(영문) 대구고등법원 2018.6.15.선고 2017누7918 판결

On September 6, 2016, the defendant revoked a license for maritime passenger transport services for the port-C sea route (hereinafter referred to as the "instant sea route") against the Intervenor joining the Defendant (hereinafter referred to as the " Intervenor").

2. Purport of appeal

The text shall be as shown in the text.

Reasons

1. Details of the disposition;

A. ① On September 3, 2013, the Plaintiff obtained a license for marine passenger transport services for the instant sea route from the Defendant on April 14, 2016, and the judgment of revocation of the license (Seoul District Court 2013Guhap3186, Daegu High Court 2014Nu6921, Supreme Court 2016Du30293) became final and conclusive, and the license is revoked. ③ The Intervenor is a company between the major shareholder of K (hereinafter referred to as “K”) and a major shareholder of K (hereinafter referred to as “K”), and ④ K is a company that acquires a license for marine passenger transport services for the instant sea route from I on February 14, 2014.

B. Upon the conclusion of the judgment on revocation of the above license, the Defendant issued a public notice on the selection of scheduled coastal passenger transport service providers in the instant sea route (hereinafter referred to as the “public notice on the selection of the instant service providers”) in accordance with Article 4(2) of the Marine Transportation Act, Article 3 of the Enforcement Rule of the Marine Transportation Act, and the “public notice on coastal passenger transport pursuant to the Enforcement Rule of the Marine Transport Act” (No. 2015-220 of the Ministry of Oceans and Fisheries’s notification). The main contents of the “public notice on the criteria for the selection of the service providers and its accompanying proposal” are as follows.

The public announcement of the selection of the enterpriser of this case 1. Project outline

A person shall be appointed.

○○(not more than 3 points) - Additional points: Opener of a new port (2 points), passenger satisfaction level, priority point (2 points), whether convenient mobility equipment is installed under the Act on Promotion of the Transportation Convenience of Mobility Disadvantaged Persons (1 points): The history of marine accidents, administrative disposition (3 points), such as penalty surcharges, and customer satisfaction level, as a result of the evaluation of the assessment of the degree of customer satisfaction level (2 points).

C. Around June 2016, the Plaintiff and the Intervenor submitted a separate project proposal to the Defendant in accordance with the instant project proposal selection announcement. On July 1, 2016, the Defendant publicly announced that the Intervenor should be selected as a new maritime passenger transportation service provider as follows.

The name of a sea route: The number of business entities selected as port-C sea route : there is a matter of interest in the B0 business operator. The selected passenger business operator shall submit the "application for a license to provide regular passenger transportation services" within 30 days from the date of publication, and if the application is not made within the time limit, the selection of the business operator shall be revoked.B, if the contents of the proposal and the application are different, the license may be denied.

D. According to each review and assessment compiled table with respect to the Plaintiff and the Intervenor (hereinafter “instant review and assessment table”), the Intervenor received 631 points of the total point of 700 and obtained 631 points of the total point of 700, and obtained 90.1 points of the average of 700 points, and the Plaintiff received 574 points of the total point of 700 points and received 82 points of the average of 82 points.

E. On July 28, 2016, the Defendant: (a) obtained a license for regular coastal passenger transport services in the instant sea route from the Intervenor; (b) granted a conditional license to the Intervenor on August 10, 2016 on condition that the Intervenor be equipped with the facilities under Article 5(1)2 of the Marine Transport Act pursuant to Article 4(4) of the Marine Transportation Act; and (c) granted a license for regular coastal passenger transport services in the instant sea route to the Intervenor on September 6, 2016 pursuant to Article 4(1) of the Marine Transportation Act; and (d) Article 2(6) of the Enforcement Rule of the Marine Transportation Act (hereinafter “instant disposition”).

