2016Nu82418 Revocation of designation

Ormat International Tour Co., Ltd.

The Minister of Culture, Sports and Tourism

Seoul Administrative Court Decision 2016Guhap64746 decided December 9, 2016

March 7, 2017

April 4, 2017

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s revocation of designation against the Plaintiff on March 28, 2016 shall be revoked. 2. The purport of the appeal is to revoke

The same shall apply to the order.

1. The grounds for the court’s explanation on this part are as stated in the pertinent part of the reasoning of the judgment of the court of first instance. As such, this part of the reasoning of the judgment is cited pursuant to Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

A. The plaintiff's assertion

1) The instant guide and the system of exclusive travel agents pursuant thereto, which are in violation of the principle of statutory reservation, allow only travel agents designated by the Defendant to carry out the domestic tourism business of Chinese people, have the nature of infringing on freedom of occupation and freedom of business, which are fundamental rights under the Constitution. Nevertheless, the instant guide was established without delegation of superior laws and regulations. Thus, the instant disposition is unlawful as it is in violation of the principle of statutory reservation.

(ii) procedural defects;

In rendering the instant disposition, the Defendant did not comply with the prior notification and submission procedure under Article 21(1) of the Administrative Procedures Act and the procedure for presenting opinions, and the procedure for presenting the grounds for disposition under Article 23(1) of the Administrative Procedures Act.

(iii) deviation from and abuse of discretionary power;

Since its establishment on July 30, 2004, the Plaintiff engaged in travel business in good faith without any violation. Since the Defendant faithfully implemented the submission of documents required to supplement the instant disposition prior to the instant disposition, the instant disposition constitutes a case where the instant disposition deviates from and abused discretion against the principle of proportionality.

1) Legal nature of the designation of exclusive tourmen and revocation of such designation

The term "administrative disposition", which is the object of an appeal litigation, refers to, in principle, an act of an administrative agency's public law, which directly affects the rights and obligations of the general public by ordering the establishment of rights or the burden of obligations under Acts and subordinate statutes or causing other legal effects with respect to a specific matter. However, even if the grounds for a certain disposition are stipulated in the administrative rules, if such disposition orders the other party to establish rights or the burden of obligations, or causes other legal effects, and thereby directly affects the other party's rights and obligations, it constitutes an administrative disposition subject to an appeal litigation even in this case (see, e.g., Supreme Court Decisions 2001Du3532, Jul. 26, 2002; 2003Du10251, Nov. 26, 2004).

The grounds for the designation of exclusive travel agents are stipulated in the instant non-resident report and the instant guidelines. The instant guidelines are merely administrative rules governing the inside of administrative agencies, and do not have external binding force, as they set forth in the business process guidelines that set forth matters necessary for the designation, management, and operation of exclusive travel agents to take charge of tourism of Chinese organizations in the Republic of Korea without delegation of statutes. However, the Defendant entered into the instant non-resident report with China, and accordingly recommended domestic exclusive travel events to attract Chinese organizations in China, and recommended Korean tourism affairs with permission from China.

A national travel agent may enter into a group tour contract only between events exclusively in charge of the defendant's recommendation and with events. In other words, a domestic travel agent who was not designated as a exclusive travel agent in accordance with the Chinese travel permission system is prohibited from attracting Chinese group tourists. The domestic travel agent designated as a exclusive travel agent and recommended by the defendant has the status to enter into a contract for attracting Chinese group tourists and to enter into a contract for soliciting and responding to Chinese group tourists. Therefore, the designation of exclusive travel agent is an act giving legal effect to establish the right to enter into a contract for attracting Chinese group tourists, which constitutes a beneficial administrative act, and the revocation of the designation of exclusive travel agent is an act of deprived of the right to enter into a contract for attracting Chinese group tourists or status to enter into a contract for attracting Chinese group tourists according to the circumstances that occurred after the designation of exclusive travel agent.

