Daejeon Seosung-ro 141, 29 - 17, 305 (Songdong, Linking Building)

Joint representative director levira, Earrara

2. B Co., Ltd.

Jung-gu Seoul Central District 190 (Woo-dong 1)

The representative director, the current status of the representative director;

3. C:

Seoul Seocho-gu, Seocho-gu 299 (Seo-dong)

Representative Director Kim Sang-jin

[Judgment of the court below]

[Defendant-Appellee]

*** * The Corporation

Daejeon Central District 118 (Seung-dong)

The President of the Red Republic of Korea

Law Firm U&A (Law Firm B&A)

Attorney O Young-young, Counsel for the defendant-appellant

Seocho-gu Seoul Metropolitan Government Dokwon 14-ro 29 (Dokwon-dong)

The representative director of Kimchi

Law Firm (Bae, Kim & Lee LLC)

Attorney Kim Jong-ho, Justice Park Jong-ho, Justice Lee Jong-ho, Counsel for the plaintiff-appellant

2. It is confirmed that the consortium comprised of the plaintiffs is in the position of a person subject to preferential bargaining regarding the public offering project as set forth in paragraph 1.

3. Of the costs of lawsuit, the part resulting from the intervention shall be borne by the Intervenor joining the Defendant, and the remainder shall be borne by the Defendant.

(a) The promotion of development projects of Daejeon-area intermodal transfer centers and the designation of a project operator;

1) The Daejeon Metropolitan City is in a narrow size of a flexible terminal located in the Seosung-dong, Daejeon, and as the facilities are underdeveloped and the inconvenience of users increases, the Daejeon Seosung-dong 119-5 Ilsung-dong 102, 080 square meters away from Daejeon Seosung-dong 102, 080 square meters. The Daejeon Metropolitan City is a high speed, non-city bus terminal, city bus and BRT (liver bus) transfer center, commercial sales facility, etc.

I would like to promote a flexible metropolitan intermodal transfer center development project (hereinafter referred to as "intermodal transfer center development project of this case").

2) On July 2009, Daejeon Metropolitan City designated the Defendant as the project executor of the instant intermodal transfer center development project.

(b) Invitations, etc. for private business operators to implement the Daejeon-Sized Passenger Terminal Development Project.

1) On March 19, 2010 and November 30, 2010, the Defendant solicited a private business entity to implement the development project for composite passenger terminal among the instant intermodal transfer center opening businesses (hereinafter “instant passenger terminal development project”), but the said public offering was no longer made due to failure to submit a written application for the business, waiver of the business, etc.

2) After that, on July 22, 2013, the Defendant changed a part of the existing conditions of the public invitation, and recruited a private business entity to implement the instant passenger terminal development project (hereinafter referred to as “instant public invitation”), and participated in the instant public invitation on October 21, 2013 by the Defendant, including the Intervenor (hereinafter referred to as “the Intervenor”), Hyundai Securities Stock Company, Consium consisting of Hyundai Posium (hereinafter referred to as “ Intervenor Consium”) and the Plaintiff (hereinafter referred to as “Plaintiff Consium”) consisting of the Plaintiffs.

3) Meanwhile, among the public invitation guidelines for the instant public invitation (hereinafter “instant public invitation guidelines”), the main contents related to the instant case are as follows.

A person shall be appointed.

A person shall be appointed.

C. Selection of persons eligible for preferential negotiations and persons eligible for subordinated negotiations following the instant recruitment

1) On October 31, 2013, the Defendant: (a) held a deliberative committee on the selection of preferred bidders to assess the Intervenor consortiums and the business plan submitted by the Plaintiffs consortiums; and (b) selected the Intervenor consortiums as first priority negotiation partners and the Plaintiffs consortiums as subordinate negotiation partners, respectively.

2) On November 1, 2013, the Defendant publicly announced the result of the instant selection review as prescribed by Article 2013-153 of the Public Notice, and separately notified the Intervenor’s consortium and the Plaintiffs’ consortium on November 4, 2013.

D. The deadline for concluding the project agreement based on the instant public invitation guidelines

Meanwhile, pursuant to the Public Offering Guidelines 5-1(b)(1) of the instant case, the time limit for the Intervenor’s consortium to enter into a business agreement with the Defendant for the implementation of the instant passenger terminal development project was determined on December 27, 2013 (the date from November 4, 2013, which is the date of notification of the selection of priority bidder) by December 4, 2013.

(e) Progress of consultation for concluding a project agreement between the defendant and the intervenor;

1) On November 6, 2013, the Defendant and the Intervenor opened a meeting of working-level members related to the conclusion of the business agreement, and continued to discuss the major issues that conflict with each other, such as the issue of setting the upper limit of land creation cost, through the relevant working-level meeting over two times on November 22, 2013 and December 3, 2013.

