2016Guhap59317 Revocation of the revocation of the designation of a Chinese travel agent.

1. A stock company;

2. B stock company:

3. C:

4. Stock companies D.

5. E.

The Minister of Culture, Sports and Tourism

oly 10, 2016

October 27, 2016

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

On March 28, 2016, the Defendant revoked the revocation of the designation of the exclusive travel agent for attracting Chinese collective tourists.

1. Details of the disposition;

A. From the 1980s, the People's Republic of China (hereinafter referred to as "China") designated a travel-free zone for group tourists in consultation with the government of each country, and introduced a travel permission system (ADS, Apvved Dest Datus) to attract and contact Chinese group tourists only by the travel agencies recommended by the country which entered into an agreement with China. China designated the Republic of Korea as "China-free tourism country" in May 1998. The Ministry of Culture, Sports and Tourism, the Ministry of Foreign Affairs and Trade, the Ministry of Ministry of Ministry of Construction and Transportation, the Ministry of Foreign Affairs and Trade, the Ministry of Construction and Transportation, the Ministry of Construction and Transportation, the Ministry of Foreign Affairs, the Ministry of Foreign Affairs, and the Ministry of Foreign Affairs of the Republic of China's representative composed of the Ministry of Culture, Sports and Tourism, the Ministry of Foreign Affairs, the Ministry of Foreign Affairs, the Ministry of Public Security and Security, June 27, 200.

The Government signed the Roster (hereinafter referred to as the “Roster”) containing an agreement on the negotiation of various relevant issues arising from tourism in the Republic of Korea by group tourists, and signed the Roster (hereinafter referred to as the “Roster”).

B. The main contents of the records of this case are as follows.

1) The Chinese side shall have 34 Chinese travel agents, who are licensed, take charge of Korean tourism services, and enter into a collective tourist invitation contract by finding a partnership among the competent and reliable travel agents recommended by the Korean side.

2) The Korean side shall recommend 35 Korean events with credit and with good financial situation and service circumstances as Chinese tourist travel agency.

3) 34 travel agencies designated by the Chinese side shall designate full-time personnel to take full charge of the organization tourism visa affairs of the Embassy of the Republic of China (consular missions) and, when those full-time personnel apply for a group tourism visa to the Embassy of the Republic of China (consular missions) of the Republic of Korea, provide convenience and issue the visa as soon as possible, unless there are special circumstances.

C. In July 1998, the Defendant enacted the Guidelines for the Implementation of the Exclusive Tour Business for Attraction of Tourist Operators (hereinafter referred to as the “Guidelines”) in order to implement the designation, management, etc. of the 'Specialized Tour Operators' recommended to China in accordance with the Round of this case.

D. In May 2013, the Defendant revised the instant guidelines by newly establishing Article 3-2 of the instant guidelines, and introduced a "exclusive travel agent renewal system" to a travel agent whose designation period has expired for two years through reexamination. Accordingly, the Defendant introduced a "exclusive travel agent renewal system" to a travel agent whose designation period has expired for two years.

E. On September 2013 through November 2011, the Defendant deliberated and resolved on the revocation of the designation of 143 exclusive travel companies, excluding those with less than the designated period of less than two years, excluding those with less than the designated period of two years from among the 179 exclusive travel companies. The Defendant notified the designated companies of the relevant facts on December 5, 2013.

F. On December 24, 2015, and February 2014, the Defendant evaluated the performance results from January 24, 2014 to October 2015, and sent a letter to request the re-designation by submitting relevant data. On March 23, 2016, the Defendant held a Committee for the Management of Exclusive Tours and issued a notice to revoke the designation of 68 business entities among 170 business entities in accordance with the criteria to revoke the designation, even if the designation is below 70 points or exceeds 6 points due to administrative disposition (unqualified, etc.).

G. On March 28, 2016, the Defendant revoked the designation of an exclusive travel agent for the Plaintiffs on the grounds that the evaluation score of the results of performance evaluation for the Plaintiffs under the same evaluation criteria as indicated below (hereinafter “instant evaluation criteria”) was less than 70 points or that the Plaintiffs received not less than 6 points of administrative disposition items (hereinafter “instant disposition”).

A person shall be appointed.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 5, 7, 8, Eul evidence Nos. 1 through 4, 20 through 23, 25, 26, 28 (including the branch numbers of evidence attached with serial numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) Claim against the principle of statutory reservation

The instant disposition revoking the designation of the exclusive travel agent for the Plaintiffs is based on the instant guidelines, which are only the internal guidelines of the administrative agency, and there is no legal basis therefor, and thus, is unlawful in violation of the principle of statutory reservation.

