(영문) 광주지방법원 2015.2.5.선고 2013구합2440 판결

On July 16, 2013, the defendant revoked the non-permission of the application for a license for marine passenger transportation services between South and North Korea (Dongri) against the plaintiff.

Reasons

1. Basic facts

A. The plaintiff's status

On April 16, 2004, the plaintiff has completed business registration under the trade name of "B" and has operated marine cargo transport business.

B. On January 10, 201, the Plaintiff filed an application for a license for the primary passenger transportation services with the Defendant for the following passenger transportation services.

○ ○ Maritime Routes: C Remodeling (230 tons, number of passengers, number of 50 passengers, number of car 25 vehicles) in total, number of navigation hours per day: 50 minutes (number of navigation hours per day: 24.5km; 230 tons, number of car 25 vehicles) in total.

Accordingly, on October 27, 2011, the defendant had already been operating a passenger transport service provider's passenger ship in the existing sea transportation service route of this case ("each existing sea route of this case" in accordance with Article 5 (1) of the Marine Transportation Act and Article 4 (1) of the former Enforcement Rule of the Marine Transportation Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 445 of Feb. 27, 2012; hereinafter the same shall apply) which is considered as the same sea route of this case, "paragraph 1 of Paragraph, Paragraph 1 of Article 1, Paragraph 2, Paragraph 2, Item 3, Item 3, Item 2, Item 1, Item 201, Item 35, Item 2, Item 201, Item 2, Item 35, Item 2, Item 201, Item 35 or more of the plaintiff's average transport service route of this case as a result of the average transport of the sea route of this case.

C. The Plaintiff filing an administrative litigation and the withdrawal of the lawsuit filed an administrative litigation with the Gwangju District Court 2012Guhap4661, which was dissatisfied with the existing disposition, and the Gwangju District Court determined that the existing disposition was lawful, on May 30, 2013, on the grounds that the route of the application of this case falls under the same route as that of Paragraph 3, and that the average boarding and taking-off rate 1 for the last three years of all passenger ships, including passenger ships on the instant application route, which were placed in Paragraph 3, including passenger ships on the instant application route, falls short of the minimum transport demand.

Accordingly, the plaintiff appealed, and the standard of transport demand under Article 4 (1) of the former Enforcement Rule of the Marine Transportation Act is 35%.

At least 25% was amended, and the plaintiff voluntarily withdrawn the lawsuit at the appellate court.

D. On July 1, 2013, the Plaintiff applied for a license for the second passenger transportation services and the non-permission disposition for the second passenger transportation services to the Defendant, and on July 16, 2013, the Defendant notified the Plaintiff of the refusal of the Plaintiff’s license application for the following reasons (hereinafter “instant disposition”).

The notification of the refusal to apply for a license for marine passenger transport services between South and North Korea shall be made.

(a) The passenger ship of an existing maritime passenger transport service provider is already operating at a port of service on the sea route considered as the same route as your license application application route. The calculation of the average import rate for the service route applied for a license in accordance with Article 5(1) of the Marine Transportation Act and Article 4(1) of the Enforcement Rule of the same Act does not exceed 25 per cent, and thus, does not meet the standard of transport demand for a new license.

2. The plaintiff's assertion and relevant Acts and subordinate statutes

A. The plaintiff's assertion

1) Since the Defendant violated the duty to present the reason for disposition, the Defendant did not present a specific basis for calculating the return on transport, which served as the basis for the disposition of the instant case, thereby violating the duty to present the reason for disposition under

2) The instant application route and the instant application route are not the same route as that of each existing route, and the instant application route and the instant application route are not the same route. In addition, the instant application route and the instant application route are different from the air route and the instant application route, and there is no possibility of alternative use due to geographical adjacentness, and there is little possibility of overlapping users, and they cannot be deemed the same route.

3) Even if the transport demand standard is met, even if the service route of the instant application route and the instant application route are the same as that of the instant application route, the average transport import rate for the last three years including the instant application route and the instant application route is 25.8%, and thus, the instant disposition based on the premise that the transport import rate does not exceed 25% is unlawful.

The average number of navigation days for paragraph 3 is calculated in proportion to paragraph 1, and the annual passenger transport capacity and annual cargo transport capacity are calculated in proportion to paragraph 1, and the transport import rate is 27.9%, if the annual passenger transport capacity and annual cargo transport capacity are calculated by average value.