2) Based on the result of the relevant working-level meeting, the Defendant prepared a draft project agreement (Evidence 14-1 of Evidence B) and requested the Intervenor’s consortium to review the draft project agreement on December 9, 2013, and the Intervenor’s complaint on December 12, 2013, the Intervenor’s opinion on the draft project agreement (Article 35-2 of the Business Agreement) is written on December 12, 2013

On the same day, the defendant and the intervenor have opened a related working-level meeting to exchange their mutual opinions on the draft of the project agreement, and on the same day, the agreement between the defendant and the intervenor has exchanged their opinions on the draft of the project agreement.

3) On the other hand, on December 18, 2013, the Defendant sent a review of the purport that the Intervenor’s opinion on the draft of the business agreement cannot be accepted on the grounds that it is contrary to the content of the instant public offering guidelines, and urged the Intervenor to enter into a business agreement by December 27, 2013, which was the date of the conclusion of the existing business agreement, by sending a draft revised business agreement, which deleted the content of the role of the observer in the previous Metropolitan City within the draft of the existing business agreement.

4) On December 20, 2013, the Defendant and the Intervenor exchanged mutual opinions on the draft project agreement as amended by opening a relevant working-level meeting.

5) After that, the Defendant and the Intervenor agreed on the contents of the project agreement on December 24, 2013, the consortium held a relevant working group twice on two occasions and held a final consultation on the contents of the project agreement.

6) In the course of the above final consultation, the defendant accepted the requirements on the extension of the deadline for concluding the business agreement, ② setting the upper limit of land cost, ③ setting the business permission of a large store due to a cause attributable to a private business entity, ③ setting the basis for demanding the return of the performance guarantee bond, etc. by a private business entity is not accepted if the business agreement is terminated due to a cause attributable to a private business entity.

(f) Request for the extension of the time limit for concluding the business agreement by the intervenor, and rejection of the defendant's request

1) On December 24, 2013, prior to the conclusion of the final consultation on the contents of the business agreement, the Intervenor’s consortium requested the Defendant to extend the deadline for concluding the business agreement on the grounds that further review and consultation are necessary with respect to the main contents of the business agreement, such as ① specification of the role of the Daejeon Metropolitan City and the participation in the Daejeon Metropolitan City Mayor in concluding the business agreement, ② setting the upper limit of land creation cost, ③ setting the method of payment of land contract deposit, ④ returning the agreed performance bond when the number of large stores is not permitted, ⑤ matters related to the clause allowing the Defendant to vest in the right to dispose of the water of the facilities when the business is suspended, ⑤ payment method of the agreed performance bond, and ② matters concerning the scope of the private business operator’s causes attributable to the cancellation of the business agreement, etc.

2) Accordingly, on December 26, 2013, the Defendant rejected the Intervenor’s request for the extension of the deadline for concluding the business agreement, which was alleged by the Intervenor Consultative Body, on the ground that it does not fall under “in inevitable cases for the purpose of business” under the proviso of Article 5-1(b) of the Guidelines 5-1(2) of the instant Public Offering 201, which is stipulated for the extension of the deadline for concluding the business agreement, and urged the Intervenor Consultative Body to enter into the business agreement by December 27, 2013.

3) On December 26, 2013, the Intervenor’s consortium rejected the Intervenor’s request for the extension of the time limit for the conclusion of the project agreement on the ground that the Intervenor’s request for the extension of time limit is not an inevitable case for its business purpose, and that the Defendant sent three copies of the business agreement signed and sealed by the Defendant on December 10, 2013, when 28 days have elapsed since the date of the Intervenor’s request for the extension of time limit for the submission of the project agreement to the Defendant on December 27, 2013. On the same day, the Defendant requested the Defendant to submit the project agreement to the Defendant by December 27, 2013, on the ground that the time for consultation is absolutely insufficient.

4) On December 27, 2013, the Intervenor’s consortium requested that the Defendant interfere with the time limit for concluding the business agreement on the grounds that the time limit for internal review and consultation on the contents of the business agreement was insufficient. However, the Defendant rejected all of the Intervenor’s request for extension of the time limit on the same day.

(g) The intention of the time limit for the conclusion of the business agreement and the distribution, etc. of news reports through the defendant's corrective slabping;

1) Ultimately, the Intervenor did not enter into a business agreement with the Defendant for the implementation of the instant passenger terminal development project until December 27, 2013, which was the deadline for concluding the business agreement.

2) Accordingly, on December 27, 2013, the Defendant distributed the text report materials stating that “The Intervenor’s consortium did not enter into a business agreement with the Defendant by December 27, 2013, which is the time limit for the business agreement.” As such, the Defendant distributed the text report materials stating that “The Defendant would promote the conclusion of the business agreement with the subordinate negotiating parties in accordance with the instant public invitation guidelines.”

H. The defendant's final demands for the conclusion of the business agreement with the intervenor and the conclusion of the business agreement with the intervenor;

1) Meanwhile, the Defendant first notified the Intervenor’s conference that the status of the preferred negotiating party was lost, and set up a policy to proceed with a compromise to conclude the project agreement with the Plaintiff’s consortium, which is the subject of subordinated negotiations. On December 30, 2013, the Defendant urged the Intervenor to finally conclude the project agreement after obtaining advice from the advising attorney-at-law and urged the Intervenor to finally conclude the project agreement, and changed the policy so that he would lose the status of the preferred negotiating party when refusing to comply therewith.

