2016Guhap58963 China's organization's revocation of revocation of designation as a travel agent exclusively in charge of attracting tourists

Action of Claim

Limited Liability Company Large Overseas Tourism

The Minister of Culture, Sports and Tourism

August 18, 2016

September 29, 2016

1. The plaintiff's claim is dismissed.

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

On March 28, 2016, 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 "China") designated an area where group tourists are permitted to travel in consultation with the government of each country in order to control foreign tourism. On June 2, 1998, the People's Republic of China (hereinafter referred to as "China") introduced a travel permission system (ADS, Apvvvved Datus) which allows the Chinese organization tourists to attract and enter into contact with each other. On June 2, 1998, China designated the Republic of Korea as "China's country of free departure from Korea" and the defendant, the Ministry of Foreign Affairs and Trade, the Ministry of Ministry of Construction and Transportation, the Ministry of Foreign Affairs, the Ministry of Construction and Transportation, and the Ministry of Construction and Transportation related officials of the Chinese Government, the representative of the Chinese Government composed of the defendant, the Ministry of Foreign Affairs, the Ministry of Foreign Affairs, and the Minister of Foreign Affairs, on June 2, 200, June 27, 1996.

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 recruitment and contact 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 the national tourist travel agency, among those events.

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. On July 1998, the Defendant enacted the Guidelines for the Implementation of Exclusive Tour Services for Attraction of International Tourist Operators (hereinafter referred to as the "Guidelines") around July 1998 in order to implement the designation, management, etc. of the 'exclusive tour guide' recommended to China in accordance with the instant visa. Article 3 provides for the new designation of exclusive tourers, while Article 3-2 provides for the renewal of exclusive tourers.

D. On June 27, 200, the Plaintiff was newly designated as a exclusive travel agent on the basis of the instant visa and guidelines, and passed the review of the renewal system on December 5, 2013, and was re-designated as a exclusive travel agent. E. The Defendant conducted procedures for collecting data for the renewal system review from around December 2015, such as prior notice of companies, hearing opinions, hearing, etc. on the ground that the Plaintiff received less than 70 points, which are the standard renewal criteria as indicated below, on March 28, 2016, on the ground that the Plaintiff received less than 70 points as indicated below (hereinafter “instant disposition”).

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, Gap evidence 4-1, 2, Eul evidence 4-7, Eul evidence 25-1, 25-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

First, the plaintiff could not submit sufficient opinions on the disposition of this case because it was not notified of the criteria for the renewal of exclusive tour operators or the plaintiff's expected points in advance. Therefore, the disposition of this case has a significant procedural defect.

Secondly, considering the following circumstances: (a) the Plaintiff has invested a large amount of funds under the trust that the Plaintiff may continue to be designated as a exclusive travel agent without falling under the grounds for sanctions under the instant guidelines; and (b) the Plaintiff’s evaluation score is not sufficient to readily conclude that the Plaintiff is an enterprise against the public interest solely on the grounds that the Plaintiff’s evaluation score is less than 70 points; and (c) the above evaluation criteria are not reasonable, the instant disposition constitutes a deviation or abuse of discretionary authority, since its public interest needs to be justified

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

(c) Markets:

1) Validity of the instant guidelines and the nature of the instant disposition

A) Legal nature of the revocation of the designation of exclusive tourmen

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, or giving rise to other legal effects, with respect to a specific matter under the relevant laws and regulations. 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 Supreme Court Decisions 2001Du3532, Jul. 26, 2002; 2003Du10251, Nov. 26, 2004).

