(영문) 서울행정법원 2015.11.13.선고 2014구합14860 판결

On August 4, 2014, the Defendant revoked the revocation of the designation of the exclusive travel agent for attracting Chinese organizations tourists.

Reasons

1. Details of the disposition;

A. The People's Republic of China (hereinafter referred to as "China") designated the country of tourism in which China may travel for the control of its citizens at a foreign tourist destination, and the travel agency recommended by the government of that country designated the Republic of Korea on May 1998 as "China's country of free departure from country tourism". The Ministry and the defendant of China on June 6, 1998 and June 27, 2000 signed a negotiation on the implementation plan for various relevant issues arising from the tourism of the Republic of Korea of Chinese group tourists, and signed a copy of the network containing an agreement following that negotiation (hereinafter referred to as "non-record of this case").

B. According to the Round of this case, 66 Chinese travelers were allowed to take exclusive charge of the organization tourism business of the Chinese people in the Republic of Korea, and these travel agents were selected from among the travel agencies recommended by the Government of the Republic of Korea and entered into a group tour service contract. The Defendant established the guidelines for the operation of exclusive tour guides for attracting Chinese group tourists (hereinafter referred to as the “instant guidelines”), and accordingly designated and managed 'exclusive tour guides for attracting Chinese group tourists' (hereinafter referred to as “exclusive tour guides”). The Plaintiff was a company established on July 6, 201 for the main purpose of general travel business and general tour service, and was designated as a exclusive tour agent by the Defendant on August 4, 2012.

D. On March 2014, when the Plaintiff was engaged in the domestic travel business of Chinese organization tourists, the Defendant issued a disposition to revoke the designation of an exclusive travel agent for attracting Chinese organization tourists (hereinafter “instant disposition”) on August 4, 2014 pursuant to Article 11(3)2 of the Guideline on the ground that: (a) the Plaintiff invited Chinese organization tourists on March 2014; and (b) let Nonparty A travel agent (hereinafter “A travel agent”), a non-designated general travel agent, and (c) not directly proceed with the domestic travel; (b) the Plaintiff did not directly proceed with the domestic travel; and (c) the Plaintiff made a disposition to revoke the designation of the exclusive travel agent for attracting Chinese organization tourists (hereinafter “the instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 and 2 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion

Around March 2014, the number of group tourists recruited by the Plaintiff increased, making it impossible for the Plaintiff to perform the domestic tourism business by itself. Accordingly, the Plaintiff’s agent who directly performed the domestic travel business for group tourists at the time of enforcement is the Plaintiff, and the Plaintiff’s name was not lent to A Tour Agency. Thus, the instant disposition made on a different premise is unlawful.

It is as shown in the attached Form.

4. Determination

A. Whether the guidelines of this case are legally effective

The instant guidelines constitute administrative rules, which provide for matters necessary for the designation, management, and operation of events exclusively in charge of tourism in the Republic of Korea of Chinese tourists. Generally, administrative rules only have effect within an administrative organization and do not have external binding force. However, in exceptional cases where a statutory provision grants a specific administrative agency the authority to determine specific matters in the relevant statute’s content, and exceptionally, the delegated administrative agency specifically determines matters that are to be the contents of the relevant statute in the form of administrative rules in the form of administrative rules, insofar as administrative rules do not go beyond the bounds of delegation by the relevant statute, such administrative rules have effect as an order of laws and regulations binding externally (see, e.g., Supreme Court Decision 97Nu1915, Jun. 9, 1998). In addition, if administrative rules, which are the administrative rules for exercising discretionary power, are enforced in accordance with those administrative rules, and administrative practices are carried out and thus, they violate the principle of equality or the principle of trust protection, and thus, an administrative agency or the other party violates the principle of equality and protection of its discretion (see, 200.

However, the guidelines of this case were enacted pursuant to the records of this case, not the law, and thus cannot be recognized as effective as an order of law. However, the guidelines of this case were not delegated by the law. However, the above circumstances are as follows: ① The Government should take basic and comprehensive measures concerning tourism promotion (Article 2) and take other necessary administrative measures (Article 5) to promote the inducement of foreign tourists; and ② The guidelines of this case were enacted to ensure that the new administrative guidelines of this case were enacted for the purpose of promoting the tourism business (Article 7) to ensure that the new administrative guidelines of this case, including the Ministry of Justice to take measures and policies related to tourism, and that the new administrative guidelines of this case were enacted for the purpose of protecting the public order of this case; ② The defendant has established and implemented the guidelines of this case to ensure that the new administrative guidelines of this case, including the Ministry of Justice, are inconsistent with the guidelines of this case; ② The defendant has established and implemented the guidelines of this case for the purpose of enforcing the new administrative guidelines of this case for the purpose of promoting the public order of the plaintiff.

B. Whether grounds for disposition exist

1) Facts of recognition

A) On March 2014, the Seoul Special Metropolitan City Local Police Agency revealed that, on two occasions as follows, a non-qualified list belonging to A travel agencies was exposed to the Plaintiff’s guidance for Chinese organization tourists recruited by the Plaintiff.

A person shall be appointed.

B) At the time of detection, the above B and C entered their respective events as A travel agent, and prepared and submitted a confirmation document to inform Chinese organizations tourists without obtaining a certificate of tour guide certificate without being designated as a dedicated tour agent. According to the control manual prepared by the police officer in charge, B refused to make a statement to the relevant travel agent, and the police officer in charge found the mission of A tour events as stated in the document stating the schedule of travel held by B, and completed the confirmation document after recognizing that B is affiliated with A tour agent.

