(영문) 서울고등법원 2017.7.25.선고 2017누44536 판결

On March 28, 2016, the Defendant revoked the revocation of the designation of the exclusive travel agent for attracting tourists in China against the Plaintiff.

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Quotation of the first instance judgment

The reasoning of the judgment of the court in this case is that the reasoning of the judgment of the court of first instance is stated in the reasoning of the judgment of the court of first instance, except in the following cases: (a) the reasoning of the judgment is stated in Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

In full view of the following circumstances, even if the defendant did not publish in advance the evaluation criteria for the renewal of the year 2016 system to the exclusive travel workers, including the plaintiff, even if such circumstance alone does not lead to arbitrary exercise of authority or failure to guarantee transparency and predictability in administration in the disposition of this case, it cannot be deemed that the disposition of this case violates Article 20(1) of the Administrative Procedures Act. This part of the plaintiff's assertion is without merit.

① The Defendant introduced a renewal program for exclusive travel workers, which provides guidance to the exclusive travel workers on the evaluation criteria for the renewal program in 2013, based on the results of the evaluation of the renewal program in 2013, including: (a) the results of attracting, product prices, administrative sanctions, whether low-cost goods are sold or not, and the rate of sales of high-cost goods, etc.; and (b) has been publicly notified to reflect them in the evaluation of the renewal program conducted every two years, along with the results of the evaluation of the renewal program in 2013. The Plaintiff appears to have been expected to grant qualification for exclusive travel workers every two years through the evaluation of the qualification of exclusive travel workers in February 2014.

② The evaluation standard for the renewal system in 2016 is â€˜induce of inducement, financial soundness, compliance with the legal system, degree of contribution to the development of the tourism industry', which is not significantly different from the evaluation standard for the renewal system in 2013 or the standards set forth in Article 3-2 of the 2013 guidelines of this case. In the detailed evaluation item, the items of â€˜the degree of participation in the electronic management system', â€˜the prize before public offering and the performance of agency commendation' are additionally reflected, and the evaluation by the administrative sanctions was added only for reasons

③ The Defendant made it clear that participation in the electronic management system newly introduced on October 5, 2015 is expected to be utilized in the evaluation. On December 24, 2015, the Defendant requested submission of evaluation-related data, and requested the presentation of evaluation-related data, and accordingly, it seems that the above additional items will be reflected in the evaluation (it does not include any difference from the renewal at the time of 2013, in that there was no change in the store system following the administrative disposition, but it was reflected in the evaluation of the dual power of administrative sanctions).

(1) In light of the diversity and complexity of administration, it is deemed that the defendant has considerable discretion on the allocation of specific points to the evaluation criteria, and thus, it does not seem to constitute a separate illegal ground for failing to indicate specific allocation points.

(d) Whether the procedure for vindication or presentation of opinions is violated.

1) Summary of the Plaintiff’s assertion

Although the defendant made a prior notification of the facts that constitute the cause of the disposition of this case, it was only notified that the fact that the disposition was the cause of the disposition of this case is less than 10 persons (15 years and 0 persons) in the custody of the last one year and provided only an opportunity to vindicate, and as the actual other items are not given an opportunity to vindicate or present opinions, it was not possible for the plaintiff to submit his opinion on the remaining items except the above items.

2) Determination

In light of the following circumstances, Gap's evidence Nos. 3, 4, 20, 21, and 28 and the purport of the entire arguments, the following facts were revealed in the facts of recognition: (i) the plaintiff received prior notice of the disposition prior to the disposition in this case and attended and stated opinions in the hearing procedure; (ii) the disposition in this case is indicated as a ground provision in Article 3-2 of the Guidelines in which the items for evaluation of renewal, such as records of attracting tourists, response to government tourism policy, financial soundness, etc. are listed; and (iii) the plaintiff submitted additional documents such as financial statements in 2014, 2015 and the standard terms and conditions for tourist interpretation guide; and (iv) the defendant did not provide 10,000 won of the capital (average average 3.5,000 won, average 2 years), 5,000 won of the evaluation score on sales (average 8,300,000 won, average 2 years, 300,000 won).