The Defendant entered into the instant visa with China, and accordingly recommended domestic events to attract Chinese organization tourists, and the Chinese travel agent in charge of Korean tourism affairs with China's permission can enter into a group tour agreement only between events to be exclusively in charge of Chinese organization tourists. In other words, domestic travel agents not designated as exclusive tour agents according to the Chinese travel permission system are prohibited from attracting Chinese organization tourists, and only domestic travel agents designated as exclusive tour agents and recommended by the Defendant can enter into a contract to attract Chinese organization tourists and recruit and contact with Chinese organization tourists. Therefore, the revocation of the designation of exclusive tour agents is an administrative disposition that generates legal effect to deprive them of the right to enter into a contract to attract Chinese organization tourists, which is subject to appeal litigation.

B) The legal reservation and the principle of parliamentary reservation that a formal legal basis established by the National Assembly is required for the revocation system of designation of exclusive travel agents and for the effective administrative action of the instant guidelines, not merely if administrative action is based on the legal basis, but also requires the State community and its members to decide on its essential matters, in particular, not for the areas pertaining to the realization of the fundamental rights of the people, but for the state community and its members. However, it is difficult to uniformly define what matters to be regulated by the legislators, but only can be individually determined by considering the importance of the benefits or values related to a specific case, the degree and method of regulation or infringement, etc. Provided, That when restricting the freedom or rights of the people guaranteed by the Constitution at least, the legislators should voluntarily regulate them by law (see, e.g., Constitutional Court en banc Decision 2015Hun-Ba125, 290, Jun. 30, 2016).

Therefore, the defendant's exclusive tourr designation cancellation system and the guidelines of this case are against the principle of statutory reservation and parliamentary reservation. ① According to the Framework Act on Tourism, the government shall devise basic and comprehensive policies on tourism promotion (Article 2). The government shall take legislative and financial measures and other necessary administrative measures to implement the policies. (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 the tourist business and take other necessary measures (Article 10) to foster the tourist business (Article 10). The defendant is the competent authority that is obligated to take various measures and measures related to the tourist business as prescribed by the Framework Act on Tourism, and the government of China entered into an agreement with the Chinese government in accordance with the visa of this case for the purpose of promoting the attraction of Chinese collective tour, and the defendant prepared the guidelines of this case for the implementation of the agreement and prepared the guidelines of this case, and then made an exceptional agreement with the Chinese government to grant designation of tourism applicants under Articles 3 and 3-2.

The reason is that Korea adopts the system of permission for overseas tourism. Since the legal system of the Republic of Korea adopts the system of permission for overseas travel business, it does not restrict the freedom of occupation or the freedom of business to the people who intend to operate or operate the exclusive tour business. ③ The designation of exclusive tour operators is beneficial to the other party, and its legal nature belongs to discretionary activities, and such discretionary activities are conditions to achieve administrative purposes unless there are explicit regulations in the relevant Acts and subordinate statutes. Additional clauses such as time limit, burden, etc. can be imposed. The contents of the additional clauses are consistent with the principle of proportionality and the principle of equality, and administrative disposition cannot be deemed unlawful. ④ The exclusive tour operator designated as the exclusive tour operator is not obliged to bear certain duties by designating the exclusive tour operator in accordance with the instant guidelines, and even if the result is assessed, it cannot be seen that the legal system of the exclusive tour operator's designation and the exclusive tour operator's right to participate in the business cannot be deemed as invalid because it does not violate the legal system of the exclusive tour operator's duty of revocation and the right to participate in the business.

C) If there is no legal basis for the revocation of the designation of the exclusive travel agent, the disposition agency which conducted an administrative act as to whether it is impossible to cancel the designation of the exclusive travel agent, even though there was no particular defect at the time of the disposition, or even if there was no separate legal ground for the revocation of the designation after the disposition, it may be withdrawn by a separate administrative act which would lose its validity where there was a change in circumstances where it is no longer necessary to continue the original disposition, or where it is necessary for the important public interest. However, even if the cancellation or withdrawal of the beneficial administrative disposition, the exercise of the right to cancel shall be determined by comparing and comparing with the disadvantage that the other party receives only when it is necessary for the important public interest to justify the infringement of the right to use, or when it is necessary to protect a third party’s interest, and it itself is unlawful (see Supreme Court Decision 2003Du7606, Jul. 22, 2004).

