(영문) 서울행정법원 2013.10.4.선고 2012구합31380 판결

A. On May 31, 201, pursuant to Article 6-5 of the former Maritime Traffic Safety Act (wholly amended by Act No. 10801, Jun. 15, 2011; hereinafter the same), the Plaintiff filed an application for registration of a marine traffic safety diagnosis agent (hereinafter referred to as “safety diagnosis agent”) with the Defendant (hereinafter referred to as “application of this case”). B. On July 18, 2011, the Defendant issued the instant disposition rejecting the instant application on the ground that the appointed technical personnel with experience in performing relevant duties required by Article 2-10 [Attachment 1-4] of the former Enforcement Rule of the Maritime Traffic Safety Act (wholly amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 434, Jan. 6, 2012; hereinafter the same) are insufficient.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion 2)

1) Non-existence of grounds for disposition

A) The Plaintiff’s senior technical personnel meeting the requirements for the performance of the maritime traffic safety diagnosis shall have the experience of performing the maritime traffic safety diagnosis (hereinafter “check service”) required by the Enforcement Rule of the Maritime Traffic Safety Act, and the Plaintiff submitted the service report and the service performance certificate (in the case of partial research), and verified it. Although there is little case where the ordering company is inspecting and verifying the human resources input and the research performance of the contracting officer, the Defendant shall obtain confirmation from the ordering company even if the number of the researchers stated in the service report was actually actually conducting the research, and it is improper to recognize the research service in which the above appointed technical personnel participated as the result of the diagnosis service, on the ground that the registration company of another safety diagnosis agent (hereinafter “other registered company”) failed to submit the certificate of the ordering company that was not required.

B) Among the Plaintiff’s senior class technical personnel who are eligible to include non-standing workers as appointed class technical personnel, A, B, C, and D are serving as a mate on board a ship of a shipping company. However, the Marine Traffic Safety Act and its rules of employment does not necessarily prohibit technical personnel from demanding them to work full-time at a diagnosis agency or concurrently holding office in another company. ② They do not interfere with the Plaintiff’s diagnosis during the period from leaving the ship to the next boarding of the ship. ② They are registered as a safety examination agent for another registered business entity whose technical personnel such as the National Armed Forces and the National Institute of Research and Development are registered as another registered business entity. Therefore, it is unlawful for the Plaintiff to refuse the instant application on the ground that the above senior class technical personnel working for another shipping company.

2) The following procedural errors are found in the instant disposition.

A) According to the former Enforcement Rule of the Sea Traffic Safety Act (attached Form 1-2) and the Defendant’s “Registration Guidance for the Marine Traffic Safety Diagnosis Agency (Evidence A-2-1), the Defendant did not necessarily undergo on-site verification in handling an application for registration of the safety diagnosis agency.

B) Article 2-8(1)2 of the former Enforcement Rule of the Sea Traffic Safety Act only requires the submission of data on the current status of technical human resources, and Article 10(1) of the Civil Petitions Treatment Act prohibits another registered entity from requiring additional documents in addition to the required documents. The Defendant demanded other registered entities to submit not only data on the current status of technical human resources, but also data issued by the public institution proving the current status of technical human resources, thereby violating the relevant law and practice.

C) The Defendant rendered the instant disposition based on the following data illegally acquired.

(1) Service Report (Evidence B) : In the case where the Plaintiff had filed the second application for registration prior to the instant application, the Defendant received the service report by deceiving the Plaintiff, and applied it as the ground for the instant disposition in an unlawful manner without returning it to the Plaintiff.

(2) As a result of inquiry into the fact of participation in the research of the ordering company of the research service (Evidence Nos. 4-7) and the fact of boarding of the shipping company for which the Plaintiff’s senior technical personnel are on board (Evidence No. 19-21): Data that the Defendant provided the Plaintiff’s employees’ personal information to a third party without permission, and obtained illegally by abusing the Defendant’s supervisory authority over the said company.

