[1] Whether a person who obtained a license for passenger transport business can apply for multiple changes in the business plan simultaneously or annually (affirmative)

[2] The matters to be considered when an administrative agency intends to allow a new business entity to establish a route overlapping with a route already operated by an existing business entity, especially a limited business entity who has already obtained a license, in order to allow a new business entity to do so

[3] The case holding that in a case where a transport business operator, who operated an airport bus by obtaining a limited license from a passenger transport business operator to a "contractor of an overseas travel business operator" as to the application for modification of the business plan from the former to the Incheon International Airport, filed a lawsuit seeking the revocation of the authorization of the above business plan modification, on the following grounds: (a) as to the application for modification of the business plan from the former to the former to the latter; and (b) as to the application for modification of the business plan from the former to the latter to the latter, the competent Do governor erred in the misapprehension of legal principles in holding that the above authorization disposition was lawful; and (c) a transport business operator, who operated the airport bus by obtaining a limited license to restrict the passenger from the former to the latter to the latter as the "contractor of an overseas travel business operator"

[1] Unless there is a separate provision that limits the frequency or period of modification of a business plan under Article 10(3) of the former Passenger Transport Service Act (amended by Act No. 14716, Mar. 21, 2017), there is no separate provision that limits the frequency or period of modification of a business plan, it is also possible to apply for multiple changes of a business plan simultaneously or annually.

[2] In principle, whether a license for passenger transport business or a revised license for a transport business under the former Passenger Transport Service Act (amended by Act No. 14716, Mar. 21, 2017; hereinafter “passenger Transport Service Act”) falls under the discretion of an administrative agency. However, in cases where an administrative agency intends to grant a new business entity permission for the establishment of a route overlapping with a route already operated by an existing business entity, it should take into account the private interest aspect, such as adjustment of interests among the relevant transport business entity, in addition to the public interest aspect to be achieved by the existing business entity. In particular, in cases where the existing business entity with respect to the pertinent route is a transport business entity with limited license, it should take into account the details, details, purpose, and purpose of the limited license, as well as whether the existing

[3] In a case where a transport business operator, who operated an airport bus from Seoul to Incheon, filed a lawsuit seeking revocation of the approval for the change of the above business plan, based on the following facts: (a) the meaning of “a contractor for an overseas travel business” as stipulated in the above limited license conditions as a passenger who will transport the airport bus from 9 times a day to 6 times a day; (b) the operation section from 1 day to 3 times a day is reduced; and (c) the application for the change of the business plan by the passenger transport business operator for the extension of the operation section from 200 to 200, the competent Do governor did not err by misapprehending the legal principles on the permission for the change of the business plan; and (d) the determination that it is reasonable for the lower court to have concluded a lawsuit for revocation of the approval for the change of the business plan, based on the following factors: (a) whether it was reasonable to allow the change of the operation of the airport to the “passenger transport business operator’s convenience by using the airport”; and (b) whether the aforementioned change in public interest and demand should be determined based on the basis.

[1] Article 10(1) and (3) (see current Article 10(5)) of the former Passenger Transport Service Act (Amended by Act No. 14716, Mar. 21, 2017); / [2] Articles 4 and 10(1) of the former Passenger Transport Service Act (Amended by Act No. 14716, Mar. 21, 2017); / [3] Articles 4 and 10(1) of the former Passenger Transport Service Act (Amended by Act No. 14716, Mar. 21, 2017); Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 2009Du10512 Decided June 12, 2010 (Gong2010Ha, 1374)

Korea Tourism-Free Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Kim Si-soo et al., Counsel for the defendant-appellant)

Governor of Jeollabuk-do

Jeonbuk-gu et al. (Law Firm Barun Law, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Gwangju High Court ( Jeonju) Decision 2016Nu1771 Decided January 9, 2017

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The grounds of appeal are examined.