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6 (including provisional number; hereinafter the same shall apply), Eul's evidence 1 to 8, the purport of the whole pleadings

2. Determination on this safety defense

A. Intervenor’s assertion

According to the public announcement on the selection of a business entity of this case, when the disposition of this case is revoked, a subordinate business entity with at least 80 points in the evaluation of the project proposal without re-public offering is selected as a subordinate business entity. The plaintiff received an average of 82 points in the examination and evaluation of this case. On the ground that the plaintiff appointed a stock company as a safety control agency pursuant to Article 21-5(2) of the Marine Transportation Act in the part of the "safety Management Plan for Business Execution" among the evaluation items, he received 8 points from 7 examiners and received 10 points out of 70 points in total, and received 63 points out of 70 points in total, and 60 points out of 10 points out of 70 points in total, and received 7 points out of 7 points in total, on the ground that oil rooms and toilets for disabled persons are installed in a passenger ship.

However, this is only a vessel manager under Article 33 of the Marine Transportation Act, but is not qualified as a safety control agency under Article 51 of the Maritime Safety Act, and the oil room does not fall under the transportation convenience facility, and the toilets for the disabled do not meet the installation and standards prescribed by the laws and regulations for mobility disadvantaged persons. The evaluation score for the plaintiff is less than 72 points (=504=504-63-7)/7).

Therefore, even if the disposition of this case is revoked, the plaintiff cannot be a subordinate person who can be selected as a business operator, so there is no legal interest in seeking revocation of the disposition of this case to the plaintiff.

B. Determination

1) Relevant legal principles

When several persons who have filed an application for beneficial administrative disposition, such as authorization and permission, are bound to result in a disposition such as permission, etc. against one party due to non-permission, etc., in competition, persons who have not received such disposition are standing to seek revocation of the relevant disposition even though they are not the other party to the disposition, such as permission, etc., taken against the ordinary party: Provided, That where the possibility of accepting the Plaintiff’s application is excluded from the beginning due to apparent legal trouble, there is no legitimate interest to seek revocation of the relevant disposition (see, e.g., Supreme Court Decisions 2009Du8359, Dec. 10, 2009; 2013Du147, Jul. 11, 2013)

(ii)existence of standing to sue

According to the relevant legal principles, the relationship between standing to sue and standing to sue is cited in his/her application.

The possibility exists, and the possibility of the disposition of revenues to the other party is extinguished by the issuance of the disposition of revenues to the other party, and the possibility is recovered by the cancellation of the disposition, it is sufficient for the administrative agency to accept the plaintiff's application.

In light of the relevant legal principles, the following circumstances revealed through the facts of recognition, quoted evidence, and the purport of the entire pleadings are insufficient to recognize that the Plaintiff has legal interest in seeking the revocation of the instant disposition, and the evidence submitted by the Defendant or the Intervenor alone is insufficient to recognize that “the possibility of accepting the application is excluded from the beginning due to the apparent legal trouble of the Plaintiff.” Therefore, the Intervenor’s safety defense is without merit.

① The Plaintiff and the Intervenor participated in the instant procedures for the selection of enterprisers, and the Plaintiff was deprived of the instant disposition against the Intervenor due to the instant disposition against the Intervenor.

② Since the Plaintiff received an average of 82 points as a result of the instant review and evaluation, if the instant disposition against the Intervenor is revoked, the Plaintiff is highly likely to be selected as an enterpriser without re-public offering.

③ In order for the Plaintiff to be recognized as having a clear legal disability that could not be cited from the beginning with the application for designation, there should be circumstances where the Plaintiff was unable to participate in the instant procedures for the selection of a business entity prior to the exercise of the Defendant’s discretionary power pursuant to Article 5 of the Marine Transportation Act due to grounds for disqualification under Article 8 of the Marine Transportation Act, etc., or where the pertinent application cannot be accepted due to the legal apparent grounds for disqualification even after having participated. However, the evidence submitted by

④ The defect in the examination and evaluation results asserted by the Intervenor is difficult to be deemed as the above-mentioned "clear legal obstacle", and it is only a part that may be at issue in the process of issuing a license for maritime transportation business to the Plaintiff in the future (the registration of the 0 coastal passenger vessel safety management vessel, where the intervenor is at issue, is also registered on February 22, 2018, and thus is not at issue in the future proceedings).

