2019Guhap81247. Revocation of designation of exclusive tourers attracting Chinese group tourists

SectorRevocation

A Stock Company

Law Firm Jeong-ho, Counsel for the plaintiff-appellant

Attorney Song-hee et al.

The Minister of Culture, Sports and Tourism

Attorney Han-soo et al., Counsel for defendant-appellant

Attorney Ansan-si, Counsel for defendant

April 2, 2020

May 21, 2020

1. The plaintiff's claim is dismissed.

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

On August 27, 2019, the Defendant revoked the revocation of the designation of the exclusive travel agent for attracting Chinese group tourists.

1. Details of the disposition;

A. From the 1980s, the People's Republic of China (hereinafter referred to as the "China") designated a travel permissible area for group tourists in consultation with the respective governments, and introduced a travel permission system (ADS, APvved Datus) to attract and contact Chinese group tourists only by the travel agencies recommended by the countries which entered into an agreement with China. On May 2, 1998, China designated the Republic of Korea as the "China's SPS SPS, SPVPS country". The representatives of the two countries designated the Republic of Korea on June 2 and 200, 6, and 27 on June 2, 1998 by negotiating various related issues arising from tourism in the Republic of Korea of China.

B. According to the records of this case, China selected a travel agency in its own country and had it select.

A person who is exclusively in charge of Korean organization tourism affairs shall be the Korean nationals, and these travel agents shall, without fail, enter into a collective tourist recruitment and contact contract by finding a collaborative entity from among travel agencies recommended by the Government of the Republic of Korea.

C. On July 1998, the Defendant enacted the Guidelines for the Implementation of Exclusive Tour Services for Chinese Organization Tourist Attraction (hereinafter referred to as the “Guidelines”) in order to designate and manage the 'Exclusive Tour Master' recommended to China in accordance with the Round of this case (hereinafter referred to as the "Exclusive Tour Master').

D. On February 15, 201, the Plaintiff was established for the purpose of domestic travel, overseas travel, general travel, etc. and was designated as a exclusive travel agent by the Defendant.

E. On August 27, 2019, the Defendant revoked the designation of the Plaintiff’s exclusive travel agent in China on the ground that “on the basis of Article 11(3)2 of the instant Guidelines, the Defendant lent the name of the exclusive tour agent in China to B, a non-designated general tour agent (hereinafter “B”).” (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 1 (including branch numbers, hereinafter the same shall apply) and the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant guideline violates the principle of equality by infringing on citizens’ freedom of occupation, etc. against the Tourism Promotion Act, which excessively infringed on the management of travel business registered, and by placing restrictions on other foreign tourists travel agencies. In addition, in order to take an aggressive disposition, the basis therefor must be reserved in superior statutes. The Defendant issued the instant disposition based on the instant guidelines, which are only the internal guidelines of the Ministry of Culture, Sports and Tourism, which are not based on the law, based on the instant guidelines, which are not based on the law

2) Although there is a fact that the Plaintiff entrusted part of the domestic travel to B, there is no fact that the Plaintiff allowed the Plaintiff to use the Plaintiff’s trade name or to operate the business by indicating that the Plaintiff is a person exclusively in charge of Chinese group travel. This is not a case where the Plaintiff borrowed the Plaintiff’s name in B, but it is illegal to deem that the Defendant’s wrong recognition of the fact that the Plaintiff borrowed the name “the case where the Defendant borrowed the name.”

B. Article 3 (New Designation of Exclusive Tourers) of the instant guidelines

(1) The Minister of Culture, Sports and Tourism may designate a new exclusive tourer who is deemed qualified as a specialized tourer from among tour operators for whom one year has passed after the registration of a general tour business, taking into account the current status of business entities, cooperation with related agencies, capacity to plan and attract high-quality tour products, past provisions of law, violations of interpretation and guide on tourism, current status of possession of exclusive tour operators, etc. (Article 3-2 (Renewal of Exclusive Tour) (1) The Minister of Culture, Sports and Tourism shall grant the qualification of a specialized tourer once a year as a specialized tourer, taking into account the results of attracting high-quality organizations of tourists, financial soundness, compliance with the legal system, contribution to tourism industry, records on administrative disposition, etc.