(3) Inquiries about data related to seafarers of the shipping and port information system: The data obtained by illegally using the personal information of the Plaintiff employees. Furthermore, the Defendant’s purpose of inquiry was not to refer to the examination of the instant application, but to submit necessary evidence for administrative litigation, etc. by making the ground for rejection maliciously after taking the instant disposition. The Defendant did not have any such inquiry during the process of examining other registered companies.

D) As delineated below, the Defendant violated the provision on the processing period required for the instant disposition.

(1) According to the Defendant’s notice on the Defendant’s registration of diagnosis agency (a evidence No. 2-1), the Defendant shall determine whether to issue a report within 21 days from the date of receipt of the application for registration, and Article 17(2) of the Enforcement Decree of the Civil Petitions Treatment Act provides that if the processing period is extended, the Defendant shall promptly notify the petitioner of the grounds for the extension of the processing period and the scheduled period of treatment, without delay. The Defendant did not notify the grounds for the extension and the scheduled period of treatment within 21

(2) On May 31, 201, in violation of Article 5(1) of the Enforcement Rule of the Civil Petitions Treatment Act, which provides that a request for supplementation of civil petition documents shall be made within eight working hours from the time of receipt of the documents, a request for supplementation on June 10, 201 with respect to the registration application of the Plaintiff received on May 31, 201.

1) On April 5, 2010, the Plaintiff filed an application for registration of safety examination agent (hereinafter referred to as “the first application”) with the Defendant. On June 16, 2010, the Defendant rejected the said application on the ground that the Plaintiff did not have the equipment required for registration in its valid condition. 2) On November 16, 2010, the Plaintiff again filed an application for registration of safety examination agent (hereinafter referred to as “second application”) with the Defendant again on November 16, 2010. In the process of the examination, the Defendant submitted the Plaintiff’s report of service performance (the evidence No. 3), certificate of service performance (the evidence No. 20) to the Defendant, and directly confirmed the Plaintiff’s order service provider (the document submitted by the ordering entity No. 4-7, “certificate of service performance confirmed by the ordering entity”), and the Plaintiff did not objectively prove the Plaintiff’s technical personnel at least 10 years after the Plaintiff’s request for the examination of technical personnel at issue.

3) The Plaintiff filed the instant application on May 31, 201. The Plaintiff included the Plaintiff’s application document as a senior technical personnel on the application document, and it is not clear as to which documents were submitted for D, as follows: E, A, B, C (a person who performed diagnosis duties with a master’s degree in maritime safety-related field as a substitute qualification for at least one year) and D (a person with a master’s degree in maritime safety-related field for at least three years as a master’s degree holder), E, A, B, and C; the content of the general list of the results of diagnosis duties submitted as a result of diagnosis duties in E, A, B, and C; and as to D, it is unclear whether certain documents were submitted:

A person shall be appointed.

4) The process of supplementing the documents that had been initiated between the Plaintiff and the Defendant after the instant application is rendered is as follows.

○ On June 10, 201, the Defendant ordered the Plaintiff to submit documents verifying the specifications of ① equipment, ② documents proving the employment of technical personnel issued by public agencies, ③ documents certifying the qualifications of senior technical personnel, ③ in relation to these documents, ① in the case of E, a valid mate’s license should be submitted, and in the case of E, a document proving the possession of degree, which is a substitute requirement, and the performance of the diagnosis work must be submitted, and in the case of E, B, and C, a document proving that the diagnosis work has been performed for at least one year.

o On June 24, 2011, the Defendant requested the Plaintiff to submit again documents on the above request for supplementation, on the ground that the documents were not submitted.

○ On the same day, the Plaintiff submitted a certificate of employment (No. 10) issued by the Plaintiff in order to vindicate the above matters, and submitted a master’s degree certificate issued by D in relation to the matters set forth in the above 3 (c). However, it is not clear whether the Plaintiff submitted any material related to the matters set forth in the above 3 (c) but it seems that the Plaintiff did not submit any supplementary material other than the certificate of service performance (the evidence No. 20 appears to correspond thereto) submitted at the time of the second application.