2) Grounds for procedural illegality

A) Claim for violation of the duty to establish and publicly announce the disposition standards

The defendant not only notified the introduction of new evaluation items on the date of the renewal evaluation, but also did not publish the evaluation criteria of this case in advance.

B) Claim of violation of duty to present the reason for the disposition

The defendant did not present a specific reason for the disposition to the plaintiffs.

3) substantial illegality grounds

A) The assertion that the calculation of points was erroneous

Plaintiff D Co., Ltd. (hereinafter referred to as “Plaintiff D”) submitted data on 10 persons with two-lane qualifications, and Plaintiff E submitted data on 823 persons from October 9, 2015 to October 21, 2015 to the Defendant, but the said data was not reflected in the evaluation score.

B) The assertion of deviation and abuse of discretionary power

The instant assessment criteria are not only arbitrary standards, but also lack of objective rationality, and do not go through an adequate sentence against public and private interests, and thus, the instant disposition that uniformly applied the instant assessment criteria was exceeded or abused by discretionary power.

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Determination

1) Determination on the assertion of violation of the principle of statutory reservation

A) Legal nature of the act of designating exclusive tourmen

After signing with the Chinese government, the defendant recommended the domestic events exclusively in charge of attracting Chinese group tourists, and the Chinese travel agency in charge of Korean tourism affairs with the Chinese permission was able to enter into a group tour agreement only between the events exclusively in charge of the defendant's recommendation and the events exclusively in charge of the defendant's recommendation. In other words, domestic travel agencies not recommended as the exclusive travel agency in accordance with the Chinese travel permission system are prohibited from attracting Chinese group tourists, and only the domestic travel agencies designated as the exclusive travel agency by the defendant and recommended to China.

Therefore, the act of designating exclusive tour operators is an act that creates a legal effect that creates a de facto position to enter into a contract for attracting Chinese group tourists, and that creates a contract for attracting Chinese group tourists. The act of designating exclusive tour operators is an act that creates a certain right or status and constitutes a beneficial administrative disposition.

B)whether it is possible to revoke the designation of a dedicated tourman;

Although there was no particular defect at the time of the disposition, or there was no separate legal ground for the withdrawal of the disposition after it, the disposition agency which rendered a disposition may withdraw the disposition by a separate administrative act which takes effect where there was no change in circumstances that make it unnecessary to continue the original disposition, or where there was a need for important public interest. However, where the disposition is revoked or withdrawn, it would infringe on the other party's right to receive benefits. Thus, even if there was a reason for revocation, the exercise of the right to revoke, etc. is determined by comparison and comparison with the disadvantage that the other party receives, and where the disadvantage that the other party becomes more than the need for public interest, it itself is unlawful (see Supreme Court Decision 2003Du7606, Jul. 7, 2004; 202; 2003Du7606, Feb. 22, 202). Thus, the disposition in this case was in violation of the principle of withdrawal of the designation of the other party's act in question, and thus, it did not lose its validity in accordance with the guidelines of withdrawal.

2) Determination as to the allegation of illegality in the procedure

A) Facts of recognition

The following facts are recognized in full view of each description of Gap's evidence 2 through 5, 7, 8, Eul's evidence 1 through 7, 9, 11, 13, 20 through 23, 25, 26 (including the branch numbers attached to provisional numbers) and the whole purport of the pleadings:

(1) The Defendant held a public hearing on exclusive travel workers in March and July 2013, and held a public hearing on exclusive travel workers in February and August 2013, and introduced a system for renewal of exclusive travel workers after holding a public meeting in February and August 2013.

(2) The Defendant introduced a renewal program for exclusive travel workers on September 6, 2013, notified the F Association Chairperson of the items to be renewed and allocated on the same day. The F Association President notified the exclusive travel workers of the results of the evaluation according to each item of assessment, and notified the companies with at least 75 points out of 100 points to be re-designated as exclusive travel workers by September 23, 2013. The main contents of the above detailed evaluation criteria are as follows.

(1) At least 15 points (15 points in attraction of tourists) ② Financial soundness (Financial Safety 5 points, 5 points in operating income 5 points), compliance with the legal system (10 points without permission of tourists, 15 points in administrative sanctions, and 10 points in possession ratio). No higher than 15 points in sales of tourism products (15 points in medical tourism, MICE tourism, cosmetic tourism, etc.).

(3) On December 5, 2013, the Defendant notified that Plaintiff B Co., Ltd. (hereinafter referred to as “Plaintiff B”), Co., Ltd. (hereinafter referred to as “Plaintiff C”), D and E were re-designated as exclusive travel agents, and announced that the results of attracting, product prices, administrative sanctions, history, low-cost goods, sales rate of high-value goods, etc. will be reflected in the evaluation of the renewal system conducted every two years.

