2016Guhap58437 Action for revocation of the designation of exclusive tourers

Hubaeng Co., Ltd.

The Minister of Culture, Sports and Tourism

March 9, 2017

April 6, 2017

1. The revocation of the designation of the exclusive travel agent in China against the Plaintiff on March 28, 2016 by the Defendant is revoked. 2. The litigation cost is assessed against the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The People's Republic of China (hereinafter referred to as "China") has entered into an agreement with a foreign government for the control of the people's lives in its foreign tourist destinations, and only that foreign government designates the Republic of Korea on May 1998 as "China's country of free departure tourism". On June 27, 2000, the representative of China and the delegation of the Republic of Korea entered into a negotiation on the implementation plan for various relevant issues arising from tourism of Chinese group tourists in the Republic of Korea on June 27, 2000, and signed a visa containing an agreement following the negotiation (hereinafter referred to as "non-net of this case"). According to the non-net of this case, China shall select its travel agents to take exclusive charge of the affairs of Korean national tourism among its activities, and these travel agents shall enter into a contact with the Korean government's organizations of free travel, among those recommended by the Korean government.

C. On July 1998, the Defendant enacted the “The Guidelines for the Implementation of the Exclusive Tour Business for the Attraction of Tourist Operators” (hereinafter “The Guidelines”) in order to designate and manage the “The Exclusive Tour for the Attraction of International Tourist Operators” (hereinafter “The Guidelines”).

D. The Plaintiff is a company engaged in the business of visiting overseas culture, studying trips, overseas training, etc., and was designated as the exclusive travel agent by the Defendant.

E. On March 28, 2016, the Defendant issued a notice that the designation of exclusive travel workers was revoked (hereinafter “instant disposition”) to the Plaintiff on the ground that the Plaintiff was 59 points less than 70 points, which are the base points for renewal of the event, as a result of the review of the exclusive travel agent renewal system in accordance with the instant guidelines.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 5, 7, 8, Eul evidence Nos. 1, 21, 22, and 24 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. Relevant statutes and regulations

The details of the attached statutes and regulations are as shown in the attached Table.

B. Whether it violates the principle of statutory reservation

1) Summary of the Plaintiff’s assertion

The instant guide and the designation of exclusive tourers based thereon and the revocation thereof do not have any basis in the formal law despite the restriction on freedom of occupation and freedom of business. Accordingly, the instant guide are null and void in violation of the principle of statutory reservation, and the instant disposition based thereon is unlawful.

2) Relevant legal principles and issues

A) The Constitution provides the rule of law as one of the basic principles, and the rule of law is the core of the principle that the formal legal basis established by the National Assembly is required in administrative action, namely, administrative action. Furthermore, today’s rule of law is not sufficient to simply provide the legal basis, but rather to provide the state community and its members with basic and important meaning, in the area related to the realization of the fundamental rights of the people, and in particular, it is understood that the legislators, the representative of the people, should make decisions on the essential matters of the nation’s own. In such a case, the legislators cannot uniformly define what matters to be regulated by the formal law, and can be individually determined by taking into account the importance of benefits and values related to specific cases (see Constitutional Court en banc Decision 2013Hun-Ga6, May 28, 2015).

B) The Defendant is a competent authority responsible for formulating various measures and policies related to the tourism industry pursuant to the provisions of the Framework Act on Tourism, with the aim of promoting the attraction of Chinese collective tourists.

The government of the Republic of Korea and the government of the instant non-party agreed on the instant non-party agreement to implement the matters set forth in the agreement, and set up the instant guidelines, and designate or cancel the exclusive exercise on this basis. However, the instant guidelines are the business process guidelines that set forth matters necessary for the Defendant to designate, manage, and operate the events to be exclusively in charge of tourism of Chinese group tourists without delegation of statutes, and are merely the administrative rules governing the internal administration.

However, the designation or renewal of exclusive tour events is only based on the above guidelines. Whether such administrative action is unlawful in violation of the principle of statutory reservation in light of the legal principles as seen earlier, there are grounds for the designation or discipline of renewal of exclusive tour workers (subject to the location of administrative authority, the period of designation of exclusive tour workers, the effect of designation, the qualification or renewal of designation, etc.) in light of the aforementioned legal principles, and in particular, in the instant case, whether there is a minimum provision on the regulation of renewal of designation of exclusive tour workers and the evaluation items, standards, methods, procedures, etc. of renewal

The decision is judged.

3) Determination

A) In addition to the details of the instant disposition and the purport of the entire oral argument in the instant guidelines (Evidence No. 1), the following circumstances can be revealed.

