In a case where a tourman in China established a "Guidelines for Performance of Exclusive Tour Services for Attraction of International Tourist Operators" and designated and managed a "Special Tour Operator for Attraction of International Tourist Operators" in accordance with the negotiations with the Ministry of Culture, Sports and Tourism with the content that a tourman in China takes exclusive charge of the Korean organization tourism business of Chinese persons, among travel agencies recommended by the Government of the Republic of Korea, to select a cooperation company and enter into a collective tour service contract, and designated and managed a "Special Tour Operator for Attraction of International Tourist Operators", and issued a disposition revoking the designation of a Exclusive Tour Operator for Company A, the case holding that the above guidelines violated the principle of statutory reservation and the principle of parliamentary reservation

In a case where the Minister of Culture, Sports and Tourism, upon the negotiation with the Ministry of Culture, Sports and Tourism to select a cooperative among the travel agencies recommended by the Government of the Republic of Korea to take exclusive charge of the business of Korean organization tourism of Chinese people, established the "Guidelines for the Performance of Exclusive Tour Services" and designated and managed the "Special Tour Agency for the Attraction of Chinese Operators", and issued a disposition to revoke the designation of the Exclusive Tour Agency for Gap corporation which operated the travel business after being designated as the Exclusive Tour Agency, the case held that at the time of the enactment of the guidelines, although there was no significant impact on the freedom of occupation or freedom of business of Chinese people who operated or intend to operate the travel business due to the large number of events of the Chinese organization tourists, the special travel agency system against Chinese organization tourists has a great impact on the interests of the people who operated or intend to operate the travel business, and that the special travel agency system against Chinese organization tourists violates the principle of free operation and free operation of the National Assembly, not the principle of free operation and free operation of the National Assembly.

Articles 12 and 15 of the Constitution of the Republic of Korea; Articles 3(1)1 and 4 of the Tourism Promotion Act

Gold Tour Co., Ltd. (Attorney Kang Jae-soo, Counsel for the defendant-appellant)

The Minister of Culture, Sports and Tourism (Law Firm Han LLC, Attorneys Kim Won-won)

May 27, 2016

1. The revocation of the designation of the exclusive travel agent for attracting Chinese group tourists, which the Defendant rendered to the Plaintiff on March 28, 2016, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The People's Republic of China (hereinafter referred to as "China") has entered into an agreement with a foreign government for the control of the people of the Republic of Korea in its foreign tourist destinations, and the travel agency designated by that foreign government has designated the Republic of Korea on May 1998 as "China's country of free international departure tourism". The Ministry and the defendant's side related to China's tourism negotiations on the implementation of various relevant issues arising from the tourism of Chinese collective tourists in the Republic of Korea on June 6, 1998 and June 27, 2000, and signed on a non-record containing an agreement following such negotiations (hereinafter referred to as "non-record of this case").

B. According to the records of this case, China had the travel agencies in its country take exclusive charge of the organization tourism business of the Chinese people in the Republic of Korea, and these travel agencies had designated a cooperative company among the travel agencies recommended by the Government of the Republic of Korea and entered into a contract for the recruitment and reception of group tourists. The Defendant established the Guidelines for the Implementation of Exclusive Tour Tour Services (hereinafter “instant Guidelines”) and accordingly designated and managed the “exclusive travel agency exclusively in charge of attracting Chinese group tourists” (hereinafter “exclusive travel agency”).

C. The Plaintiff was incorporated on May 18, 2005 with the primary purpose of general travel business and domestic and foreign travel business, and was designated as exclusive travel business operator on April 11, 2006 by the Defendant, and was re-designated on December 5, 2013.

D. On March 28, 2016, the Defendant issued a disposition to revoke the designation of a exclusive travel agent by applying Article 3-2 of the instant guide to the Plaintiff on the ground that “the result of the reexamination for the renewal of exclusive travel agent: (a) the number of multi-use tourers owned is less than 0; (b) a report on the performance of the electronic management system was about 0; and (c) a decrease in the number of 10 points upon receipt of an administrative disposition” (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1, 4, 5 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant guideline violates the Tourism Promotion Act that allows only the company designated by the Defendant to carry out the domestic tourism business of Chinese people without legal basis, thereby infringing on the freedom of occupation, which is a fundamental right under the Constitution, and that allows the travel business to run freely if it is registered with certain requirements. Therefore, the instant guidelines are unconstitutional and illegal administrative rules. Therefore, the instant disposition based on the instant guidelines should be revoked illegally (the Plaintiff did not claim specific grounds for the disposition presented by the Defendant).