1. As to the ground of appeal on violation of law (ground of appeal No. 2)

A. As to the assertion that the amendment of the project plan in this case is not subject to amendment

(1) As to the Plaintiff’s assertion that “this case’s modification of the business plan constitutes “the construction of a route” in the form of a combination of “system division” and “scale extension,” and thus, it cannot be permitted under the law, and thus, the instant disposition that approved the application is unlawful, the lower court rejected this case’s modification on the ground that the content of the modification of the business plan is a mere “scale extension” subject to modification of the

(2) According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the content of the modification of the instant business plan constitutes “division” as provided in subparagraphs 5 and 2(b) of Article 2 of the Passenger Transport Service Personnel and License Processing Guidelines, and the combination of “division” as provided in subparagraphs 5 and 2(b) of Article 2 of the Passenger Transport Service Personnel and License Management Guidelines and “short-term Extension”, and thus, the content of the modification of the instant business plan constitutes “division” and “short-term extension”. Accordingly, it is erroneous in the lower court to have determined that the content of the modification of the instant business plan is a simple “long-term extension”.

(3) However, barring any separate provision that restricts the frequency or period of modification of a business plan under Article 10(3) of the former Passenger Transport Service Act (amended by Act No. 14716, Mar. 21, 2017; hereinafter “passenger Transport Service Act”), there is also no provision that restricts the frequency or period of modification of a business plan, and it is possible to simultaneously or annually apply for modification of a business plan (see, e.g., Supreme Court Decision 2009Du10512, Jun. 12, 2010).

Examining in light of the provisions of passenger transport statutes and the legal principles as seen earlier, the Plaintiff’s assertion that the instant change of business plan is prohibited because several changes are combined, or that the instant change of business plan is prohibited because it should follow the procedure for issuing new licenses. As such, the Plaintiff’s assertion that the instant change of business plan is different from that of the instant case, it cannot

(4) Therefore, while some of the reasoning of the lower judgment was insufficient, the lower court’s conclusion rejecting the Plaintiff’s assertion is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on modification of business plan, thereby adversely affecting the conclusion

B. As to the assertion of violation of Article 32(2)6 of the Enforcement Rule of the Passenger Transport Act

(1) The court below rejected the Plaintiff’s assertion that “the instant change of business plan included “the reduction”, and thus, it was unlawful to take the instant disposition since it did not undergo a transport demand survey, etc. as stipulated in Article 32(2)6 of the Enforcement Rule of the Passenger Transport Act.” The court below rejected the Plaintiff’s assertion that “the instant change of business plan cannot be seen as “the reduction” due to the same frequency of operation of the operating system before and after the amendment of the instant business plan.

(2) Examining the reasoning of the lower judgment in light of the relevant provisions and legal principles, the lower court did not err by misapprehending the legal doctrine on Article 32(2)6 of the Enforcement Rule of the Passenger Transport Act.

2. As to the grounds of appeal on deviation from and abuse of discretionary power (ground of appeal No. 1)

A. On the following grounds, the lower court determined that the instant disposition that allowed the Intervenor to use the routes overlapping with the airport bus routes operated by the Plaintiff with a limited license was not an error of deviation or abuse of discretionary authority.

(1) In granting a limited license to the Plaintiff, the Defendant limited the scope of the Plaintiff’s business to only the Plaintiff’s passenger to be transported as “contractor for airport use of an overseas travel business entity.” Therefore, the passenger who can use an airport bus operated by the Plaintiff is limited to “a person who entered into a travel contract with an overseas travel business entity” and the trust interest that the Plaintiff may expect is recognized within the scope.

(2) Although the passenger demand for the route from the point of view to the U.S. International Airport significantly increased, in the case of a general overseas tourr and a general transport user other than a person who entered into a travel contract with an overseas travel business entity, there is no direct traffic flight, and there is a need to establish a route for this purpose.

(3) In addition to the need to protect the exclusive benefit that the Plaintiff enjoy, the public interest is greater that can be achieved by permitting the duplicate operation of the bus transport business entities with respect to the route of “Ucheon International Airport from the Jeonju to the Mancheon International Airport.”

