(영문) 서울행정법원 2017.7.7.선고 2016구합79946 판결

On November 4, 2016, the Defendant revoked the revocation of the designation of a Chinese travel agent exclusively in charge of China against the Plaintiff.

Reasons

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 its nationals' lives in foreign tourist destinations, and only those travel agents designated by that foreign government have designated the Republic of Korea on May 1998. The Chinese representative and the delegation of the Republic of Korea, on June 1998 and June 27, 2000, concluded negotiations on the implementation of various relevant issues arising from tourism of Chinese group tourists in the Republic of Korea and signed an agreement on the negotiation (hereinafter referred to as "non-competing of this case").

B. According to the records of this case, China selected a travel agency in its own country and had it select.

A person who is exclusively in charge of the affairs of organization tourism of the Republic of Korea for the Korean nationals, and the travel agencies shall enter into a contract with a collaborative company selected from among travel agencies recommended by the Korean government for the recruitment and reception of group tourists.

C. On July 1998, the Defendant enacted the “The Guidelines for the Promotion of Exclusive Tour Services” (hereinafter referred to as the “Guidelines”) in order to designate and manage the “China Organization Tour’s Exclusive Tour” (hereinafter referred to as the “Exclusive Tour”) as set out in the Scurgical Protocol.

D. On January 28, 1991, the Plaintiff was established mainly for the purpose of arranging domestic and overseas travel business, etc., and was designated by the Defendant as a exclusive travel agent around February 2014.

E. On March 28, 2016, according to the result of the evaluation of 170 exclusive travel events subject to the implementation of the exclusive travel renewal system (hereinafter “2016 renewal evaluation”), the Defendant did not designate 68 enterprises with less than 70 points as exclusive travel events, and re-designated the rest of 102 enterprises including the Plaintiff as exclusive travel workers (hereinafter “prior disposition”).

F. Since then, the Defendant found eight exclusive travel events, including the Plaintiff, which were re-designated as exclusive travel agents despite having been reduced of at least six points due to the foregoing administrative disposition, and rendered a disposition to revoke the designation of exclusive travel agents as follows (hereinafter “instant disposition”). On November 4, 2016, the Defendant issued a disposition to revoke the designation of exclusive travel agents as the following grounds for disposition (hereinafter “instant disposition”).

처분사유: 무자격가이드 고용 등 행정처분으로 감점 6점 이상(감점기준: 시정명령 1점, 과징금 또는 영업정지 3점, 조회기간: 갱신제 평가 기간2014. 1. | 2015. 10.)<행정처분 내역>

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1, 2, 6, 20 (including branch numbers, if any; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

For the following reasons, the instant disposition should be revoked as it is unlawful.

(i) the first argument;

The instant guidance violates the Tourism Promotion Act, even though it restricts the freedom of occupation and the freedom of business, there is no basis for law, and also violates the Tourism Promotion Act that allows a travel business to be run freely if it is registered with certain requirements. Therefore, the instant guidance is null and void contrary to the principle of statutory reservation, the Council reservation, and the principle of legal superiority, and the instant disposition based thereon is unlawful.

(ii) the second argument;

The grounds for the instant disposition should be Article 11 subparag. 9 of the instant guidelines, which provides sanctions against the utilization of a non-qualified diversity. Accordingly, the instant disposition may not be taken against the Plaintiff, who is not exposed to the use of a non-qualified diversity during the pertinent period, as it is possible to revoke the designation of an exclusive exercise only where the use of a non-qualified divers has been discovered twice for a year from April 1, 2016.

(iii) the third assertion;

The evaluation of re-designation of exclusive travel agents pursuant to Article 3-2 of the Guidelines of this case should be reflected only in the factors of the reduction of the administrative disposition based on the guidelines of this case. The employment without qualification is related to the Hong Kong organization tourists, which is not based on the Tourism Promotion Act, and it is not based on the guidelines of this case. Thus, it is unlawful to consider the history of the administrative disposition as the history of the administrative disposition related to the re-designation of Chinese exclusive travel agencies.