E. Whether the contents are defective

1) Summary of the Plaintiff’s assertion

Although the Plaintiff was notified that the cause of the instant disposition was less than 100 persons (15 years) in March 4, 2016, the Plaintiff’s submission of opinions and hearing procedures, and explained that 410 persons were detained from November 2015 to December 14, 2016, the Defendant did not reflect it in the evaluation. Furthermore, the Plaintiff did not make an appraisal of KRW 13,540,556 in Korea with 2,947 attracting 2,947 and kept 13,540 foreign exchange sales in November 4, 2015 and attracting 410 foreign exchange sales in November 1 to December, 2015, based on the premise that the Plaintiff’s foreign exchange sales was 00 won, the Defendant’s right to evaluate and protect the Plaintiff’s discretion, and thus, the Plaintiff’s aforementioned appraisal and disposition was unlawful as it did not err in the misapprehension of the public interest.

2) Determination

410 persons from November to December, 2015, and 416.

3. The facts supporting that 564 tourists have been invited until 14. have no dispute between the parties.

However, according to the statement in Eul evidence No. 5, the defendant requested to submit a "performance" from January 1, 2014 to October 31, 2015 at the time of requesting the submission of data for the evaluation of the renewal system in 2016, and since it is recognized that the evaluation of the items of attracting tourists was conducted during the above period, the number of attracting persons after November 2015 alleged by the plaintiff was not subject to evaluation. In addition, according to the statement in evidence No. 8, the plaintiff's foreign exchange purchase performance of KRW 3,597,352 on November 5, 2014, and the foreign exchange purchase performance of KRW 30,967,60 on December 30, 2014, since the above letter was submitted after the filing of the lawsuit in this case, it cannot be said that there was no violation of law since the defendant did not reflect the above performance at the time of evaluation (the plaintiff's new score is still below 70 points).

On the other hand, the detailed contents of the evaluation items, allocation method, method of evaluation points, and the detailed method and criteria for calculation of evaluation points are, in principle, left to the defendant's own policy or autonomous judgment, which is the competent authority, and they belong to a wide range of discretion. However, it is unlawful only where the method or criteria violate the Constitution or laws, lack of excessively rational and objective legitimacy, or where it is judged that the method or criteria were abused or abused its discretionary power, in light of the purpose of the evaluation in this case, and the relevant Acts and subordinate statutes. In light of the following circumstances, it is difficult to view the disposition in this case as a deviation or abuse of discretionary power, by taking into account the whole purport of the arguments in each of the above facts admitted and evidence Nos. 14-22, 29-31. The plaintiff's assertion on this part is without merit.

① The exclusive travel agent system is operated on the basis of the instant visa and the instant guidelines for the purpose of facilitating the development of tourism between the two countries by promoting Chinese people’s Korean tourism in a sound and orderly manner. The exclusive travel agent system is recognized as legitimate for its purpose and means to maintain and manage qualifications for exclusive travel events above a certain level.

② In light of the diversity and complexity of administration, the defendant has broad discretion to allocate specific points of evaluation criteria, such as price consistency items, to the defendant, and the designation of exclusive travel agents constitutes a beneficial administrative act that obtains rights or status from the defendant for a certain period of time. It is reasonable to deem that the defendant's management of a renewal system that provides a certain evaluation criteria required for the maintenance of its status and examines the performance of a certain period of time and then deprives of its rights or status to an enterprise which falls short of the evaluation criteria, unless there are circumstances to deem that the evaluation criteria are extremely unreasonable or unreasonable. It is difficult to deem that the above evaluation criteria of the defendant is excessive merely because the plaintiff asserts

③ In light of the fact that illegal acts of exclusive tour events have been reported several times, and the Korea Tour Business Association, etc. wanted to eradicate such illegal acts, and the instant disposition is revoked only by the Plaintiff’s exclusive responsibility, and thus, the Plaintiff is not subject to any restriction in the performance of general tour agency’s duties (it does not mean that the Plaintiff actually performed the business of travel for Chinese organizations, even if it is not different), it is reasonable to view that the exclusive tour agency’s system is larger than the disadvantage suffered by the Plaintiff due to the disposition of this case, which is necessary for the public interest to operate the system in a sound and orderly manner.

3. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be dismissed as it is unfair to conclude otherwise. Thus, the judgment of the court of first instance shall be revoked