○ The Defendant requested the Plaintiff to supplement materials again on July 6, 201, and demanded the Plaintiff to submit documents evidencing the employment of technical personnel issued by public institutions; however, the Plaintiff submitted only the certificate of employment; and ② the supplementary documents regarding the diagnosis performance cannot be recognized on the same ground as the reasons indicated in the previous request for supplementation. The Defendant, upon making the final request for supplementation to the Plaintiff on July 13, 201, said request was as follows.

1. Different parts of the data submitted by the Plaintiff from the data submitted on November 16, 201 to the point of view of personal diagnosis service performance records and the certificate of service performance performance records submitted on January 10, 201, are partly different from the participating researchers confirmed by the Defendant through the ordering agent.

The intention was expressed and sent.

5) On July 18, 201, the Defendant rendered the instant disposition rejecting the instant application due to the Plaintiff’s failure to comply with the request for supplementation.

6) Meanwhile, among those who submitted by the Plaintiff as senior technical personnel at the time of the application of this case, those who are on board another company’s ship and those who are specified in the details of the entry and departure are as follows.

A person shall be appointed.

7) The panty panty panty ray A and B on board as captain is a large passenger line going to and from Busan and Austria, and both A and B are on board the said vessel once every three days, and C is on board the said vessel in the form of one day off after boarding as the captain of the Busan port fleet. In the case of Cala ice Lease, a captain of the Busan port fleet, who is on board as a mate, at least one hundred days out of March 201 to March 201, at anchor within the Republic of Korea.

8) The Defendant asked each shipping company of the above table about whether to allow crew members to hold concurrent offices, the reason and interval of shift, etc., and each company’s reply is as follows.

O ㈜팬스타라인닷컴 : 다른 영업행위 허용에 대한 내부 규정 없으나, 직원의 교대 배승은 어려운 항로에 대한 피로누적 해소를 위한 것임. 선진 종합(주): 선원취업규칙에 따라 타 업종 종사 허용하지 않음. 격일제 근무를 시행하고 있음.

The truth-finding: It is possible to terminate an employment contract in accordance with the Seafarers' Rules of Employment.

9) On March 21, 2012, the Defendant revised guidelines for the implementation of marine traffic safety examinations, published by the Ministry of Land, Transport and Maritime Affairs on March 21, 2012, and newly established a provision that “if a person holding a qualification certificate goes on board another person’s ship or lends a qualification certificate to a safety examination agent, it may not be included in technical personnel of the safety examination agent (Article 39(2)1).”

[Grounds for recognition] Each entry of Gap evidence Nos. 1-5, 18, 20, 21, Eul evidence Nos. 2, 3-22, and the purport of the whole pleadings.

(i) the existence of the reasons for the measure

A) Whether a person has career experience in diagnosis of a senior technical personnel

(1) The Plaintiff itself recognizes that the term of validity of the E-Voyage’s license is not expired, and thus, it should be excluded from the senior technical personnel without need to examine whether the Plaintiff has a career of performing diagnosis duties.

(2) D is not a 3rd mate but a 2nd mate or higher, and it is required to have a master's degree holder in the relevant field as a substitute for 3 years or longer. The Plaintiff submitted a performance table stating the results of diagnosis (which is all different from each service of 1-8) for 3 years or more of D with the certificate No. 18, and the Defendant did not dispute the authenticity and the timing for submission. Thus, D is deemed to meet the requirements for conducting diagnosis.

(3) Services A, B, C, 6, and 8: Research participants may be proved most easily and accurately through the list of researchers stated in the service report submitted by the ordering company by the receiving officer. On the other hand, most research services include research participants in the ordering company as well as the researcher who actually conducted the research. Therefore, the ordering company does not appear to have any way to verify whether the service report (Evidence B) submitted to the Defendant by the Plaintiff in the second application is identical to the report kept by the ordering company. However, the Plaintiff submitted a certificate of service performance performance (Evidence B) issued by the ordering company, and the fact inquiry results on the Korea Port Technology Foundation were not found to have been conducted by the ordering company, and thus, the above two research services are deemed not to have been conducted directly by the researcher or not. Therefore, it is not clear whether the service performance report submitted by the Plaintiff to the Defendant in the second application is identical to the service performance report by the ordering company (Evidence B) and the service performance report by the Korea Port Technology Foundation (No. 20).