4) The fourth argument

Article 3-2 of the Guideline provides that the Defendant shall review the instant disposition based on the records of attracting tourists at the time of re-designation of exclusive tour operators, financial soundness, compliance with the legal system, contribution to the development of the tourism industry, and records of administrative disposition, etc. As such, the instant disposition is too harsh for the Plaintiff to have contributed to the development of the tourism industry for at least 20 years after its establishment in 191, and it is not necessary for the public interest to be achieved thereby, and the instant disposition is not in violation of the principle of proportionality. In addition, even if the Plaintiff failed to meet the requirements for re-designation at the expense, as long as the re-designation was conducted, it is limited that the need for public interest is greater than private interest in order to withdraw or revoke the beneficial administrative act, and is unlawful because it does not meet the requirements for such withdrawal or revocation.

5) The fifth argument

The Plaintiff trusted the prior disposition of this case, which re-designated the Plaintiff as the exclusive travel agent, and did not have any reason to believe it, and continued Chinese organization tourist business by participating in the travel-related exhibition held in China. However, the Defendant, by rendering the instant disposition contrary to the prior disposition of this case against the instant disposition, suffered damages to rapidly suspend Chinese organization tourist business. Accordingly, the instant disposition is also in violation of the principle of trust protection.

B. Relevant statutes

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

C. Determination

1) Determination on the first argument

A) Legal nature of the designation of exclusive tourmen

(1) The term "administrative disposition", which is the object of an appeal litigation, refers to, in principle, an act of an administrative agency's public act that 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 regard to a specific matter under laws and regulations. However, even if the grounds for a certain disposition are stipulated in the administrative rules, if such disposition orders the other party to establish rights or the burden of obligations, or causes other legal effects, and thereby directly affects the other party's rights and obligations, it constitutes an administrative disposition subject to an appeal litigation even in this case (see, e.g., Supreme Court Decisions 2001Du3532, Jul. 26, 2002; 2003Du10251, Nov. 26, 2004).

(2) The grounds for the act of designating the exclusive travel agent are set out in the instant Round and the instant guidelines, and the instant guidelines enacted pursuant to the instant Round were without delegation by the Defendant’s law.

The business process guidelines setting forth matters necessary for the designation, management, and operation of events exclusively in charge of tourism in the Republic of Korea of group tourists are merely administrative rules governing the internal organization of China and do not have external binding force. However, the defendant's act of designating the exclusive tour operator is an act of establishing the right to enter into a contract with Chinese organizations or status to enter into a contract with Chinese organizations, and accordingly, a Chinese tour operator in charge of Korean tourism affairs is entitled to enter into a group tour service contract only between events exclusively in charge of attracting Chinese organizations tourists and events recommended by the defendant. In other words, a Korean tour operator who is not designated as a exclusive tour operator in accordance with the Chinese travel permission system is prohibited from attracting Chinese organizations tourists. The act of designating the exclusive tour operator is an act of establishing the right to enter into a contract with Chinese organizations or status to enter into a contract with Chinese organizations, and constitutes an act of creating the legal status of the exclusive tour operator or the other party as an act of being designated as an administrative disposition or the other party.

B) The designation system of exclusive tourers and the validity of the instant guidelines

(1) It is understood that the principle of statutory reservation and the principle of parliamentary reservation that the National Assembly requires the formal legal basis for administrative action is not sufficient if the administrative action simply provides the basis for the law, but rather requires the State community and its members to make a decision on its essential matters, which is the representative of the people, rather than being entrusted to the administration, in particular the area pertaining to the realization of the fundamental rights of the people.

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).

(2) Taking full account of the following circumstances recognized earlier and the purport of the entire pleadings, the Defendant’s exclusive travel agent designation system or the instant guidelines cannot be deemed as contrary to the principle of statutory reservation, parliamentary reservation, and superior legal advantage.

(A) According to the Framework Act on Tourism, the Government shall devise a basic and comprehensive policy on tourism promotion (Article 2), and shall take legislative and financial measures and other necessary administrative measures to implement the policy (Article 5). In order to facilitate the attraction of foreign tourists (Article 7), the Government shall strengthen overseas public relations, devise entry and departure procedures, and take other necessary measures (Article 7), and guide, supervise and take other necessary measures to promote tourism business (Article 10). The Defendant entered into an agreement with the Government of China with a view to facilitating the attraction of Chinese group tourists as prescribed by the Framework Act on Tourism, and entered into the instant guidelines to implement the agreement, and subsequently designated the act of designating the events exclusively in charge pursuant to the provisions of Articles 3 and 3-2.

