Revocation of Restriction on Acquisition of Qualification

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

A. The Plaintiff is a corporation established on May 19, 2004 and engaged in the production, sale, etc. of high-Robbery concrete files (PHC files).

B. A cooperative (hereinafter referred to as the "cooperative of this case") is a non-profit corporation established with the main purpose of promoting the welfare of its members and development by domestic small and medium enterprises that produce a PHC file that reinforces the powder base around February 1990, which is sewage pipes, and the original decision-making concrete fume, which is sewage pipes, and power transmission exclusively and communications concrete poles. Seven small and medium enterprises that engage in the business of producing and selling the PHC file including the plaintiff (17 small and medium enterprises, including the plaintiff, C, D, D Limited Liability Company, E, F, G, I, J, K, K, K, M, N, P, P, P, P, P, P, Q, and stock company (hereinafter referred to as "members of this case") are members of the above cooperative.

C. From July 201 to May 24, 2016, the Prosecution conspired with 23 executives and employees of the instant member companies, including S, who are the representative director of the Plaintiff, to enter into a contract in the initial limited competition and to enter into a negotiated contract between the instant association and its members, and to enter into a bid in advance with a cover bidder (the instant association or the instant member companies) and a cover bidder, and to enter into a bid with a cover bidder at a pre-determined bid price, and to enter the cover bidder at a higher price than this, and the remaining company shall not intentionally participate in the bid, nor intentionally fail to select a successful bidder in excess of the pre-determined bid price, and shall not intentionally participate in the bid, and shall not intentionally participate in the contract at the pre-determined limited competition, and shall have the project owner change the contract method by a negotiated contract, and then shall receive the 360-level 3656,07236,39, 369, hereinafter referred to as the “fair purchaser”).

D. On September 21, 2016, S was sentenced to one year of imprisonment with prison labor and two years of suspended sentence (Seoul Central District Court 2016Da4187, 5376 (Merger)). S appealed and appealed against this, but the Seoul Central District Court dismissed the above appeal on February 3, 2017 (Seoul Central District Court 2016Do3816). On February 3, 2017, S appealed and currently pending appeal (Supreme Court 2017Do3426).

E. On December 8, 2016, the Defendant revoked the Plaintiff’s eligibility to participate in the competitive tendering procedure open to a small and medium enterprise and notified the Plaintiff of the fact that the instant collusion constitutes “an unreasonable act, such as collusion,” under Article 8(3)3 of the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Development of Market Support and Article 8(3)3 of the former Act on the Promotion of Purchase of Small and Medium Enterprise Products (Amended by Act No. 13866, Jan. 27, 2016) and Article 8(3)3 of the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Development of Market Support (Amended by Act No. 14839, Jul. 26, 2017; hereinafter referred to as “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 2 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) The instant collusion is merely an unfair act, such as collusion, under Article 8(3)3 of the former Act on the Development of Market Support, to the extent recognized by the general transaction norms in order to prevent a fluorous competition in an appropriate line, taking into account corporate profits. Thus, the instant collusion does not constitute an unfair act, such as collusion under Article 8(3)3.

2) The instant collusion led by the instant partnership, and the Plaintiff was only passively participating.1)

B. Relevant statutes

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

(c) Fact of recognition;

1) Designation of competing products between small and medium entrepreneurs

PHC file was designated as a competing product only for small and medium entrepreneurs pursuant to Article 6 of the Act on the Development of Agricultural and Fishing Villages, and thereby, the opportunity to participate in the government-level PHC file purchase bid ordered by public institutions, such as the Public Procurement Service only for small and medium entrepreneurs, was given. In particular, the number of PHC files increases due to the fact that public corporations and quasi-government agencies mandatorily entrusted the purchase of PHC files to the Administrator of the Public Procurement Service pursuant to Article 44 of the Act on the Management of Public Institutions newly established on December 29, 2009.

2) Organization of working-level council, representative council, etc.

A) On April 2009, the instant member companies, including the Plaintiff, continued consultation on the allocation of the quantity and price maintenance in the entire PHC file supply market, including the private supply market, after enacting the “Operational Rules of PHC File Working Council (hereinafter “Operational Rules”).

B) The instant member companies regularly held a working-level council (hereinafter referred to as the “working-level council of this case”), representative council, file subcommittee, national file council, etc. to exchange information on the monthly production and sales performance and inventory status between members, and carried out activities to adjust the production and shipment volume of the government-funded PHC files by implementing a plan to maintain the supply unit price of the PHC file in the government-funded (government-funded) market at a higher level compared with the competing products among other small and medium-sized enterprises, and by implementing such a plan as a method of practice.