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) The Constitution provides the rule of law as one of the basic principles, and the rule of law is the core of the principle that the formal legal basis established by the National Assembly is required in the administrative action. Furthermore, today’s principle of statutory reservation is not sufficient if administrative action simply provides the basis for law, but rather requires the State community and its members to decide on the essential matters of the nation’s fundamental rights, especially in the area related to the realization of the fundamental rights of the people, and is understood as within the parliamentary reservation principle. In this case, it is difficult to uniformly define what kind of matters to be regulated by the law can be determined by the legislators in consideration of the importance of the benefits or values related to a specific case, the degree and method of regulation or infringement, etc., but at least when restricting the freedom or rights of the people guaranteed by the Constitution, the legislators as to the essential matters of the restriction must self-regulation by law (see Constitutional Court en banc Decision 2010Hun-Ma747, Apr. 24, 2014).

2) Considering the following circumstances: (a) at the time of the enactment of the instant guidelines; (b) changes in the current situation; (c) the effect of the designation system of exclusive tour operators on the freedom of occupation and the freedom of business of the people; and (d) the Defendant’s designation and revocation of designation on exclusive tour operators on the interests of the people, the instant guidelines are not effective in violation of the principle of statutory reservation under the Constitution and the principle of parliamentary reservation. Accordingly, the instant dispositions based on the instant guidelines

① Around July 1998, when the instant guideline was first enacted, there was almost no market for the travel business against Chinese tourists. However, from 1999 to 2010, the number of Chinese tourists increased considerably from approximately 2.18,00 to about 5.15,00 among the 46,000 collective tourists’ number and 5.16,00 collective tourists’ number were increased from 35, 198 to 167 collective tourists’ number at 35, 2012. Accordingly, at the time of the enactment of the instant guideline, it may be deemed that there was a significant impact on the freedom of occupation or freedom of business of Chinese tourists who operate or intend to operate the travel business in the future. However, it may be deemed that the current management of Chinese tourists’ number was considerably affected by the current 18-year collective tourists’ interest in the business.

② In order for domestic travel agencies to conduct their business for three or more Chinese group tourists, the Defendant’s exclusive travel company must be designated (the Korean consul, etc. in China, who is not a exclusive travel company, is deemed to refuse to issue a visa to Chinese group tourists attracting general tourists). If Chinese group tourists are invited without the Defendant’s designation, it cannot be designated as a exclusive travel company in the future or may not receive the fund or government business support (Article 12 of the Guideline). The Chinese government received a list of exclusive travel agents designated by the Defendant and sent them to Chinese group travel agencies, and seems to have engaged in the business of sending them only between the events of sending them and the exclusive travel company (Article 5-11 of the Guideline). Accordingly, the Korean travel company against Chinese group tourists is operating a travel business as a permission system by the Defendant’s designation, and it is substantially limited to the Defendant’s freedom to operate the travel business or to operate the business within the scope of its business, taking into account the fact that the Defendant’s internal travel organization is more free to operate or operate its business.

③ Considering the impact of the designation and cancellation of the designation of the Defendant’s exclusive travel agent on the interests of the people operating or seeking to operate the travel business, at least the elements to be considered when the Defendant designates the exclusive travel agent and cancels the exercise designated by the exclusive travel agent are based on the law (Article 6 of the National Assembly’s Bill on the Establishment of the Travel Business Act, which was promoted by the National Assembly). The elements to be considered include the contents of the said Bill, which ought to reach the extent, can be recognized as being in compliance with the principle of statutory reservation and the principle of parliamentary reservation, and also accords with the principle of statutory administration. At present, there is no standard to determine whether the contents of the instant Directive are legitimate or not, since there

④ To operate a travel business, the Tourism Promotion Act only stipulates that a travel business shall be registered with the competent authority, and it does not require permission or authorization from the competent authority. However, this case’s guidelines allow only some travel agencies designated by the Defendant among general travel agencies under the Tourism Promotion Act, which are not stipulated by the relevant statutes, such as the Tourism Promotion Act, to establish a special travel agency’s status, which is not stipulated by the relevant statutes, such as the Tourism Promotion Act. This is not permissible for the Defendant to undermine the system leading to the Constitution, laws, Presidential Decree, and Ministerial Ordinance through internal administrative regulations.

⑤ The past precedents recognizing the legality of the revocation of the designation of the Defendant’s exclusive travel agent do not directly determine whether the revocation of the designation in accordance with the instant guidelines was a deviation or abuse of discretion, but did not directly determine whether the instant guidelines violate the principle of statutory reservation under the Constitution (see, e.g., Supreme Court Decision 6th and reference documents). It is apparent that the instant guidelines are invalid as an external binding legal order (see, e.g., Supreme Court Decision 6th and reference documents). It is necessary to clarify that the instant guidelines themselves are merely administrative rules without external binding force and do not directly affect the rights and obligations of the people.

3. Conclusion

The plaintiff's claim is justified and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges and decorations (Presiding Judge) and Lee Jin-gu decorations