(2) Revocation of the limitation of acquisition

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

The reasoning of this Court regarding this case is as follows, and the relevant part of the judgment of the court of first instance is amended, added, or deleted as follows. The judgment on the principal argument among the grounds of appeal by the Plaintiff is identical to the reasoning of the judgment of the court of first instance, except for the cases attached to the Plaintiff’s grounds of appeal as stipulated in Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

Section 13 of section 3, "The defendant shall add "the Administrator of the Small and Medium Business Administration to the end of section 17 of section 3, the revision of which shall be corrected to the end of section 17:

With the amendment of the Government Organization Act by Act No. 14839 on July 26, 2017, the duties of the Administrator of the Small and Medium Business Administration have been succeeded to the defendant pursuant to Article 2 (1) of the Addenda (hereinafter referred to as "defendants").

○ Removal of No. 13 3 et al.

2. Additional matters to be determined;

A. The plaintiff's assertion

1) Non-existence of disposal authority over part of the collusion act

According to Article 8(3)3 of the former Act on the Support of Market Development, which is the basis of the instant disposition, where a small and medium enterprise owner engaged in an unfair act, such as collusion, etc. among small and medium enterprise owners, the Defendant may revoke the participation eligibility or suspend it for a period not exceeding one year. However, the subject of the instant disposition includes the collusion in a bidding case which is not a competitive bidding between small and medium enterprise owners, and the collusion in the conclusion of a contract through a negotiated contract. The instant disposition is unlawful, including

(ii) the deviation and abuse of discretionary power;

In view of the fact that the Plaintiff participated in collusion passively under the lead of the instant association, the instant member companies were engaged in collusion to prevent the influent competition, and the Defendant did the instant disposition without checking the basic factual basis based only on the facts alleged by the prosecution. In view of the fact that the instant disposition was conducted without checking the basic factual basis, the instant disposition was deviates from and abused discretion.

B. Determination as to the existence of the defendant's disposition authority

1) The Act on the Development of Marketable Products of Small and Medium Enterprises and the Act on the Promotion of Competition Eligible for Participation in Competing Products is designated as products directly produced and supplied by small and medium enterprises (Article 1) in order to promote the purchase of products of small and medium enterprises and support the marketing (Article 6). A public institution’s award of competing products should only be entered into a procurement contract according to limited or designated competitive bidding in which only small and medium enterprises participate in competing products, unless there are extenuating circumstances prescribed by Presidential Decree (Article 7).

Article 8(3) of the former Act on the Promotion of Market Support and the Act on the Promotion of Market Support provide that the subject of revocation of the eligibility for participation in competing products is only the case where a small and medium enterprise owner who participates in competitive bidding among small and medium enterprises has committed an "unfair act, such as collusion". As such, Article 76(1) of the Enforcement Decree of the Act on Contracts to Which the State is a Party (hereinafter referred to as the "Enforcement Decree of the Act on Contracts") provides that the subject of restriction on participation in bidding is defined as a "contractor, bidder, or a person who submits a quotation using the Electronic Procurement System" in advance in the course of competitive bidding, conclusion of a contract, or execution of a contract, or the case where a bidder or counter-party entered into an agreement with each other in advance and entered into a competitive bidding, contract volume, or contract contents, or a collusion for the selection of

Therefore, it is reasonable to view that the act of having a certain person enter into a negotiated contract by hindering the formation of competitive bidding itself through collusion also constitutes "the case where a small and medium enterprise owner participating in competitive bidding between a small and medium enterprise owner and a small and medium enterprise owner has committed an unfair act, such as collusion" under Article 8 (3) of the former Act.

2) Whether there exists a bid other than competitive bidding open only to small and medium entrepreneurs among the instant collusion acts

PHC files are designated as competing products only by small and medium enterprises, and there is no circumstance to deem that a person, other than a small and medium enterprise, has participated in a tendering procedure for PHC files, which is ordered by the head of a public institution, was given only to small and medium enterprises, and there is no reason to believe that a person, other than a small and medium enterprise, participated in a tendering procedure for PHC files.

