2016Nu6546 Revocation of revocation of the designation of Chinese organization tourers exclusively in charge of attracting tourists.

(b) a claim;

A

The Minister of Culture, Sports and Tourism

Seoul Administrative Court Decision 2016Guhap58970 decided September 9, 2016

February 17, 2017

March 17, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. On March 28, 2016, the revocation of the designation of travel agency exclusively in charge of attracting Chinese organizations and tourists against the Plaintiff shall be revoked.

1. Details of the disposition;

A. From the 1980s, the People's Republic of China (hereinafter referred to as "China") designated an area permitted for group tourists' travel in consultation with the government of each country in order to control foreign tourism. On June 27, 2000, the People's Republic of China (hereinafter referred to as "China") introduced a travel permission system (ADS, APvvved Datus) that allows Chinese group tourists to be invited and contacted only by the countries that entered into an agreement with China. China designated the Republic of Korea as "China's country of departure from Korea" on May 1998, and the representative of the Republic of Korea comprised of the defendant's Ministry of Foreign Affairs and Trade, Ministry of Ministry of Ministry of Ministry of Ministry of Construction and Transportation, Ministry of Foreign Affairs and Ministry of Construction and Transportation, and the representative of the Chinese side comprised of the Chinese government's officers related to the Chinese country's national oil, diplomatic department, and Ministry of Construction and Transportation, on June 27, 2000.

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 invitation 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 the Exclusive Tour Business for Attraction of Chinese Organization Tourist (hereinafter “instant Guidelines”) around July 1998 to implement the designation, management, etc. of the 'Exclusive Tour Master' recommended to China in accordance with the instant Round.

D. On February 26, 2014, the Plaintiff registered its business with the trade name B and operated a travel agent, and was designated as a exclusive travel agent by the Defendant.

E. Around December 2015, the Defendant decided to revoke the designation of 170 exclusive travel companies designated as 170 exclusive travel companies until February 2014, based on the results of the past two years (from January 1, 2014 to October 31, 2015) and to renew the designation of exclusive travel companies. On March 23, 2016, the Defendant held a Exclusive Tour Management Committee (100 points) for the two-year performance evaluation standards (10 points) less than 70 points, and (2) where the reduction points due to an administrative disposition is more than 6 points, the Defendant decided to revoke the designation of 68 exclusive travel companies among 170 enterprises pursuant to the criteria for revocation of designation. The Defendant issued a prior notice and hearing on the Plaintiff, and on March 28, 2016, revoked the designation of the Plaintiff’s exclusive travel points for 20 years or more based on the following guidelines:

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1, 20, 21, 23, and 24 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. Legal nature of the revocation of 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 laws and regulations. However, even if the grounds for a certain disposition are stipulated in the administrative rules, if the disposition orders the other party to establish rights or the burden of obligations, or gives rise to other legal effects, and thereby directly affects the other party's rights and obligations, it also constitutes an administrative disposition that is subject to an appeal litigation (see, e.g., Supreme Court Decisions 2001Du3532, Jul. 26, 2002; 2003Du10251, Nov. 26, 2001)

The basis for the act of designating exclusive tourers is set out in the instant visa and the instant guidelines, and the guidelines for exclusive tourers established pursuant to the Han-China Roster is merely an administrative rule governing the inside of the administrative agency, and does not have external binding force. However, the Defendant entered into the instant visa with China, and subsequently recommended domestic events to attract Chinese organizations, and accordingly, entered into a collective tour recruitment and contact contract only between the events to which the Defendant was recommended by the Defendant, and the Chinese travel agent, who did not have been designated as exclusive tourers pursuant to the Chinese travel permission system, is prohibited from attracting Chinese organizations, and the act of creating the legal status of exclusive tourers after being designated as exclusive tourers and recommended by the Defendant, constitutes an act of creating the legal status of exclusive tourers and concluding a contract that generates the legal status of exclusive tour applicants, which is an act of creating the legal status of exclusive tour applicants, and thus constitutes an act of creating the legal status of exclusive tour agencies and contracts that generate the legal status of exclusive tour applicants after being designated as the administrative agency.