2) Whether there are grounds for illegality in the process

A) Facts of recognition

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 under the Korea Tour Business Association and the exclusive travel workers committee in February and August 2013, and introduced the system for renewal of exclusive travel workers.

② The Defendant introduced a renewal program for exclusive travel workers on September 6, 2013, notified the president of the Korea Tour Business Association of the matters of renewal evaluation and allocation. The president of the Korea Tour Business Association notified the exclusive travel workers of the results of evaluation according to each evaluation item on the same day, and notified the companies with at least 75 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:

(15) Results of attracting tourists (15 points) ② Financial soundness (Financial Safety 5 points, 5 points in operating income, 5 points in operating income), compliance with the legal system (10 points without permission of tourists, 15 points in administrative sanctions, 10 points in holding ratio of qualifications). (5 points in selling tourism products (15 points in medical tourism, MIC tourism, cosmetic tourism, etc.). (10 points in terms of price consistency 15 points and 15 points in operating income).

③ On December 5, 2013, the Defendant notified that exclusive travel agents, including the Plaintiff, who had been at least 75 points in total, have been re-designated as exclusive travel agents, and announced that the results of attracting, product prices, administrative sanctions, low-cost goods, sales rates of high-cost goods, etc. will be continuously monitoring and reflected in the evaluation of renewals conducted every two years. (4) The Defendant held an explanatory meeting using the electronic management system on September 23, 2015, and the Plaintiff’s employee participated in it. Since the Defendant established the electronic management system to the head of the Korea Tour Business Association on October 5, 2015, notified that the exclusive travel agent would be able to utilize in the evaluation of re-designation in 2014 and 2015, and the head of the Korea Youth Business Association announced the exclusive travel on the same day.

⑤ On December 24, 2015, the Defendant publicly announced that the exclusive travel agents 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 requested by the Defendant are “2015 Financial Statements Certification Board (Certified Tax Accountants) to be reported by the National Tax Service,” “Evidence Documents, such as the submission of documents, such as a certificate of financial statements to be reported by the National Tax Service, a public contest, commendation, and the selection of outstanding goods,” the conclusion of standard terms and conditions for tour interpreters, and the attraction of high-class goods and local goods, such as MICE

(6) On March 4, 2016, the Defendant notified the Plaintiff of the fact that the instant disposition was the cause of the instant disposition, not submitted the financial statements for 14 and 15 years, and that the amount of foreign currency income was small compared to the number of attracting persons for 15 years, and subsequently, on March 17, 2016, the hearing procedure was conducted. On March 30, 2016, the Plaintiff sent a renewal evaluation sheet stating the Plaintiff’s score as the main date.

[Ground of recognition] Facts without dispute, entry in the evidence Nos. 3 through 5, 7, 13, 20, 23 and 24 (including paper numbers) and the purport of the whole pleadings

B) Whether the disposition standard violates the duty to establish and publicly announce

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 the arbitrary exercise of authority by the administrative agency, thereby ensuring the transparency and predictability of administration. Therefore, the administrative agency is obliged to establish and publicly announce the disposition standards to the maximum extent possible, as long as the nature of

In determining the procedural illegality of the disposition of this case, the above criteria should be examined as to whether the purpose of the Administrative Procedures Act was damaged, and the facts that the plaintiff re-designated as the exclusive travel agent in 2013 are as mentioned above, and the purport of the above facts and the entire arguments can be seen as follows: ① the defendant has announced the evaluation criteria at the time of renewal system implemented in 2013 and has been continuously reflected in the future. The plaintiff already re-designated as the exclusive travel agent in 2013 can be seen as being notified of the above evaluation criteria; ② The contents of the evaluation criteria for renewal at the time of 2013 and the renewal evaluation criteria for 2015, which are the premise of the disposition of this case, are most similar, and the contents of the evaluation criteria for renewal at the time of 2013, are also additionally reflected, and ③ the defendant is also expected to use the evaluation management system newly introduced on October 5, 2015.