3) Method of the instant collusion

A) The instant member companies regularly held meetings, such as working-level councils, etc. at the places of association offices, etc. in relation to the government-level PHC file purchase bid, and allocated them to the members of the instant association, taking into account the activity areas, production and inventory quantity, bidding eligibility points, etc., and transferred the allocated data to the employees of the instant association to ensure the fair distribution of the contract amount by each company. The pre-determined bidder was reflected in the bid price at a higher price than this pre-determined bid price, and the members other than the pre-determined bid price and the premium company were to be reflected in the bid price and to increase the basic amount publicly announced by the ordering agency, so that a specific member can enter into a negotiated contract by reporting the relevant bid in various forms, such as “in response, a single bid price, and an excessive bid price.”

B) (1) In the case of a bid of at least one billion won, a joint contractor shall be organized, and the bid price was awarded in the name of the instant cooperative. The instant cooperative divided the successful bid price into shares of each joint contractor and allocated it to the relevant member, and due to statutory management, etc., allowed members who are not qualified to participate in the joint contractor to participate in the bidding. (2) In the case of a bid of at least one billion won, a joint contractor shall be organized, a joint contractor shall be selected and participated in the bidding in the name of the principal contractor, and each company shall be circulated, and a manager and a manager shall be assigned.

C) The specific process of individual bidding is as follows. A specific member determined whether to participate in the bidding internally, and then decided whether to participate in the final bid at the Consultative Council of Working-Levels of this case, which is regularly held. Accordingly, if a specific member is determined as a scheduled winner of a successful bid, the member requested that the member be informed of his/her bid price or the bid price in color with the other member companies, among other member companies, of his/her bid price. The member requested that the successful bidder be awarded the relevant contract by conducting a bidding at an amount exceeding the estimated bid price of the successful bidder.

4) The main contents of the instant operational rules are as follows.

The PHC Working Council under Article 5 (Duties of Council) of the Operational Rules of the PHC File Working Council shall deliberate and decide on, and execute, the following paragraphs.1. 1. The coordination of the fair co-operation system and the reasonable price through mutual consultation, and the head of the agency 2. The head of the agency 3. The head of the agency : (a) the head of the agency 2. The head of the agency 3. The head of the agency 4. The head of the agency 2. the agency 2. the agency 3. the agency 2. the agency 3. the agency 3. the agency 2. the agency 3. the agency 3. the agency 2. the agency 3. the agency 2. the agency 2. the representative 2. the agency 3. the agency 2. the agency 2. the agency 3. the agency 3. the agency 2.

(2) The first and second order companies (as well as the second order companies) are entitled to enter into the same order. The first order companies (as to whether to enter the same order) set forth in Article 7.1. (3) The Regulations on the Operation of the Serial System (1) shall be removed from each company, and the second and second order companies shall be set by mutual agreement, and the second and second order companies shall be set at two times. The first order companies (as to the second two-thirds of all members), the first order companies may be set at 1.5 times (as to the second order companies) and the first order companies (as to the second order companies of the first order), the first order companies shall be set at the bidding, and the second order order shall also be set at the same rule. (3) Each member companies shall be obliged to notify the Executive Ministry of Strategy and Finance of whether they have received a request for tender (pre-contest) and shall, if so, be able to enter into the auction in an order of precedence (as to the second order), and shall be able to report the preceding order of tender (as to the highest order).

5) The Plaintiff’s award, etc. through the instant collusion

A) Through the instant collusion, the Plaintiff was awarded a contract for the purchase of government-funded materials PHC files equivalent to KRW 16,257,471,352 in total on 38 occasions from August 4, 2011 to March 22, 2016.

B) The instant cooperative was awarded a contract for the purchase of government-funded materials PHC file equivalent to KRW 281,264,025,739 in total on 169 occasions from July 18, 201 to December 16, 2015 by participating in the bidding after forming a joint supply and demand organization through the instant collusion. Of them, the Plaintiff received a successful bid for the purchase of government-funded materials PHC file equivalent to KRW 10,413,96,288, which is part of the Plaintiff’s share.

[Ground of recognition] Facts without dispute, Gap evidence 3, 9, 11 (including branch numbers in case of additional number), Eul evidence 3, part of Gap evidence 10, 12, and the purport of the whole pleadings

(d) the existence of reasons for the action.

Comprehensively taking account of the aforementioned facts and the purport of the entire pleadings, the instant collusion constitutes “unfair conduct, such as collusion,” under Article 8(3)3 of the former Act, which is an act detrimental to the fair enforcement of competition or the appropriate implementation of contracts.

Therefore, it is reasonable to view that the Plaintiff’s assertion on this part is without merit.

1) The instant member companies organized the nationwide consultative body on collusion, regularly hold meetings by its executives and employees to allocate members, volume, etc. to be awarded a successful tender by case of a public announcement of tender, and failed to enter into the bidding as it is after determining the successful bid price, the amount of the bid price, the amount of the bid price, and other companies have used the method in which they do not participate in the relevant bidding, and have continued the act of collusion in a systematic manner, such as preparing operational regulations imposing sanctions in the event of the violation.