Article 9 (Roles and Duties of Exclusive Tour) (1) Exclusive Tourers shall be the best tourer to ensure that the Chinese tourist enters the Republic of Korea and departs from the Republic of Korea, with a sound and good character.(2) Exclusive Tourers shall endeavor to prevent illegal stay, etc. of Chinese tourists, and shall immediately report it to the relevant Immigration Office of the relevant region or to the nearby Police Station at the time of occurrence of unauthorized Desertions, and shall report it within seven days from the date of occurrence of the electronic management system.Article 11 (Sanctions)(3) The Minister of Culture, Sports and Tourism may revoke the designation if the Exclusive Tour falls under any of the following subparagraphs:

C. Effect of the instant guidelines

1) The rule of law is one of the core contents of legal reservation that the formal legal basis established by the National Assembly is required in the administrative action. Today, the principle of legal reservation is not sufficient if administrative action simply serves as the basis of law, but should be understood as having a fundamental and important meaning to the State community and its members, in particular, an area pertaining to the realization of the fundamental rights of the people, not to leave to the administration, but to the demand that the legislators, the representative of the people, make a decision on the essential matters thereof. It is difficult to uniformly define what matters to be regulated by the legislators, and only can it be determined individually in consideration of the importance of benefits or values related to a specific case, the degree and method of regulation or infringement, etc. However, when restricting the freedom or rights of the people guaranteed by the Constitution, the legislators on the essential matters of the restriction must be regulated by law (see Constitutional Court en banc Decision 2015Hun-Ba125, 290 (Consolidated Decision 200, Jun. 30, 2016).

A) According to the Framework Act on Tourism, the Government shall devise basic and comprehensive policies on tourism promotion (Article 2), and shall take legislative and financial measures and other necessary administrative measures to implement such policies (Article 5). (Article 5) In addition, the Government shall strengthen overseas public relations, improve entry and departure procedures, and take other necessary measures to promote the attraction of foreign tourists (Article 7) and shall guide and supervise tourism business and take other necessary measures (Article 10).

The defendant shall take various measures related to the tourism industry in accordance with the provisions of the Framework Act on Tourism.

In order to promote the attraction of Chinese group tourists, a competent authority obligated to formulate policies, entered into an agreement with the Chinese government in accordance with the Roster of this case, and the Defendant prepared the instant guidelines to implement the matters stipulated in the agreement, and designated a dedicated event or cancelled the designation of a dedicated event.

B) The fundamental reason why domestic travel agents, who were not designated as exclusive travel agents, are unable to attract Chinese organization tourists at will, in principle, is because China has adopted a travel permission system that permits foreign tourism only to countries where an agreement was concluded in accordance with the procedures stipulated in the agreement, and thus, our legal system cannot be said to be the reason that our country adopts the permission system for attracting Chinese organization tourists. Rather, the designation of exclusive travel agents has the nature of granting the designated domestic travel agents the right to enter into the Chinese organization tour attraction agreement.

C) An act of designating a exclusive travel agent is beneficial to the other party, and its legal nature

The act of discretion belongs to the discretionary act, and such discretionary act may set conditions, time limit, burden, etc. to achieve administrative purposes unless otherwise expressly provided for in the relevant Acts and subordinate statutes, and the contents of the disposition are fulfilled, consistent with the principle of proportionality and the principle of equality, and is not unlawful unless the intrinsic effect of the administrative disposition is hindered. In addition, the disposition in this case is a withdrawal of the designation that will lose its validity in future, depending on the circumstances that occurred after the designation of the plaintiff as the exclusive travel agent, and then lose its validity. The disposition in this case may be withdrawn by a separate administrative act that would lose its validity, even if there was no particular defect at the time of the disposition, and even if there was no separate legal ground to withdraw it after the disposition, the disposition in this case may not be deemed unlawful merely on the ground that there was no legal ground, unless it goes beyond the limit of the exercise of discretionary power (see Supreme Court Decision 20037606, Jul. 22, 2004).

