Treatment Passenger Transport Co., Ltd. (Law Firm Cheong rate, Attorney Gyeong-dilution)

Do Governor of Gyeongnam-do

Gyeongnam bus Co., Ltd. and 3 others (Law Firm LLC, Attorneys Ha Man-young et al., Counsel for the plaintiff-appellant)

March 7, 2003

Changwon District Court Decision 2000Gu588 delivered on July 6, 2000

Supreme Court Decision 2001Du4450 Delivered on October 25, 2002

1. The plaintiff's appeal is dismissed.

2. The total costs of the lawsuit due to an appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition for modification of the plan for inter-city bus transportation services to the defendant's assistant intervenors on April 23, 199.

1. Details of the disposition;

A. The Plaintiff is an industrial tower, viewing, a dong Hospital, a school hospital, a criminal offender, and a city bus transportation business entity operating the city bus route via the amount of words, and the Defendant’s assistant intervenor (hereinafter “participating”) is a business entity running the urban bus transportation business after obtaining a license for each passenger transport business from the Defendant.

B. Pursuant to Article 11(1) of the Passenger Transport Service Act (amended by Act No. 6240, Jan. 28, 200; hereinafter referred to as the “Act”), the Defendant: (a) on April 23, 199; (b) on the south bus Co., Ltd. and the Sejongwon Co., Ltd. (hereinafter referred to as “Seoul bus”); (c) on the port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port; (c) on the south port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port port;

【Ground of recognition】An absence of dispute, A6-1 through 5, and the whole purport of pleading

2. Determination on the legality of the disposition

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful in light of the above circumstances, and the plaintiff asserts that the disposition of this case is unlawful on the following grounds.

(1) First, according to Article 11(4) of the Enforcement Rule of the Act (amended by Ordinance of the Ministry of Construction and Transportation No. 223, Dec. 16, 1999), Article 31(2)1 of the Act (amended by Ordinance of the Ministry of Construction and Transportation), where the route and operation system of cross-city bus transport business are to be established, the frequency of operation should be at least four times. The modification of the business plan approved by the instant disposition is to change the route between the existing Ulsan-Seyang-Seyang and Puyang-Susan, which extends over two or more Cities/Dos, and practically changes to the route between the two or more Cities/Dos. However, the number of operation approved by the existing four times is to be reduced once or three times.

(2) Second, Article 31(2)2 of the Enforcement Rule of the Act provides that the extension of the route and operation system shall not exceed 50% of the existing operation system. The modification of the business plan approved by the instant disposition is much more than 50% of the existing operation system of the intervenors.

(3) Third, Article 31(2)3 of the Enforcement Rule of the Act provides that the change of operating routes and operating routes shall be limited to cases where operating distance or operating hours are reduced except in extenuating circumstances, such as road conditions, and it shall not cause inconvenience to the users of the existing routes due to excessive changes in operating routes. The change of the project plan approved by the instant disposition is an extension of operating distance or operating hours, while the change of the project plan approved by the instant disposition causes inconvenience to the users of the previous routes by reducing the number of operating routes of buses and bus sources on one occasion, even though it is not inevitable.

(4) Fourth, Article 31(2)6 of the Enforcement Rule of the Act provides that where there is an increase or decrease in the number of flights or the number of flights by a business operator operating the pertinent operation system in excess of 10% per annum, the increase or decrease in the number of flights over two or more Cities/Dos shall be made after participating in the relevant intercity bus transport business operator or the competent authorities and investigating the transport demand, etc. of the pertinent operation system, the Defendant issued the instant disposition without any investigation on the transport demand, etc.

(5) Fifth, according to Article 5(1) of the Enforcement Rule of the Act, when the Mayor/Do governor having jurisdiction over route passenger transport business intends to grant authorization for the establishment or alteration of routes or for the modification of the business plan related to route route when the routes extend over two or more Cities/Dos, he/she shall consult with the relevant Mayor/Do governor in advance, and when the consultation is not reached, he/she shall file an application for mediation with the Minister of Construction and Transportation within the prescribed period pursuant to Article 70(1) of the Act. The defendant, although the Ulsan Metropolitan City Mayor made it clear that the intervenor's change in the business plan constitutes the establishment of the operating system in relation to the defendant's request for consultation, the defendant did not neglect it and did not go through the procedure for filing an application for mediation with the Minister of Construction and Transportation, and the plaintiff's obvious

B. Relevant statutes

It is as shown in the attached Form.

C. Judgment on the plaintiff's first and fourth argument

(1) According to Article 11(4) of the Act, Article 31(2) of the Enforcement Rule of the Act, which provides for the criteria for the change of a business plan for intercity bus transport business, shall be classified into the new establishment, extension, and change of a route and operating system, and Article 31(2) of the Act provides for the criteria for the change of a business plan concerning the extension of a route and operating system, and Article 31(2) of the same Act provides for the criteria for the change of a route and operating system. According to the above change of the business plan of this case, in the case of a bus in South and in the case of a bus in South and North Korea, the operation of a bus in the narrow side, which is the transit of the previous route, which is the starting point of Ulsan to a non-stop without stopping, this constitutes a new establishment of a route and operating system, and in the case of a smuggling passenger and in the case of a full-time passenger, each smuggling quantity constitutes an extension of the route and operating system of this case, under the premise that the change of the business plan of this case should be made.