This affected the decision of the terms and conditions of the transaction of price, etc. by excluding competition in the bidding, and the member companies of this case were awarded a successful bid at an average of 97-99%.

2) The instant member companies received a bid for the purchase of a PHC file amounting to KRW 656,387,023,639 in total on a 1,360 occasions. In light of the frequency of the act of collusion and the amount of the successful bid contract, it cannot be deemed that the instant member companies merely gave rise to and compromise between bidders within the scope recognized in light of the general transaction norms in order to prevent an unbruptive competition in the appropriate line taking into account corporate profits, as alleged by the Plaintiff.

E. Whether the disposition of this case deviates from or abused discretionary power

Article 8(3)3 of the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Support for Development of Market Support (amended by Act No. 13866, Jul. 26, 2017); Article 8(3)3 of the former Act provides that "the defendant may cancel the participation eligibility or suspend it for a period not exceeding one year if the small and medium enterprise has committed an unfair act, such as collusion, and may restrict the acquisition of the participation eligibility within one year from the date of cancellation." Article 8(4) provides that "The period of suspension of participation eligibility and the period of restriction on the acquisition of the participation eligibility shall be prescribed by Ordinance of the Ministry of Construction and Transportation." Article 8(3)3 of the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Support for Development of Market Support (amended by Act No. 14839, Jul. 26, 2017) provides that "where the small and medium enterprise owner has committed an unfair act, such as collusion, it shall be restricted within one year from the date of cancellation of the participation eligibility."

Even if the criteria for a disciplinary administrative disposition are prescribed in the form of Ordinance, it has no effect to externally bind citizens or courts, and whether such disposition is legitimate or not must be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes, not only the above criteria for disposition, but also with the provisions of the relevant Acts and subordinate statutes. Therefore, the pertinent disposition cannot be deemed legitimate immediately after it conforms to the above criteria for disposition. However, the above criteria for disposition does not in itself conform with the Constitution or Acts and subordinate statutes, and unless there are reasonable grounds to believe that such disposition is considerably unfair in light of the contents and purport of the above anti-act which served as the grounds for the disposition, and the contents and purport of the relevant Acts and subordinate statutes, it shall not be determined that the disposition has deviates from the scope of discretion or has abused discretionary power (see, e.g., Supreme Court Decision 2007Du6946, Sept.

Comprehensively taking into account the following circumstances, which can be recognized by comprehensively taking into account the facts admitted as seen earlier and the purport of the entire pleadings, the instant disposition cannot be deemed to have exceeded and abused discretion by violating the principle of proportionality. Therefore, the Plaintiff’s assertion on this part is without merit.

A) Article 8(3)3 of the former Act on the Promotion of Market Development provides that "unfair conduct, such as collusion," which is not "an act leading to collusion," as a ground for sanctions. Therefore, the former Act did not lead collusion.

In addition, the number of executives and employees of the instant member companies do not have to take a reduction disposition immediately, but did not have to hold a regular meeting of the instant member companies, such as the instant working group, to form and maintain the framework of the instant collusion, and allocated the members and quantities to be awarded a successful tender by case of public announcement of tender, and the successful bidder was awarded a contract for the purchase of government-level PHC file by collusion with the method of requesting a bid bid and conducting a bid at an amount exceeding the bid price of the successful bidder. Therefore, even if the instant association was centered on and formed the framework of the instant collusion, in light of the aforementioned active attempt of collusion and the method of collusion, the instant member companies should be deemed to fall under the person who led the instant collusion.

B) The necessity of public interest to ensure fair enforcement of competition by restricting participation in tendering for a certain period of time to a person who has committed collusion in tendering and prevent disadvantages suffered by public institutions is larger than the economic disadvantage suffered by the Plaintiff due to the instant disposition.

C) In particular, even though the State granted preferential treatment to designate PHC files as competing products for the purpose of supporting the competitiveness improvement and management stability of the instant member companies, which are small and medium enterprises, the instant collusion is a case where the instant member companies, including the Plaintiff, abuse them on a large scale, systematically and systematically, and acquire unfair profits through a large-scale collusion. Therefore, there is a high possibility of criticism, and there is a need to impose strict sanctions thereon.

D) In the case of a local demand center due to excessive transportation costs, etc., the 'specific circumstances in the government-funded PHC file tendering that the Plaintiff asserts that the member companies engaged in production activities in the relevant region should supply the PHC file in the relevant region are limited, etc., should be resolved through the normal process of competitive bidding, such as retenders through changes in the transaction conditions, etc., a certain number of times, and a free contract based on due process, etc., and thus, the collusion in this case cannot be justified on the grounds of such circumstances.

E) The instant disposition conforms to the sanctions standards set forth in Article 4 and attached Table 1 [Attachment 1] 3 of the Enforcement Rule.

F. Sub-committee

Therefore, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Jae Jae-nam

Judges Slocks

A person shall be appointed.