2016Guhap794 Revocation of Disposition of Imposition of Penalty Surcharges

Poddi Shipping Co., Ltd.

Maritime Affairs and Fisheries Office

2016, 11, 24

December 22, 2016

1. The Defendant’s disposition of imposing a penalty surcharge of KRW 600,000,00, imposed on the Plaintiff on March 16, 2016, is revoked.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff is a regular coastal passenger transportation service provider who regularly operates a service route for a shooting range with a vessel of "spawho-ho, Spaw-ho."

B. On October 8, 2015, the Defendant: (a) at the request of the Plaintiff to secure the stable means of transport of the above-do residents, the member carnetism is anchored in the above-mentioned port; (b) the difficulty in the supply and demand of crew members, etc. works as harmful elements for the safe operation of the winning company; (c) the situation is that it violates the fair competition among the two shipping companies operating the same route; and (d) for inducement of fair competition and safe operation of passenger ships pursuant to Article 1 of the Marine Transportation Act, the Defendant revised the business plan and notified the following business improvement order (hereinafter referred to as “instant business improvement order”) based on Article 14 of the Marine Transportation Act.

(2) On January 1, 2016, through December 31, 2016, the time when the project plan of the Plaintiff is submitted to the following : Intersection - Intersection 100: (a) from January 1, 2016 to December 31, 2016; or (b) on January 1, 2017 to December 31, 2017; (c) the time when the vessel at which the vessel at issue was at anchor: the time when the vessel at issue was at one year after the time of implementation.

C. On February 18, 2016, the Defendant notified the Plaintiff of an administrative disposition (written notice of submission of opinions) on the ground that the Plaintiff failed to comply with the instant order for business improvement, and imposed a penalty surcharge of KRW 600,000 on the Plaintiff on March 16, 2016 pursuant to Article 19(1)10 of the Marine Transportation Act and Article 24 of the Enforcement Decree of the Marine Transportation Act (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

A. The defendant's main defense

The plaintiff sought the revocation of the disposition of this case in the lawsuit of this case, but in substance, the plaintiff disputes the order to improve the business of this case. As to the order to improve the business of this case, the lawsuit of this case is unlawful, since the period for filing the lawsuit of this case is over

B. Determination

The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly, and in specific cases, an administrative disposition is an act that directly affects the rights and obligations of the people as a law enforcement with respect to a specific fact conducted by an administrative agency as a public authority, with the mind that it is an act that has a direct impact on the rights and obligations of the people, taking into account the content and purport of the relevant Acts and subordinate statutes, the subject, content form and procedure of such act, the substantial relation between the act and the disadvantage suffered by interested parties such as the other party, and the principle of administration by the rule of law, and the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court Decisions 2011Du310, Mar. 10, 2009Du23617, 23624, etc.). According to the foregoing review as to the instant case, the instant disposition is separately based on the premise that the Plaintiff failed to comply with the order of business improvement, which differs from the Defendant’s legal ground.

3. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant order to improve the business of this case was issued with an order to modify the business plan to the point of departure, which goes beyond the scope of the amendment of the business plan (Article 12 of the Marine Transportation Act) under the Marine Transportation Act, and does not aim at promoting public welfare. Thus, the Defendant’s order to improve the business of this case was an abuse of discretionary authority. Therefore, it was unlawful in the instant disposition station on the ground of nonperformance of the order

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Facts of recognition

A) At least one of the navigational vessels is required by the residents to anchor on the Do, at least one of the navigational vessels at the Do, and filed an application for the alteration of the business plan with the Defendant from the Do to the 07:00 departure from the Do, on November 17, 2005, when the residents demanded to anchor on the Do, at least one of the navigational vessels at least one of the navigational vessels at the Do. The Defendant approved this.

B) On April 9, 2007, the Plaintiff entered into a contract with the Jindo Transportation to purchase the service route between the port passenger terminal and the sea route between the shooting-do. On January 15, 2008, the Plaintiff succeeded to the business license for the shooting-do sea route from the Jindo Transportation.

C) On March 208, 2008, the comprehensive vessel crew member of a limited liability company (hereinafter referred to as the "comprehensive vessel crew member") entered into a contract for purchasing the passenger terminal and latitude (spath, spathing)-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing-Wing, the vessel succeeded

D) On April 2013, 2013, the member integrated vessel filed an application for revision of the plan to change the departure (unclaimed) of the passenger vessel from the place of departure (unclaimed). On April 8, 2013, the Defendant approved the change, and as the above residents resist, he/she returned the departure point of the member comprehensive vessel to the point of departure of the member comprehensive vessel.