D) Even if a travel agent designated as a exclusive travel agent by designating a exclusive travel agent in compliance with the instant guidelines, such designation shall be managed so that he/she can maintain his/her qualification for exclusive travel agent at a certain level or more, as prescribed by the instant Round. It is merely an obligation to achieve administrative purposes and to maintain his/her status as a exclusive travel agent and is also an incidental obligation to the minimum extent necessary. Even if the designation of exclusive travel agent is revoked, it is merely a loss of his/her status as a exclusive travel agent and does not infringe on his/her rights or interests beyond the scope, and thus, it cannot be deemed that the instant guidelines are contrary to the principle of proportionality and the principle of equality, and it is difficult to view that the designation and revocation system of exclusive travel agent are to restrict the freedom or rights of the people guaranteed by the Constitution, or that the

D. Whether the grounds for the disposition are recognized

1) Facts of recognition

A) On September 20, 2018, the Plaintiff entered into an agreement with B, a non-designated general travel agent, on business cooperation with the content of partially entrusting the Plaintiff’s business (hereinafter “instant agreement”), and the main contents of the instant agreement are as follows.

This Business Cooperation Arrangement establishes a close business cooperation system between the plaintiff (hereinafter referred to as the "A") and B (hereinafter referred to as the "B") and enters into a contract to maximize the advantages of each person to the maximum extent possible, with the aim of facilitating the attraction of Chinese visitors and increasing the profit of both companies.Article 2 (A) (1) "B" performs the following roles: 2. The plan for travel of Chinese travelers, the plan for travel of Chinese travelers, and the plan for the settlement of expenses related to the travel of Chinese travelers; 3. the operation of Chinese travelers outside of human resources/vehicles, and the operation of various activities for accommodation. Article 3 (A) (i) "A" performs the following roles:

5. On the other hand, Article 5 (Joint Business Conduct) (1) and (0) of the overall related assistance affairs may jointly carry out the following matters. 1. On the 2. Chinese traveler's document management, the progress of the settlement and document processing process 4. The progress of the settlement and document processing 6 (Expenses Settlement) and casino is as follows: "A" and "B" shall be deposited into the passbook of each corporation; and the difference between the two parties shall be deposited into the passbook designated by each other in principle:

B) The Plaintiff entered into a contract with a person exclusively in charge of women in China, and directly performed the duty of issuing Korean visa to tourists gathered by a Chinese tourr. The Plaintiff was paid brokerage fees from around October 31, 2018 to December 31, 2018 by C (State) D and C (State E, and entered into a contract with a tour interpreter and tour guide on October 2, 2018.

C) The Plaintiff deposited KRW 16,285,79 on December 14, 2018, KRW 29,625,249 on March 15, 2019, KRW 72,175,79 on April 19, 2019, KRW 87,685,49 on May 17, 2019, and KRW 16,285,79 on June 14, 2019, respectively.

D) On August 1, 2019, the Defendant notified the Plaintiff on August 1, 2019 that a disposition for revocation of designation is scheduled due to the name lending of exclusive travel agents, and on August 6, 2019, the Plaintiff submitted to the Defendant a written submission stating that “The designation and adjustment rate of accommodation, vehicles, and food services provided for domestic travel is a schedule to be conducted due to consultation with us. The designation and adjustment rate of all food services is conducted through the cooperation with us with us and our order, and thus the disposition for leasing the Chinese exclusive travel agent’s name is not acceptable.”

