(영문) 광주고등법원 2010.6.3.선고 2010누107 판결

The judgment of the court of first instance is revoked. The defendant's rejection disposition against the plaintiff on January 23, 2009 against the plaintiff shall be revoked.

Reasons

1. Details of the disposition;

The Plaintiff filed an application with the Defendant for a license for regular coastal passenger transportation business, and the Defendant rejected the application for a license (hereinafter referred to as “the initial disposition”). The Plaintiff filed a lawsuit with the Gwangju District Court seeking revocation of the initial disposition, and the court rendered a judgment revoking the initial disposition (Supreme Court Decision 2006Guhap2299 Decided August 31, 2006) and its judgment became final and conclusive (Seoul High Court Decision 2006Nu212 Decided July 26, 2007; Supreme Court Decision 2007Du18215 Decided December 11, 2008).

The Defendant, while taking a second disposition in accordance with the final and conclusive judgment, issued a disposition denying the application for license on the ground that the standard of transport demand for the application of this case falls short of the average boarding and loading rate licensing standard under Article 4 of the Enforcement Rule of the Marine Transportation Act (hereinafter referred to as “instant disposition”).

2. Key issues and reasoning of the instant case are ① Whether the instant disposition conflicts with the binding force of a final and conclusive judgment; ② Whether the instant disposition is a statute at the time of application for a license; and ② whether the Defendant erroneously calculated the average boarding and loading rate prescribed in the Enforcement Rule of the Marine Transportation Act.

The first instance court's decision on the issue ① becomes final and conclusive, and the disposition authority can make a new disposition by supplementing the illegality stated in the final and conclusive judgment, and the second instance court's decision on the ground that the defendant's rejection disposition again can be made for a new reason. Thus, the defendant's rejection disposition does not conflict with the binding force of the judgment on the ground that the application for the license of this case falls short of the criteria for transport demand under the attached Table 1 of Article 4 of the Enforcement Rule of the Revised Marine Transportation Act.

② As to the issue, the first instance court determined that it was lawful to determine whether the Defendant’s trust in the existence of the laws and regulations related to the previous Marine Transportation Act does not exceed the public interest demand for the application of the license application in light of the purport of Article 4 of the Enforcement Rule of the Marine Transportation Act and the Plaintiff’s legal status or living relation, and thus, the Defendant’s disposition of the instant case satisfies the transport demand standard in accordance with the amended Enforcement Rule of the Marine Transportation Act, which is the law at the time of the disposition, on the ground that the Defendant’s disposal of the instant application for license falls short of the required transport demand and suitability standards prescribed in the former Marine Transportation Act and the management guidelines, the vessel mooring facilities in the port of call is not compatible with safety, the user’s convenience is likely to occur, while the user’s excessive competition and conflict are not significantly improved, and thus, the judgment on whether it satisfies the transport demand standard in accordance with the amended Enforcement Rule of the Marine Transportation Act.

The first instance court determined that the Defendant’s calculation of the average number of passengers and the number of passengers (194 persons, 200), calculated the average number of passenger fares (194 persons, 200), calculated the average number of passenger fares (200 persons, 194 persons, 200) of the vessel applying for a license, and calculated the annual passenger transport capacity (3 persons) anticipated to be provided by the Plaintiff’s applicant vessel, and that the average number of passengers and the number of passengers (194 persons, 200) was below the transport demand standard under Article 4(1) of the Enforcement Rule of the Marine Transportation Act, even if the Plaintiff’s application for a license obtained the expected average number of passengers and the annual passenger transport capacity to be provided by the Plaintiff’s applicant vessel, which is not the basis of the instant disposition.

Even if the arguments and evidence submitted by the first instance court and this court were examined, such determination by the first instance court is justifiable.

Therefore, the reasoning of the judgment of this court is that the plaintiff added the following judgments to the new argument made by this court, and that of Article 5 subparagraph 1 of the former Marine Transportation Act (amended by Act No. 8046 of Oct. 4, 2006; hereinafter referred to as the "former Marine Transportation Act") is Article 5 subparagraph 1 of the former Marine Transportation Act (amended by Act No. 8046 of Oct. 4, 2006; hereinafter referred to as the "former Marine Transportation Act"), Article 3, 16 of the 3th and 17th of the 17th of the 3rd of the 3rd of the 3rd of the 1st of the 1st of the 1st of the 1st of the 2nd of the 2nd of the 2nd of the 1st of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 2nd of the 1st of the 3th of the 2nd of the 2nd of the 3th of

3. Additional determination

The plaintiff asserts that the disposition of the administrative agency's discretion on the application of this case is unlawful because it goes beyond the scope of discretion, although the discretion of the administrative agency is reduced to zero by the binding force of the judgment. However, the plaintiff's assertion alone is insufficient to deem that the defendant's discretion was reduced to zero, and there is no other evidence to acknowledge it.

4. Conclusion

Therefore, the first instance judgment dismissing the plaintiff's claim is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.