B. Whether there is a procedural defect in the defendant's revocation of designation

1) The plaintiff's assertion

The defendant did not publish the specific criteria for the renewal evaluation and the criteria for revocation of designation, and the plaintiff did not notify the plaintiff of the low evaluation of the price conformity items in advance, and the plaintiff did not have the opportunity to vindicate or present opinions on the "price conformity items" item. Thus, the defendant's revocation of designation is procedurally unlawful.

2) The defendant's assertion

The plaintiff could sufficiently forecast the items included in the evaluation criteria for the renewal of exclusive tour operators, and the defendant provided the plaintiff with an opportunity to present his/her opinion on the disposition of revocation of designation, such as a hearing, etc., and a detailed evaluation score sheet according to the detailed evaluation criteria shall be separately forwarded to the plaintiff at the time of arrival of the plaintiff, and there was no problem in the procedure of the defendant's revocation of designation as the defendant's revocation of designation, because the plaintiff

3) Determination

A) In full view of the statements and the purport of the whole arguments as stated in Eul evidence 2-3, 3-1 to 7, 4-1 to 9, 20, 21, 23-1, 23-2, the following facts can be acknowledged.

(1) In March and July 2013, the Defendant held a public hearing on the introduction of the exclusive travel business operator renewal system and the establishment of the detailed criteria for the renewal of exclusive travel business operators. On February and August 2013, the Defendant held a public hearing on exclusive travel business operators affiliated with the Korea Tour Business Association. However, the Defendant notified the head of the Korea Tour Business Association of the implementation of the renewal system on September 6, 2013 of the renewal of exclusive travel business (hereinafter referred to as “existing renewal criteria”) of the renewal evaluation items and allocated points (hereinafter referred to as “existing renewal criteria”), and the head of the Korea Tour Business Association notified the exclusive travel business operators of the results of the evaluation according to each evaluation items on the same day, and notified them that more than 75 points out of 100 points will be re-designated as exclusive travel business operators, and the existing evaluation criteria included an “value of 15 points” as the sub-point evaluation items (point 15 points) of government policy response.

C. On December 5, 2013, the Defendant notified the exclusive tourer that he/she had at least 75 points according to the existing evaluation criteria for renewal was re-designated as a exclusive tourer, and announced that he/she will continuously monitor the results of attracting, product prices, administrative sanctions, low-cost goods, sales rate of high-cost goods, etc. and reflect it in the evaluation of renewal system conducted every two years (the Defendant expressed the evaluation criteria for new designation of exclusive tourer on March 20, 2015).

E. On December 24, 2015, the Defendant requested the exclusive tourers to submit data related to the assessment of re-designation by January 8, 2016, and requested them to report on the number of organizations, number of persons, ground expenses (excluding air fees, and expenses disbursed in the Republic of Korea) monthly performance and submit evidentiary data for the last two years (from January 1, 2014 to October 31, 2015).

(2) The items of “price rationality” among the items of the Defendant’s 2015 2015 dedicated travel agency’s renewal assessment are items for the management of travel products. The items were allocated 20 points per capita unit in 2014 and 10 points per capita unit in 2015, respectively. However, the unit price per capita means the amount calculated by dividing the foreign exchange transaction by the number of persons to be retained, and the Defendant granted 7 points per capita unit in 225,000 if the unit price per unit in 150,000 won per unit in dedicated event subject to evaluation is 150,000 won or more.

C) The Plaintiff’s unit price per head of year 2014 is KRW 31,240, and per head of year 2015 KRW 21,989.

(3) On March 4, 2016, the Defendant notified the Plaintiff of the prior notice of the revocation of designation and given the opportunity to present opinions to the Plaintiff on the grounds that the Plaintiff did not submit a tax invoice for the year 2014 and 2015; ② the Plaintiff’s foreign currency transaction amount in the year 2015 was Masp (-); ③ the Plaintiff’s reduction point due to administrative disposition was 9 points. However, on March 18, 2016, the Plaintiff participated in the hearing procedure on the grounds that the Plaintiff’s disposition was the cause of the disposition from the presiding official at the time of the hearing; and (c) on March 30, 2016, the Defendant sent the Plaintiff a detailed evaluation results sheet to the Plaintiff by electronic mail.