(4) On March 20, 2015, the Defendant notified the president of the F Association of the fact that the exclusive travel agent responsible for the maintenance of Chinese organization tourists was designated in 2015, and the president of the F Association posted the new designation criteria on the website on March 23, 2015. The key contents of the said new designation criteria are as follows.

(1) The current status of a company (3 points in capital size, 3 points in sales, 4 points in personnel of dedicated department for the last two years, 5 points in the current status of personnel of dedicated department, 5 points in the current status of affiliated department, 5 points in the business connection with China-related agencies, 5 points in the business connection with Korea-related agencies, 5 points in domestic tourism-related skills and tourism-related skills, 5 points in domestic tourism-related skills and tourism-related skills, 5 points in the continuedness and competitiveness 5 points) 3 points in the capacity of organizing travel goods (24 points in the composition of goods, 6 points in the current status and operational status of travel-related business places, 10 points in the current status of travel-related business places, 10 points in the business representative), and 5 points in the public policy response (10 points).

(5) On September 23, 2015, the Defendant held an explanatory meeting for the use of the electronic management system, and the employees of the Plaintiffs were present. On October 5, 2015, the Defendant notified the head of the F Association of the establishment of the electronic management system to enter the company’s performance records, and it stated that the exclusive tourer would be able to utilize it in the evaluation of the re-designation in 2014 and 2015, and the FF president announced it to the exclusive tourer on the same day.

(6) 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. The documents requested by the Defendant at the time are “2015 Financial Statements Certification Institute for Report by the National Tax Service (Certified Tax Accountants)”, “enterprise-tourism-tourism interpreter-standard terms and conditions,” and “Evidence for the attraction of high goods and local products, such as MICE and medical supplies.”

(7) On March 4, 2016, the Defendant was the cause of the instant disposition. ① Report on the performance of the electronic management system (21%) to the Plaintiff Company A (hereinafter “Plaintiff A”), 5 points at the reduction of the administrative disposition (21%) to the Plaintiff, 8 points at the 8 point at the 8 point at the 8th administrative disposition to the Plaintiff, 0 points at the 7 point at the 7th administrative disposition to the Plaintiff, 4 points at the 15th financial statements, 0 days at the 6th administrative disposition, 6th number at the 5th administrative disposition, 70% at the 70% level, 15 years at the 5th administrative disposition, and 5 points at the 5th administrative disposition, and the Plaintiffs’ renewal points at the 15th evaluation date after receiving the Plaintiffs’ renewal points from the 31st evaluation date.

B) Determination on the assertion of violation of the duty to establish and publicly announce the disposition standards

Article 20(1) of the Administrative Procedures Act provides that "the administrative agency shall determine and publicly announce the necessary disposition standards so that they may be made specific in light of the nature of the relevant disposition," and Article 20(2) of the same Act provides that "the public announcement of the disposition standards under paragraph (1) may not be made in cases where it is considerably difficult in light of the nature of the relevant disposition or where there are reasonable grounds that it may substantially undermine the safety and welfare of the public." The purpose of this system is to prevent arbitrary exercise of authority by the administrative agency, thereby ensuring the transparency and predictability of administration. Therefore, the administrative agency has the obligation to establish and publicly announce the disposition standards to the maximum extent possible, so long as the nature of

In determining procedural illegality of the instant disposition, it should be based on whether the purpose of the instant disposition was damaged. The facts that Plaintiff B, C, D, and E were re-designated as exclusive travel agents in 2013 are as seen earlier, and the following circumstances, i.e., the Defendant publicly notified the criteria at the time of renewal system implemented in 2013 and continuously reflected the said criteria in the future. In light of the fact that Plaintiff B, C, D, E, or E, which were already re-designated as exclusive travel agents in 2013, it is difficult to view that the Defendant was notified of the above criteria for administrative disposition on December 5, 2013, and that there was no specific difference between the content of the instant disposition and the change in the administrative disposition standards at the time of renewal of the instant disposition at the time of 2013, and that there was no specific difference in the administrative disposition standards for notification of the Plaintiffs’ request for renewal of the administrative disposition in 2015.

C) Determination on the assertion of violation of the duty to present the reason for disposition

Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall provide the basis and reasons for a disposition, and the purport is to exclude the arbitrary decision of the administrative agency and to enable the parties to properly cope with the administrative remedy procedure. Therefore, in a case where the parties concerned are sufficiently aware of what grounds and grounds are stated in the written disposition and whether the disposition was made for an administrative remedy procedure, and it does not interfere with either party’s appeal and going to the administrative remedy procedure, the disposition cannot be deemed unlawful unless the grounds and reasons for the disposition are specifically stated in the written disposition (see, e.g., Supreme Court Decision 2015Du2024, Sept. 10, 2015).