2) On December 30, 2013, after the expiration of the period for concluding a business agreement, the Defendant finally urged the Defendant to enter into a business agreement with the Defendant by no later than January 6, 2014, as the Intervenor consortium is expected to lose the status of the preferred negotiating party because the Intervenor consortium would not enter into the business agreement by the deadline for concluding the business agreement without justifiable grounds. If the Intervenor’s refusal to comply therewith, the Intervenor’s status as the preferred negotiating party is lost, and the Intervenor’s application for the business that the Intervenor’s consortium paid is attributed to the Defendant, and the Defendant notified the Intervenor of the intention to enter into the business agreement with the subordinate negotiating party.

3) On December 31, 2013, the Intervenor re-requesting the Defendant to extend the deadline for the conclusion of the project agreement on the grounds that there was no agreement on the method of settlement of increase and decrease in the land creation cost and the matters related to the authorization and permission of large-scale stores, but the Defendant rejected the Intervenor’s request for extension of the deadline for the Intervenor’s request on January 3, 2014.

4) Ultimately, on January 6, 2014, the Intervenor’s consortium entered into a business agreement (hereinafter “instant business agreement”) signed by the Defendant, which was sent to the Intervenor’s consortium on December 26, 2013, and delivered to the Defendant, signed the business agreement with the Defendant for the implementation of the instant passenger terminal development project (hereinafter “instant business agreement”).

(i) Omission of the seals affixed by the Daejeon Metropolitan City Mayor;

On January 7, 2014, the Defendant requested Daejeon Metropolitan City to affix a seal to the business agreement of this case as an observer of the instant business agreement, but the Daejeon Metropolitan City Mayor did not affix a seal to the business agreement of this case by the closing date of pleadings.

[Grounds for recognition] Each entry of Gap evidence 1 through 8, 10 evidence, Eul evidence 1 through 4, 9, 10, 12 through 22, Eul evidence 1 through 5 (including the number number), and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion that there is no benefit in confirming the plaintiffs

The consortiums of the plaintiffs were selected as subordinate negotiating partners in the public offering procedure of this case and they did not have been first designated as subordinate negotiating partners. In addition, since the defendant concluded the business agreement with the intervenor consortium, there is no reason to designate the plaintiffs' consortium as priority negotiating partners. Therefore, the plaintiffs' consortiums are not in the status of priority negotiating partners, and the defendant did not have any reason to designate the plaintiffs' consortiums as priority negotiating partners. Thus, there is no interest to seek confirmation that the business agreement of this case is null and void and the plaintiffs' consortiums are in the status of priority negotiating partners.

B. Determination

On the other hand, in a lawsuit for confirmation, there is a dispute between us as to the legal relationship subject to confirmation, and thereby, it is recognized that it is the most effective and appropriate means to determine the legal status of the plaintiff as the confirmation judgment in removing the anxiety and the above examination when the legal status of the plaintiff is unstable and dangerous (see Supreme Court Decision 2009Da93299, Feb. 25, 2010, etc.).

With respect to the instant case, there is a dispute between the parties as to whether the business agreement of this case is null and void, and whether the agreement of this case, which is a subordinate negotiating party, becomes a priority negotiating party, becomes null and void, and thereby, the agreement between the parties is likely to become a priority negotiating party. Accordingly, the plaintiffs' consensus is to implement the passenger terminal development project of this case between the defendant and the defendant as a priority negotiating party.

The project agreement is not concluded.

Thus, the plaintiffs are legally interested in seeking confirmation that the business agreement in this case is null and void and the plaintiffs' consensus is in a position of priority negotiation object. Thus, the above argument by the defendant is without merit.

3. Judgment on the merits

A. Summary of the plaintiffs' assertion on the merits

① The Intervenor did not enter into the instant agreement with the Defendant until December 27, 2013, which was the deadline for entering into the instant agreement, as a priority negotiation subject to which the Defendant participated in the instant agreement and has a preferential status to enter into the instant agreement with the Defendant.

② Accordingly, pursuant to the main text of 5-1(b) of the instant public offering guidelines, the Intervenor’s consortium lost the status of a person subject to preferential bargaining by Doing the time limit for concluding the said business agreement, and the Plaintiff’s consortium, who is the person subject to subordinated bargaining, has become a person subject to preferential bargaining.

③ Nevertheless, on January 6, 2014, the Defendant concluded the instant project agreement with the Intervenor’s consortium who already lost the status of the preferred bidder, thereby infringing on the Plaintiff’s right to consult with the Intervenor’s consortium, leading to the Intervenor’s consortium. These defects are serious to considerably infringe on the public nature and fairness of the public contest procedure, and thus, the instant project agreement is null and void.