The plaintiff's representative director B was indicted for the facts charged that "a collaborative act was committed in collusion with the members of the instant association and executives and employees of the instant association by purchasing government-class PHC files ordered by the public agencies" and the facts charged was convicted in the first instance court and the disposition of this case was based on this. Thus, it cannot be deemed that the defendant's disposition subject to the defendant's disposition contains general bidding cases not subject to competitive bidding open only to small and medium enterprise proprietors.

3) Whether collusion, etc. with regard to the method of private contract is recognized as unfair

On August 10, 2015, and December 29, 2016, the Sungwon, a member company of the instant union, entered into a contract through a closed number of negotiations, not through a competitive bidding, on two occasions on August 10, 2015. Of the 1,360 collaborative acts, other companies, including the Plaintiff, such as the Plaintiff, are likely to enter into a private contract.

However, in order for the members of the instant case to raise the basic amount announced by the authority awarding the contract, such as intentional non-compliance, single bid, excess bid price, etc., and let the authority awarding the contract change the method of contract by a negotiated contract and interfere with the bidding by allowing a specific member to enter into a negotiated contract. As seen above, this constitutes an "unfair act, such as collusion, etc."

4) Sub-committee

Therefore, each of the above arguments by the plaintiff is without merit (it is next to the fact that even if the defendant's authority to dispose of the case of concluding a contract through a negotiated contract cannot be recognized, the remaining collusion acts except the part shall be deemed as the ground for disposition, and the disposition of this case cannot be deemed as unlawful by abusing discretion).

C. Whether the discretionary authority is deviates or abused

1) Relevant legal principles

Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the offense, which is the reason for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances (see, e.g., Supreme Court Decision 2004Du3854, Apr. 14, 2006

Meanwhile, even if the criteria for a disciplinary administrative disposition are prescribed in the form of Ordinance, it does not have the effect of externally binding the citizens or courts, and the legality of the disposition should be determined not only by the above disposition criteria but also by the contents and purport of the relevant Acts and subordinate statutes. Thus, it cannot be deemed legitimate as soon as the disposition meets the above disposition criteria. However, the above disposition disposition does not in itself conform with the Constitution or Acts and subordinate statutes, or unless there is any reasonable ground to believe that the disposition is considerably unfair in light of the contents and purport of the above disposition disposition, which is 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 is an abuse of discretionary authority (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 2007).

2) Determination

In light of the aforementioned legal principles, it is difficult to deem that there was an error of law that deviates from or abused the discretionary power of the instant disposition, if the aforementioned facts and the evidence as seen earlier, and the purport of the entire pleadings.

(1) The Act on the Development of Market Businesses shall designate "competitive products among small and medium entrepreneurs" and, in principle, grant eligibility for participation only to small and medium enterprisers in a bid on the relevant competing products conducted by the head of a public institution, thereby protecting small and medium enterprisers and promoting efficiency through competition among small and medium enterprisers by artificially excluding large enterprises superior in capital and technology from the bidding process on the relevant product. Therefore, small and medium enterprisers granted such preferential treatment shall not engage in any act detrimental to the fairness and substantial competition, and there is a greater need for public interest to ensure fair execution of competition and prevent disadvantages that public institutions will suffer due to such disposition, such as collusion.

② The instant association appears to have been promoting collusion at the level of the instant association, such as: (a) the Plaintiff participated in the bidding under the name of the partnership when it makes a recommendation for a bid of at least one billion won; (b) the successful bidder was awarded a successful bid; and (c) the amount of the successful bid was divided by shares of the joint contractors; and (d) the Plaintiff paid a certain amount of commission from member companies. However, in the case of a bid for which the instant association does not participate, the Plaintiff’s size, the number of successful bidders and the successful bid amount were awarded on 37 occasions from 2011 to 2016; and (c) the total amount of the successful bid price and the share of the joint contractors were allocated to each other, based on 26,984,926,320 won; and (d) the Plaintiff did not appear to have played a significant role, such as determining the successful bid price or regulating the bid price; and (d) the Plaintiff did not appear to have actively participated in collusion during the period of restriction on qualifications for participation in collusion as alleged by the Plaintiff.