⑤ Even if the Plaintiff’s business plan is deemed inappropriate under Article 5 of the Marine Transportation Act and cannot obtain a license pursuant to the public announcement of the selection of the instant business operator, the Plaintiff’s business plan ceases to exist when the disposition of this case is revoked, and the new procedures for the selection of the new business operator are inevitable. The Plaintiff is likely to participate in the relevant procedures and be selected as the scheduled coastal passenger transportation business operator.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it constitutes a deviation or abuse of discretionary power for the following reasons.

① In full view of the provisions of relevant Acts and subordinate statutes, including Articles 4 and 5 of the Marine Transportation Act, and the developments leading up to the announcement of the selection of the instant service provider and the details of the announcement, the Defendant rendered the instant disposition granting a license to provide regular passenger transport services to the intervenors, who are not existing service providers, in order to prevent any harm caused by the monopoly operation of the instant service route, to promote the convenience of users of routes, and to guarantee a third party’s opportunity to participate in the instant service.

② The result of the instant review and assessment on the Intervenor is that there was an error of not reduced or exempted from the assessment points in the part on the part on the “preliminary security of the captain and crew members of passenger ships” among the “business performance capabilities” and the part on whether adequate land manpower is secured, such as ticketing personnel, and if correction is made, the assessment points on the Intervenor is less than 80 points. In other words, as the captain, crew, and ticketing personnel assessed under the premise that the Intervenor is the employees belonging to the Intervenor are actually employees belonging to K or all employees belonging to the both companies, the points on the part on the captain and crew security should be reduced in full, and the points on the part on the securing of land manpower should be reduced by at least 50 percent.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

In full view of the above quoted evidence, evidence of Nos. 7 through 21, and evidence Nos. 1 to 20, the following facts are recognized.

1) The relationship between K and the Intervenor

A) Since its establishment on February 11, 2014, K has been engaged in maritime passenger transportation business as its main business, and has its main office in P of Port-si, Northern-si.

B) After its establishment on April 9, 1986, the Intervenor has been engaged in civil engineering, construction, electricity and packing works as its main business, and Kim Sea-si Q has its main office located in Q.

C) The composition of the Intervenor and K’s shareholders is as follows. R and S are between father and father. As such, the Intervenor and K are the companies established by a person with special interest of each major shareholder.

A person shall be appointed.

D) On July 2015, K has operated the C-T sea route using M. On June 10, 2016, the Intervenor entered into a bareboat charter with K to borrow M in the amount of KRW 1,380,000,000 each year between K and K on June 10, 2016.

E) On June 15, 2016, U, who is the representative director of K, was employed as an executive officer of the Intervenor (general executive officer of the Shipping Department) and participated in the procedures for explaining the project proposal on July 1, 2016.

F) The Intervenor’s corporate register was registered only for the shipping business on June 2, 200 with a shipping-related business objective. On September 7, 2016, the Intervenor’s vessel operation business, passenger scheduled service business, and Internet service business were added.

G) The Intervenor operated the Internet homepage(V). At the same time, the Intervenor introduced only civil engineering, construction, and landscaping services in the column, but did not introduce passenger transportation services, and all services related to passenger transportation services, including reservations and flight guidance, provided by K’s home page (W). The representative phone number of the ticket office also used it as existing K.

H) According to K and the Intervenor’s list of rights derived from August 2016, 2017 to July 31, 2017, the list of the ticket holders and the list of rights derived from each list of ticket holders: (a) the list of ticket holders of both companies overlaps with a large number of parts; (b) the K’s employees issued the ticket of the Intervenor’s passenger ship to issue or oppose the ticket of the Intervenor’s passenger ship.

2) Details of the Intervenor’s project proposal

A) According to the project proposal submitted by the Intervenor at the time of the public announcement on the selection of the instant project proposal (hereinafter “instant project proposal”), the Intervenor’s organization is as follows. After the Intervenor newly established the Korea Transportation Service Headquarters on June 1, 2016, X was employed as the head of the Shipping Service and U as the managing director, respectively.

A person shall be appointed.

B) The main contents of the “project performance capacity plan” among the items of assessment of the project proposal of this case are as follows.

(a) human resource input plan; (a) human resource input plan ; (b) seafarer management objectives and policy 1); (c) seafarers on the security status of seafarers 2) fully take over the number of persons on board;

(1) A plan for the placement of employees of the management team 2) a plan for the placement of employees of the management team 4) a plan for the placement of employees of the management team 3).