④ In addition, according to Article 1(1) of the Addenda to the instant business agreement, the instant business agreement shall take effect from the date of the trade name of the Defendant (project operator), the Intervenor’s consortium (terminal terminal operator), and the Daejeon Metropolitan City Mayor (observer). The Daejeon Metropolitan City Mayor did not affix the seal to the instant business agreement until now, and there is no possibility that it will be affixed to the future. Thus, the instant business agreement shall not take effect.

⑤ Therefore, the Plaintiffs seek to confirm that the instant business agreement concluded on January 6, 2014 between the Defendant and the Intervenor’s consortium is null and void, and the Plaintiffs’ consortium seek to confirm that the instant business agreement is on the part of a person subject to preferential bargaining who can enter into a business agreement with the Defendant in the instant passenger terminal development project.

B. Summary of the Defendant and the Defendant’s Intervenor’s assertion on the merits

① The agreement between the Defendant and the Intervenor regarding the conclusion of the business agreement by December 27, 2013, which is the time limit for the conclusion of the business agreement, constitutes a bilateral contract. Therefore, even if the Intervenor’s consortium delays the implementation of the project agreement, it cannot be said that the Intervenor’s status as the subject of preferential bargaining by rescinding the contract immediately without the peremptory notice for performance.

② Therefore, the Defendant urged the Intervenor to perform the obligation to enter into a business agreement by January 6, 2014 in order to cancel the contract for the reason of nonperformance (performance delay) by December 27, 2013, in order for the Intervenor’s consortium to perform the obligation to enter into a business agreement by December 30, 2013, and the Intervenor’s consortium entered into the instant business agreement with the Defendant on January 6, 2014. Accordingly, the instant business agreement was concluded in accordance with the legal doctrine of the Contract Act.

③ 5-1. (b) proviso to paragraph (2) of the instant Public Offering Guidelines provides that the Intervenor’s consortium (subject of preferential negotiation) may annually extend the deadline for the conclusion of the business agreement through consultation with the Defendant (project implementer) in extenuating circumstances for business purposes. The Intervenor’s consortium requested the Defendant to extend the deadline for the conclusion of the business agreement four times until before the deadline for the conclusion of the business agreement expires. The Defendant notified the Intervenor’s consortium to perform its obligation to conclude the business agreement by January 6, 2014 at the Intervenor’s consortium on December 30, 2013. Accordingly, the agreement was concluded between the Defendant and the Intervenor to extend the deadline for the conclusion of the business agreement by January 6, 2014. Therefore, the instant project agreement was concluded within the extended deadline for the conclusion of the business agreement.

④ The main text of Article 5-1(b)(2) of the Public Offering Guidelines provides that, if a project agreement is not concluded within the time limit for concluding the project agreement without any justifiable reason, the intervenor consortium (object of priority negotiation) shall lose the status of the potential negotiating party. The purport of the provision is to grant the right to refuse it to the Defendant when the preferred negotiating party requests an extension of the time limit for concluding the project agreement after the lapse of the time limit for concluding the project agreement, and it does not aim at losing the status of the preferred negotiating party against the Defendant’s will.

⑤ Therefore, it cannot be deemed that the Intervenor’s consortium was unable to enter into a business agreement until December 27, 2013, and immediately lose the status of the subject of preferential bargaining. Moreover, the Intervenor’s consortium did not have enough time to accept the draft business agreement from the Defendant at the latest and to review it. By December 27, 2013, the Intervenor’s meeting was held with the Defendant several relevant working-level meetings, but the conclusion was not reached on the set-limit of land creation cost and the issue of authorization and permission for a large store. Therefore, the Intervenor’s consortium did not enter into a business agreement by December 27, 2013.

① In order for a subordinate negotiating party to become a priority negotiating party, the Defendant should designate the subordinate negotiating party as a priority negotiating party, and the subordinate negotiating party should undergo the procedure of re-payment of the project application deposit within 10 days from the aforementioned designation date. However, the Intervenor’s consortium did not lose the status of the priority negotiating party, and the Defendant did not designate the Plaintiffs’ consortium as a priority negotiating party, and the Plaintiffs’ consortium did not re-payment of the project application deposit. Accordingly, the Plaintiffs’ consortium cannot be deemed to have the status of the priority negotiating party.

7) The Defendant and the Intervenor’s consortium are not absolutely bound by the contents of the instant public offering guide, but may modify the contents of the instant public offering guide by mutual consultation. Therefore, insofar as the instant project agreement is concluded within the extended period by mutual agreement between the Defendant and the Intervenor’s consortium, it is difficult to deem that there exists any defect to the extent that the public nature of the bidding procedure and fairness would be considerably infringed even if the instant project agreement was concluded after the lapse of the original period for concluding the public offering guide.

8) Article 1(1) of the Addenda to the instant Business Agreement provides that the instant business agreement takes effect on the date on which the names and seals of the Defendant (project executor), participants’ conference (terminal terminal operator), and Daejeon Metropolitan City Mayors (observers) are affixed. The issue of whether the observers shall affix their seals to the business agreement does not relate to the conclusion of the business agreement within the time limit stipulated in the instant public offering guidelines as a requirement to deprive the status of a priority negotiating party. Moreover, it is difficult to view that the defect, which omitted the seal of Daejeon Metropolitan City Mayor, who is the observers of the business agreement, is a serious defect to the extent that the business agreement becomes invalid.

