2016Nu63851. Revocation of designation of exclusive tourers attracting Chinese organizations and tourists

[Lawsuit]

National Tour Co., Ltd.

The Minister of Culture, Sports and Tourism

Seoul Administrative Court Decision 2016Guhap58635 decided September 2, 2016

December 21, 2016

February 15, 2017

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked.

On March 28, 2016, the Defendant revoked the revocation of the designation of the exclusive travel agent for attracting Chinese group tourists.

1. Quotation of the first instance judgment

This court's reasoning is the same as the reasoning of the judgment of the court of first instance, except for the addition of the following judgments, and thus, it shall be accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Additional determination

A. The plaintiff's assertion

(i) in violation of the principle of statutory reservation on the items to be renewed;

In order to determine whether to renew the designation of exclusive tourers, the Defendant applied the "reform assessment items" that set specific assessment items and allocated points to the Plaintiff, and such a renewal assessment items have not been properly announced to the exclusive tourers including the Plaintiff until the instant disposition, which is not stipulated in the instant guidelines. Therefore, the instant disposition that violates the principle of statutory reservation by restricting the freedom of occupation of the Plaintiff without any legal basis is unlawful.

2) Violation of duty to publish the disposition standards

In the course of the renewal evaluation for the year 2016, the Defendant prepared the criteria for evaluation that the Defendant would not re-designated as the exclusive travel agent in cases where the reduction points due to administrative sanctions is at least six points, unlike the standard points in the renewal evaluation for the year 2013, but did not make it public in advance, and no specific evaluation items or marks have been publicly announced or publicly announced through legitimate procedures. Therefore, the Plaintiff could not know how the renewal evaluation would be conducted based on any criteria, and it could not be predicted that the power of administrative sanctions would be the criteria for the revocation of independent designation. Therefore, the instant disposition was unlawful in violation of Article 20(1) of the Administrative Procedures Act, which provides for the administrative agency to publicly announce the necessary disposition standards in detail.

3) Article 3-2 of the instant Guidelines, which is the basis for the instant disposition, was first enacted and implemented on August 1, 2014. The Defendant assessed the renewal system in 2016 by considering the Plaintiff’s receipt of the corrective order as an assessment factor around May 2014, which was prior to the enactment of the said ground provision. Thus, it is unlawful against the principle of non-payment of law.

B. Determination

1) Facts of recognition

The following facts are acknowledged according to the aforementioned facts and the overall purport of evidence, evidence Nos. 3, evidence Nos. 2, 3, 4, 7, 20 through 23, and the whole arguments.

① Around March 2013, the Defendant held a public hearing to amend the instant guidelines that include the introduction of the system for the renewal of exclusive travel workers. A public hearing to formulate the guidelines for the renewal of exclusive travel workers around July 2013 was held to present a comprehensive evaluation table specifying the evaluation area, evaluation items, evaluation index, and allocated points to each evaluation item to exclusive travel workers and listen to their opinions.

② On September 5, 2013, the Defendant established the criteria for the renewal evaluation of the Korea Tour Business Association (hereinafter referred to as the "Standards for the renewal evaluation of the year 2013"), and notified the head of the Korea Tour Business Association of the criteria for the renewal evaluation on the following day, of the criteria: (a) inducement results (including the record of attracting tourists), financial soundness (financial proposal, operating income), compliance with the legal system (such as deviation from tourists without permission, administrative sanctions, transfer rate of qualification), and higher portion of the criteria for renewal evaluation (hereinafter referred to as the "Standards for the renewal evaluation of the year 2013"), which include the sale of tourist products, government policy response (price, social impact, etc."). On the same day, the head of the Korea Tour Business Association notified the exclusive travel workers of the results of the evaluation according to each evaluation item, and notified the results of the evaluation on the renewal of the goods at least 75 points out of 100 points to be re-designated as the exclusive travel workers by September 23, 2013.