A person shall be appointed.

C) The above "Plan for Human Resources Investment" (A) 2) 7 seafarers and 3 preliminary seafarers, who are indicated in the status of securing seafarers, were MM seafarers and were affiliated with K in the past. B. 3) The remaining employees and 4) employees other than the chief employees of the business team were K prior to the preparation of the project proposal in this case, and the employees indicated in C’s business office were registered as a ticket manager on the K’s list from September 8, 2016 to July 31, 2017.

D) The results of the instant review and evaluation with respect to the Intervenor were as follows, and were assessed as the average point of 631 points on average 90.1.

A person shall be appointed.

D. Determination

1) Relevant legal principles

According to Article 4 (1) and (4) of the Marine Transportation Act, a person who intends to operate marine passenger transport services shall obtain a license from the Minister of Oceans and Fisheries for each service route by type under Article 3, and the Minister of Oceans and Fisheries shall grant a license under paragraph (1) on condition that he/she shall be equipped with the facilities, etc. specified in Article 5 (1) 2 and 5 for a period prescribed by Ordinance of the Ministry of Oceans and Fisheries, as prescribed by Ordinance of

Under Article 5(1) of the Marine Transportation Act, when a license for marine passenger transport services is to be granted, the competent administrative agency shall examine whether the business plan submitted by the business operator is in conformity with the nature of the transport demand in the relevant service route and whether the vessel mooring facilities and other transport facilities used for the relevant service are in accord with the relevant service route; ② whether commencing the relevant service is not likely to undermine the safety of marine transportation; ③ whether the operation plan suitable for the convenience of users in carrying out the relevant service is formulated; ④ whether the number of passenger ships, etc. owned, the age and operation capacity of passenger ships, etc., the capital, etc. meet the standards prescribed by Ordinance of the Ministry

In full view of these provisions, the license for the above marine passenger transport service is a beneficial administrative act that grants a specific person the right or interest, and is subject to discretionary action that should be determined by comprehensively taking into account the transport demand of the service route concerned, the suitability of mooring facilities on vessels, the safety of marine transportation, the convenience of users, etc. The establishment of the criteria for the license for the marine passenger transport service and the determination of whether the criteria are satisfied within the scope prescribed by the relevant laws and regulations

Therefore, as long as the competent administrative agency’s evaluation of the matters related to the review as stipulated in relevant statutes or public announcements seems objectively unreasonable and unreasonable, the administrative agency’s intent should be respected as much as possible (see, e.g., Supreme Court Decision 2013Du13440, Jul. 10, 2014).

2) Whether the intervenor’s determination as a new business entity deviates from or abused the discretionary power

A) The gist of this part of the Plaintiff’s assertion is that the existing business entity is not allowed to participate in the selection procedure of the instant business entity and only the new business entity is allowed to participate in the selection procedure of the instant business entity, and the intervenor is a company in fact the same as K, which is an existing business entity, and thus, the Defendant’s determination of the Intervenor as a new business entity is going beyond and abused discretion on granting a license for maritime passenger transportation business entity. Therefore, it is objectively reasonable and reasonable to determine the Intervenor as a new business entity, thereby falling under the category of a new business entity, and thus, whether only the new business entity is allowed to participate in the selection procedure of the instant business entity, prior to examining the issues as to whether only the new

B) According to the above acknowledged facts, the above quoted evidence and the purport of the whole arguments, as the father of K’s major shareholder (100% of the equity ratio). The intervenor and K are the companies established by the specially related parties of each major shareholder. The intervenor mainly engaged in the construction business, etc., and he started preparation for the instant maritime passenger transport business only after K rejected an application for modification of the internal passenger transport business plan for the extension of the instant service route. On the corporate register of the intervenor who caused the occurrence of the incident, only the maritime transport-related business purpose on September 1, 2016 was originally registered (hereinafter June 2, 200), and only the maritime transport-related business purpose on the corporate register of the intervenor, which was added to the instant passenger service business, was newly established as the shipping headquarters around September 1, 201, which was established by the intervenor, provided the maritime transport information service to the general crew of the intervenor, and the vessel that had been employed by the representative director of the company and the general crew of the plaintiff was part of the defendant’s vessel.