9) If so, the instant business agreement was concluded effective, and the Plaintiffs’ consortiums cannot be deemed to be in the position of the priority partner.

C. Determination as to whether the instant business agreement is null and void

1) Grounds for invalidation as asserted by the Plaintiffs

As seen earlier, the Plaintiffs asserted that the instant agreement was null and void because the Intervenor’s consortium did not enter into a business agreement with the Defendant until December 27, 2013, which was the deadline for concluding the business agreement without justifiable grounds, thereby losing the status of the subject of preferential bargaining pursuant to the main text of 5 - 1 b. 2). However, the Defendant entered into the instant agreement with the Intervenor’s consortium on January 6, 2014, which was subsequent to the lapse of the deadline for concluding the instant agreement, thereby infringing the Intervenor’s status or right of the Plaintiff’s consortium, leading to the Intervenor’s consortium and thereby infringing the Plaintiff’s status or right of the subject of preferential bargaining. As such, the instant agreement was concluded by seriously infringing on the public nature and fairness of the public recruitment procedure.

2) The preliminary issues of the instant case (whether or not the status of a priority bidder is lost)

The main text of 5-1.b. 2) of the instant Guidelines provides that "if a person subject to preferential bargaining fails to enter into a project agreement within the period for the conclusion of the project agreement without justifiable grounds, he/she shall lose his/her status as a person subject to preferential bargaining," and that the Intervenor’s consortium (person subject to preferential bargaining) and the Defendant (project implementer, December 27, 2013) set the period for the conclusion of the project agreement (the date of December 27, 2013), the fact that the instant project agreement was entered into on January 6, 2014 is as seen earlier.

Therefore, the following is first examined as to whether the Intervenor’s consortium lost the status of a person subject to preferential bargaining, and then whether the Intervenor’s consortium was justified in failing to enter into the business agreement within the period for concluding the business agreement within the period for concluding the business agreement, and if the Intervenor’s consortium is determined to lose the status of the person subject to preferential bargaining because the Intervenor’s consortium failed to comply with the period for concluding the business agreement without any justifiable reason, it would be determined as to whether the business agreement becomes null and void due to such defect.

3) The existence of "justifiable cause" as referred to in paragraph 5-1(b)(2) of the instant Guidelines for Public Offering

(A) The meaning of "justifiable cause" and criteria for determination

"When there is a justifiable reason" in Paragraph 5-1.b. (2) of the Guidelines for Public Offering 5-1. b. 2, it is reasonable to see that the term "when there is a justifiable reason" means a case where the business agreement is not concluded within the period for concluding the business agreement due to a reason not attributable to the person subject to preferential bargaining." Whether there is a "justifiable reason" should be determined by comprehensively taking into account the situation of the parties to the business agreement, the purpose of the passenger terminal development project of this case, the reasons why the person subject to preferential bargaining has attempted to reach the period for concluding the business agreement, the contents and effects of the Guidelines for Public Offering 2.

B) Whether there was a “justifiable reason” for the Intervenor’s failure to observe the time limit for the conclusion of the business agreement

(1) Justifiable grounds asserted by the Defendant

As seen earlier, the Defendant and the Intervenor asserted that: (a) the Intervenor and the Intervenor did not enter into a business agreement within the period of the conclusion of the business agreement because the Plaintiff and the Intervenor did not reach an agreement on the issue of setting the upper limit of the land creation cost and the issue of returning the deposits in a large store; (b) the Intervenor and the Intervenor’s Intervenor did not have to enter into the business agreement within the period of the conclusion of the business agreement, because the Intervenor’s consortium and the Intervenor did not have an absolute time for review and consultation, and thus, the Intervenor’s consortium did not enter into the business agreement by December 27, 2013, with a total of six times from November 6, 2013 to December 24, 2013.

Therefore, we would like to examine whether the above grounds of the Defendant and the Intervenor’s assertion constitute “justifiable cause” as stipulated in the instant public recruitment guidelines 5 - 1 b. 2).

(2) Grounds for failure to reach an agreement on whether to set a maximum amount of land development cost

In light of the circumstances that the intervenor did not reach an agreement on whether to set up the upper limit of the land creation cost between the defendant and the intervenor, it would be reasonable for the intervenor to conclude the project agreement with the defendant within the time limit for concluding the project agreement.

(5) In light of the overall purport of each entry and pleading in Gap evidence 2, Eul evidence 12, 15, 20, and 22 (including numbers), the preferential negotiating party shall conclude an agreement with the defendant on the basis of the guidelines for the public offering and the project plan of this case, and the public offering guidelines of this case are prescribed as follows: (2) The public offering guidelines of this case are prescribed as part of the business agreement, which is necessary for understanding the nature and scope of the passenger terminal development project of this case and the land development project of this case; (3) The public offering guidelines of this case are prescribed as follows: the defendant's land price of this case, which is an amount equivalent to 104% of the estimated land price of this case; and (4) the public offering guidelines of this case, which is established as the public offering guidelines of this case, are prepared as the land price of this case and the land price of this case, which is an amount equivalent to 3% of the estimated land price of this case.