B. Relevant statutes

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. Article 23(1) of the Administrative Procedures Act as to whether the disposition of this case is a violation of the duty of presentation of the reason for disposition, or Article 23(1) imposes an obligation on the administrative agency to present the basis and reason on the party. However, as seen earlier, the Defendant cannot be deemed as a violation of the duty of presentation of reason under the Administrative Procedures Act, since the Defendant already stated that the passenger ship of the existing passenger transport operator is in operation on the route considered as the same route as that of the Plaintiff’s application for license, and that the average transport rate under Article 5(1) of the Marine Transportation Act and Article 4(1) of the Enforcement Rule of the former Enforcement Rule of the Marine Transportation Act does not exceed 25 per cent as the result of calculating the average transport revenue rate of the former Marine Transport Act, and therefore, it cannot be deemed that the Defendant violated the duty of presentation of reason.

Therefore, this part of the plaintiff's assertion is without merit.

B. Whether each existing route of this case is the same as each existing route of this case

1) Facts of recognition

A) The current status of passenger ships operating along each existing sea route of the instant case is as follows.

A person shall be appointed.

B) The end point of the instant application route and the situation in which the port of call belongs, and the head of Sisando are located, and the number of residents is 1,800 each, and the number of residents is 1,800 persons each, and most agricultural and fishery products are produced, such as rice, beer, beer, fry, poper, shot, and Kim, and most of them are shipped to land, and the state is the maximum nationwide sun-dried salt production site.

C) The west, which is the starting point of the application route of the instant application route, is located far away from the neck and approximately 37 km, which is the starting point of each existing route of the instant air route, and approximately 40 minutes are used for automobiles.

D) Paragraph 3 of this case and the end point of the application route of this case (dong Ri) and paragraph 1 of this case, are located far from about 6.7km, and approximately 12 minutes are required for passenger cars. Paragraph 3 of this case and paragraph 2 of this case, the length of the port of call of the air route of this case and the port of call of the application route of this case, located far from about 6 km, and approximately 11 minutes are required for passenger cars.

[Ground of recognition] Facts without dispute, Gap evidence 5-1, 2, Eul evidence 1, 2, evidence 7-1 and 7-2, the purport of the whole pleadings

2) Determination

A) In full view of all relevant laws and regulations regarding the criteria for determining the identity of sea lanes, a license for marine passenger transport services is a beneficial administrative act that grants a specific person the rights or interests, and is subject to discretionary action that should be determined by comprehensively taking into account the transport demand of sea lanes in question, suitability of vessel mooring facilities, etc., safety of marine transportation, convenience of users, etc. (see, e.g., Supreme Court Decision 2007Du18215, Dec. 11, 2008). Since the establishment of the criteria for a license for marine passenger transport services within the scope prescribed by relevant Acts and subordinate statutes or the determination of whether the criteria are met falls under the discretion of an administrative agency, the determination of whether the competent administrative agency is “the possibility of alternative use” as prescribed by relevant Acts and subordinate statutes shall be respected as far as it is objectively unreasonable or unreasonable (see, e.g., Supreme Court Decision 201Du9812, Nov. 29, 2012).

Therefore, the defendant has discretion in examining whether the newly applied sea route constitutes the same sea route because it is possible to use the existing sea route and substitute, and in determining whether to grant a license for marine passenger transport services. Unless the defendant objectively loses reasonableness and validity in the above review process, it is difficult to view that the disposition of this case was abused or abused discretion.

According to Article 5(1) of the Marine Transportation Act and Article 2(1) and (2) of the 'Public Notice on Coastal Transport stipulated by the Enforcement Rule of the Maritime Transportation Act' in accordance with the delegation of Article 4(4) of the 'Public Notice on Coastal Transport pursuant to the 'Enforcement Rule of the Maritime Transportation Act', the term "a route regarded as the same route (hereinafter referred to as the "the same route")" under Article 4 of the Maritime Transportation Act refers to a case where (i) the whole or part of a port area is geographically adjacent so that alternative use is possible; (ii) the main users of the relevant passenger ship are likely to overlap or overlap; and (iii) the above requirements are satisfied when the port area is located within the same administrative area (based on the basic local government), but it is deemed that the substitution is possible even if it is not within the same administrative area, taking into account the distance between the port area of call or the construction of a road, etc., it shall be deemed that the same route is not the same if substitution is difficult

B) Examining the following circumstances in light of the legal principles as seen earlier, whether the aforementioned route is the same as that of paragraphs 1 and 2, and the purport of the entire pleadings as seen earlier, it cannot be said that the instant application route and paragraphs 1 and 2 cannot be viewed as overlap, and thus, it cannot be said that it is possible to substitutely use the same route.

