[2] Where a local government determines a successful bidder in a tendering procedure implemented under the "Act on Contracts to Which the State is a Party" as applied mutatis mutandis under Article 63 of the former Local Finance Act, whether the local government is allowed to change the major contents or conditions of the contract differently from the public notice of tender or add new conditions

[2] Even though the determination of a successful bidder in a tendering procedure under the Act on Contracts to which the State is a Party is not yet established, the main contents and conditions of the contract, such as the object, contract amount, and period of time during which the contract was concluded, shall be deemed to have been determined at the time of the local government’s determination of a successful bidder based on the agreement between the public tender notice and the highest price (or the lowest price) bidder’s intent through a tender. Thus, changing the main contents and conditions of the contract differently from the public tender notice or adding new conditions, beyond the extent of adjusting the details of the contract, may not be permitted unless there are special circumstances.

1. As to the assertion of misapprehension of legal principles or misapprehension of legal principles as to the interpretation of the Local Finance Act and the Act on Contracts to Which the State is a Party (hereinafter “State Contract Act”).

Article 11 of the State Contracts Act, which applies mutatis mutandis to Article 63 of the Local Finance Act, provides that when a local government intends to enter into a contract as a party, it shall prepare a written contract and, in such case, the contract becomes final and conclusive by signing and sealing or signing the written contract by the public official in charge and the other party to the contract. Thus, the conclusion of a contract to which a local government is a party is a party is an essential act that establishes the requirements for establishing a contract. In this case, the determination of a successful bidder cannot be immediately deemed to have entered into the contract, and thus, the successful bidder has the right to claim the local government to enter into a contract (see Supreme Court Decision

In this regard, the legal nature of the determination of a successful bidder under the State Contracts Act is to conclude this contract more separately after bidding and successful bid were conducted (see, e.g., Supreme Court Decision 74Da402, Feb. 22, 197; Supreme Court Decision 2002Da46829, May 27, 2004).

As such,

Even though the determination of a successful bidder remains at the stage of pre-contract formation, and this contract does not yet have been concluded, the main contents and conditions of the contract, such as the object of the contract, the contract amount, and the due date, are deemed to have already been determined at the time of the determination of a successful bidder by agreement between the local government and the highest price (or the lowest price) bidder’s tender, and thus, the local government may not be allowed to change the main contents and conditions of the contract differently from the public announcement of tender, or add new conditions beyond the extent of adjusting the details of the contract, and thus, goes against

In this case, the record of this case is examined to the effect that the defendant announced a public announcement to the effect that "sale in the present condition" is "sale in the land and building as stated in the attached list of the judgment of the court below, and the plaintiff who announced the highest price is determined as the successful bidder. Thus, the plaintiff may request the defendant to conclude this contract with the plaintiff's bid price as contract price under the terms and conditions set forth in the public announcement notice. In preparing the contract after the defendant received the total bid price from the plaintiff, the defendant requires the plaintiff to inserting a provision that the land category among the land subject to sale will be provided to the public free of charge (this means compelling the plaintiff to use "in the present condition," unlike the conditions of the public announcement of tender that "sale in the present condition". Furthermore, the defendant's offering free of charge is no more restrictive ownership than that of the road, and the successful bidder's refusal of the contract is no more than 10 days, and thus, the plaintiff's declaration of intention to cancel the contract cannot be viewed as violating the plaintiff's obligation to accept the contract.

2. As to the assertion of mistake of facts or misapprehension of legal principles as to abuse of rights

According to the reasoning of the judgment of the court below, the court below held that the above one parcel of real estate, the land category of which is a road among the real estate of this case, is used as the only entrance of the apartment complex under the construction of Samju General Construction Co., Ltd. in the vicinity, and the plaintiff's ownership is expected to be a dispute with the occupant of the apartment complex. However, such circumstance alone is difficult to view that the plaintiff's right to seek the conclusion of a sales contract for the land which was properly awarded in the bidding procedure conducted by the defendant constitutes an abuse of rights. In light of the records, the court below's fact-finding and decision are just and acceptable, and there is no error of law by misunderstanding

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)