2) The validity of the instant guidelines and the revocation of designation of exclusive tourers without legal basis

가) 행정작용에 국회가 제정한 형식적 법률의 근거가 요청된다는 법률유보 및 의회 유보의 원칙은 단순히 행정작용이 법률에 근거를 두기만 하면 충분한 것이 아니라, 국가공동체와 그 구성원에게 기본적이고도 중요한 의미를 갖는 영역, 특히 국민의 기본권 실현에 관련된 영역은 행정에 맡길 것이 아니라 국민의 대표자인 입법자 스스로 그 본질적 사항에 대하여 결정하여야 한다는 요구까지 내포하는 것으로 이해된다. 그러나 입법자가 스스로 규율하여야 하는 사항이 어떤 것인가는 일률적으로 획정할 수 없고, 구체적 사례에서 관련된 이익 내지 가치의 중요성, 규제 내지 침해의 정도와 방법 등을 고려하여 개별적으로 결정할 수 있을 뿐이다. 다만, 적어도 헌법상 보장된 국민의 자유나 권리를 제한할 떄에는 그 제한의 본질적인 사항에 관한 한 입법자가 법률로써 스스로 규율하여야 한다(헌법재판소 2016. 6. 30. 선고 2015헌바125, 290 결정 참조).

Under the provisions of the Framework Act on Tourism (Articles 2, 5, 7, and 10), the Defendant, as the competent authority obligated to take various measures and policies related to tourism business, entered into an agreement with the Government of China with the aim of facilitating the attraction of Chinese group tourists. The Defendant prepared the instant guidelines to implement the matters stipulated in the agreement, and subsequently made the designation of exclusive tourers and the revocation thereof pursuant to the provisions of Articles 3 and 3-2. The fact that domestic tour agents are prohibited from attracting Chinese group tourists at will, in principle, from adopting the travel permission system to allow foreign tourism only to the countries where the agreement was entered into, and thus, our legal system adopts the permission system to attract foreign group tourists in accordance with the procedures stipulated in the agreement, and thus, even if the foreign group tour business is actually operated as a permission system, it does not require the designation of exclusive tour operators in itself to operate the business or to restrict freedom of business or freedom to operate the business (the designation of exclusive tour operators and the legal status of exclusive tour operators in China).

On the other hand, the designation of the exclusive tourer is beneficial to the other party, and its legal nature belongs to the discretionary act, and such discretionary act may impose conditions, time limit, burden, etc. to achieve administrative purposes, unless otherwise expressly provided for in the relevant Acts and subordinate statutes. The contents of the deputy tourer are able to implement, comply with the principle of proportionality and the principle of equality, and it cannot be deemed unlawful insofar as the intrinsic effect of administrative disposition is not infringed upon. The designation of the exclusive tourer as the exclusive tourer by designating the exclusive tourer in accordance with the instant guidelines, and the result of evaluation and determination of the designation of the exclusive tourer shall be made to ensure that the exclusive tourer bears a certain duty, and even if the designation of the exclusive tourer is made to achieve administrative purposes to maintain its qualification above a certain level, it is merely an incidental duty to hold the status as the exclusive tourer, and even if the designation of the exclusive tourer is revoked, it does not go beyond the scope of rights or interests. Therefore, it cannot be deemed that the exclusive tour is either impossible to comply with the instant guidelines or difficult to view the fundamental principle of freedom and equality.

Even if it is necessary to incorporate and regulate the system of designation and revocation of designation of exclusive tour operators in the laws enacted by the National Assembly as well as the designation of exclusive tour operators due to a significant increase in the number of exclusive tour operators or exclusive tour operators in China after the completion of this case, the designation of exclusive tour operators and revocation of designation are not simply entrusted to the judgment of the administration, but even if there is a need to incorporate and regulate the system in the laws enacted by the National Assembly, the designation of exclusive tour operators and designated small tour operators cannot be granted legal effect solely on the ground that there is no legal basis in the situation where there

The diplomatic issues are expected to arise that confusions in the travel business or tourism business related to attracting the national group tourists and that make it impossible to observe the records of this case. In full view of these circumstances, the designation and revocation of the designation of the defendant's exclusive travel agent or the guidelines of this case cannot be deemed to contravene the principles of legal reservation and the reservation of Congress.