E) On June 12, 2015, on the part of the Defendant, on June 12, 2015, the member integrated vessel claimed that it is difficult for the crew to supply and demand the crew to resolve the accommodation in the island due to the inconvenience that the crew would have to resolve the accommodation in the island, and demanded the Plaintiff to re-issue the departure from the area. The Defendant ordered the Plaintiff to

F) On August 31, 2014, the Plaintiff entered the sea route column in the indication column of the business contents of the license for marine passenger transport services, which was obtained from the head of the Maritime Affairs and Port Office of the Gun, in which the Plaintiff stated the following: Manpo/Do, Manpodo in the area of departure, 'Manpodo in the area of departure, 'Manado in the area of departure, 'Hanado in the area of departure, 'Wangdo' in the

G) The Plaintiff’s “Pafafafafafri” departing from the first port of 07:55 on a daily basis from a shooting range, and anchoring at a shooting range of 18:00 prisoners of war after the third operation. The Plaintiff’s crew members are residing in the shooting and nearby area.

H) On a daily basis, the “Wool, Flag, etc.,” of the members of the General Vessel shall depart from the first 07:10 above the map, and shall anchor at the 18:10 above the map after the operation of the first 3rd course, and shall anchor at the 18:10 above the map. [The ground for recognition] The judgment is without any dispute, Gap evidence No. 4, Eul evidence No. 1, No. 4, and No. 6, and the entire pleadings 2]

The purpose of the Marine Transportation Act is to contribute to the improvement of users' convenience, the development of the national economy, and the promotion of public welfare by maintaining order in marine transportation, promoting the smooth transportation of passengers and cargo (Article 1 of the Marine Transportation Act). Article 4 of the Marine Transportation Act provides that a person who intends to operate a marine passenger transportation service shall obtain a license for each service route according to the type of services under Article 3. Article 2 of the Enforcement Rule of the same Act provides that a person who intends to obtain a license for marine passenger transportation service shall submit an application form for marine passenger transportation service under attached Form 1 to the Minister of Oceans and Fisheries or the head of a regional maritime affairs and fisheries office with documents, such as a license. The above service plan provides that the following matters shall be stated. 1. The service plan provides that a person who intends to obtain a license for marine passenger transportation service shall also be amended to improve the service route and the distance between the port and destination of vessels, 2. The details and frequency of vessels to be used, and the number of scheduled passenger transportation services to be changed to the scheduled service plan and the scheduled service plan.

In addition, the point of departure is the place where the main place of business of the trucking business operator is set up, the lodging of the crew on board the ship is required, and the contract for the number of passengers on board and the use of the terminal is concluded, so the departure of the ship in the maritime passenger transport service operating the regular route is the most basic element of the licensing business.

In light of the above provisions of the Marine Transportation Act and the facts acknowledged earlier, the following circumstances can be considered: ① in issuing a license for the marine passenger transport service, insofar as there is no basis to regard the change of the business plan to be an important factor less than the port of departure, the change of the business plan cannot be deemed to be the reported matters under Article 12(1) of the Marine Transport Act; ② in filing an application for a license for the marine passenger transport service, the change of the business plan to be specified in the business plan to be attached to the port of departure, port of call, and arrival, which is to be authorized by the Minister of Maritime Affairs and Fisheries under Article 12(2) of the Marine Transport Act is limited to the change of the port of departure and arrival; ③ in order for the improvement of the business plan to be approved by the Minister of Maritime Affairs and Fisheries, it is difficult to interpret that the plan includes the port of departure and the port of arrival, which is the port of destination, and it is also difficult to interpret that the plan will be included in the comprehensive order for the improvement of the business plan.

Therefore, since it cannot be deemed that the instant order for business improvement satisfies the requirements of its issuance, it is unlawful. Therefore, the instant disposition imposing a penalty surcharge on the ground that the instant order for business improvement was not implemented, is also unlawful. The Plaintiff’s assertion pointing this out is with merit.

Accordingly, the defendant asserts that the business improvement order of this case is subject to the business improvement order by the modification of the business plan since it is the change of the departure time from the same line without the change of the sea route, it is difficult to view that the business improvement order of this case is an order to change the departure time of the same line as the "change of the navigation time" of Article 12 (2) 3 of the Marine Transportation Act, but the change of the departure time may entail the change of the vessel operation time, but the change of the departure time does not necessarily entail the change of the departure time of the vessel operation. In light of the fact that the business improvement order of this case should be stated separately from the departure time of the sea route, the port of call, the departure time of the departure, and the arrival time of the departure and arrival time, it is difficult to view that the order of this case is an order to change the operation time of Article 12 (2) 3 of the Marine Transportation Act (In full view of the purport of the evidence No. 3 of this case, the defendant's assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

The presiding judge, the judge and the defendant

Judges Han Jin-hee

Judges Gender Equality;

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.