(B) The reason why domestic travel agents are unable to attract Chinese collective tourists at will is that China, in principle, prohibits foreign tourism, and exceptionally adopts a travel permission system that permits foreign tourism in accordance with the procedures stipulated in the relevant agreement only for countries to which the agreement was concluded. This is not because Korea’s legal system adopts the permission system for attracting Chinese collective tourism. Accordingly, the designation system of exclusive travel agents does not restrict freedom of occupation or freedom of business against the people who operate or intend to operate a travel business.

The act of discretion belongs to the discretionary act, and such discretionary act may set conditions, time limit, burden, etc. to achieve administrative purposes unless there is an explicit prohibition provision in the relevant laws and regulations, and it shall not be deemed unlawful insofar as its contents are able to carry out, conform to the principle of proportionality and the principle of equality, and are not detrimental to the essential effect of an administrative disposition.

(D) Even if a travel agent designated as the exclusive travel agent by designating the exclusive travel agent in compliance with the instant guidelines, and the result of evaluation and determination of the revocation of the designation, it is necessary to achieve the administrative purpose of managing the exclusive travel agent in order to maintain his qualification above a certain level as prescribed by the instant protocol, and the duty is limited to the duty incidental to the duty to maintain his status as the exclusive travel agent, even if the designation of the exclusive travel agent is revoked, and the right or interest beyond the scope is not infringed upon. Thus, it cannot be deemed as either impossible to implement the instant guidelines or contrary to the principle of proportionality and the principle of equality. It is also difficult to view that the designation of the exclusive travel agent and the revocation of the designation as a whole is to restrict the people’s freedom or rights guaranteed by the Constitution, or that the burden is to be limited to the essential matters of the restriction.

(E) Even if the designation of exclusive tourers and the revocation of such designation are not simply entrusted to the judgment of the administration because the designation of exclusive tourers and the revocation of such designation are increased due to the significant increase in the number of exclusive tourers in China after the completion of the instant visa, and it is necessary to incorporate the system into the laws enacted by the National Assembly, not to simply leave the decision of the administration, but to regulate the designation of exclusive tourers and the revocation of such designation, if 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 present situation where the legal basis is not prepared, there is a legislative gap, and there is confusion in the travel business or tourism business in relation to the attraction of Chinese collective tourers, which is a contract entered into with China, and it is expected that the instant visa

C) In a case where there is a defect in the administrative act whether the revocation of the exclusive travel agent’s designation is possible even in the absence of any other legal basis, the pertinent disposition against the Plaintiff on the ground that “the Plaintiff was re-designated as a exclusive travel agent even though the Plaintiff was at least six points due to the administrative disposition and cannot be re-designated as a exclusive travel agent,” the instant disposition constitutes cancellation of the administrative act, and even if there is no legal basis on the instant disposition, the instant disposition cannot be immediately deemed unlawful solely on the ground that it is not unlawful.

D) Sub-committee

Since the disposition of this case does not violate the principle of statutory reservation, the principle of parliamentary reservation, and the principle of legal superiority, the plaintiff's above assertion is without merit.

2) Judgment on the second argument

Article 11 (3) 9 of the Guidelines of this case provides for "Immediate revocation of the designation of exclusive tour operators", and it is irrelevant to the renewal evaluation system that grants qualification as exclusive tour operators through reexamination.

As seen earlier, the defendant conducted a renewal evaluation system that grants qualification as a exclusive travel agent through reexamination and revoked the preceding disposition of this case on the ground that there is a defect in the preceding disposition against the plaintiff, which is based on Article 3-2 of the Guidelines.

Therefore, the grounds for the instant disposition do not fall under Article 11 subparag. 9 of the instant guidelines, and the Defendant did not take the instant disposition based on Article 11 subparag. 9 of the instant guidelines. Therefore, the Plaintiff’s assertion on a different premise is without merit.