B) The instant guidelines are merely an administrative rule governing the internal administration and do not have external binding force. Thus, the instant guidelines themselves cannot be a legitimate legal basis for the instant disposition. However, even if there was no particular defect at the time of the disposition, and even if there was no separate legal basis for the revocation after the disposition, a disposition agency which rendered an administrative act may withdraw it by a separate administrative act that would lose its validity in the event there was a change in circumstances where the continuation of the original disposition is no longer necessary, or where there was a need for the important public interest. However, even if the cancellation or withdrawal of the beneficial administrative disposition is a violation of the citizens’ vested rights, the exercise of the right of revocation, etc. is determined by comparing and comparing with the disadvantage suffered by the other party only when there is a need for the important public interest to justify the infringement of the vested rights, or when there is a need for the protection of the interests of a third party, and it is unlawful in itself (see Supreme Court Decision 2006Du76366, Jul. 22, 2004).

As seen earlier, the instant disposition constitutes the revocation of the designation of the Plaintiff and constitutes the withdrawal of beneficial administrative acts. Therefore, even if the Defendant did not have any legal basis in determining the revocation of the designation of the Plaintiff as the exclusive travel agent, the instant disposition cannot be immediately deemed unlawful solely on the ground that there is no legal basis in determining the revocation thereof. This part of the Plaintiff’s assertion on procedural defects is without merit.

1) Facts of recognition

A) On March 2013, 2013, the Defendant held a public hearing on exclusive travel workers on July 2013, and introduced a system for the renewal of exclusive travel workers after holding a meeting on February 2, 2013 and August 2013 under the Korea Tour Business Association. On September 5, 2013, the Defendant established the criteria for the renewal of the system and notified the head of the Korea Tour Business Association of the criteria for the implementation of the renewal system to notify the exclusive travel workers on the same day.

B) After the Plaintiff was designated as a exclusive travel agent on October 4, 2005, the Plaintiff was re-designated as a dedicated event in accordance with the implementation of the 2013 renewed program. At the time of the re-designation, the Defendant announced that the travel agent, including the Plaintiff, who was re-designated as a exclusive travel agent, will reflect the results of future attraction, product prices, administrative sanctions, low-cost goods, sales rate of high-value goods, etc. in the evaluation of the renewed program conducted at a two-year intervals.

C) On October 5, 2015, the Defendant: (a) notified the head of the Korea Tour Association to enter the results of each company; and (b) notified the exclusive tourer that the exclusive tourer would be able to utilize the results for the evaluation of re-designation (Renewal) in 2014 and 2015; and (c) on the same day, the head of the Korea Tour Association announced the exclusive tourer on the same day.

D) On December 24, 2015, the Defendant announced that the exclusive travel agent may be disadvantaged in the evaluation of relevant items at the time of failure to submit data related to the evaluation of re-designation by January 8, 2016. At the time, the documents that the Defendant requested to submit are “2015 Financial Statements Certification Board (Certified Tax Accountants Preparation),” documents evidencing the performance of award, such as prior to the recruitment, commendation, and selection of good goods, and documents evidencing the conclusion of the standardized terms and conditions for tour interpretation guide, and documents attracting high goods and local goods, such as MICE and medical services.”

E) On December 24, 2015, the Defendant applied for the re-designation of exclusive travel agents according to the Defendant's notice on December 24, 2015, and the Defendant, following the document review, entered the Plaintiff on March 4, 2016 as "prior notice of revocation of designation (Notification of Submission of Opinions) following the evaluation of the renewal system for exclusive travel agents," and the "related provisions of the notice" as "prior notice of the above notification," "Article 21 (1) of the Administrative Procedures Act (Advance notice of disposition)," "Article 3-2 (Renewal of Exclusive Tour) of the Guidelines," and "Presentation of the opinion" as "the contact details of the agency in charge, department in charge, and person in charge were stated as "the fact that the cause of the disposition was" and "the submission of the tax invoice for the year 14, 15, the number of persons who did not have a certificate of qualification,