C) However, in light of the following circumstances that can be seen by comprehensively taking account of the above facts acknowledged, the above quoted evidence, and Eul evidence Nos. 21 through 27, and the purport of the entire pleadings, it is insufficient to recognize that the Defendant’s evaluation of the Intervenor as a new business entity in the instant selection procedure constitutes deviation and abuse of discretionary power by losing objective rationality and validity. Thus, this part of the Plaintiff’s assertion is without merit.

① On February 11, 2014, K is a company established on February 11, 2014 and engaged mainly in the maritime passenger transportation business in the north-gu P, and its major shareholders are S, and its executives and employees are about 72. On the other hand, the intervenor is a company established on April 9, 1986, which mainly runs civil and construction business in Q Q, which has its main office in the long time Kim Sea, and its major shareholders are R, and its executives and employees are about 199 persons ( approximately 28 persons who are related to the vessel operation business among them). As above, both companies are basically companies under the Commercial Act which have separate legal personality, and are not identical in the form and contents of their legal entity.

② If an existing company establishes a new company substantially identical with the existing company for the purpose of evading debts, etc., the establishment of the new company is abused the company system in order to achieve unlawful purposes, such as evading debts of the existing company. Thus, the assertion that the existing company has a separate legal personality cannot be permitted in light of the principle of trust and good faith. This legal doctrine applies to cases where a company uses another company in which the form and content of the existing company are substantially identical for the purpose of evading debts, etc. In such cases, whether the existing company has used the legal personality of another company for the aforementioned purpose shall be determined by comprehensively taking into account all the circumstances, such as management status or asset status at the time of closure of the existing company, whether or not assets are useful for another company, whether or not there are assets transferred from the existing company to another company, and whether or not a reasonable price has been paid if the existing company has assets transferred to the existing company (see, e.g., Supreme Court Decision 2010Da9472, May 13, 2011).

Examining the relationship between K and the Intervenor in light of the aforementioned legal principles, the two companies cannot be deemed the same in substance as the form and content of both companies because the shareholder composition, location of the main office, capital stock, establishment year, main business objectives, etc. In addition, there is no evidence to acknowledge that there was assets transferred from K, an existing business entity, or that there was no reasonable price previously paid.

Therefore, it is not against the principle of trust and good faith to assert that the intervenor has a separate legal personality from K, which is an existing business entity.

③ In full view of the provisions related to the Marine Transportation Act and the developments leading up to the announcement of the selection of a new business entity and the content of the announcement, the Plaintiff asserts that whether a business entity constitutes a new business entity of the instant sea route does not constitute a type-based legal entity, but rather, that the existing business entity merely lent the name of another company for the purpose of acquiring double licenses, or that both companies are able to exercise their influence over the management due to the fact that it is closely related to the agreement as a special-related company, and that fair competition would not be achieved, the Plaintiff’s interpretation of each subparagraph of Article 5 of the Marine Transportation Act must be

However, in light of the relevant legal principles as seen earlier, the scope of recognition of substantial identity with the existing business entity does not appear to have been extended to the existing business entity, its related company, or affiliate company established by a related party, as alleged by the Plaintiff, in full view of both the provisions related to the Marine Transportation Act and the developments leading up to and the content of the announcement.

In addition, in light of the type, contents, etc. of both companies mentioned above, it is difficult to recognize that K, an existing business entity, lent only the name to the intervenors for the purpose of double license acquisition.

Therefore, we cannot accept the plaintiff's above argument.

④ 비록 참가인이 2016. 6. 10. K으로부터 M를 용선하여 이 사건 사업자선정에 참가하였지만, 이는 나용선계약(裸뜰船契約, Bare boat Charter)에 불과하고, 그 선장과 선원은 2016. 8. 31.까지 모두 참가인의 직원으로 고용승계되었다.

⑤ K and Intervenor have entered into a mutual business agreement on August 19, 2016 and cooperate with each other in the management of the vessel of the other party, support and increase of crew members, rights and reservations related to business, entry into and departure from a ship, and other administrative affairs during the M Charter period. Such circumstance alone is insufficient to readily conclude that both companies are substantially identical.