(6) If an intervenor, who is obligated to enter into the instant agreement with the Defendant, is obligated to enter into such agreement on the basis of the substance of the public offering guidelines (5-1.b. 1). (3) The public offering guidelines stipulate that an intervenor, who is obligated to enter into the instant agreement on land for the purpose of the public offering and sale of land would not have any further obligation to enter into such agreement on the basis of the following circumstances, i.e., an intervenor subject to the public offering and sale of land, which would have been able to enter into the agreement on the land for the purpose of the public offering and sale of land; and (4) the other party would not have any obligation to enter into the instant agreement on the land for the purpose of the public offering and sale of land within the extent that one of the parties would have any significant or essential terms and conditions for the execution of the project, or would have any further been required to enter into such agreement on the land for the purpose of the public offering and sale of land within the extent that it does not deviate from the guidelines set forth in the public offering guidelines.

(3) The reason why an agreement was not reached as to whether a large store's authorization or permission was not granted for the refund of a performance bond under an agreement.

In the event that it is impossible for the Defendant and the Intervenor to permit large-scale stores, the Intervenor’s failure to reach an agreement on whether to refund the performance bond under the agreement may serve as a justifiable reason for the Intervenor’s failure to enter into the business agreement with the Defendant within the period for concluding the business agreement.

6) According to the reasoning of the above-mentioned 2, Gap's 2, Eul's 12, 20, and 22 (including numbers)'s respective entries and arguments, the following facts: (i) the 2-5 guidelines for the construction of the terminal are in charge of the terminal operator, and the defendant actively cooperates with it; (ii) the 5-2 guidelines for the instant 3-2 guidelines are not possible to enter into an agreement with the defendant for reasons attributable to the terminal operator so that it is impossible for the defendant to enter into the 2-2 guidelines for the large-scale project so that it can be resolved strictly under the 1-2 guidelines for the removal of the participants. (iii) The 1-5-3 guidelines for the instant 2-2 guidelines for the cancellation of the agreement.

Furthermore, the above facts are as follows. ① With respect to the implementation of the passenger terminal development project of this case, the issue of authorization and permission for a large scale store is prescribed as matters belonging to the scope of the intervenor’s liability under the Guidelines for Public Offering 2-5 (A. 1). ② Therefore, even if it is impossible to grant authorization and permission for a large scale store due to a reason attributable to the participant’s liability, it is against the contents of the Guidelines for Public Offering 2-206 to require the defendant to return the performance bond to the participant even if it is impossible for the participant to do so, it does not conform to the purport that the defendant should pay the performance bond of the Convention in order to guarantee the implementation of the Agreement. ③ Therefore, if it is impossible for the defendant to conclude the Agreement with the participant’s strict obligation to return the performance bond to the participant, regardless of whether it is a reason attributable to the participant’s consent or not, it is difficult to conclude the Agreement with the participant’s strict obligation to return the performance bond within the agreed period.

(4) Grounds for lack of time to review and consult on the essential contents of the project agreement

Whether the Intervenor’s consortium establishes the upper limit of the land development cost, and in the event that it is impossible to grant authorization or permission for a large store, the Intervenor’s sufficient review whether to refund the performance bond to the Defendant, and whether it has sufficient time to consult with the Defendant, and if so, whether the Intervenor’s failure to conclude the business agreement with the Defendant within the time limit for concluding the business agreement can be seen as justifiable grounds for failure of the Intervenor’s consortium to conclude the business agreement with the Defendant.

On November 6, 2013, the first consultation with the Defendant on the part of the Intervenor which entered into the project agreement, proposed that the agreement needs to be made in preparation for the case where the business profitability becomes worse due to a significant increase in the cost of land creation and a delay in the period of authorization and permission. ② On December 3, 2013 and December 12, 2013, the Intervenor’s land creation cost is set up in an amount equivalent to 120% of the estimated cost of land creation, and the actual cost of land creation exceeds the above ceiling, and the Defendant proposed to enter into the project agreement with the Defendant on the part of the Intervenor to enter into the project agreement, which is the first requirement for the cancellation of the agreement, on the ground that the agreement between the Intervenor and the Intervenor was not possible. < Amended by Act No. 11613, Dec. 3, 2013; Act No. 11908, Dec. 21, 2013>

According to the above facts, at the time of the first consultation to conclude a business agreement on November 6, 2013, the defendant and the intervenor have continued to hold mutual consultation as to whether to set up the ceiling on the cost of land development and whether to refund the performance bond if it is possible to authorize authorization and permission for large scale stores before the expiration of the business agreement. In light of these circumstances, it is sufficient time for the defendant and the intervenor to review and compromise the above issues until the expiration of the business agreement.