① As seen earlier, China has entered into an agreement with a foreign government for the control of its own country’s nationals at a tourist destination, and only that foreign government designated as a travel agent is able to attract Chinese group tourists. Accordingly, no one may conduct business attracting Chinese group tourists, regardless of our country’s policies, before Korea enters into an agreement with China on the visa of this case. Only after the agreement was entered into between Korea and China pursuant to the instant visa, a Korean national is designated as a exclusive travel agent and recommended by the Defendant in accordance with the instant guidelines, and has the status to enter into a contract with Chinese group tourists. Such designation of the Defendant’s exclusive travel agent constitutes an administrative disposition that actually creates the legal effect of establishing the right or status to enter into a contract for attracting Chinese group tourists, and thus, it can be deemed that it constitutes an administrative disposition that can only be seen as having established and implemented the instant policy-related interest, as well as the right to protect Chinese organization and tourism under the Constitution, and thus, it can only be deemed that it constitutes an administrative disposition that can only be seen as having established and implemented the instant policy-related interest.

② Even if the Defendant: (a) designated a specific citizen as a exclusive travel agent and had him/her comply with the instant guidelines to bear certain obligations prescribed in the guidelines; and (b) determined whether to revoke the designation by evaluating the result thereof, such obligations are merely incidental obligations to be borne by the relevant citizen in order to hold the status as a exclusive travel agent. Even if the designation of a exclusive travel agent is revoked due to his/her failure to perform his/her duties, the status as a exclusive travel agent is lost, and the rights and interests are not infringed; (c) therefore, the foregoing obligations owed by the national designated as a exclusive travel agent are not infringed. Therefore, the third defendant’s designation and renewal of the exclusive travel agent are not infinite of the State’s budget, and there is no room for concern over the fairness and transparency of the State’s budget execution.

④ In particular, the revocation of the designation of exclusive tourers or rejection of the renewal thereof can be said to be the withdrawal of an administrative act that would lose the validity of the designation in the future on the grounds of the circumstances that occurred after the designation of exclusive tourers. The withdrawal of an administrative act is possible, even if there is no separate legal basis, in the event of a change of circumstances that no longer need to continue to exist after the disposition, or where it is necessary for important public interests (see, e.g., Supreme Court Decision 91Nu3130,

(5) It is not necessarily illegal or unconstitutional if it is deemed desirable for the National Assembly to ensure that democratic legitimacy is faithfully made by establishing the basis of regulations directly by law with respect to matters related to the occupation and daily life of citizens, such as the designation or renewal of exclusive events.

B) Considering the aforementioned circumstances, it is difficult to view that the designation and renewal of the exclusive exercise is a territory related to the realization of fundamental rights of the people guaranteed by the Constitution or an area with basic and important meaning for the State community and its members. Therefore, the designation and renewal of the exclusive exercise pursuant to the instant guidelines cannot be deemed to violate the principle of statutory reservation. Therefore, the Plaintiff’s spirits cannot be accepted.

C. Whether the disposition standard violates the duty of prior publication

1) Summary of the Plaintiff’s assertion

Although the Defendant modified the criteria for evaluation of the exclusive travel agent renewal system in 2013 and set a new criteria for evaluation, it was impossible for the Plaintiff to anticipate the instant disposition as it was not published prior to the implementation of the exclusive travel agent renewal system in 2016. Therefore, the instant disposition was unlawful in violation of Article 20(1) of the Administrative Procedures Act.

2) Determination

A) Relevant provisions and legal principles

Article 20 (1) of the Administrative Procedures Act provides that "administrative agencies shall determine and publicly announce the necessary disposition standards so that they may be made appropriate in light of the nature of the relevant dispositions. The same shall apply to the case of changing the disposition standards." Article 20 (2) of the Administrative Procedures Act provides that "the publication of the disposition standards under paragraph (1) may not be made when it is considerably difficult in light of the nature of the relevant dispositions or when there are reasonable grounds to be deemed that the public

The purpose of this system is to ensure transparency and predictability in administration by preventing arbitrary exercise of authority by administrative agencies. As such, administrative agencies are obligated to establish and publicly announce the standards for dispositions to the maximum extent possible, so long as the nature of the pertinent disposition permits (see, e.g., Supreme Court Decision 2008Du5148, Aug. 25, 201).

(B) fact finding;

The following facts are either disputed between the parties, or acknowledged by adding the whole purport of the pleadings to the entries in Gap evidence Nos. 1, 5, 7, 8, and Eul evidence Nos. 1, 3-5, 7, 13, 21, 22, and 24:

① The Defendant, after undergoing a public hearing on March 21, 2013, newly established Article 3-2 of the instant Guidelines to introduce the system for the renewal of exclusive tour operators. On July 26, 2013, the Defendant held a public hearing to establish the guidelines for the evaluation of the renewal of exclusive tour operators and heard opinions from exclusive tour operators. In addition, on February 28, 2013 and August 23, 2013, the Defendant held a public hearing on the establishment, etc. of the standards for the evaluation of exclusive tour operators and the renewal system under the Korea Tour Business Association.