B) According to Articles 21(1), 21(4), and 22 of the Administrative Procedures Act, where an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests, it shall notify the parties concerned of the fact that the grounds for such dispositions and the details of such dispositions, legal grounds therefor, the submission of their opinions, and the methods of disposal when failing to submit their opinions, etc. In cases where other Acts and subordinate statutes stipulate that a hearing shall be held or a public hearing shall be held; however, the parties concerned shall be given an opportunity to present their opinions, etc., but "where there are reasonable grounds to believe that hearing of opinions is considerably difficult or clearly unnecessary due to the nature of the relevant dispositions, etc.

Therefore, in a case where an administrative agency did not give the above prior notice or give the party an opportunity to present opinions while making an infringing administrative disposition, the administrative agency’s disposition cannot avoid revocation due to its illegality, unless it does not constitute an exceptional case where the administrative agency did not give such prior notice or where it does not give an opportunity to present opinions (see, e.g., Supreme Court Decisions 2004Du1254, May 28, 2004; 201Du30687, Jan. 16, 2013).

On the other hand, the guidelines of this case specifically stipulate the criteria for the revocation of the designation of exclusive travel companies (Article 3-2). The defendant expressed the existing criteria for renewal at the time of implementation of exclusive travel companies in 2013, and notified that the above criteria will continue to be reflected in the future. The evaluation criteria for renewal and the criteria for renewal in 2015, which are the premise for the disposition of this case, are most similar, and the defendant is not obligated to publish in advance the detailed contents of the disposal agency's discretion, such as the detailed allocation criteria for each item or the criteria for renewal. Since the criteria for renewal evaluation are applied in 2014, the plaintiff was designated as exclusive travel companies in 2014, the plaintiff was deemed to have been designated in accordance with the criteria similar to the existing criteria for renewal, and the plaintiff seems to have been aware of the existing criteria for renewal around December 5, 2014, which had been similar to the previous criteria for renewal or renewal in 2015.

In particular, price consistency items have been continuously included in the existing criteria for renewal and new criteria for designation of exclusive travel agents in 2015, and the documents submitted by the plaintiff to the defendant for renewal evaluation include reports on performance to assess price rationality items. Therefore, even if the defendant's prior notice of revocation of designation on the plaintiff was not given a low point of view, it is difficult for the plaintiff who submitted documents on price consistency items to be considered as having no opportunity to state his opinion in the hearing procedure. Furthermore, the price consistency index of price consistency items, which is the evaluation index of price consistency items, is a mechanical figure if the plaintiff divides the foreign currency transaction amount already reported to the defendant into the number of the plaintiff's attraction, it is difficult to see that the plaintiff has a great need to state his opinion. Considering these circumstances, it is difficult to see that the defendant exercised his authority arbitrarily in the revocation of designation or the plaintiff has not been guaranteed transparency and predictability in administration. Accordingly, the plaintiff's assertion that the plaintiff did not have any legal ground for revocation of designation on price consistency items cannot be viewed as an unlawful administrative remedy procedure.

1) The plaintiff's assertion

Since the designation system of exclusive tourers is a system that limits the freedom of occupation, which is fundamental rights under the Constitution, the guidelines of this case are not delegated by superior statutes, it is against the principle of statutory reservation, and the revocation of designation made in accordance with such guidelines is also unlawful.

2) The defendant's assertion

Since the fact that domestic travel agents, which are not designated as exclusive travel agents, are unable to attract Chinese organization tourists at will is due to the operation of China as a permission system, the designation system of exclusive travel agencies does not restrict the freedom of occupation or freedom of business of the people, but it is merely a system for providing convenience to the visa issuance of Chinese organization tourists, and thus it is not necessary to make a separate delegation under the law.

3) Determination

A) The principle of statutory reservation and the principle of parliamentary reservation that the formal legal basis established by the National Assembly is required in the administrative action is not sufficient if the administrative action simply provides the basis for the law, but it is understood that the area of basic and important meaning for the state community and its members, in particular, the area pertaining to the realization of the fundamental rights of the people, not to be entrusted to the administration, but to the demand that the legislators, the representative of the people, should decide on its essential matters.