(No. 1 Services: The plaintiff submitted the service report and the service performance record certificate and the service performance record certificate and the service performance record certificate issued by the ordering person. On the other hand, the ordering person responded to the defendant that it is impossible to confirm the participating researcher (see subparagraph 4). However, the ordering person kept the service report and responded to the defendant that if there is any difference between the service performance record certificate and the service performance report submitted by the plaintiff and the researcher's list of the service performance report submitted by the plaintiff, the ordering person provided a different answer to the defendant. However, it is not because the ordering person requested the defendant to confirm whether the participating researcher actually participated in the research, and the ordering person cannot know whether or not the participating researcher actually participated in the research. Therefore, the above content of the response does not interfere with the recognition of the service as the diagnosis performance

C. Serial 7 Services: In the examination of the instant application, the Defendant also recognized as the Defendant’s performance. Although the Defendant asserted that the acceptance agency on the service performance certificate revealed as a result of the Plaintiff’s submission of the service report and the fact-finding, it cannot be recognized as the performance, there is no evidence to acknowledge it. Rather, in light of the same fact as the service report (Evidence 3), service contract (Evidence 7-1), service performance certificate (Evidence 20), and service performance certificate (Evidence 20), the above assertion is without merit. Ultimately, even if the examination performance was recognized as only 1,6-8 service performance, the period for performing the diagnosis is 14.1 months and the examination performance is recognized as only 1 year required by the appointed technical personnel’s diagnosis performance under [Attachment 1-4] of Article 2-7 [Attachment 1-4] of the former Enforcement Rule of the Sea Traffic Safety Act, the Defendant cannot reject the instant application by considering the examination performance of the appointed technical personnel.

B) Whether to allow non-standing technical personnel

(1) The former Maritime Traffic Safety Act and its enforcement regulations do not stipulate that technical personnel shall work full-time at the diagnosis agency or shall not hold concurrent offices in another company, and according to the statements in Gap 10, 11, and 14 and witness G testimony, in the case of other registered companies, the defendant is not necessarily required to work full-time at the diagnosis agency in light of the fact that the university or the researcher of the government-invested research institute has been recognized as technical human resources in the case of other registered companies. However, even if it is formally impossible, even if it meets the requirements for working at the diagnosis agency and it is actually impossible to perform the diagnosis agency, such as working for another company, even if it is actually impossible, it shall not be recognized as working for another company, and the defendant can be excluded from the calculation of technical human resources.

(2) As seen earlier, D is practically impossible to perform the Plaintiff’s diagnosis during a period of one year from March 201 to March 2012, 201. Even if D is recognized as the Plaintiff’s employee, it is deemed that D is actually on board a ship belonging to JA, Inc. with the exception of ten days. Thus, even if D is recognized as the Plaintiff’s employee, the Defendant issued the instant disposition on the ground that D, etc. goes on board the ship and cannot be deemed as the Plaintiff’s employee, and thereafter, the Defendant issued the instant disposition on the ground that D cannot be deemed as the Plaintiff’s employee. In the instant lawsuit, D is practically impossible to perform the actual diagnosis through the preparatory document dated March 20, 2013, and added it to the grounds for disposition. The ground for disposition added to D’s argument that it is not possible to perform the diagnosis duty, and as a result, D should be excluded from technical personnel, it should not be included in D’s technical personnel.