On September 5, 2013, the defendant determined the criteria for the evaluation of the renewal system and notified the head of the Korea Tour Business Association of the criteria for evaluation of renewal system (hereinafter referred to as "standards for evaluation of renewal system in 2013") along with guidance on implementation of the renewal system on the following day, and the head of the Korea Tour Business Association announced this on the same day to exclusive tourers. The evaluation field, items, indexes, and their allocated points in accordance with the criteria for evaluation of renewal system in 2013 shall be subject to more than 75 points in total in order to be re-designated as exclusive tourers as shown in

List of votes

A person shall be appointed.

③ On December 5, 2013, the Defendant notified the exclusive travel workers, including the Plaintiff, to the effect that they were re-designated as exclusive travel workers in accordance with the renewal system on December 5, 2013, and announced that the results of the implementation will be reflected in the evaluation of the renewal system conducted every two years by continuously checking the results of attracting, the price of goods, the administrative sanctions, the history of low-cost goods, the sales rate of high-class goods, etc.

④ On September 23, 2015, the Defendant held an explanatory meeting on the electronic management system formulated for the efficient management, etc. of exclusive leisure events, and the Plaintiff’s employees attended the said explanatory meeting.

(6) On October 5, 2015, the Defendant: (a) notified the head of the Korea Tour Association of the fact that he/she had established an electronic management system; and (b) notified the exclusive tourer of the fact that he/she had it entered the performance of each company. The above notification stated, “In particular, for the past two years (from January 2014 to October 2015), it is expected to be used in the evaluation of re-designation in the year 2015, it is necessary for the company to accurately input the results; and (c) it is announced to the exclusive tourer on the same day. The president of the Korea Tour Association announced the results to the exclusive tourer on the same day; and (d) it stated, “The accurate content is always to be used in the evaluation of the renewal system in the year 2015, and the performance results on October 2015 are to be input if it is estimated.”

(6) On December 24, 2015, the Defendant publicly announced that the exclusive tourers could suffer disadvantages in the evaluation of relevant items at the time of failure to submit a document related to the evaluation of the re-designation of exclusive tourers by requesting the submission of "the data related to the verification of financial statements (certified tax accountants prepared) to be reported by the National Tax Service by the National Tax Service on January 17, 2016, such as the source of certification of financial statements (certified tax accountants prepared), evidentiary documents such as prior to the recruitment, commendation, and selection of outstanding goods, the standard terms and conditions for concluding the contract for interpretation and guide of business operators, and MICE and medical treatment."

① On March 11, 2016, the Defendant newly prepared the evaluation criteria for the renewal system as indicated below (hereinafter referred to as the "evaluation criteria for the renewal system in 2016"), in order to strengthen sanctions against the increase in harmful effects caused by illegal acts, such as employing some exclusive tourers without qualification and failing to perform their duty to report unauthorized removal.

List of votes

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

As a result of the evaluation of the records of* two years (from January 2014 to October 2015), with respect to a business entity with less than 70 points or with more than 6 points reduced due to an administrative disposition (unqualified, etc.), the revocation of designation 8 Defendant issued the instant disposition to the Plaintiff on March 28, 2016 after deliberation and resolution by the Management Committee for Exclusive Tour.

(4) No defendant shall publicly announce the evaluation criteria for the renewal system in 2016.

C) Application of relevant regulations and legal principles

In full view of the following circumstances revealed according to the above facts, it is reasonable to view that the Defendant: (a) without sufficient time to prepare for the renewal evaluation prior to the evaluation of the renewal system in 2016, the Defendant re-established the evaluation criteria for the renewal system in 2016 by significantly amending the evaluation criteria for the renewal system in 2013 without any time to prepare for the renewal evaluation; (b) the publication of the standards in advance does not have substantial difficulty in the nature of the disposition on the renewal of the exclusive travel company in 2016 or there are no reasonable grounds to deem that the public safety and welfare could be significantly undermined; and (c) it is reasonable to view that the Defendant was unable to prepare for the renewal or that the person prior to the renewal is designated as the exclusive travel company, including the Plaintiff

The instant disposition was conducted by the Defendant without specifically announcing the evaluation criteria for the disposition to renew the exclusive travel company in 2016. Thus, it is unlawful in the process in violation of Article 20(1) of the Administrative Procedures Act. (1) The renewal of the exclusive travel company is determined by re-evaluation of whether a person who is already designated by the Defendant as a exclusive travel company and who is engaged in the business of attracting Chinese organization tourists can continue to maintain his/her qualification as a exclusive travel company. In particular, considering that most of the persons operating the exclusive travel company are dependent on the Chinese organization tour attraction business, where the designation of the exclusive travel company is revoked, it is more necessary to publish the evaluation criteria, such as the evaluation criteria, indexes, allocated points, etc. of the renewal to predict the renewal of the exclusive travel company.