④ In revising the instant guidelines as of August 1, 2014, the Defendant newly established a provision on the renewal of exclusive travel companies (Article 3-2 of the instant guidelines) with the content that “The Minister of Culture, Sports and Tourism shall grant qualification as exclusive travel agents through a reexamination once every two years, taking into account the record of attracting tourists, response to government tourism policies, financial soundness, records of administrative disposition, the rate of occurrence of unauthorized graduates, etc.” (Article 3-2 of the instant guidelines).

⑤ On October 5, 2015, the Defendant: (a) established an electronic management system for exclusive travel agents to efficiently manage and monitor group products that have been dedicated to the head of the Korea Tour Business Association; and (b) notified the exclusive travel agents of the fact that the results of each business for the past two years (from January 1, 2014 to October 2015) were to be entered; and (c) requested the companies to notify the fact that the company’s accurate entry is to be used in the evaluation of re-designation in 2015; and (d) on the same day, the head of the Korea Tour Business Association notified the exclusive travel agents of the fact that the results of each business for two years (from January 2014 to October 2015).

(6) On December 24, 2015, the Defendant, as well as the Plaintiff, tried to evaluate the performance of 170 exclusive tour operators designated by February 2014, as well as the Plaintiff, for the previous two years (from January 24, 2014 to October 2015), and re-determine the event in exclusive charge, requested the National Tax Service to submit data related to the evaluation of evidence, such as the evidence of financial statements to be reported by the National Tax Service in 2015, and the selection of outstanding prizes, etc.

7) On March 4, 2016, the Defendant issued a prior notice on the revocation of the designation of an event by pointing out the fact that the Plaintiff was the cause of the administrative disposition, i.e., the lower holding ratio of qualification to the number of confined persons, and the lower holding ratio of qualification to the number of confined persons.

(8) On March 28, 2016, the Defendant issued the instant disposition to revoke the designation of the exclusive travel agent for attracting Chinese organizations and tourists (hereinafter referred to as “evaluation of renewal systems conducted by the Defendant for the instant disposition” and “the evaluation criteria applied thereto for renewal systems in 2016”

④ Meanwhile, prior to the instant disposition, the Defendant appears to have notified the Plaintiff of the detailed evaluation area, items, indexes, and allocated points of the criteria for the renewal evaluation by sending the renewal evaluation table indicating the Plaintiff’s points to the Plaintiff as a main date on April 7, 2016, even if the criteria for the renewal evaluation in 2016 were not publicly announced.

2) Whether the evaluation items for renewal contravenes the principle of statutory reservation

In imposing restrictions on the freedom or rights of the people guaranteed under the Constitution, legislators on the essential matters of the restriction must be regulated by law, but the legislators cannot uniformly define what matters must be regulated by themselves, and individual decisions should be made by taking into account the importance of benefits or values related to specific cases, the degree and method of regulation or infringement, etc. (see, e.g., Constitutional Court en banc Decision 2015Hun-Ba125, 290, Jun. 30, 2016). This case’s guidelines are contrary to the principle of statutory reservation and parliamentary reservation, and thus cannot be deemed null and void. This case’s disposition cannot be deemed unlawful solely on the ground that the revocation of the designation of the exclusive exercise, which is a beneficial administrative act, has no separate legal basis. Further, in implementing the renewed evaluation system in accordance with the instant guidelines, there is no need to determine the details and allocation of evaluation items, method, method of evaluation points, and detailed calculation method and criteria for evaluation points, etc., that are, in principle, entrusted to the Defendant’s inherent policy or autonomous judgment, and do not violate the Plaintiff’s fundamental criteria for renewal of business evaluation.