B. However, we cannot accept the judgment of the court below for the following reasons.

(1) In principle, whether to grant a license for passenger transport business or an amendment to a license for a transport business under the Passenger Transport Act falls under the discretion of an administrative agency. However, in cases where an administrative agency intends to grant a new business entity permission for the establishment, etc. of a route overlapping with a route already operated by an existing business entity upon obtaining a license, it should take into account the private interest aspect, such as adjustment of interests among the relevant transport business entities, in addition to the public interest to be achieved therefrom. In particular, in cases where the existing business entity with respect to the pertinent route is a transport business entity who obtained a limited license, it should also take into account the details and purpose

(2) Article 14-2(5) of the former Enforcement Rule of the Automobile Transport Business Act (amended by Ordinance of the Ministry of Construction and Transportation No. 94, Mar. 17, 1997) (amended by Ordinance of the Ministry of Construction and Transportation), which was in force on December 196, the Plaintiff first granted a limited license from the Defendant, provides that “the starting point and terminal point of the route bus operation system in the event of a limited license shall be the location of notice and marijuana, etc. which are not operated by the route bus transport business operator who has obtained a general license due to the difficulty of operating route buses or the influence of demand or the special characteristics of passengers.” In addition, Article 3 subparag. 3 of the Guidelines for the Operation of the Restricted License System of Bus Transport Business (No. 68 of the Ministry of Construction and Transportation Directive of May 8, 1995) provides that the competent administrative agency may operate an airport bus if it is deemed necessary to operate an airport bus to resolve inconvenience to domestic or foreign traffic by using an airport,” among the following cases where it is difficult to resolve any inconvenience or demand of an international passenger bus terminal.

(3) In full view of the language and purport of the above provision, and the timing and circumstances of issuing the Plaintiff’s limited license as indicated in the record, the meaning of “contractor for airport use of an overseas travel enterprise” prescribed by the Plaintiff as a passenger to be transported cannot be deemed to be limited to “a person who entered into a travel contract with an overseas travel business entity” under the terms and conditions for granting the limited license of this case, and it is reasonable to widely recognize the Plaintiff as “a passenger entering into or departing from the Republic of Korea using the airport

① The lower court deemed the meaning of the above phrase as “a person who entered into a travel contract with an overseas travel business entity” and, even if only the phrase itself, did not stipulate only “airport user contractor” as “a person who entered into a travel contract,” and there is insufficient ground for a reduced interpretation as such.

② In ordinary cases, passengers entering or departing from the Republic of Korea using an airport must not only bear airport usage charges, but also follow the rules determined by the Korea Airports Corporation, etc. relating to airport use. In this context, the terms and conditions of granting the instant limited license may be deemed to have widely expressed that a person entering or departing from the Republic of Korea using the airport is “airport user contractor

③ At the time of granting the instant limited license, the Defendant limited the Plaintiff’s business scope on passengers, etc. to be transported to “contractor using an airport of an overseas travel enterprise” in order to resolve traffic inconvenience in the “in-house, foreigner, or foreigner visiting Korea for the purpose of overseas travel.”

④ In interpreting the same as the court below, it goes against the purport of granting an airport bus license by allowing foreign travelers who visit the former State at the Incheon State’s supply port to use the airport bus.

(4) According to the terms and conditions of the instant limited license, general transport users who are not travelers are still unable to use the Plaintiff’s airport bus, but the ratio seems extremely low, and there are other means of transport to be used by them. Therefore, it is difficult to serve as the ground for the establishment of a separate route.

(5) It is apparent that a limited license is granted that the preferential right or exclusive right to operate the pertinent route is not legally guaranteed. However, as long as the instant limited license is granted on the ground that the route of “former-In Incheon International Airport” falls under the case where it is difficult to operate route buses due to the unique characteristics of passengers or influence of demand, the Plaintiff may be granted a certain expectation interest in the stable business operation corresponding to the degree of contribution to the public interest by bearing the risk of non-discriminatory demand in the initial period of the business and operating the pertinent route.

Therefore, it is not reasonable to allow the construction of a double route immediately solely on the ground that there has been a temporary increase in demand for the relevant route, and it is necessary to determine whether to allow the construction of a new route immediately after comprehensively taking into account the period during which the Plaintiff operated the relevant route, the level of public interest contribution, and the degree of interest accrued while operating the route.

C. Examining these circumstances in light of the aforementioned legal principles, the lower court should have deliberated on whether the Defendant properly compared the public interest and private interest related to the instant disposition by taking into account all the aforementioned factors. Nevertheless, the lower court determined that the instant disposition was lawful on the ground that the Plaintiff’s passenger to be transported is limited to “a person who entered into a travel contract with an overseas travel business entity.” In so determining, the lower court erred by misapprehending the legal doctrine on deviation from and abuse of discretionary authority, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)