In full view of the fact that the above additional items could have been sufficiently predicted to be reflected in the evaluation because of the request for the submission of data related to evaluation on December 24, 2015, when the submission of evaluation results, the submission of evidentiary data on the official commendation and the request for the presentation of evaluation results, and that the above additional items could have been sufficiently predicted to be reflected in the evaluation; ④ although the system of the identification system according to the administrative disposition was somewhat changed but the administrative sanctions were reflected in the evaluation of the administrative sanctions, the above evaluation system was not any difference from the time of the renewal of 2013, and the plaintiff was notified in advance, and the above evaluation system was not a matter that could have been prepared for the plaintiff. ⑤ In light of administrative diversity and complexity, it is deemed that the defendant had considerable discretion on the allocation of specific points based on evaluation criteria, and thus, it is difficult to view that the defendant did not arbitrarily exercise its authority in the disposition of this case or that the plaintiff did not guarantee transparency and predictability of administration. Thus, the plaintiff's assertion that the defendant violated Article 20 (1)

C) Whether prior notice of disposition and hearing of opinions are violated

In light of the following circumstances, the Plaintiff re-designated as the exclusive travel agent in 2013 as seen earlier, and the Plaintiff’s overall purport of the aforementioned recognition and pleading, i.e., the Plaintiff participated in the hearing procedure after receiving prior notice of the instant disposition prior to the instant disposition, i.e., the Plaintiff was aware of the fact that Article 3-2 of the instant Guidelines, which includes the items of evaluation for renewal, such as records of attracting tourists, response to government tourism policies, and financial soundness, was stated in the relevant provision, and (3) the Plaintiff already re-designated as the exclusive travel agent in 2013, was sufficiently aware of the fact that the instant disposition was made on the grounds of falling short of the standard points according to the evaluation criteria, and (4) there was no specific assertion and proof as to the evaluation materials that the Plaintiff could have submitted if they were stated in the above prior notice. Therefore, it is difficult to deem that there was an error in the misapprehension of the procedure under Articles 21 and 22 of the Administrative Procedures Act.

3) Whether there are substantial grounds for illegality

The detailed contents of the assessment items, allocation method, method of assessment, and method and criteria for calculation of assessment points are, in principle, assigned 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 illegal only where the method or criteria violate the Constitution or laws, lack of reasonableness and lack of objective legitimacy, or where it is judged that the method or criteria were considerably unreasonable or unfair in light of the purpose of the assessment in this case, the purpose of the assessment in question, and the purport of the relevant Acts and subordinate statutes, etc. (see Supreme Court Decision 2005Da66770, Dec. 13, 2007).

In light of the fact that the assessment criteria applied by the Defendant to renew the status of the exclusive tour operator once every two years do not necessarily coincide with the sanctions applied by the Defendant to the designated exclusive tour operator, ② the Defendant prepared the criteria for renewal of the system reflecting the opinions of the exclusive tour operators through several public hearings and meetings, ③ the above evaluation criteria are not deemed significantly unreasonable or unjust, ③ the Plaintiff with experience in passing the renewal review in 2013 seems to have sufficient time to acquire the points necessary for the evaluation of the renewal system in 2015, and (4) the Korea Tour Business Association, etc. has reported the tort of the exclusive event in several times, and the Korea Tour Business Association, etc. wanted to be the elimination of such tort. ⑤ The instant disposition was revoked only for the Plaintiff’s designation of the exclusive tour operator, and the Plaintiff cannot be deemed to have abused or abused its discretionary power, even if considering the circumstances alleged by the Plaintiff.

3. Conclusion

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

Judgment of the presiding judge;

Judges Kim Gung-Un

Judges Kim Gin-won