3) Judgment on the third argument

A) The instant guideline was amended on August 1, 2014 and newly established Article 3-2 (Renewal of Exclusive Tour). The said provision provides that “The Minister of Culture, Sports and Tourism shall grant the designated exclusive tour operator the qualification as a exclusive tour operator through a reexamination once every two years, taking into account the record of attracting tourists, government tourism policy response, financial soundness, administrative disposition records, and the rate of unauthorized leaveers.”

The system of renewal of exclusive travel companies was introduced to facilitate the withdrawal of events to be held in exclusive charge by strictly holding the designation of new events to resolve the problems that undermine the image of the nation and the Korean tourism industry due to low-price tourism such as excessive shopping coercion for Chinese tourists, allocation of low-age accommodation outside the Seoul Metropolitan area, etc. (Article 4-1, 3, 5).In the process of adopting the system of renewal of exclusive travel companies, it was discussed to link sanctions under the Tourism Promotion Act with sanctions under the instant guidelines (Article 4-1-1 of evidence 4, Article 21 of the Tourism Promotion Act, Article 4-1 of the same Act, Article 4-1 of the same Act, Article 5-1 of the same Act, Article 5-2 of the same Act, Article 5-2 of the same Act, Article 5-2 of the same Act, Article 5-4 of the same Act, which provides for the defendant to the travel company (Article 5-6 of the same Act).

In addition, the purpose of the exclusive travel agency designation system under the instant guidelines is to promote Chinese people's Korean organization tourism in a sound and orderly manner, to enhance the quality of Chinese organization tourism (Article 1 of the instant guidelines), and Article 9 (1) of the instant guidelines provides that "the primary role and duty of the exclusive travel agency, as the basic role and duty of the exclusive travel agency, shall make every effort to ensure that Chinese tourists are healthy and decent Korean travel from their entry to their departure from the Republic of Korea."

B) In full view of the purport of the introduction of the renewal system for exclusive tour operators, the contents discussed in the process, the purpose of the designation system for exclusive tour operators under the guidelines of this case, and the basic roles and duties of exclusive tour operators, etc., the "record of administrative disposition" under Article 3-2 of the guidelines of this case shall be construed as a "record of exclusive tour operators" as a whole the administrative disposition that was taken by an act detrimental to the dignity of the national tourism industry. Thus, the "record of administrative disposition" shall not be deemed to be limited to administrative disposition by the guidelines of this case.

C) Therefore, the Plaintiff’s above assertion is without merit.

4) Judgment on the fourth argument

A) In a case where the public interest needs to revoke a beneficial administrative disposition, the right to obtain benefits, protection of trust, and infringement of the stability of legal life, etc. are compared and compared to the public interest, and where the public interest needs to justify the disadvantages that the parties may suffer, then the said administrative disposition may be revoked (see, e.g., Supreme Court Decision 2013Du772, Dec. 23, 2015).

B) In addition to the purport of the entire pleadings, the following facts are recognized in the statements in Gap evidence Nos. 7, 8, Eul evidence Nos. 5, 6, 15, 22 and 23.

(1) According to the Defendant’s evaluation criteria for the renewal of exclusive tour operators in 2013, at least 75 points out of 100 can be re-designated as exclusive tour operators. However, as the problems are continuously raised due to the use of non-qualified franchises and the operation of low-cost goods, the Defendant’s standard for the renewal of exclusive tour operators in 2016 were added to the administrative sanctions based on separate independent revocation of designation.

(2) On October 6, 2014, the Korea Tour Association has reported several illegal activities to the media. On March 11, 2016, the Defendant issued an order for correction (one point, a penalty surcharge, or a business suspension three point) with the content that the designation of the exclusive travel agency is subject to the implementation of the exclusive travel agency renewal system on March 11, 2016. (3) On February 11, 2016, the Defendant notified the Defendant of the evaluation standards for the 170 exclusive travel agency (one point, a period from January 2014 to October 2015) as a result of the evaluation of the performance for two years (one point, a period from which the standard point is below 70 points, or two points or more are less than six points or more due to an administrative disposition (unqualified, etc.).