Therefore, this part of the plaintiff's assertion is justified.

(1) The starting point of the instant application route is the starting point of the instant application route (dong) and the ending point of Paragraph 1, and the starting point of the port of the instant application route, the starting point of the port of the instant application route, and the starting point of the port of the air route of Paragraph 2, may be recognized to have geographical similarities respectively. However, the instant application route does not call out the starting point of Paragraph 1, the starting point of Paragraph 1, the air route of Paragraph 2, and the starting point of Paragraph 2, and the air route of Paragraph 2 (b).

(2) The land-based distance of approximately KRW 37 km is required to be 50 minutes for the passenger car, which is the starting point of the application route of this case. The land-based distance of approximately 37 km.

(3) Paragraph (1) or 2) of the air route (i.e., h., h., i.e., h., h., h.h., h., h.h., h., h., h.h., h., h.h., h., h., h.

C) Examining the following circumstances in light of the legal principles as seen earlier, it is reasonable to view that the instant petition route and Paragraph 3 route constitute the same sea route as stipulated in the relevant statutes, such as the Marine Transportation Act, in light of the aforementioned facts, and the evidence and witness D’s testimony.

(1) In paragraph (3), the length of mountain (dura), condition-(dong) section among the instant application route overlaps with part of the port of port of port of port of port of port of this case, which is the same as the length of mountain (dura), condition (dong).

(2) The substantial living zone of the long-term residents anticipated to be the main user of the instant application route is spreading, and the instant application route or paragraph (3) route is expected to overlap with each other as the main living route used by the residents of the relevant books mainly for the purpose of selling local specialty or purchasing household goods.

1) Facts of recognition

A) On November 25, 2011, the passenger ships currently in operation under Paragraph 3 are Nos. 2 and 3 (Reserve Ship). On November 25, 201, the Newan Shipping Co., Ltd. operated passenger transportation services with a preliminary vessel of Mayang-ri No. 3 with a license granted to increase the number of cargo transportation services.

B) The number of passengers, the number of passengers available on the basis of minimum-type passenger capacity, the number of flights available on the basis of minimum-type passenger capacity, the number of flights available on the basis of the number of flights per day and the number of flights available on the basis of the number of flights available on the port of this case, and the number of flights available on the basis of the number of flights available on the basis of the number of flights available on the basis of paragraph 3 and the number of flights available on the last three years on the basis of the number of flights, passenger, the import of cargoes (air fares) and the number of flights available on the basis of

A person shall be appointed.

C) On January 8, 2013, the passenger car freight (1,500c hereinafter below) reported to the Defendant on paragraph 3 by the Newan Shipping Co., Ltd. on January 8, 2013 is KRW 33,00.

[Reasons for Recognition] The facts without dispute, Gap evidence 2, Eul evidence 19-10, Eul evidence 7-1, 2, and 8-7, each fact inquiry of the branch of the Korean Shipping Association, the whole purport of the arguments, as a whole.

2) Determination

A) Article 5(1)1 of the Marine Transportation Act provides that the commencement of a license for a marine passenger transport business shall meet the transport demand and standard prescribed by Ordinance of the Ministry of Oceans and Fisheries. Article 4(1)1 of the Enforcement Rule of the Marine Transport Act provides that the standard of transport demand prescribed by Ordinance of the Ministry of Oceans and Fisheries shall be one of the criteria for the commencement of the relevant business. Article 5(1)1 of the Enforcement Rule of the Marine Transport Act provides that the average transport demand of all the vessels already placed on the service route deemed the same as the service route for which a license for a new marine passenger transport business is applied (the estimated import amount based on maximum transport capacity and the actual transport capacity based on the estimated import amount based on the actual transport capacity) shall be at least 25/100 even if the passenger vessels of the relevant marine passenger transport business are included in the new license application, and the detailed method of calculating the average transport revenue rate shall be prescribed in [Attachment Table 1]. Meanwhile, Article 3 of the Public Notice of the Inland Transport Business Act for three years prior to the date of a license application.