However, it is difficult to uniformly define what matters should be regulated by legislators, and only individual decisions can be made in consideration of the importance of benefits or values related to a specific case, the degree and method of regulation or infringement, etc. However, when restricting the freedom or rights of the people guaranteed by the Constitution at least, the legislators should directly regulate the essential matters of the restriction by law (see Constitutional Court Order 2015Hun-Ba125, 290, Jun. 30, 2016).

According to the facts acknowledged above, the defendant is obligated to take various measures and policies related to tourism business as prescribed by the Framework Act on Tourism (Articles 2, 4, 7, and 10) and entered into an agreement with the Government of China with the aim of facilitating the attraction of Chinese group tourists. The defendant prepared the instant guidelines to implement the matters stipulated in the agreement, and did not carry out the designation and cancellation of designation of exclusive tour operators pursuant to Articles 3 and 3-2. The fact that domestic tour operators are unable to attract Chinese group tourists at will is that China adopts the travel permission system that permits foreign tourism only to the countries where the agreement was entered into in principle, and it is not because Korea's legislation adopts the permission system that permits foreign tourism in accordance with the procedures stipulated in the agreement. Thus, even if the budget of exclusive tour operators is actually operated as permission system, it is not necessary to establish a separate legal system that allows the designation and cancellation of designation and operation of exclusive tour operators or to restrict their freedom of business as well as the legal status that it does not require the designation of exclusive tour operators in China.

On the other hand, designation of exclusive travel agents is beneficial to the other party, and its legal nature belongs to discretionary acts, and in such discretionary acts, additional clauses, such as conditions, time limit, and burden, may be attached to achieve administrative purposes unless there is an explicit prohibition provision in the relevant Acts and subordinate statutes. The contents of such additional clauses are able to implement, proportional principles and equality, and it is not unlawful insofar as the intrinsic effect of administrative disposition is not infringed upon. Furthermore, the designation of exclusive travel agents by designating exclusive travel events in compliance with the instant guidelines, and the result of evaluation and determination of the revocation of designation is made to ensure that the exclusive travel agent bears a certain duty, and even if the designation is made, the designation is made to achieve administrative purposes so that the qualification of exclusive travel agents can be maintained above a certain level as prescribed in the instant Roster, and its duty is merely incidental to the duty to hold a position as exclusive travel agent, and even if the designation of exclusive travel agent is revoked, it does not go beyond the scope of rights or interests, and it does not violate the fundamental principle of freedom and equality as a whole.

Even if the designation of exclusive tourers and the revocation of such designation are not simply entrusted to the decision of the administration because the designation of exclusive tourers and the designation of exclusive tourers have increased rapidly after the completion of the instant visa, and the designation of exclusive tourers and the revocation of such designation are needed to be incorporated into the laws enacted by the National Assembly, but the designation of exclusive tourers and the revocation of such designation cannot be legally effective solely on the ground that there is no legal basis in the situation where the legal basis is not yet established, if the designation of exclusive tourers and the revocation of such designation cannot be granted any legal effect due to the occurrence of a legislative gap and the occurrence of confusion in the travel business or tourism business related to the attraction of Chinese organizations, and the diplomatic problem that makes it impossible to comply with the instant visa. In full view of these circumstances, the Defendant’s designation of exclusive tourers and the revocation of such designation or the guidance of the instant case cannot be deemed to contravene the principles of statutory reservation

B) Although there was no particular defect at the time of the disposition, and there was no separate legal ground to withdraw it after the disposition, a disposition agency which has conducted an administrative act may withdraw it by a separate administrative act which would lose its validity where there was a change in circumstances that no longer need to continue the original disposition, or where a need for important public interest arises. However, where the disposition is cancelled or withdrawn, it would infringe upon the people's vested rights. Thus, even if there is a reason such as cancellation, the exercise of the right of revocation, etc. is determined by comparing and comparing with the disadvantage suffered by the other party only when there is a need for important public interest to justify the infringement of the vested rights or when it is necessary to protect a third party's interests, and where the disadvantage suffered by the other party is greater than the need for public interest, it is in itself unlawful (see Supreme Court Decision 2003Du7606, Jul. 22, 2004).