3) Whether the disposition standards violate the duty of disclosure

Article 20(1) of the Administrative Procedures Act provides that "the administrative agency shall determine and publicly announce the necessary disposition standards so that they may be made appropriate in light of the nature of the relevant disposition. The same shall apply to the case where the administrative agency changes the disposition standards." The establishment and public announcement system of such disposition standards aims to prevent arbitrary exercise of authority by the administrative agency to ensure transparency and predictability in administration. Thus, the administrative agency has the duty to establish and public announcement the disposition standards so far as the nature of the disposition

In determining the procedural illegality of the disposition of this case, it shall be based on whether the above purpose of the Administrative Procedures Act was damaged. In full view of the facts acknowledged earlier and the following circumstances revealed by the overall purport of the evidence and arguments, the following circumstances can be considered.

Even if the Defendant did not publish in advance the criteria for the assessment of renewal in the year 2016 for exclusive travel workers including the Plaintiff, it is difficult to view that the Defendant arbitrarily exercised its authority in rendering the instant disposition or did not guarantee the transparency and predictability of administration. Thus, there is no procedural error in violation of Article 20(1) of the Administrative Procedures Act.

① The Defendant introduced a renewal program for exclusive travel workers, and notified the exclusive travel workers, including the Plaintiff, of the evaluation criteria for the renewal program in 2013, which is based on the results of attracting, financial soundness, compliance with the legal system, high added value, sales of tourist products, government policy response, and the evaluation criteria for the renewal program in 2013, along with the evaluation results of the renewal program in 2013, notified them to reflect them in the evaluation of the renewal program conducted every two years by continuously monitoring the results of the renewal program in 2013.

② The criteria for the evaluation of the renewal system in 2016 are not significantly different from those set forth in Article 3-2 of the Work Guidelines in 2013 due to inducement, financial soundness, compliance with the legal system, and contribution to the development of the tourism industry, or the criteria set forth in Article 3-2 of the Work Guidelines in the detailed evaluation items, and the items related to the ‘the degree of participation in the electronic management system', ‘the degree of participation in the public offering award and the performance of agency commendation' are additionally reflected, and the evaluation by the administrative sanctions has only been added due to the reasons

③ According to the Defendant’s standard for evaluation of renewal in 2013, more than 75 points out of 100 points could have been re-designated as exclusive travel agents, while the administrative sanctions were added to the standard for evaluation of renewal in 2016 on the basis of separate independent revocation of designation. It is recognized that the Defendant did not publish this in advance. However, in light of the diversity and complexity of administration, the detailed standard for evaluation of the exclusive travel agent’s renewal in 2016 should also be deemed to have been within the scope of discretion permitted for the Defendant to change the evaluation standard to include the administrative sanctions in order to correct the issues arising from the business behavior of partial exercise, which belongs to the Defendant’s wide range of discretion. The standard for evaluation of renewal in 2013 also reflects the number of times of administrative sanctions received for two years as one of the items for evaluation of renewal in 2013, and the Plaintiff did not have the authority to make the change of administrative sanctions as one of the items for evaluation of renewal in 2016.

3) Whether the principle of no payment of law is violated

The following circumstances, i.e., (i) the Defendant’s disposition to designate the Plaintiff as the exclusive travel agent, but loses its validity, depending on the circumstances that occurred after the designation, is the withdrawal of the beneficial administrative act, which does not necessarily require legal basis. (ii) The Defendant, on March 1, 2013, revised the instant guidelines as of August 1, 2014 and announced a public hearing to establish evaluation standards for the renewal system (Article 3-2) from around 2013, which was before the introduction of the new guidelines, against the exclusive travel agent, and notified the Plaintiff of the new guidelines for the renewal of 2013 and every two years on December 2013, 201, which had already been assessed as to the renewal of 20 years against the Plaintiff, and (iii) the Defendant, on December 12, 2015, notified the Plaintiff of the new guidelines for renewal of 10 years from 2010 to 10 days from 200 days from 2014.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed, and it is so decided as per Disposition.

Mobilization by the presiding judge

Judges Yoon Jong-dae

Judge Lee Jae-soo