B) According to the facts found in the above facts and the overall purport of the arguments as seen earlier, the average transport rate of the vessel’s main lines as set forth in Paragraph 3 and the vessel’s operation vessels as set forth in the motion of this case shall be calculated as follows:

(1) 13,870 passengers, 70, 702, 279, 00 won, 1,57, 528,000, and 328 days average of the number of passengers, the number of passengers, the number of passengers, the number of passengers, and the number of passengers, the number of passengers, the number of passengers, and the number of passengers, the number of passengers, the number of passengers, and the number of passengers, the number of passengers, the number of passengers, the number of passengers, and the number of passengers, the number of passengers, the number of passengers, the number of passengers, the number of passengers, and the number of passengers, the number of passengers, the number of passengers, the number of days of which is the first three to June 30, 201, which is the mother line of paragraph 3, shall be calculated as the average number of passengers, the number of passengers, including the number of passengers, the number of passengers, the number of passengers, the number of passengers, and the number of passengers, the number of passengers shall be calculated as the number of passengers, the number of passengers, the two to be counted.

A person shall be appointed.

(3) According to the reply to the fact-finding inquiry by the Tyang Branch of the Korea Shipping Association on February 6, 2014, it is recognized that Tyang 3 operated under paragraphs 1 and 2 as between November 25, 201 and June 30, 2013, which obtained a license as a preliminary vessel under paragraph 3, even though it is also acknowledged that Tyang 3 operated under paragraphs 1 and 2. According to the evidence 19-3, Tyang 3 was excluded from the preliminary vessel under paragraphs 1 and 2 and obtained a license as a preliminary vessel only under paragraph 3 from November 25, 201 to June 30, 2013. Since the average transport rate calculation formula is a formula for calculating the transport capacity of passengers and cargo, only the data should be based on paragraph 3 of Tyang 3 when calculating the transport capacity of passengers and cargo under Article 19-3.

In addition, the average number of navigation days for the last three years of the Choyang Pin 3 should be applied to the average number of navigation days for the last three years of the Enforcement Rules of the Maritime Transportation Act [Attachment 1] 2. E.

(4) The average transport revenue rate calculated in attached Table 1 of the Enforcement Rule of the Marine Transportation Act is as follows.

YP: 713,625,60 won (= 702,279,00 won + 11,346,603 won): 1,170,758,196 won (=1,57,528,196 won + 13,230,196 won): 6,167 won (i.e., 702,279, 113,870) Cp (2): 490,032 x 2360,000 x 3636,000 x 3636,00 won (i.e., 363: 36,000 won) x 360,036,000 won (i.e., 249 x 328,000 won)

(5) The average transportation revenue rate is calculated on the basis of the above figures as follows:

A person shall be appointed.

C) Therefore, since the average transportation revenue rate is 14.3%, and it falls short of 25%, which is the standard under Article 4(1) of the Enforcement Rule of the Marine Transportation Act, the Defendant’s disposition of this case is legitimate, and the Plaintiff’s assertion on this part is

4. Conclusion

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

Judges

The presiding judge, the Park Judge;

Judges Park Sung-nam

Judges Shin Shin-il

Note tin

1) The term “average boarding and taking-off rate” under Article 4(1) of the former Enforcement Rule of the Marine Transportation Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 445) on February 27, 2012

The average transport revenue rate was changed to "the average transport revenue rate".

2) On February 6, 2014, the number of days of service planning between 1032 days to 48 days of service planning among the documents attached to the fact-finding reply by the Youngpo District Office of the Korea Shipping Association.

3) Since Newan Shipping’s license for passenger transportation services was obtained on November 1, 201, 25, by a limited liability company and Newan Shipping’s preliminary vessel No. 1183, 201, Mayang3

number of passengers, the import of passengers, and the import of cargo for the last three years from 201.11, 25 to 30 June 2013;

The passenger income and freight income are written, each of which is to be converted into the performance for one year, as seen thereafter.

(c)

4) With respect to the fact that only the data of Paragraph 3 should be based in calculating the transport capacity of passengers and cargo under paragraph 3 of the same Article:

(3) see paragraph (3).