Law Firm member C&C, Counsel for the defendant

Attorney Yoon Young-hoon et al., Counsel for the defendant-appellant

1. Case history

According to the reasoning of the lower judgment and the record, the following circumstances are revealed.

A. Around 2013, △△△△△△△△ Headquarters established a project plan stating that ① from 2013 to 2016, by inserting a total of KRW 940 million, a total of KRW 400,000,000, which can be loaded with cooking equipment modernized in a truck of 5 tons and operated in a single unit, following operational test evaluation (hereinafter “research and development”) ② from 2016 to 2021, 189 units (the estimated unit price obtained per unit, KRW 328,00,000 per unit, and KRW 62,000,000,000,000 in the expected budget) are supplied to the former combat unit (hereinafter “joint production”).

B. On November 7, 2013, the Chief of the Armed Forces, the business management authority of the ○○○ Headquarters, published a competitive bid for the research and development part of the pertinent project plan along with “written request for proposal” prepared by the △△△△△△△△△△△ Bureau, which was the business management authority, and assessed the proposals of each enterprise that responded to the bidding, and selected the Plaintiff as the developer. The Chief of the Armed Forces of the Armed Forces entered into the instant service contract with the Plaintiff on December 18, 2013. Accordingly, the relevant research and development is carried out by the method of “government-invested research and development,” “the pertinent research and development”, “one cost” (the Plaintiff received KRW 1 from the ○○○ Headquarters’s △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, which the Plaintiff voluntarily bears the remainder

C. In accordance with the instant service contract, the Plaintiff developed prototypes of cooking equipment around August 2016, and obtained a judgment of suitability for military use on October 14, 2016 following the examination and evaluation of the power support system, and obtained a judgment of eligibility for military use. < Amended by Presidential Decree No. 2742, Oct. 14, 2016

11. On December 15, 2016, the National Defense Standards (Standardization) was enacted. On December 2, 2016, the Chief of Staff of ○○○ received notification from 'finally ‘the completion of government-invested research and development projects for equipment with a dynamic cooking’.

D. Since then, the Plaintiff’s official instructions on the development of the military power at △△△△△△ Headquarters ( February 2, 2012).

3. According to Article 114-2(1) of the Ministry of National Defense Directive (amended by Ministry of National Defense Directive No. 1388, May 26, 2014; hereinafter the same shall apply), the head of ○○○○ Headquarters requested the issuance of a certificate of research and development on the same type of cooking equipment developed in accordance with the instant service contract pursuant to Article 114-2(1). Accordingly, the head of △△△△△△△△△△△○ Headquarters issued a certificate of research and development on May 18, 2018 constitutes an administrative disposition, and issued a certificate of research and development on items developed in the way of government-invested research and development pursuant to Article 113-5(1) of the current Guidelines on the Development of Military Power, which was enforced at the time of the enactment of the National Defense Standards for the same type of cooking equipment, and thus, rejected the instant reply

E. On June 12, 2018, the Plaintiff filed the instant lawsuit with the Daejeon District Court claiming that the Defendant, a legal entity to which the head of the △△△△△△ Headquarters belongs, “The Defendant shall comply with the procedures for issuing a certificate of research and development under Article 114-2(1) of the former Guidelines on the Development of Military Power in accordance with the instant service contract.”

2. The parties' assertion, the first instance court and the lower court's determination

A. According to Article 3 of the special terms and conditions of the instant service contract, the written request for proposal prepared by the △△△△△△△△△ Group is effective as part of the contract. The proposal was incorporated into the instant service contract by clearly stating the application of the former provisions, and accordingly, the Defendant asserted that the Plaintiff is obligated to implement the procedures for issuing a certificate of research and development pursuant to Article 114-2(1) of the former Guidelines on the Development of Military Power. Accordingly, the Defendant asserted that the former Guidelines for the Development of Military Power was incorporated into the instant service contract, and even if assumed, the instant service contract was not deemed incorporated into the content of the instant service contract, and even if assumed, it was impossible to issue the certificate of research and development pursuant to Article 114-2(1) of the former Guidelines on the Development of Military Power.

B. The first instance court (Seoul District Court civil division) rendered a judgment dismissing the Plaintiff’s claim on the grounds that it is difficult to deem that there was a mutual agreement between both parties to incorporate Article 114-2 of the former Directive on the Development of Military Power into the content of the instant service contract. The lower court rendered a judgment dismissing the Plaintiff’s appeal for the same reason. The lower court (Seoul High Court civil division) also rendered a judgment dismissing the Plaintiff’s appeal for the same reason.