Therefore, it is clear that there is a lack of time to fully review and consult on the issue of whether the Defendant and the Intervenor’s consortium set up the upper limit of the land creation cost, and the issue of whether the performance bond should be returned if the permission and permission for large-scale stores are not granted, and the reasons for the allegation in the Intervenor’s Intervenor’s Intervenor’s above cannot be a justifiable reason for the Intervenor’s failure to enter into the agreement with the Defendant within the time limit for concluding the project agreement.

C) Sub-determination

If so, the Intervenor’s consortium knew that the Defendant did not enter into the business agreement within the time limit for concluding the business agreement without any justifiable reason. Accordingly, the Intervenor’s consortium, pursuant to the main text of Article 5-1(b) of the Public Offering Guidelines 5-2, lost the status of a person subject to preferential bargaining on December 28, 2013 following the date on which the time limit for concluding the business agreement became due.

4) Whether the instant business agreement is null and void

A) Facts of recognition

As seen earlier, the Intervenor’s consortium did not enter into a business agreement with the Defendant by December 27, 2013, which is the deadline for concluding the business agreement without justifiable grounds, and lost the status of a person subject to preferential bargaining. On December 27, 2013, the fact that the Defendant published to the media that the Defendant would promote the conclusion of the agreement with the consortiums, which is subordinate negotiating parties, in accordance with the instant guidelines, on December 27, 2013; the Defendant changed his existing position on January 6, 2014, and entered into the instant business agreement with the Intervenor’s consortium who already lost the status of the person subject to preferential bargaining.

B) Determination

(1) However, it is clear that only the person selected as a priority bidder by the Defendant under the public invitation guidelines of this case is entitled to enter into the instant business agreement with the Defendant, and thus, the party who entered into the instant business agreement with the Defendant should be deemed to be the priority bidder. Thus, the party who entered into the instant business agreement with the Defendant should be deemed to be the requisite for the validity

Therefore, the Defendant already lost the status of the preferred bidder and concluded the instant business agreement with the Intervenor, who is not the winner of the preferred negotiation team, and thus, the instant business agreement shall be deemed null and void.

(2) In addition, as follows: (a) if the Intervenor’s consortium loses the status of a person subject to preferential bargaining, the Plaintiff’s consortium selected as the person subject to preferential bargaining would have the status of the person subject to preferential bargaining even without any separate procedure.

Therefore, it is clear that the Defendant concluded the instant project agreement with the Intervenor’s consortium who lost the status of the person subject to preferential bargaining, thereby infringing on the Intervenor’s status or right to consultative body that led to the Intervenor’s meeting, and the foregoing defect in the public recruitment procedure in this case is so serious that the public nature and fairness of the bidding procedure would be considerably infringed on (see Supreme Court Order 2006Ma117, Jun. 19, 2006, etc.). In this respect, the instant project agreement should be deemed null and void.

5) Determination on the assertion by the Defendant and the Intervenor joining the Defendant

A) The assertion that the demand for performance under Article 544 of the Civil Act is necessary in order to lose the status of the intervenor's priority negotiation target.

The defendant asserts that the agreement between the defendant and the intervenor to enter into a business agreement by December 27, 2013, which is the time limit for the conclusion of the business agreement, constitutes bilateral contract, and thus, in order for the intervenor's consortium to lose the status of the intervenor's priority negotiation target on the ground that the intervenor's consensus delays the performance of the obligation to enter into the business agreement, it was necessary to give notice of implementation pursuant to Article 544 of the Civil Act. Accordingly, the defendant urged the intervenor to perform the obligation to enter into the business agreement by December 30, 2013 at the intervenor's consortium and the intervenor's consensus to the effect that the business agreement in this case was effective according to the highest notice of the implementation thereof.

The main text of Paragraph 5-1 (b) of the Guidelines for Public Offering of this case provides that "If a person subject to preferential bargaining fails to enter into a project agreement within the deadline for concluding the project agreement without justifiable grounds, he/she shall lose the status of the person subject to preferential bargaining."

Therefore, the issue of whether the legal status prior to the conclusion of the business agreement between the preferred bidder (the intervenor consortium) and the project executor (the defendant) under the public invitation guidelines of this case can be seen as a contractual relationship as alleged by the defendant, and whether the time limit for the conclusion of the business agreement under the public invitation guidelines of this case can be seen as the establishment of a bilateral contract between the preferred bidder and the project executor. Even if such agreement is acknowledged, whether such agreement can be seen as a bilateral contract relationship (whether a quid pro quo is a quid pro quo obligation) can be seen as a bilateral contract relationship. If the preferred bidder fails to conclude the business agreement within the time limit for the conclusion of the business agreement without justifiable grounds, the status of the preferred bidder should be immediately lost (the literary interpretation of the legal act) without undergoing a separate procedure such as the peremptory notice of performance as stated in the above public invitation guidelines, and therefore, the defendant's above assertion is without merit, premised on the premise that the demand for performance under Article 544 of the Civil Act should be required in order to lose the intervenor's status

B) The argument that the deadline for concluding a business agreement has been lawfully extended by agreement between the defendant and the intervenor.

