(영문) 대법원 2014.7.10. 선고 2013두27500 판결

1. According to Articles 4 and 5 of the former Marine Transportation Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Act”), a license for marine passenger transport services is granted to a specific person the rights or interests of the particular person. The license constitutes a discretionary act that must be determined by comprehensively taking into account the transport demand of the relevant service route, suitability of mooring facilities, etc., marine traffic safety, convenience of users, etc. However, even if an administrative agency’s discretionary act was conducted based on misunderstanding of facts, etc. or violates the principle of proportionality or the principle of equality, etc., the license shall not be revoked due to its deviation from or abuse of discretionary power (see, e.g., Supreme Court Decision 2007Du18215, Dec. 11, 2008).

Meanwhile, Article 5(1) of the Act and Article 4(1) of the former Enforcement Rule of the Marine Transportation Act (amended by Ordinance of the Ministry of Oceans and Fisheries No. 1, Mar. 24, 2013; hereinafter “Enforcement Rule”) provide that, upon receipt of an application for a license for marine passenger transport services, the average transport rate of the entire passenger ships already placed on the service route deemed the same as the service route for which an application for a license for new marine passenger transport services is filed shall be at least 25/100 even if the passenger ships already placed on the service route are included in the corresponding marine passenger transport services for which a license is newly filed. This purport is to grant a new license only when the total transport demand of the relevant marine passenger ships newly placed on the service route within a specified scope, i.e., the service route for which an application for a license is filed, or the service route considered as the same route, is naturally anticipated to reduce the demand of the passenger ships already placed on the service route, in order to promote sound development of marine transport services and smooth transport of passengers and cargo.

In addition, Article 2 (1) of the Enforcement Rule of the 'Public Notice on Coastal Transport under the Enforcement Rule of the Maritime Transportation Act' provides that in order to consider it as a service route to be considered as the same route as the service route for which an application for license has been filed, the main user of the relevant passenger ship should meet all the requirements of 1. Paragraph (2) of the 'if the main user of the relevant passenger ship is likely to overlap or overlap with it geographically adjacent to the service route'. Article 4 (2) of the 'if the service route is located within the same administrative area as that of the basic local government, it shall meet the requirements of 1 in principle, but it shall not be considered as the same service route if it is difficult to use a substitute exceptionally. In light of the purport of the above transportation demand provision, in determining whether it falls under each of the above requirements, the above requirements should be taken into account if the passenger ship already operated as the service route for which an application for a license for new passenger transport business license has an impact on the existing transport demand of the existing service route. Furthermore, the above requirements should be taken into account.

2. The lower court determined that it is difficult to substitute the two ports on the grounds that both Germany and Maar Port, the departure point of the instant new route from the port, both of which are the port of this case and the port of the instant existing route, are located in the solar chart, and the distance between them is about 1.1km only, but the road width between the port of Germany and Earar Port is about 3.3m to 3.6m, road width is about 3.3m and 3.6m between the port of Germany and Earar Port, the road of which is old and narrow, and the road leading to the port of Germany is difficult to drive along the vehicle because it is narrow.

In addition, the lower court determined that the main users of the instant sea route passenger ship do not overlap on the ground that more than 80% of the users of the instant existing sea route from around 2010 to December 2012 go to the new port from the new port, and the number of passengers using the said sea route is about 0.18%, and the main users of the instant sea route seem to be the island residents, such as Domindo, Namindo, and Domindo, etc. The lower court determined that the instant sea route passenger ship will not be completed on December 30, 2014. However, on September 20, 2012 where the instant disposition was taken, the number of the users of the instant sea route could not be deemed to overlap with the existing paragraph 1, taking into account the fact that the progress rate of the curriculum of the instant year was 54.59%, and that the number of users of the instant sea route might not overlap with the existing paragraph 2, the number of the instant sea route after the instant disposition of the instant sea route.

Furthermore, on the premise that the new route of this case cannot be seen as the same route as the existing route of this case, the lower court determined that the instant disposition, which was received by the Intervenor’s Intervenor’s Intervenor’s Intervenor’s application for a license for marine passenger transportation services, could not be deemed as a deviation or abuse of discretion, on the ground that it appears that the increase in public interest is much more likely than the disadvantages incurred by the Plaintiff’s disposition of this case.

3. However, the lower court’s determination is difficult to accept in the following respect.

According to the reasoning of the lower judgment and the record, the following facts are revealed: (a) when based on the basic local governments, the fact that the port of Germany and the marina are located in the administrative district identical to that of the local government; (b) when they move the port to the Do newsletter, about 20 minutes of ordinary hours; and (c) when they move to the two ports, they may move to the two ports with vehicles. In full view of the aforementioned legal principles and the above facts, it is reasonable to view that both ports

In addition, according to the reasoning of the judgment below and the record, it is reasonable to view that the construction is being conducted with the connection of the year bridge between Dolsan and the fact that, upon the completion of the above year, tourists using the existing port of departure from the existing port of this case could use the new port of this case by land connecting the above year bridge, etc. The fact that the distance between the port of this case and the existing port of this case is about 4.7 km, which is the starting point of the new port of this case, is about 4.7 km, and that the port of this case is located near the starting point of the non-section No. 1 course, which is the course in the Geumdo, and that the main port of this year is a tourist visiting the existing port of this case, which is the fact that the new port of this case will be completed at the end of 2014 and that the new port of this case will be completed after considering the aforementioned legal principles and the aforementioned facts, it is reasonable to view that the new port of this case will not be completed for a considerable period of time after the aforementioned new passenger transport operator's scheduled to use of the new port of this case.

As such, since the new route of this case can be seen as the same route as the existing route of this case, the standard of transport demand at the time of examining the application for license with respect to the new route of this case, that is, whether the average transport revenue rate of the entire passenger ships including the new route of this case and the existing route of this case, including the passenger ships of this case, constitutes 25/100 or more, shall be examined. According to the records, the above transport revenue rate falls short of 25/100. Thus, even though the Defendant’s application for license of this case by the Defendant did not meet the above transport demand standard, it is reasonable to deem that the Defendant’s disposition, which received the above new route of this case, was unlawful as a disposition deviating from and abusing discretionary power, because it was erroneous that the new route of this case did not correspond to the above transport demand standard.

Nevertheless, the lower court rejected the Plaintiff’s claim on the ground that the instant disposition was lawful. In so doing, the lower court erred by misapprehending the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the deviation and abuse of discretionary power from the license standards for marine passenger transport services and by misapprehending the legal doctrine on the granting of licenses for marine passenger transport services

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.