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

The reasoning for the court’s explanation concerning this case is as stated in the reasoning of the judgment of the court of first instance, in addition to “a decision on the plaintiff’s assertion of the trial” in Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since the reasoning for the court’s explanation concerning this case is the same as that of the judgment of the court of first instance.

2. A part concerning addition or height;

A. Additional parts

The Act on Contracts to Which a Local Government Is a Party is a Party (hereinafter referred to as "Local Contract Act") shall be added to the nine pages of the judgment of the first instance.

B. Parts in height

1) The “Council members of the Design Deliberation Subcommittee” of the 2nd 13th 13th Appellate Decision shall be referred to as “Council members of the Design Deliberation Subcommittee.”

2) eliminates the part of the routture from the end of the second to the third routture decision of the first instance, and add:

Although Nonparty 1 appealed against A, the Gwangju District Court 2012No2458, the appeal was dismissed on February 9, 2014, and the appeal was dismissed on September 4, 2014, but the judgment became final and conclusive as the appeal was dismissed on September 4, 2014, and Nonparty 2 did not appeal, and the judgment became final and conclusive.

3) The first instance court’s decision 18 to 28 pages are as shown in the attached Form “related Acts and subordinate statutes.”

3. Judgment on the Plaintiff’s assertion of the trial

A. Whether the defendant's authority to dispose of the disposition of this case exists

1) Summary of the Plaintiff’s assertion

Article 5-2 (1) of the Public Procurement Act (hereinafter “the Public Procurement Act”). Article 2(2) of the Public Institutions Act provides that “Any public institution shall comply with the Public Institutions Act, except as otherwise provided in other Acts and subordinate statutes.” Article 3 of the State Contracts Act provides that “The State Contracts Act does not apply to a procurement contract” (hereinafter “the State Contracts Act”), and Article 3 of the State Contracts Act provides that “the State Contracts Act shall not apply to a procurement contract.” Article 5-2(3) of the Public Institutions Act provides that “The State Contracts Act shall not apply to a procurement contract if otherwise provided in other Acts and subordinate statutes.” Thus, it is reasonable for the State Agency to impose sanctions against the Defendant regarding the instant procurement contract to be governed by the Act on Contracts to Which the Public Procurement Service, which is a local government’s authority to impose sanctions against the public institution to enter into the contract (hereinafter “the State Contracts Act”) and thus, it is reasonable for the Administrator of the Public Procurement Service to apply the Act on Contracts to a specific person other than a public institution to enter into a contract (hereinafter “the Public Procurement Service”).

(ii) the board;

A) Reversion to the Administrator of the Public Procurement Service of the instant disciplinary authority under the State Contracts Act

(1) As examined in the judgment of the first instance court, the instant contract is a requested procurement contract, which is the Republic of Korea and the Plaintiff is its party, and thus, as a result of the application of the State Contracts Act pursuant to Article 2 of the State Contracts Act to the Plaintiff as to the delivery of bribe by its employees (hereinafter “instant fraudulent act”), it is evident in light of the language and text of the aforementioned provisions that the Defendant, the head of the pertinent central government agency, should impose the instant sanction against the Plaintiff, as well as the Defendant, who is the head of the pertinent central government agency. Therefore, barring any special exception provided otherwise, deeming the Defendant to have the authority to impose the instant sanction accords with the language and text of the said provisions.

(2) In addition to the various circumstances pointed out by the judgment of the first instance court, such an interpretation accords with the legislative purpose of the said provision in light of the following various circumstances.

(A) In the event that a public institution enters into a construction contract above a certain scale, such as the instant contract, there is a risk that the contracting officer of the relevant public institution may incur damage to the relevant public institution by entering into an improper and unfavorable contract, as well as the lack of expertise and experience in the ordinary contractual affairs, and the low resistance to the various illegal City/Do by contract-related parties. Here, Article 5-2(1) of the Public Procurement Act requires the head of the relevant public institution to request the Administrator of the Public Procurement Service to enter into a contract in principle in such a case as above. The legislative purpose is to prevent such risk by requiring the Administrator of the Public Procurement Service to enter into a contract on his/her behalf at the request of the public institution, which is an end-user institution.