As seen earlier, the Defendant’s revocation disposition constitutes the withdrawal of the designation of the Plaintiff and constitutes the withdrawal of beneficial administrative acts. Therefore, even if the Defendant did not have any legal basis in designating the Plaintiff as the exclusive travel agent, the instant disposition cannot be immediately deemed unlawful solely on the ground that there is no legal basis for the Defendant’s revocation of the designation. This part of the Plaintiff’s assertion is without merit.

1) The plaintiff's assertion

The Defendant, regardless of the criteria listed in Article 3-2 of the Guideline, set the items to be arbitrarily renewed, allocated the points for each item, and set the renewal standard points. The Plaintiff invested a large amount of capital on the trust that there was no sanction other than those stipulated in Article 11 of the Guideline, and the Plaintiff suffered enormous disadvantage due to the revocation of designation. Therefore, the revocation of designation is illegal as it constitutes a case of deviation from or abuse of discretion.

2) The defendant's assertion

The items of the criteria for renewal evaluation, allocation criteria, renewal criteria scores, etc. are reasonably composed, and the defendant did not deviate from or abuse discretion.

3) Determination

A) In full view of the respective descriptions of No. 11-1-3 and No. 24-2 of the evidence No. 11-2 and the overall purport of the pleadings, the following facts can be acknowledged.

(1) On February 26, 2014, the Plaintiff submitted a written oath to faithfully comply with the instant guidelines at the time of designation as the exclusive travel agent.

(2) On December 5, 2014, the Plaintiff participated in the business briefing session organized by the Korea Tour Business Association, and among the contents thereof, information on the evaluation of the renewal system was included.

B) The detailed details and allocation of the evaluation items for renewal of exclusive travel workers, method of evaluation, and detailed method and criteria for calculation of evaluation points are, in principle, left to the Defendant’s unique policy or autonomous judgment, which is the competent authority, and are wide discretion. However, it shall be deemed unlawful only where the method or criteria violate the Constitution or laws, lack of reasonableness and lack of objective legitimacy, or where it is determined that the method or criteria were considerably unreasonable or unreasonable in light of the purpose of the evaluation in this case, and the purport of the relevant laws and regulations, etc.

With respect to this case, it is reasonable to view that the designation system of exclusive travel agents is permissible unless there are circumstances to establish a certain period of time and to review the evaluation criteria required for the maintenance of the status, and to review the results of the designation of exclusive travel agents who fall short of the evaluation criteria for the following period of time, and to review the results of the evaluation criteria for the renewal of the status of exclusive travel agents once every two years in a sound and orderly manner, which is operated based on the records of this case and the guidelines of this case for the purpose of facilitating the development of tourism between the two countries, and the renewal of exclusive travel agents is implemented for the purpose of administrative purposes to maintain and manage the qualification as exclusive travel agents at a certain level. Since the designation of exclusive travel agents is a beneficial administrative act that is granted by the defendant for a certain period of time, it is reasonable to view that the designation of exclusive travel agents is not unreasonable or unreasonable. In addition, since the defendant applied the evaluation criteria applied to the designated exclusive travel agents by the defendant for the renewal of the status of exclusive travel agents once every two years in accordance with the guidelines of punishment (Article 11) and the guidelines).

In addition, even if considering the economic loss that the Plaintiff would incur due to the revocation of the designation of the exclusive tour operator, it seems that the national damage to the event that the exclusive tour operator will suffer is significantly higher, and thus, the public interest of operating the renewal system is greater. Even if the designation of the exclusive tour operator is revoked, the Plaintiff cannot be deemed to have a deviation or abuse of discretion in the revocation of the designation of the exclusive tour operator with respect to the Plaintiff, in full view of the circumstances such as continuing travel business for tourists other than Chinese organizations tourists. Accordingly, the Plaintiff’s assertion on this part is

4. Conclusion

Therefore, the revocation of the designation of the exclusive travel agent against the plaintiff on March 28, 2016 is legitimate. The judgment of the first instance, which dismissed the plaintiff's claim, is just, and the plaintiff's appeal is dismissed as it is without merit.

The presiding judge, the full-time judge

Judges Supbing

For the purpose of judge sex impulse

1) Price consistency consists of the unit price for each person in 2014 (10 points) and the unit price for each person in 2015 (10 points), and the unit price for each person in 2015 (10 points). The unit price for each person shall be foreign currency.

It is the amount calculated by dividing the future by the number of attracting persons.