3. Judgment of the Supreme Court

A. The term “disposition”, which is the object of an appeal litigation, refers to the exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other similar administrative actions (Article 2(1)1 of the Administrative Litigation Act). Whether an action by an administrative agency may not be subject to an appeal litigation cannot be determined abstractly and generally. In a concrete case, the relevant Acts and subordinate statutes shall be determined individually by taking into account the content and purport of the relevant act, the subject, content, form, and procedure of the act, the actual relation between the act and disadvantage suffered by interested parties, such as the other party, the principle of administration by the rule of law, and the attitude of the administrative agency or interested parties related to the act (see Supreme Court en banc Decision 2008Du167, Nov. 18, 2010). In addition, whether any legal grounds exist, and whether the administrative procedure complies with the pertinent disposition procedure under the Administrative Procedures Act, at the stage of determining whether the pertinent disposition in question is legitimate, or whether the pertinent disposition in question is considered at the elements at the stage of litigation.

(2) In an appeal litigation, the determination of illegality of a disposition ought to be made as at the time of the disposition, barring special circumstances. The same applies to a disposition following an application (Supreme Court Decision 2017.

4. 7. (See, e.g., Supreme Court Decision 2014Du37122, Jul. 29, 2005). Unless otherwise stipulated in the transitional provisions of the newly amended Act, it is in principle to determine whether to issue a disposition in accordance with the amended Act and subordinate statutes enforced at the time of the disposition, and the standards set forth therein, and in relation to the application of such amended Act and subordinate statutes, there is room for limiting the application in order to protect the public’s trust in the continuation of the former Act and subordinate statutes in cases where the public’s trust in the continuation of the former Act and subordinate statutes is deemed more worthy of protection than the public interest’s demand for the application of the amended Act and subordinate statutes (see, e.g.

(3) The manner in which a case must be instituted as an appeal litigation under the Administrative Litigation Act is raised by mistake as a civil litigation.

e. If the court of the lawsuit has jurisdiction over the appeal suit, it shall be examined and determined in accordance with the procedure prescribed by the Administrative Litigation Act by exercising its right to ask the plaintiff to make a change in the appeal suit, unless it is found improper even if it is clearly not meeting the requirements of the lawsuit as an appeal suit, such as without going through the procedure of the prior trial or over the period of filing a lawsuit, and even if it has been filed as an appeal suit, it is not an appeal suit (see Supreme Court Decision 97Da4250 delivered on Nov. 26, 199, etc.);

B. Under the Defense Acquisition Program Act, the relevant statutes and regulations applicable at the time of the refusal of the instant request are as follows: (1) "Munitions" means the commodities acquired to be used and managed by the Ministry of National Defense and military units or organizations under the direct control of the Ministry, and land, sea, and air force, and refers to weapons systems and power support systems (Article 3 subparag. 2 and subparag. 4); and (2) the Administrator of the Defense Acquisition Program Administration shall establish plans for supplying munitions in accordance with the guidelines of the Minister of National Defense and procure munitions accordingly (Article 25 subparag. 1). The Minister of National Defense shall procure munitions en bloc in accordance with the Ordinance of the Ministry of National Defense for the efficient execution of the defense budget: (2) The Minister of National Defense shall revoke the designation of standard articles in accordance with Article 25 subparag. 2 and the Ordinance of the Defense Acquisition Program Administration shall determine the necessity of the designation of standard articles in accordance with the Ordinance of the Ministry of Defense Acquisition Program Administration; and (3) the Administrator of the Defense Acquisition Program Administration shall also establish or abolish the relevant standard Articles 26(2).

(3) According to the "Direction on Military Power Development Affairs" prescribed by the Minister of National Defense to provide the basic procedures and guidelines for the affairs related to the Military, including requirements, acquisition, operation, and maintenance of weapons systems and power support systems, which are delegated by the Enforcement Decree of the Defense Acquisition Program Act, the Enforcement Decree of the said Act, and the Enforcement Rule of the said Act, the research and development of the power support system shall be classified into government-invested research and development that the Government bears research and development costs, government-invested research and development that the enterprise bears research and development costs, government-invested research and development projects that the Ministry of National Defense (which is either the Ministry of National Defense or other government agencies) and the industry, joint-invested research and development projects that jointly bear research and development costs between the Ministry of National Defense and other government departments, joint government-invested projects that share the costs jointly with the Ministry of National Defense and other government departments, and civil-military technological cooperation

The power support system is promoted through the process of preparing a written request for proposal by a project management agency, announcing a tender, receiving and evaluating proposals, concluding research and development contracts, design review, system development, test and evaluation, conformity assessment, specification and listing, issuance of certificates of research and development (Article 112(2)).

The business management agency shall issue a certificate of research and development without delay where the standards for the items of business investment, research and development and the items of joint investment and development by the Government and enterprises are determined to be appropriate for the military use.