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3 through 6, Eul evidence Nos. 3 through 6, the purport of the whole pleadings

2) The interpretation of the "where a person lends the name of a non-designated tour operator to a non-designated tour operator" includes the following circumstances that can be seen by comprehensively taking into account the details of the guidelines in this case and the developments leading up to the enactment of the guidelines, i.e., the guidelines in this case; (ii) the manual in this case allows only the exclusive tour operator to contact with Chinese organizations within the Republic of Korea; and (ii) the guidelines in Article 8 provide that the scope of the exclusive tour operator's business shall be the "general performance related to the Korean travel of Chinese organizations"; and (iii) Article 9 of the guidelines in this case provides that the exclusive tour operator shall perform his/her duties to ensure that the designated tour operator can perform his/her duties to be carried out in a sound and good manner from the entry of Chinese organizations to the departure of the country; and (iv) Article 3 of the guidelines in this case provides that the designated tour operator shall separately designate an exclusive tour operator's business to be carried out by the designated tour operator in accordance with the above guidelines in consideration of the situation of the company, related agencies, and agencies's ability to manage and regulations.

3) Specific determination

According to the above facts and the overall purport of oral argument, the following circumstances are acknowledged as follows: ① “The statement of expenses related to the Chinese traveler’s business, the establishment of a plan and human resources for Chinese travel, operation of vehicles, Chinese travelers, accommodation and lodging” are classified as B’s business, and “all activities related to the Chinese travel” are defined as “total progress and casino are determined as having the Plaintiff settle the expenses based on the progress of B” (Articles 2 and 6); ② the Plaintiff deposited money into B’s account five times from December 14, 2018 to April 19, 2019, the Plaintiff’s statement of expenses pursuant to Article 6 of the instant agreement, ③ the Plaintiff’s business related to the Chinese travel’s business related to the Chinese travel, such as casino duty, was deemed to have been performed directly, and the Plaintiff’s general tour-related business related to the Chinese tour-related business was not recognized as having been entrusted to the Chinese travel-related business, and the Plaintiff’s general tour-related business related to the Chinese travel-related business.”

(e) Whether the discretion is deviates or abused;

1) If the cancellation or withdrawal of a beneficial administrative disposition is revoked or suspended, it would infringe the vested rights of the people already granted. Thus, even if there are grounds such as cancellation, the exercise of the right to cancel, etc. is determined by comparing and comparing with the disadvantage of the other party only when it is necessary for the significant public interest to justify the infringement of the vested rights, or when it is necessary to protect the interests of a third party. If the disadvantage of the other party is enormous than that of the public interest, the disposition goes beyond the bounds of the discretionary authority and is in itself unlawful (see, e.g., Supreme Court Decisions 90Nu1780, May 14, 1991; 2003Du7606, Jul. 22, 2004);

2) The following circumstances revealed from the facts recognized earlier and the purport of the entire pleadings, i.e., (i) the exclusive tour operator system is operated to promote Chinese organizations' sound and orderly tourism and to promote the development of tourism in both countries. The exclusive tour operator system is very important for the public interest to strictly maintain and manage the exclusive tour operator qualification at a certain level through designation, renewal, and revocation of designation. (ii) The instant guideline was enacted on July 1998 and implemented several times, and it was directed for the travel operators including the Plaintiff to comply with the foregoing, and thus, the Plaintiff could easily be seen that the exclusive tour operator’s name lending can be a problem if it is performed by Chinese organizations travel-related business. (iii) The exclusive tour operator’s exclusive tour operator’s license can be revoked for the exclusive tour operator’s use of the instant guidelines, and the Plaintiff’s exclusive tour operator’s use of the instant guidelines is considerably unreasonable or unreasonable, and thus, it is difficult to deem that the exclusive tour operator’s use of the instant guidelines is more unreasonable than that of the Plaintiff’s exclusive tour operator’s use of the instant order.

F. Sub-decision

The instant disposition is lawful.

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges of the presiding judge, Hong-soo

Judges Kim Jae-sik

Judges Kim Gin-han