(2) The criteria for the renewal of the 2016 point are different from those for each of the following points: ① The 2010 point for each of the 2016 points for each of the 2013 different points for each of the 2015 points for each of the 2015 points for each of the 2013 points for each of the 2016 points for each of the 2010 points for each of the 10th appraisal points for each of the 2016 points for each of the 2016 points for each of the 10th appraisal points for each of the 2016 points for each of the 10th appraisal points for each of the 2016 points for each of the 20th appraisal points for each of the 10th appraisal points for each of the 20th appraisal points for each of the 10th appraisal points for each of the 2016 points for each of the 10th appraisal points for each of the 2016 points for each.

(3) The issue of whether to renew the exclusive travel company in 2016 shall be determined by evaluating the activities of 2014 and 2015 of those who are designated as a exclusive travel company and are expected to renew the plan. Therefore, in order for those subject to the evaluation to prepare for the evaluation, the above evaluation criteria shall be published for a considerable period of time. However, even though the evaluation criteria for the renewal system in 2016 are significantly modified compared to those of 2013, the Defendant prepared a plan for deliberation and resolution on whether the Exclusive Tour Management Committee has renewed the exclusive travel company in 2016 ( March 23, 2016) and 12 days ( March 11, 2016) from the date of deliberation and resolution on whether to renew the exclusive travel company in 2016 ( March 23, 2016). Accordingly, there was a lack of time to prepare for the evaluation in accordance with the above changed criteria.

(4) In addition, as the Defendant did not publish the evaluation criteria for renewal in 2016 prior to the determination of whether to renew the evaluation criteria, the Defendant did not have any opportunity to prepare other projects in preparation against the fact that the exclusive tourer subject to evaluation fails to meet the criteria for renewal by himself.

(5) On December 5, 2013, the Defendant notified the exclusive travel agents, including the Plaintiff, to the effect that they were re-designated as exclusive travel agents pursuant to the renewal system, and announced that the results of attracting, product prices, administrative sanctions, history of low-cost goods, sales rate of high-value goods, etc. will be reflected in the renewal evaluation conducted every two years. However, such notification was not only the evaluation base date of the year 2013 but also abstract, and it is difficult to view that it could have predicted the changed evaluation standard of the renewal system in the year 2016.

(6) Since the Defendant demanded that exclusive travel agents submit evidentiary documents on December 24, 2015, such as a public invitation, commendation, and the selection of good goods, it would have been known that the exclusive travel agent would have been engaged in the relevant evaluation. However, it was entirely impossible to find out the specific criteria, such as the evaluation criteria or allocation.

(7) Although the Defendant held an explanatory meeting on the electronic management system prepared by the Defendant for the efficient management, etc. of the events exclusively in charge of China on September 23, 2015, it does not appear that the degree of participation in the electronic management system was reflected in the evaluation of the renewal system. In addition, in the case of the performance record for the past two years (in particular, from January 2, 2014 to October 2015), the Defendant stated that “in the case of the performance record for the previous two years, it is expected to be used in the evaluation of the re-designation in 2015, and that the accurate entry of the company is necessary for the evaluation of the re-designation in 2015, it is stated that the performance record for the Korean travel business operator is not the content that it will be used in the evaluation of the renewal management system itself.”

It was difficult to expect that the degree of participation in the electronic management system will be included in the evaluation criteria for the renewal system in 2016. (8) In the operation of some exclusive tour events, problems such as non-qualified divers employment, operation of low-quality shopping products, etc. have been pointed out, and the defendant has prepared the evaluation criteria that reflects the results of administrative sanctions in the evaluation criteria for the renewal system in 2013 as a way to address the problems even at the time of formulating the evaluation criteria for the renewal system in 2013. The need for the preparation of measures has been continuously raised due to the occurrence of the same problem, but it is difficult to expect that the revocation of designation will be made only by administrative sanctions, as those who are designated as exclusive tour after the evaluation of the renewal system in 2013, including the plaintiff, because it is difficult to see that it is a special problem after the evaluation of the renewal system in 2013.

(9) Prior to the evaluation of the renewal scheme in 2013, the Defendant published detailed evaluation standards for the renewal scheme in 2013, and otherwise does not reveal any circumstances to deem that the publication of such standards is considerably difficult due to their nature or significantly detrimental to the safety and welfare of the public.

D. Sub-committee

Since the instant disposition was erroneous in the procedure as above, it is unlawful without further need to determine the remainder of the Plaintiff’s remaining arguments.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.

The presiding judge, the senior judge;

Judges Hong-man

Judges Kim Gin-han