(2) According to the above disposition of this case, it is acknowledged that the modification of the business plan of buses in South and North Korea (the new establishment of routes and operating systems) of the Gyeongwon merely three times and the frequency of operation of new routes does not meet the standards set forth in Article 31(2)1 of the Enforcement Rule of the Act, and that the modification of the business plan (the extension of routes and operating systems) of sealed passengers and cheon Passengers reaches 77% and 71% of the existing operating systems so that the extended distance exceeds the standards set forth in Article 31(2)2 of the Enforcement Rule of the Act so that it can not exceed 50% of the existing operating systems. Thus, it is recognized that the disposition of this case violates Article 31(2)1, 2 and 6 of the Enforcement Rule of the Act, as alleged by the plaintiff.

However, Article 31 of the Enforcement Rule of the Act provides for the procedures for administrative affairs and dispositions in the form of the Ordinance of the Ministry of Construction and Transportation with regard to the change of the business plan of cross-country bus transportation business, and it does not externally bind the people or the court (see Supreme Court en banc Decision 94Nu14148 delivered on October 17, 1995). Thus, even if the disposition of this case violates the provisions of Article 31 of the Enforcement Rule of the Act as seen above, it does not cause any problem of illegality. Accordingly, Article 31 of the Enforcement Rule of the Act provides that the plaintiff's first, second, and fourth claims are without merit, under the premise that Article 31 of the Enforcement Rule of the Act is a legal order that is difficult to detain the people or the court.

D. Judgment on the Plaintiff’s fifth argument

갑제2 내지 5호증, 갑제6호증의 1 내지 5의 각 기재에 변론의 전취지를 종합하면, 피고는 1999. 4. 경 참가인들로부터 시외버스운송사업계획변경 인가신청을 받고, 같은 달 3. 법시행규칙 제5조 에 따라 울산광역시장에게 협의요청을 한 사실, 이에 울산광역시장은 같은 달 12. 울산시내버스공동운수협의회에 의견제출을 요청하였고 울산시내버스공동운수협의회에서는 같은 달 13. 위 사업계힉변경신청 내용대로 참가인들이 울산시내 또는 언양까지 연장 운행할 경우 가뜩이나 어려운 울산시내버스 업체의 경영이 더욱 악화될 것이 예상된다는 이유로 울산광역시장에게 부동의 의견을 제시한 사실, 그러자 울산광역시장은 같은 달 16. 피고에게, ① 운행계통을 분리ㆍ연장하는 사업계획변경은 계통신설에 해당하는 것이고 ② 울산(시외·고속버스터미널)을 출발하여 경유하는 도심지 구간과 고속도, 언양, 덕현(석남사)까지 무정차로 운행하고, 덕현(석남사)에서만 정차하도록 하여 밀양방면 이용객의 편의를 도모하고, 시내버스운송사업체와의 과당경쟁을 유발하지 않도록 하기 바란다는 내용의 회신을 한 사실, 이에 피고는 같은 달 23. 덕현(석남사)에서 울산까지의 구간을 무정차로 운행하도록 하는 내용으로 이 사건 처분을 한 사실을 각 인정할 수 있고 반증이 없는바, 위 인정사실에 의하면 울산광역시장은 피고의 협의요청에 대하여 명백히 반대의 의견을 표명하였다고 보기는 어렵고, 참가인들의 시외버스운송사업계획변경으로 인하여 울산광역시의 시내버스운송사업체와의 과당 경쟁을 우려하여 시내버스와 운행구간이 중복되는 울산시외버스터미널부터 덕현(석남사)까지의 구간에 대하여는 무정차 할 것을 조건으로 피고의 협의 요청에 동의하였다고 봄이 상당하므로, 원고의 위 다섯째 주장도 이유 없다.

E. Determination on whether or not the discretionary authority has been abused or abused

The modification of the plan for cross-city bus transportation business of this case is an administrative agency's discretionary act (see Supreme Court Decision 9Du6026, Oct. 12, 1999). In light of the following: (a) the Plaintiff's route and operation system, which is the existing urban bus transportation business entity, and the participants are overlap with each other due to the disposition of this case; and (b) the decrease in the Plaintiff's operational profit is anticipated as the cross-city bus stops in the sub-citys, but on the other hand, it cannot be said that there is an error of abuse of discretionary authority in light of the degree of overlapping the route (in particular, the inter-glsan and the sub-city are allowed to operate without stopping); (c) the difference between the means of transportation and the cross-city bus; (d) the difference between the means of transportation and the operation method of the cross-city bus; and (e) the public interest of Ulsan-Ulsan citizens' inconvenience, etc., which caused inconvenience.

3. Conclusion

Therefore, the plaintiff's claim seeking revocation is dismissed on the premise that the disposition of this case is unlawful, without merit. Thus, the judgment of the court of first instance which dismissed the lawsuit of this case on the ground that it is unlawful is different from this conclusion, but the plaintiff only appealed, and thus, the plaintiff's appeal is dismissed by applying the principle of prohibition of disadvantageous alteration. It is so decided as per Disposition.

Judges Park Jong-hun (Presiding Judge)