③ Even if the production size of PHC file is diverse as the Plaintiff’s assertion, and it is more favorable for the PHC file to focus on an area near the production plant to be supplied in excess of excessive transportation cost, the problems arising from such circumstance must be resolved through the process prescribed by statutes, such as retender through a change of transaction conditions, a negotiated contract based on due process, etc., and so the collusion in this case cannot be justified on the ground of such circumstances.

① Even if the Defendant did not have the authority to dispose of the collusion in the process of concluding a contract converted into a negotiated contract, it is highly likely to criticize the Defendant in light of the following: (a) the conclusion of a negotiated contract after an intentional bid is not more than 1,360 times; (b) the Plaintiff received a direct bid or received a distribution according to the share of a joint supply and demand organization for 34 times, even though excluding three times that the Plaintiff entered into a negotiated contract; and (c) the total amount reaches KRW 24.1 billion; and (d) the result of the Defendant’s exclusion of competition entirely differently from the purpose of designation in the PHC file bid designated as a competing product only for small and medium enterprises, and there is a need to impose

(5) The sanctions prescribed in Article 4 and attached Table 1 of the Enforcement Rule of the Act on the Development of Agricultural and Fishing Villages do not in itself conform with the Constitution or laws, or cannot be deemed significantly unfair in light of the content of the offense constituting the grounds for the disposition, and the content and purport of the relevant statutes. The instant disposition is difficult to be deemed unlawful since it

3. Conclusion

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

Judges Kim Gin-han

Judges are accommodated in judges;

2) Article 7(1) of the Act on the Development of Market Support provides that the head of a public institution shall enter into a procurement contract according to a competitive tender among small and medium enterprises, except in extenuating circumstances prescribed by Presidential Decree. Article 7(1) of the Enforcement Decree of the Act on the Development of Market Support stipulates the exceptional reasons under Article 7(1)1 through 4. Thus, it is apparent that Article 7(1)1, 2, and 4 does not correspond to the Plaintiff’s assertion in the language of the relevant provision.

Article 7 (Exception, etc. to Competitive Bidding among Small and Medium Enterprises)

(1) "Special reasons prescribed by Presidential Decree" in Article 7 (1) of the Act means any of the following cases:

1. Where products of small and medium enterprises are purchased that are prescribed to be purchased through products of small and medium enterprises or free contract subject to preferential purchase under this Act and other Acts;

2. Where the head of a public institution concludes a private contract with a small or micro enterprise recommended by the cooperative pursuant to Article 8;

3. Where it is intended to proceed with a new competitive tender through competitive bidding other than competitive bidding process open only to small and medium enterprises due to lack of qualified persons among small and medium enterprises participating in competitive bidding;

4. Where it is intended to purchase specific technology or services by means other than competitive tendering process open only to small and medium enterprises due to special circumstances of public institutions.

3) There are cases where other companies enter into a private contract even in the attached list of the judgment of related cases submitted by the defendant as reference materials, and there are three cases of entering into a private contract after the fact that the plaintiff was awarded the contract among the criminal judgment submitted by the plaintiff after the closing of argument.

4) In light of the total sum of the successful bid amounts of pages 111 through 114 of the judgment of the first instance court in the relevant criminal case submitted by the Plaintiff after the closing of argument in the instant case, the total sum of the successful bid amounts shall be KRW 26,984,926,320 as stated in the 114. The total sum of the successful bid amounts shall be KRW 25,100,63,120 as stated in the summary of the present status of the successful bid for each company