(B) However, the Administrator of the Public Procurement Service, upon receipt of such a request, appears to have been gradually constructed on the premise that the State Contracts Act applies to the contracts that he/she concludes by applying the State Contracts Act, and all business methods and business systems that guarantee his/her expertise and fairness. Therefore, requesting the Administrator of the Public Procurement Service to conclude a contract pursuant to Article 5-2(1) of the Public Procurement Service Act is merely a mere fact that the subject of the relevant request procurement contract becomes the Administrator of the Public Procurement Service, rather than a mere fact that the subject of the relevant request procurement contract becomes the Public Procurement Service, and also borrows the business methods and business systems of the Public Procurement Service that are completed under the premise of the application of the State Contracts Act. As such

① However, the legal effect of a contract for a third party, such as a request procurement contract, is divided into the part to be reverted to a third party, a beneficiary, and the part to be attributed to a contracting party. The instant sanctions are designed to prevent the fairness from being damaged due to an unlawful act in the course of concluding a contract, and it is reasonable to deem that the pertinent sanctions are the part to be reverted to a contracting party, not a beneficiary, in that it is not related to the actual interest to be attributed to a beneficiary who requested the conclusion of a contract, and thus

② In addition, in order to achieve the legislative purpose of Article 5-2(1) of the Public Procurement Act, which is to enhance the fairness in the process of concluding a contract for procurement, to the maximum extent possible, more severe sanctions against the pertinent improper businessman are required. However, Article 39(2) of the Public Institutions Act provides only public corporations and quasi-governmental institutions as a person with the authority to impose sanctions in this case. As such, as the Plaintiff is, even if the Plaintiff is not allowed to participate in the bidding of construction ordered by the State or local governments as a result of not being inserted in the designated information processing unit, it is weak to impose sanctions on the Plaintiff. Accordingly, as seen in the first instance judgment, the legislative purpose of Article 5-2(1) of the Public Institutions Act, which is to enhance fairness in the process of concluding a contract for procurement, which is to impose sanctions in accordance with the State Contracts Act, is more severe in terms of its requirements and effects.

(3) The Administrator of the Public Procurement Service is deemed to have been engaged in the duties under the former State Contracts Act. However, it is difficult to expect the same level of professional knowledge as to the original application of the Local Contracts Act or the Public Institutions Act when a procuring entity concludes a contract. If the Local Contracts Act, etc. is applied to the conclusion of a contract, it would be difficult to expect an appropriate performance of duties with expertise. Furthermore, the instant sanctions are imposed upon an administrative agency regarding the determination of disadvantageous measures. In addition, it is necessary to accurately grasp the fraudulent acts that occurred in the process of concluding the contract, and to ensure appropriate exercise of such discretionary power. In addition, it is highly likely that the Administrator of the Public Procurement Service, who is the institution directly in charge of the conclusion of the contract, has the authority to impose sanctions on the Defendant. On the other hand, if a public institution exercises the authority to impose sanctions in this case, it would be difficult to grasp the effect of sanctions on the above fraudulent act, as seen earlier, and it would also be difficult to effectively apply the relevant Local Contracts Act No. 1000, supra. 2.

B) Individual determination on the Plaintiff’s assertion

(1) Determination as to the First Claim

The language and text of Article 2(2) of the Public Agency Act provides that “If there are other provisions different from this Act with respect to public agencies, this Act shall take precedence over the application of this Act, except when the provisions of this Act shall apply.” However, in light of the role of this provision, legal character, and relationship with other Acts and subordinate statutes, the legislative purpose of the above provision should be limited to “if the legal entity is a public agency with respect to Acts and subordinate statutes that are generally applicable to all legal entities, it shall take precedence over those Acts and subordinate statutes in relation to special laws and subordinate statutes and shall be applied in general application of Acts and subordinate statutes.” If it is not interpreted as above, all of the provisions related to public agency laws and subordinate statutes must be specified in the Act and subordinate statutes, and it is very difficult to do so in terms of legislative technology. However, as seen earlier, the law applicable to a contract for procurement which is a demanding administrative agency, which is a public agency, shall take precedence over the Plaintiff’s general application of the Act and subordinate statutes on the premise that it is already involved in the public agency.”