C) On April 28, 2014, D, the representative of A travel agency, was present at the Mapo-gu Office on April 28, 2014, and “Unqualified D, which was discovered on March 11, 2014, and discovered on March 27, 2014, belongs to A travel agency A travel agency. A travel agency, a non-designated tour agency, submitted a "business inspection table related to a exclusively dedicated travel agency, stating that he/she was able to verify that he/she had operated Chinese organization tourists by borrowing the name from the Seoul International Tour Agency, a responsible company located in Yeongdeungpo-gu Seoul Metropolitan Government."

D) On June 6, 2014, the Defendant notified the Plaintiff of the prior notice of the exclusive tour guide for attracting Chinese organization tourists, and received the Plaintiff’s written opinion from the Plaintiff on June 18, 2014 (hereinafter “instant written opinion”). The pertinent written opinion is accompanied by a written application for accommodation charge issued by E hotel located in Bupyeong-gu, Seocheon-si, and a travel receipt for an expressway.

[Reasons for Recognition] Facts without dispute, entry of Eul in the evidence of paragraphs 3 through 6 (including each number), witness D's testimony, the purport of the whole pleadings

2) Determination

A) First, in light of the following circumstances, it is reasonable to deem that the instant work was performed by a non-resident of the Plaintiff in light of the health room, the above fact of recognition, and the overall purport of the arguments as to whether the entity directly engaged in the domestic travel business for two group tourists exposed to the Seoul Special Metropolitan City Police Agency (hereinafter referred to as the “instant business”), and the following circumstances acknowledged by considering the following circumstances, it is insufficient to recognize the Plaintiff’s assertion only by the descriptions of the evidence Nos. 6 through 18 (including each number of branches), and some of witness evidence Nos. 6 through 18 (including each number of branches), and there is no evidence to acknowledge otherwise.

① As seen earlier, D’s representative, the Plaintiff, submitted to Mapo-gu Office a document confirming that D’s domestic travel of Chinese organization tourists by borrowing the Plaintiff’s name from the Plaintiff (hereinafter “this case’s confirmation document”). D was present at this court as a witness, D’s entire business was conducted by the Plaintiff, and A’s travel agent did not participate in the above event at the Plaintiff’s request, and the instant confirmation document was prepared by Mapo-gu office in accordance with F’s actual operation of A’s event, and it was written by the public official in charge of signing the hotel’s name. However, even according to D’s statement, D’s witness’s testimony is difficult to understand the fact that D’s testimony was written in the Korean language without knowledge that it was difficult to understand the contents of A’s explanation as the witness’s mere statement that it was difficult to understand the fact that D’s aforementioned testimony was written in the process of signing the Korean language without questioning the Plaintiff’s representative’s knowledge.

(2) In addition, according to the witness D's statement, B and C were unqualified and employed temporarily for the instant work, not as an employee of A's events, and there was no benefit from A's travel agency. As such, if B and C were to be temporarily employed for the instant work and the Plaintiff was dispatched from A's travel agency, it would be more convenient for the Plaintiff to directly employ them, and even if they were dispatched from A's travel agency, they should have a specific document for the trip made in the Plaintiff's name. As seen earlier, B refused to make a statement about A's travel agency and eventually recognized as belonging to A's travel agency, and it cannot be deemed that B and C were under the direction and supervision of B as the principal agent of the instant work in light of the fact that B and C were under the name of A's travel agency, not only the Plaintiff but also the specific document related to B's travel.

③ In light of the claim for accommodation charges for the issuance of the E hotel (No. 6-2) attached to the written opinion of this case, the receiver is Seoul International Organization. Of this, both the “international” portion and the remainder of the written claim are printed printed letters, while the receiver’s “Seoul” portion are recorded as being able to keep the previous contents together with the shakings. Meanwhile, the Plaintiff submitted a receipt for accommodation charges for the issuance of the E hotel with the same date and amount as the above written claim No. 7-1 through No. 4, but the above evidence No. 6-2 stated that the guest room allocated to the Gad was treated free of charge and the details of the receipt submitted by the Plaintiff, such as the account number to deposit accommodation expenses, etc., in light of the fact that the written claim attached to the written opinion of this case was issued from E hotel at the time of actual performance of the business of this case, and that it is difficult to recognize that the Plaintiff did not directly receive the tolls charges or receipts, receipts, and receipts submitted by the Plaintiff, etc. other than this case.

B) If so, it is reasonable to view that the Plaintiff’s conduct of the business of a Chinese group tourr, as above, constitutes “a case where the Plaintiff lent the name of the event exclusively dedicated to the Chinese group tourr to a non-designated general tourr” as stipulated in the instant guidelines, and ① this case’s guideline was prepared based on the instant visa. The instant visa refers to all of the activities related to the travel within the Republic of Korea, and ② The instant guideline is defined as “the scope of the business of the Chinese group tourr” under Article 8 as “the overall activities related to the Korean travel of the Chinese group tour”, and Article 9 of the instant guideline is reasonable to have the exclusive tourr carry out the business of the Chinese group tourr, and to have the designated exclusive tourr carry out the business of the Chinese group tourr separately in consideration of the financial status of the Chinese group tourr to whom the exclusive tourr can carry out the business of the Chinese group tourr, and to have the Defendant carry out the business of the designated exclusive tourr, as well as to have it carry out the business of the Chinese group tourr's.

Therefore, the instant disposition that revoked the designation of the exclusive travel agent for the Plaintiff pursuant to Article 11(3)2 of the Guideline is legitimate, and the Plaintiff’s assertion is without merit.

5. Conclusion

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