F) From March 3, 2016 to March 14, 2016, the Plaintiff submitted to the Defendant a list of total tax invoices by seller by seller in 2014.2015, a list of virtual operating status and qualification standard terms and conditions, and financial statements for the year 2015. On the same day, the Defendant sent the Plaintiff an evaluation sheet by e-mail on March 23, 2016 on the ground that it reflected additional submitted by the Plaintiff and received less than 70 points for renewal, following deliberation and resolution by the Exclusive Tour Management Committee, on March 28, 2016. The instant disposition was made on the ground that the Plaintiff received less than 70 points for renewal, which constitutes the cause of the relevant disposition.” Meanwhile, the Plaintiff still stated the following as the date.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap 2, 3 evidence, Eul 2 through 5, 13, 20, 21 evidence (including branch numbers, if any), the purport of the whole pleadings

2) Determination

A) As to the argument regarding the procedure of prior notification and submission of opinions, as seen above, the Defendant, prior to the instant disposition on March 4, 2016, including guidance to present opinions, etc., was given prior to the instant disposition, and thus, it constitutes prior notification under Article 21(1) of the Administrative Procedures Act. However, the above prior notification does not include 14, 15, 200, 15, 15, 15, 15, 200, 15, 200, 200, 3-2 (2), 200, 15, 2000, 2000, 2000, 2000, 2000, 1000, 200, 200, 200, 201, 20, 201, 20,000,000,000,000,000.

The plaintiff's assertion on this part is without merit.

B) Next, Article 23(1) of the Administrative Procedures Act provides that the grounds and reasons for the instant disposition shall be presented to the relevant administrative agency when rendering a disposition. This purport is to exclude arbitrary decisions of the administrative agency and to enable the relevant party to properly cope with the administrative remedy procedures. Therefore, in a case where the relevant parties sufficiently know about what grounds and reasons are stated in the written disposition and the overall process, etc. up to the relevant statutes and dispositions, so that it does not interfere with the relevant administrative remedy procedures, it cannot be said that the written disposition is unlawful unless the grounds and reasons for the disposition are specified in the written disposition (see, e.g., Supreme Court Decision 2015Du2024, Sept. 10, 2015).

The Defendant’s disposition of this case cannot be deemed an appropriate measure to indicate “14, 15, 15, 10, 10, 15, 15, 10, and 15, 15, 200, 200, 2000, 2000, 2000, 2000, 200, 200,0000, 200,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,00

D. Determination on the assertion of deviation or abuse of discretionary power

The detailed details of the evaluation items for the renewal of exclusive tour operators, allocation method, method of evaluation, and method and criteria for calculation of evaluation points are, in principle, left to the defendant's unique policy or autonomous judgment, which is the competent authority, and they belong to wide discretion. However, it is illegal only where the method or criteria violate the Constitution or laws, lack of excessively rational and objective legitimacy, or where it is determined that the method or criteria were considerably unreasonable or unfair in light of the purpose of the evaluation in this case, the purpose of the evaluation in question, and the purpose of the relevant statutes, etc.

With respect to this case, 1) the exclusive travel renewal system was introduced to facilitate the withdrawal of events by strictly designating a new exclusive tour event with the aim of strictly resolving the problems where the image of the Korean tourism industry is inferred due to tourism, such as coercion of excessive shopping for Chinese group tourists, allocation of low-end accommodation outside the Seoul metropolitan area, etc. (7) the designation of a new exclusive tour event was introduced to facilitate the withdrawal of events by failing to have the results of attracting or impairing the market order (3, 5, 4-7). (2) The Defendant prepared the criteria for evaluation of renewal reflecting the opinions of exclusive tourers through several public hearings and meetings. (3) The above criteria for evaluation are not deemed significantly unreasonable or unreasonable, and the Plaintiff with experience in the review of renewal system in 2013 seems to have sufficient time to acquire points necessary for the evaluation of renewal system in 2015. (4) The instant disposition only cancels the Plaintiff’s designation of exclusive tour, so it is difficult to see that the Plaintiff’s assertion that the Plaintiff continued to engage in the business other than the Chinese tourist-level.

Conclusion

If so, the plaintiff's claim is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, and the plaintiff's claim is revoked and dismissed.

The presiding judge, the highest judge

Judges Lee Jong-chul

Judge Dolll-Do