(영문) 광주지방법원 2011.5.26. 선고 2010구합4414 판결

1. Of the instant lawsuits, the part of the claim for revocation of the disposition for the modification of the authorization for the modification of maritime passenger transport services for C or D routes is dismissed.

2. The plaintiff's remaining claims are dismissed.

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

Purport of claim

On January 29, 2008, the defendant's disposition to approve the change of marine passenger transport services against limited liability companies B is invalid.

Reasons

1. Details of the disposition;

○ On October 22, 2007, the Plaintiff is running marine passenger transport services by obtaining a license for marine passenger transport services such as Table 1 from the Defendant.

Table 1

A person shall be appointed.

On the other hand, a limited liability company B (the above company was established B on the same day after it was dissolved on June 9, 2008 after it was dissolved; hereinafter referred to as "B") operated by the plaintiff, with the license for marine passenger transport services as stated in the table 2 before the change of the list 2, as to the service route between C (H) and G (I) operated by the plaintiff (the above service route: 1) in addition to the above service route between C (H) and G (I).

OB, upon K's opening on January 29, 2009, could move to C ? G (I) ? K (I) ? D (J) so the number of users of the existing C-G route rapidly increases, while C-D route is anticipated to be rapidly reduced by users. As such, after the change in Table 2 on January 27, 2008, the Defendant filed an application for authorization for the change of capture of maritime passenger transport business (hereinafter referred to as "application of this case"). Accordingly, on January 29, 2008, the Defendant issued an application for authorization for the change of capture of maritime passenger transport business (hereinafter referred to as "disposition of this case") in accordance with the Plaintiff's application for authorization for change.

Table 2

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1, the purport of the whole pleadings

2. Defenses to present the safety;

A. The defendant's assertion

The defendant asserts that, among the dispositions of this case, the plaintiff is a license holder for marine passenger transportation services in the CG route, the plaintiff cannot seek confirmation of invalidity of the disposition of modification of marine passenger transportation services in the C-D route because there is no legal interest in the disposition of this case.

B. Determination

(1) According to the above evidence, the following facts are revealed: ① prior to the instant disposition, B obtained a license for marine passenger transportation services for C-G routes and C-D routes from the Defendant; ② the instant application is mainly intended to replace the contents of each existing license for marine passenger transportation services, i.e., C-G navigation vessels, and i., C-D navigation vessels, and i.e., C-D navigation vessels, and i., i., e., J from H to J, and i., i.e., C-D navigation vessels; and ③ the instant application included the reduction of navigation in addition to vessel replacement; ③ the Defendant again issued each separate license for marine passenger transportation services (C-G navigation number: P-D number; Q number) after reviewing the contents of the instant application.

Therefore, as seen in the above facts, each separate marine passenger transport service license for the existing C-G routes and C-D routes has been issued with different license numbers and license business contents, and each separate marine passenger transport service license is taken. Thus, the instant disposition should be deemed two separate dispositions, which are independent dispositions, including authorization numbers and license business contents, and the instant disposition, (2) the instant disposition should be deemed two dispositions, which are composed of authorization numbers for the change of marine passenger transport service for C-D routes, and (3) the authorization for the change of marine passenger transport service for C-C-D routes (i.e., the instant disposition was taken with the main contents of replacing parts of vessels for operation of C-G routes and C-D routes, and thus, the instant two dispositions are closely related with each other in terms of the contents. However, the instant two dispositions should not be taken simultaneously on the same day, but can be taken separately without mutual relation, as they are alleged by the Plaintiff).

(2) 한편, 행정처분의 직접 상대방이 아닌 제3자라 하더라도 당해 행정처분으로 인하여 법률상 보호되는 이익을 침해당한 경우에는 취소소송을 제기하여 그 당부의 판단을 받을 자격이 있다 할 것이나, 여기에서 말하는 법률상 보호되는 이익이란 당해 행정처분의 근거 법률에 의하여 보호되는 직접적이고 구체적인 이익을 말하고 제3자가 당해 행정처분과 관련하여 간접적이거나 사실적·경제적인 이해관계를 가지는 데 불과한 경우는 여기에 포함되지 아니한다(대법원 2002. 10. 25. 선고 2001 | 4450 판결 참조).