C) Sub-decision

A, B, and C met the requirements of senior technical personnel, but E, and D cannot be recognized as senior technical personnel of the Plaintiff. Ultimately, the Plaintiff failed to meet the requirements prescribed in Article 2-7 [Attachment Table 1-4] of the Enforcement Rule of the former Maritime Traffic Safety Act that at least four senior technical personnel should be appointed. 2] Whether the procedures are violated

A) On-site verification procedures are limited to those prescribed as one of the methods of examining the authenticity and appropriateness of the applications and accompanying documents submitted by the applicant for registration of safety examination agent. If the defendant judged that the application was wrong due to a disposition without on-site verification, it will be a matter of determination. Therefore, it cannot be deemed that the defendant erred in the procedure of rejecting the application without on-site verification, considering that the application in this case failed to meet the requirements for registration through different methods.

(b) demand for documents not required by law or any other registered entity;

If there is doubt as to the authenticity, etc. of the application documents submitted by the plaintiff, the defendant should confirm it through the method of additional submission of documents. This is essential for the examination of the eligibility for the examination agency business (the instant disposition is not a "retaliatory disposition" for the reason of the formal defects in the documents submitted, but a "disposition taken through the substantive examination" for the disposition which is the rejection disposition, and the substance of the disposition does not vary because it stated it as "the disposition which is the rejection disposition" for the actual reason). Thus, the defendant's request for materials proving the employment facts or the results of diagnosis, unlike other registered companies, cannot be deemed to violate the former Enforcement Rule of the Marine Traffic Safety Act, the former Enforcement Rule of the Civil Petitions Treatment Act, the former Civil Petitions Treatment Act, or the principle of equality (in addition, it does not violate Article 6 (2) of the Enforcement Decree of the Civil Petitions Treatment Act that requires the submission of documents that require proof in detail.

C) Utilization of unlawful acquired data

(1) It cannot be deemed that the Defendant’s submission of a service report to be inspected in advance during the process of examining the secondary application by mail was a deception for the Plaintiff. Moreover, it cannot be deemed unlawful for the Defendant to utilize the information acquired in the process of the secondary application in the examination of the instant application in fact identical to the secondary application.

(2) In order to verify the authenticity of the application documents submitted by the Plaintiff, it is permissible to take measures necessary to determine whether the Defendant was eligible to inquire the information through the maritime traffic port guard system or to verify whether the ordering entity was a registered entity. When the Plaintiff submits the application documents, it shall be deemed that the Defendant consented to the use of the information contained therein within the scope necessary for examination. According to the evidence No. 22, the Defendant’s first inquiry into the Plaintiff’s technical personnel when examining the first or second application documents, and thus, it cannot be deemed that the Defendant used the Plaintiff’s personal information without permission, regardless of the examination, or collected information by abusing its authority.

D) Violation of statutory processing period

(1) The processing period stated in the notice on the registration of the diagnosis agency is merely the one determined by the Defendant internally, and the disposition is not unlawful even if it takes time in the additional review process, depending on the case, and exceeds this time.

(2) The supplement of the documents referred to in Article 5(1) of the Enforcement Rule of the Civil Petitions Treatment Act, which provides the deadline for the request for supplement, means the order to supplement the documents when the documents are formally defective. As seen in this case, the examination agency’s substantive examination of the application for registration of the examination agency and the request for supplement documents is not applicable to the applicant.

3. Conclusion

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

Judges

Appointment of presiding judge or judge;

Judges Lee Byung-hee

Judge Kim Gin-hun

Note tin

1) The instant disposition was originally taken by the Minister of Land, Transport and Maritime Affairs on March 23, 2013 by the amendment of the Government Organization Act from the Minister of Land, Transport and Maritime Affairs

The affairs related to the disposition of this case were succeeded to by the Minister of Land, Transport and Maritime Affairs, and administrative dispositions already taken by the previous Minister shall be marine water.

The Minister of Land, Transport and Maritime Affairs, which is the disposition authority at the time of the disposition of this case, is deemed to be an administrative disposition by the Minister of Agriculture, Forestry and Fisheries.

(c)

2) The instant disposition is not based on the lack of equipment requirements, but does not mention the assertion relating to the equipment.