(2) Determination on the second proposal

(A) Article 5-2(3) of the Public Procurement Service Act provides that "the Administrator of the Public Procurement Service shall, upon receipt of a request to conclude a contract, decide the method, etc. in consultation with the head of the demanding administrative agency in accordance with the Acts and subordinate statutes applicable to the conclusion of the contract." This provision is unclear and it is not easy to accurately understand the objective meaning of the text, but it is evident that at least, “the Acts and subordinate statutes applicable to the original demanding administrative agency in principle to the conclusion of the contract shall apply to the requested procurement contract.” If the legislators intended to be understood as such meaning, it would be difficult to provide that “the demanding administrative agency shall apply the Acts and subordinate statutes applicable to the initial contract concerning the requested procurement contract,” and there is no reason to provide that “the Administrator of the Public Procurement Service shall consult with the head of the demanding administrative agency.” Rather, the Administrator of the Public Procurement Service may determine the method, etc. of concluding the contract in consultation with the head of the demanding administrative agency regarding whether the original contract would be applied to the original contract. Therefore, it would be reasonable to accept some of the Plaintiff’s request for the construction of the contract.

(B) If the contents of the above provision are identified as above, the legislative purpose seems to be "the State Contracts Act applies in principle to the requested procurement contract, but it is not sufficient to search for the legislative purpose of Article 5-2 (3) of the Government Procurement Act as reference material for the search of the legislative purpose of the above provision, because the beneficiary of the contract is an end-user institution after consultation with the Administrator of the Public Procurement Service in order to realize his interest to the maximum extent possible." Accordingly, the plaintiff presented some of the "The National Assembly Review Report on Amendment to the Government Procurement Act (amended on December 29, 2009)" (Evidence No. 28). However, the above contents are merely about the requested procurement contract which a local government is an end-user institution, and it is difficult to trust the contents of the above provision as it is so far as it is clearly inconsistent with the contents of the wording of Article 5-2 (3) of the Government Procurement Act. Therefore, the plaintiff's second chapter on the other premise is without merit.

(3) Judgment on the third ground for appeal

(A) Article 5(3) of the Public Procurement Service Act only provides for “the authority to impose the instant sanctions against the Administrator of the Public Procurement Service in certain cases.” This provision may be a confirmative provision of the authority of the Administrator of the Public Procurement Service that is originally recognized. Therefore, it cannot be viewed that the Administrator of the Public Procurement Service does not have the authority to impose the instant sanctions in cases other than those prescribed in the foregoing provision.

(B) Therefore, in order to interpret it as alleged by the Plaintiff, the legislative purpose of Article 5(2) of the Government Procurement Act and other contracts should be confirmed as being legislatively different. As to this, the Plaintiff presented some of the amendment (Evidence A 29) in the National Assembly review report on the amendment of the Government Procurement Act (amended on May 17, 2010). However, it is insufficient to view the above provision as a clear legislative purpose as seen earlier, and even though it seems that the expression “establishment of the basis provision for restricting participation in tendering” suggests “the intent to grant the authority to impose sanctions against the Administrator of the Public Procurement Service of the above provision.” However, in full view of its description, it appears that the Plaintiff introduced a new special exception for entering into a contract of procurement through competitive bidding between small and medium enterprises through the establishment of Paragraph (2) B as well as paragraph (3) to prepare sufficient response to abuse of the system.”

(C) Article 5 of the Act provides that “The Administrator of the Public Procurement Service may enter into a contract with a contracting method prescribed by Presidential Decree in cases where it is necessary to purchase and supply demand commodities or stockpile commodities commonly required by each procuring entity.” However, upon amendment by Act No. 10290 on May 17, 2010, Article 2 of the State Contracts Act newly introduced “the conclusion of a procurement contract through competitive bidding among joint contractors composed of small and medium entrepreneurs” as special exceptions to new contracts. In full view of the language and text of the above provision, systematic location within the Public Procurement Act, and other relevant provisions, such special exceptions are limited to the method of concluding the contract on the premise that the State Contracts Act applies, and thus, such special exceptions are applicable to contracts other than those, even if they are not newly established under Article 5(3) of the Public Procurement Service Act, the authority to impose sanctions on contracts should be deemed as belonging to the Administrator of the Public Procurement Service under the State Contracts Act. In light of the aforementioned special exceptions to contracts, the State Contracts Act does not necessarily have to be deemed as belonging to the authority to impose sanctions on the State Procurement Service.”

(D) In full view of the above contents, Article 5-2(3) of the Public Procurement Service Act provides that the Administrator of the Public Procurement Service shall confirm the existence of the authority to impose the instant sanctions. Therefore, the third chapter of the Plaintiff’s third chapter on a different premise is without merit.