(4) After re-designation of the instant preceding disposition as the exclusive travel agent, the Plaintiff participated in the tourism exhibition held in the Chinese Mawn and engaged in business activities. From April 2016 to March 2017, the Plaintiff raised sales of KRW 465,791,648 for exclusive travel business.

C) In full view of the following circumstances, it is reasonable to see that the exclusive travel agency system is more than the disadvantages suffered by the Plaintiff due to the instant disposition, and it is more reasonable to deem that there was a violation of the principle of proportionality or an error of law beyond the discretionary power in revocation of beneficial administrative activities, as it is difficult to see that there was an error of law in violation of the principle of proportionality or in excess of the discretionary power.

(1) Since the exclusive travel agency system is operated to promote Chinese people's Korean tourism in a sound and orderly manner, to read the Korea-China friendly cooperative relationship and to facilitate the development of tourism between the two countries, it is highly necessary for the public interest to strictly maintain and manage the qualification for exclusive travel events more strictly than a certain level through the exclusive travel agency renewal system.

(2) According to the Defendant’s evaluation criteria for renewal in the year 2013, more than 75 points out of 100 can be re-designated as a exclusive travel agent, while the administrative sanctions were added to the criteria for renewal in the year 2016 on the basis of separate independent revocation of designation. In light of the diversity and complexity of administration, the detailed criteria for the evaluation of the exclusive travel agent’s renewal system shall also be deemed to be within the scope of discretion permitted to the Defendant to change the evaluation criteria to include the administrative sanctions in order to correct the issues arising from the business behavior of an exclusive travel agent, which belongs to the Defendant’s wide discretion, or to include the administrative sanctions as the grounds for the independent revocation of designation. Considering the re-designation of the exclusive travel agent’s re-designation based on the Tourism Promotion Act, etc., it is appropriate and effective means for administrative purposes that the exclusive travel agent’s re-designation is more strictly maintained and managed than a certain level

(3) ① Around March 11, 2016, the Plaintiff was informed of the criteria for re-designation of an enterprise with at least 6 points from January 2014 to October 2015 as a result of performance evaluation (unqualified, etc.) from the Defendant’s prior to the instant prior disposition, which is more than 70 points of the base point for performance evaluation from January 201 to October 2015, and thus, it seems that the Plaintiff was well aware of the fact that the re-designation is inappropriate in light of its administrative disposition history, and that the possibility of revocation of the re-designation of the exclusive travel agent after the instant prior disposition might also have been foreseeable. ② Moreover, since the Plaintiff’s business cannot be operated as a exclusive travel agent, it is inevitable for the Plaintiff to inevitably revoke the designation of the exclusive travel agent, but it is difficult to view that the Plaintiff still failed to meet the requirements for re-designation of the instant prior disposition, even if there is no restriction on the Plaintiff’s exclusive travel agent’s business operation.

5) Judgment on the fifth argument

A) In general in administrative legal relations, in order to apply the principle of protection of trust and trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to an individual; second, the administrative agency's statement of opinion is justified and there is no cause attributable to the individual; third, the administrative agency should have conducted any act based on the individual's statement of opinion; fourth, the administrative agency's disposition contrary to the above statement of opinion should lead to an infringement of the individual's interest in trust; fourth, if any administrative disposition satisfies these requirements, it is an act contrary to the principle of protection of trust, unless it is likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2006Du10931, Jan. 17, 2008).

B) According to the facts acknowledged earlier, after the Defendant rendered the instant prior disposition due to administrative error, it appears that the Plaintiff, while maintaining the status of exclusive exercise during the period between them, was able to engage in travel business against Chinese group tourers. In comparison with the Defendant’s revocation of designation of exclusive tourers at the time of the instant prior disposition, it does not seem that any additional damage was incurred to the Plaintiff. Thus, it cannot be deemed that the Defendant violated the Plaintiff’s interest in trust by rendering the instant prior disposition against the instant prior disposition.

C) Therefore, the instant disposition cannot be deemed as contrary to the principle of trust protection. Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the name of this case is dismissed as it is without merit. It is so decided as per Disposition.