(6) Under the same circumstances, the proceedings for the selection of enterprisers in the instant case shall respect the intentions of the administrative agencies deeming the intervenors as new enterprisers and examining them.

3) Whether the Intervenor’s actual evaluation score does not exceed 80 points

A) According to the aforementioned facts and the aforementioned quoted evidence and the purport of the entire pleadings, the examination evaluation results of the Intervenor are acknowledged as follows: (a) the part on securing the captain and crew of the “plan for the input of human resources” among the “project performance capacity” provided 61 points in total; and (b) whether the captain and crew members secured by the multilateral intervenors provided 32 points in total; (c) all the captain and crew members who operated M in the past; and (d) some of the captain and crew members are on board a ship owned by K; (e) five business team employees and seven employees of the C business office were on board the ship secured by the Intervenor; and (e) registered from September 8, 2016 to July 31, 2017 in the Roster list of K.

B) However, in light of the following circumstances that can be seen by comprehensively taking account of the above facts acknowledged, the above quoted evidence, and the statements in Gap's evidence Nos. 21 through 27, and the whole purport of arguments, it is insufficient to recognize that the above facts acknowledged and the statements in Gap's evidence Nos. 1 through 21 are insufficient to recognize that the facts of the captain, crew members, and ticket holders secured by the intervenors are merely employees belonging to K, employees belonging to both companies, or employees belonging to both companies, or that the defendant grants 61 points to the part "security of the "plan for manpower input" among the "project performance capabilities of the Intervenor" in the process of the intervenor's selection of the business operator in this case, and 32 points to the part "whether adequate land manpower manpower such as ticket managers are secured," which is objectively reasonable and reasonable, and thus, it is insufficient to find that the plaintiff's allegation in this part is without merit.

① The Intervenor appears to have been bound to succeed to the employment of the captain and crew as they were, because he/she chartered M from K to participate in the selection of the instant business entity. On September 6, 2016, before September 6, 2016, the instant disposition was issued, the Intervenor entered into an employment contract with the captain and crew with ten seafarers.

(2) On August 31, 2016, the Intervenor entered into a vessel and seafarer management contract with the AZ Co., Ltd. (a ship manager acting for the crew management, etc. pursuant to Article 2 subparag. 9 of the Marine Transportation Act; hereinafter “AZ”), whereby the Intervenor’s management of M and its crew members is entrusted to the AZ, and thus, the actual seafarer management of employment contracts, etc. is in charge of the AZ.

AZ enters into a management contract with K and other maritime transport business operators on about 150 ships and their crew members, in addition to the Intervenor. If crew members get out and leave a short-term leave and supplement it to other crew members of the other ship, the problem of cross-ship between crew members of the other company may arise.

In light of these circumstances, it is difficult to view the above cross-board-related act as a temporary work agency business under Articles 2 subparag. 1, 2, 6, and 5(3)3 of the Act on the Protection, etc. of Temporary Agency Workers, and it is insufficient to recognize that such cross-board-board-related act should not be considered as a temporary work agency business under Article 2 subparag. 1, 2, and 6 of the Act on the Protection, etc. of Temporary Agency Workers.

③ Since K and the Intervenor signed a mutual business agreement on August 19, 2016 and cooperates with each other in the management of the vessel of the other party, support and increase of crew members, rights and reservations related to business, entry into and departure from ships, and other administrative affairs during the charter period of M, there is a case where any of the ticket holders belonging to a company is registered in duplicate in the list of ticket holders of the other company.

In light of the relationship between the two companies and the characteristics of the instant service route or the business size, it is insufficient to recognize that only such mutual business agreements and support activities pertaining thereto should be reduced by more than 50% of the Intervenor’s evaluation score of the part of the Intervenor’s “plan for human resources input.”

④ Considering the above circumstances, the intervenor’s “project performance capacity” among the intervenor’s “project performance capacity” should be respected. As seen earlier, the administrative agency’s decision that has made the examination and evaluation should be respected.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, it is accepted by the defendant's appeal and revoked it and dismissed the plaintiff's claim. It is so decided as per Disposition.