speed of the vessel at the time of the instant license disposition does not fall short of the age, capacity, and speed of the vessel at the time of the instant license disposition. Therefore, the Plaintiff’s assertion that the second modification disposition did not meet the requirements for the second modification of the business plan under the

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

Article 10 of the former Maritime Transportation Act applies only to licenses for coastal passenger transportation services. This case’s license is identical as seen earlier, and thus, Article 10 of the former Maritime Transportation Act does not apply to intervenors. Therefore, this part of the Plaintiff’s assertion on the premise that this case’s license is subject to regular licenses is without merit.

C) Whether the prior public offering system has been violated

As seen earlier, the second modification disposition is an authorization for the modification of a business plan with respect to the replacement or modification of a licensed vessel. This is a disposition that takes place in accordance with the procedures and standards separate from the pre-public offering, which is applied to the procedures for the selection of a business operator at the time of the increase of vessels for coastal passenger transportation services. Furthermore, the second modification disposition satisfies all the requirements for the modification of a business plan under the Marine Transportation Act.

Therefore, this part of the Plaintiff’s assertion on a different premise is without merit.

D) Whether the discretion is deviates or abused or not

(1) A license for marine passenger transportation services is a beneficial administrative act that grants a specific person rights or benefits, and is subject to discretionary action that ought to be determined by comprehensively taking into account transport demand for the pertinent service route, suitability of mooring facilities on vessels, safety of marine transportation, convenience of users, etc. Such legal doctrine likewise applies to the case of modification of a service plan, insofar as it is objectively unreasonable or unreasonable for an administrative agency to determine whether to meet the requirements, the administrative agency’s intent should be respected as far as possible (see, e.g., Supreme Court Decision 2013Du13440, Jul. 10, 2014).

(2) In light of the above facts, the above quoted evidence, and the purport of the entire pleadings, and the following circumstances revealed by the Plaintiff, it is insufficient to recognize that the judgment of the Defendant’s second authorization disposition on modification constitutes deviation and abuse of discretionary power by losing the reasonableness and validity, and thus, the Plaintiff’s assertion on this part is without merit.

(1) In light of the circumstances leading to the disposition of authorization for the second modification and the reasons for the modification, it is difficult to view that the intervenor set the limitation of discretion to designate only a vessel with similar age and performance, even when the defendant approves the business plan of this case for the second license disposition of this case, solely because the intervenor was selected as a vessel subject to snacks at the initial public recruitment of business operators.

② It is insufficient to recognize that the second disposition satisfies all the requirements for the authorization for the modification of the business plan under the Marine Transportation Act, and that the evidence submitted by the Plaintiff alone is likely to undermine the transportation stability of the sea route of this case and the safety of marine transportation.

③ On September 13, 2016, the Intervenor did not comply with the time limit for entry in a substitute ship prescribed in the amendment of the business plan as of September 13, 2016, the Defendant imposed penalty surcharges on the intervenors on two occasions, and endeavored to maintain the licensing standards under Article 5(1)5 of the former Marine Transportation Act by submitting a sales contract and a ship delivery and takeover plan from the Intervenor.

④ A disposition for the second modification is a substitute line of a wastgggn, which was temporarily put in, and the second modification is to put in, a vessel with superior age and performance.

4. Conclusion

Therefore, since the main claim and the conjunctive claim are all unlawful among the lawsuits in this case, they shall be dismissed. The remaining claims shall be dismissed as they are without merit. Since the judgment of the court of first instance is justifiable with the conclusion, all of the plaintiff's appeals are dismissed. It is so decided as per Disposition.