(3) In light of the above facts and the legal principles, even if the operation revenue is reduced due to the Plaintiff’s reduction of user passengers as asserted by the Plaintiff’s input of a ship with sufficient transportation capacity among the existing vessels in the instant disposition into C-G routes, it does not coincide with C-G routes licensed by the Plaintiff and C-D routes among the service routes operated by B by the instant disposition, and the Plaintiff is merely an indirect or factual and economic interest in the instant disposition with respect to the approval for the modification of the maritime passenger transport service for C-D routes among the instant dispositions.

Therefore, it is unlawful for the Plaintiff to seek nullification of the disposition for modification of maritime passenger transport services for C-D routes among the dispositions of this case.

3. Whether the disposition of this case to alter the maritime passenger transport services for C-D routes is legitimate

A. The plaintiff's assertion

In light of the relevant laws and regulations, including the Marine Transportation Act, it is clear that the Defendant committed an unlawful act of not entirely examining whether the requirements for transport demand are met when granting authorization for the replacement of vessels, such as the instant disposition. However, the Defendant committed an unlawful act of not entirely examining whether the requirements for transport demand were met when granting authorization for the modification of marine passenger transport services for C-D routes. This defect is significant in that it is very frequent that the Defendant could easily recognize the above defect since the application for authorization for the modification of marine transport services plan was very frequent. Therefore, the instant disposition is null and void.

In other words, the Plaintiff did not dispute the illegality of the instant disposition regarding the CG route, and asserted that the instant disposition is null and void as a matter of course on the premise that the instant disposition is one of the instant dispositions. As such, the Plaintiff asserted to the effect that the instant disposition is null and void as a matter of course on the ground that the instant disposition is a matter of course.

B. Determination

(1) Relevant statutes

It is as shown in the attached Form.

(2) In the case of the instant disposition, whether the disposition to approve the change of maritime passenger transport services for C-G routes is legitimate or not, and the license for maritime passenger transport services for C-G routes is in conflict with the Plaintiff. Thus, the Plaintiff is in a position to seek confirmation on the invalidity of the disposition, as there is a legal interest in the instant disposition with respect to the disposition to authorize the change of maritime passenger transport services for C-G routes.

Meanwhile, according to the above evidence, the defendant did not review the transport demand standard (at least 25/100 of the average boarding and loading rate) under Article 10-2(3) of the former Enforcement Rule of the Marine Transportation Act at the time of the disposition for the modification of the sea transport business for the C-G sea route among the dispositions in this case. The defendant may recognize the fact that the ship (H from the point to J), which is put into the C-G sea route (H from the point to the point to the point to the point to the point to the point to the point to which the passengers' convenience is considerably improved when comprehensively comparing the existing vessel (L, M), the size of the vessel, the transport capacity, and the navigation speed

However, it is reasonable to compare the above dispositions with the total tonnage, speed, loading capacity, date of inspection, etc. of the above vessels. Thus, the disposition of this case to change the maritime passenger transport service for C-G routes is legitimate.

(3) Sub-decisions

As seen earlier, two dispositions are two dispositions, and among them, the authorization for the change of marine passenger transport services for C-G routes is legitimate. In addition, the authorization for the change of marine passenger transport services for C-D routes of the instant dispositions is limited to only changing only the license of B, which had been placed on the said routes, and does not grant a license to operate a new passenger ship. Thus, this case is the same as the case where there is no passenger ship already placed on the sea route for which a new license is applied under Article 4-3(1) of the former Enforcement Rule of the Marine Transport Act (Standard for Transport Demand). Accordingly, it cannot be deemed unlawful on the ground that the Defendant did not undergo such procedures in that it is not necessary to examine whether the transport demand level is satisfied, as alleged by the Plaintiff. As to this part of the instant disposition, the Plaintiff was not an interested party under the law, and thus, the Plaintiff had already dismissed it earlier.

4. Conclusion

Therefore, the part of the lawsuit of this case concerning the cancellation of the disposition for the modification of the maritime passenger transport services for C-D routes is unlawful, and thus, it is dismissed, and the remaining claims are dismissed. It is so decided as per Disposition.