(4) Determination as to Section 4

(A) According to the review so far, in light of the language, legislative purpose, mutual relationship and systematic location, legislative progress, and specific validity of the results of application of various relevant provisions, the State Contracts Act, in principle, applies to the requested procurement contract. However, the method of concluding a contract can only be determined in consultation with the head of the demanding administrative agency as it is in accordance with the statutes applicable to the contract originally concluded by the public agency, and in particular, the sanctions authority of this case shall belong to the Administrator of the Public Procurement Service under the State Contracts

(B) Here, the Plaintiff asserts that the legislative intent stated in the proviso of Article 7(2) of the Local Contract Act is to be realized even in cases where a procuring entity is a public entity beyond the case where the procuring entity is a local government. However, it is apparent that a procuring entity is not subject to the proviso of Article 7(2) of the Local Contract Act regarding the requested procurement contract, which is a public entity, in light of the language and text of the relevant provision. Therefore, deeming otherwise exceeds the ordinary scope of interpretation beyond the permissible meaning of the language and text, and thus, it is possible to deem that “the proviso of Article 7(2) of the Local Contract Act is analogical to the request procurement contract that is a public entity.” However, in order to interpret such law, the fact that the request procurement contract, which is a public institution, is a procuring entity, constitutes a defect in the law that is not intended by the legislators. In addition, it is more persuasive that the Plaintiff’s request for the execution of a contract is more persuasive than the Plaintiff’s request for the execution of a contract that is a public institution.

(5) Determination as to Chapter 5

The instant disposition is not based on the premise that the pertinent delegation was made by the Busan University Hospital, but based on the Act and subordinate statutes such as Article 27 of the State Contracts Act, and thus, the Plaintiff’s fifth chapter on a different premise is without merit.

B. Whether the instant disposition violates the principle of proportionality or proportionality

1) Summary of the Plaintiff’s assertion

Article 76(1) Subparag. 12(c) of the Enforcement Rule of the State Contracts Act (hereinafter “instant disposition standards”) provides that “where a bribe of at least KRW 10,00,000 and less than KRW 100,000 is taken, the restriction on participation in a tendering procedure for six months shall be mitigated within the limit of 1/2, considering the motive, content, frequency, etc. of the act,” and Article 76(4) of the Enforcement Rule of the State Contracts Act provides that “If a bribe of KRW 10,00,000 and less than KRW 100,000 is taken as a bribe of KRW 20,000,000,000,000,000 won, the Plaintiff’s employee took a bribe of KRW 10,000,000,000,000,00 won, and thus, constitutes a violation of the principle of restriction on participation in a tendering procedure for six months, which is identical to the case of giving a bribe of KRW 10,0,0.”

(ii) the board;

A) Determination on the first argument

Even if examining the above circumstances of the Plaintiff’s assertion, it is difficult to view the disposition of this case to violate the principle of proportionality because it is too harsh in light of the various circumstances cited in the judgment of the first instance court. The Plaintiff’s first argument is without merit.

B) Judgment on the second argument

(1) As examined in the judgment of the first instance court, even if the criteria for punitive administrative disposition are prescribed in the form of Ministerial Ordinance, it is nothing more than that prescribed in the administrative agency’s internal rules for handling affairs, and thus, it has no effect to guarantee citizens or courts, and whether the pertinent disposition is lawful should be determined not only in accordance with the above disposition criteria but also in accordance

(2) Therefore, the scope of sanctions to be imposed by the Defendant is not “six months prescribed in the instant disposition standards,” but “not less than one month but not more than two years as prescribed in Article 27 of the State Contracts Act and Article 76(1) of the Enforcement Decree of the State Contracts Act,” and the criteria for judgment in the exercise of discretionary power are not “the instant disposition standards,” but “the contents and purport of Article 27 of the State Contracts Act and Article 76(1) of the Enforcement Decree of the State Contracts Act,” and “the contents and purport of Article 76(1) of the State Contracts Act,” barring any special circumstance, if the instant disposition standards are complied with, the deviation and abuse of discretionary power due to the violation shall not be a problem. Considering the various circumstances examined in the judgment of the first instance court, it appears that the Defendant exercised discretionary power with regard to mitigation as alleged by the Plaintiff, and it is difficult to view that the Defendant did not exercise the discretionary power on the sole basis as alleged by the Plaintiff, and there is no clear counter-proof to the above fact finding.

4. Conclusion

Therefore, the judgment of the court of first instance is just and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Lee Young-chul (Presiding Judge)