However, in the case of a government-invested research and development project, the termination of the project shall be based on the official text of the project management agency (Article 113-5(1)); when a project management agency issues a written confirmation of research and development, it shall notify the development company, required group, the Defense Acquisition Program Administration, the Defense Acquisition Program Administration, the Agency for Technology and Quality, and the Agency for Defense Development (Article 113-5(2)); in the case of a government-invested research and development project, the head of the contracting agency may procure a written confirmation of research and development under the Enforcement Decree of the Act on Contracts to Which the State Is a Party (hereinafter referred to as the "State Contracts Act"), and the period of free contract shall be five years after the completion of the development, and the maximum period of free contract shall not exceed 15 years from the date of issuance of the written confirmation of research and development (Article 11

In the course of the sale of government-invested joint investment research and development and companies' investment research and development, if the existing company (transfer company) is to convert the business that was conducted by the existing development company into another company with respect to the item under a negotiated contract issued with a certificate of research and development or the business that is anticipated to be qualified as a negotiated contract in accordance with the relevant provisions, such as the National Defense Power Development Business Directive, etc., the existing development company may obtain an application for the approval of the transfer of individual business rights from the Ministry of National Defense (the military management officer) and obtain the approval of the transfer, and succeed to the designation of individual business rights (Article 115).

(4) Meanwhile, under the State Contracts Act, the head of a central government agency or a public official in charge of contracts intends to conclude a contract to which the State is a party, in principle, refers to general competition. However, if it is deemed necessary in view of the purpose, character, size, etc. of the contract, the eligibility to participate in the contract may be restricted, the participants may be designated to participate in the competition, or a private contract may be concluded (Article 7(1)), as prescribed by Presidential Decree. According to the Enforcement Decree of the State Contracts Act based on the delegation, the Administrator of the Defense Acquisition Program Administration may conclude a private contract where he/she manufactures or purchases military standards goods from a research and development company of this military standards (Article 26(1)1(c)).

C. We examine the contents and structure of relevant provisions in light of the aforementioned legal principles. (1) The issuance of a certificate of confirmation of research and development under Article 113-5(1) of the National Defense Power Development Business Directive constitutes a "disposition, which is an exercise of public authority," and the refusal of the issuance of a certificate of confirmation of research and development constitutes a "disposition," which is a "disposition," which is an exercise of public authority," where a development company is determined to be able to enter into a national defense procurement contract by means of a negotiated contract (the grounds for the exception of competitive bidding) without making a competitive tender with regard to the mass production of the pertinent product in cases where a development company is determined to be able to successfully implement a military-use research and development project by means of a "project investment research and development research and development project" or "government/project joint investment and development support system".

(2) On the other hand, as to the procurement of munitions, the allocation of the defense budget or the order of priority in the requirements for munitions requested by the respective armed forces, barring special provisions in the relevant statutes or regulations, the Administrator of the Defense Acquisition Program Administration or each armed force have broad discretion on the procurement of munitions. This is because the National Defense Power Development Work Directive does not stipulate that the defense standard should be in quantity for the items in question, as the research and development is completed by a company investment research and development method or by a government, company, joint investment and development method, and the defense standard should be determined by the government, company, or joint investment and development evaluation method, or the contract should be concluded. Therefore, even if the development company has successfully implemented the power support system research and development project, it does not always have the right to request the submission of a negotiated contract on the relevant items. Even if it is so, since the development company is a separate confirmative administrative act that is conducted before the determination of whether to issue a certificate of research and development by the project management authority is concluded, the development company should not immediately refuse the issuance of a certificate of priority in the research or development.

D. We examine the facts in light of the aforementioned legal principles. (1) The rejection of this case constitutes a rejection disposition against the Plaintiff, who is a developer of the same type of cooking equipment, as the Plaintiff’s application for the issuance of a certificate of research and development. The Plaintiff should have filed an appeal suit against the head of △△△△△△△△ Headquarters, a disposition authority, seeking the revocation or nullification of the rejection disposition. (2) The Panel Division of the Daejeon District Court, the first instance court, and the collegiate Panel Division of the Daejeon High Court, the lower court, concurrently have jurisdiction over the appellate trial under the Administrative Litigation Act, and there is no issue of violation of the jurisdiction. Furthermore, the Plaintiff did not err by misapprehending the legal principles as to the instant rejection disposition, which affected the conclusion of the judgment on May 18, 2018, since the Plaintiff filed a lawsuit of this case on June 12, 2018, which is the subject of the disposition of this case, and thus, did not meet the requirements for revocation of the Plaintiff’s right to file a lawsuit of this case.

4. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il

Justices Lee Dong-won

Justices Kim Gin-soo