The following circumstances can be seen in light of the facts admitted and the purport of the entire pleading:

① Prior to the instant disposition, the Plaintiff received prior notice of the disposition from the Defendant before the instant disposition and stated the opinions or attendance of the hearing procedures. ② Article 3-2 of the instant guidelines, which contain the items of evaluation for renewal, such as the records of attracting tourists, government tourism policy response, and financial soundness, was indicated as the grounds provision. After the instant disposition, the Defendant sent evaluation slips that contain the items of evaluation, and made it possible for the Plaintiffs to specifically verify the reasons for the instant disposition. ③ Although there were only some individual reasons, such as the “electronic management system performance report,” which is not short of the evaluation criteria,” the prior notice of the instant disposition. However, the Plaintiff A, who was notified by the Defendant to implement a renewal system on December 5, 2013, who was re-designated as the exclusive travel agent, could have been expected to have been subject to the instant disposition due to the lack of the evaluation criteria, there were no errors in the misapprehension of the administrative remedy procedure by the Plaintiffs. Therefore, it is not reasonable to deem that the Plaintiffs violated Article 21 of the Administrative Procedures Act.

3) Determination as to the assertion of illegality in substance

A) As seen in the judgment on the assertion of deviation from or abuse of discretionary power, where a withdrawal of a beneficial administrative disposition is made, the need for the public interest and the disadvantage that the other party receives shall be compared to the need for the public interest, and where the disadvantage that the other party receives is extremely serious compared to the need for the public interest, it is unlawful to have exceeded the bounds of discretionary authority. In full view of the overall purport of the arguments in the evidence Nos. 14 through 19, and 27 (including the serial number number), the number of Chinese tourists in Korea is increasing every year, and the number of events exclusively in charge of them is also considerably increased compared to the beginning of the beginning of the designation of the exclusive tourer, thereby causing excessive competition between the exclusive tourer and the exclusive tourer. It is recognized that the Defendant, who implemented the exclusive tour designation system, did not commit the above acts beyond the bounds of discretionary authority to rectify the above acts of cancelling the designation of the exclusive tourer, thereby impairing the order of the State.

shall be subject to reasonable and objective criteria, provided that the revocation of exclusive travel agents shall be subject to such reasonable and objective criteria

In relation to this case, the defendant presents the evaluation criteria of this case, and the above evaluation criteria are reasonable and objective as follows.

The evaluation criteria of this case are divided into items such as inducement results (15 points in scale of attracting tourists), financial soundness (10 points in capital, 5 points in sales), compliance with the legal system (15 points in holding capacity, 15 points in the degree of participation in the electronic management system), contribution to the development of tourism industry (20 points in price , and 20 points in the holding capacity), and one point where corrective orders have been issued due to administrative disposition from the total score of the above item, and three points where penalty surcharges or business suspension orders have been issued, if the total score by item is less than 70 points or six points or more due to administrative disposition, it is difficult to view that it was not re-designated as an exclusive travel agent in light of the following circumstances, i.e., the purpose of the exclusive travel agency renewal system, and the nature of the above evidence and arguments, etc., it is difficult to view that the defendant has a considerable discretion to review the results of this case's implementation of the electronic travel management system for 2 years from the date of the request for renewal of the plan of this case.

B) Determination as to the assertion that the calculation of points was erroneous

(1) According to the statements in the plaintiff evidence Nos. 10 (including paper numbers) and 11, although the fact that the plaintiff Eul additionally sent e-mail data about 10 persons eligible for qualification to the defendant, it is recognized that the plaintiff Eul received 6 points of administrative disposition, and the total score according to the evaluation criteria in this case is 55 points (5 points out of 15 points). Even if it is calculated as 15 points out of the full score based on the data submitted by the plaintiff D, the total score of the plaintiff D is less than 65 points, which is the standard for re-designation of exclusive travel agencies, and it does not exceed 70 points, which is the standard for re-designation of exclusive travel agencies, since it was already 6 points by administrative disposition, it does not meet the standard for re-designation of exclusive travel agencies.

(2) The written evidence Nos. 12 and 13 of Plaintiff E is not sufficient to acknowledge that Plaintiff E submitted evidentiary materials that meet the instant evaluation criteria to the Defendant, and there is no other evidence to acknowledge it.

3. Conclusion

All of the plaintiffs' claims are dismissed as it is without merit, and it is so decided as per Disposition.

The judge of the presiding judge shall be Jin only

Judge Song Byung-hun

Judges Song Jong-hwan