The Defendant and the Intervenor asserted to the effect that the Intervenor requested the Defendant to extend the deadline for concluding the business agreement four times before the time limit for concluding the business agreement expires, and the Defendant notified the Intervenor’s consortium on December 30, 2013 to perform the obligation to conclude the business agreement by January 6, 2014. Accordingly, the Defendant and the Intervenor agreed to extend the deadline for concluding the business agreement by January 6, 2014. Thus, the instant business agreement is valid as it was concluded within the extended time limit for concluding the business agreement.

In the proviso of 5-1. b. 2) of the Guidelines of this case, the subject of preferential negotiations may extend the time limit for concluding a business agreement in consultation with the project implementer if it is inevitable for the purpose of the project. The participant's meeting requests the defendant to extend the time limit for concluding the business agreement four times from December 24, 2013 to December 27, 2013. The fact that the defendant finally urged the intervenor's meeting on December 30, 2013 to perform the obligation to conclude the business agreement by January 6, 2014 is as seen earlier.

However, the phrase “the extension of the time limit for the conclusion of the project agreement” in the proviso of Article 5-1(b) of the Guidelines for Public Offering 5-1(2) is late until the time following the initial time limit prior to the arrival of the time limit for the conclusion of the project agreement. In addition, if the phrase itself is followed by the language itself, only the person who is in the position of the person subject to preferential bargaining may enter into an agreement on the extension of the time limit for the conclusion of the project agreement with the project operator. The participant’s consortium did not reach an agreement on December 30, 2013, which is prior to the Defendant’s peremptory notice for the performance of the project on December 27, 2013. Thus, the participant’s consent did not appear to have reached an agreement on the extension of the time limit for the execution of the project agreement with the Defendant 2 at the time of the signing of the project agreement with the Defendant 3rd.

In addition, it is not permissible that the Defendant, after the expiration of the period for concluding the business agreement, provided another opportunity to recover the status of the intervenor consortium and conclude the business agreement by concluding an extension agreement between the intervenor consortium who was actually in the position of the preferred bidder after the lapse of the period for concluding the business agreement, to recover the status of the intervenor consortium and to enter into the business agreement. Thus, it cannot be said that the Defendant’s prior negotiation status of the intervenor consortium is recovered and the period for concluding the business agreement was effectively interrupted by the intervenor’s demand on December 30, 2013.

Therefore, the above argument by the defendant and the intervenor joining the defendant, based on the premise that the period for concluding the business agreement has been extended legally by the agreement between the defendant and the intervenor, is without merit.

6) Sub-decisions

Thus, the business agreement of this case infringes on the legal status or rights of the consortiums following the intervenor consortium, and it is a juristic act with serious defects to the extent that the public offering procedure of this case and the bidding procedure of this case significantly infringe on the public nature and fairness of the bidding procedure of this case, and thus becomes null and void automatically from the beginning. As seen earlier, the plaintiffs have the legal interest to seek confirmation that the business agreement of this case is null and void.

D. Determination as to whether the plaintiffs' consortiums are in the position of the priority negotiating party

1) Whether the Intervenor’s consortium loses the status of the subject of preferential bargaining and at the same time holds the status of the subject of preferential bargaining

In this case, the following facts are as follows: (a) the project implementer (Defendant) shall select a project applicant who has obtained a highest score from among the project applicants in the instant public offering proceeding as a priority negotiation object; and (b) may select a subordinate negotiation object by priority according to the evaluation score; and (c) the fact that the public offering guidelines in this case provides that the designation of a subordinate negotiation object may be made. As such, the purport that the public offering guidelines in this case requires the project implementer (Defendant Defendant) to select a subordinate negotiation object in a situation in which it is impossible to enter into a business agreement with the person selected as a priority negotiation object without conducting the public offering and immediately allow the project implementer (Defendant Defendant) to enter into the business agreement with the subordinate negotiation object in the instant public offering proceeding. Accordingly, as long as the Defendant selects the priority negotiation object and the subordinate negotiation object is selected together, the loss of status and the status of the subordinate negotiation object shall be deemed to have become a priority negotiation object at the same time.

With respect to the instant case, it is clear that the Defendant’s selection of the Intervenor’s consortium as a junior negotiating party with priority to the Intervenor’s consortium in the instant public recruitment procedure, as seen earlier, and that the Intervenor’s consortium lost the status of the preferred negotiating party because the Intervenor’s consortium did not enter into a business agreement within the time limit for concluding the business agreement and lost the status of the preferred negotiating party. Therefore, it is clear that the Intervenor’s consortium continued to have the Intervenor’s consortium and the Plaintiff’s preferential negotiating party status even without any separate Section.

Therefore, the consortiums of the plaintiffs are in the position of the preferred bidder who can enter into a business agreement for the implementation of the passenger terminal development project of this case with the defendant, and the plaintiffs have legal interest to seek confirmation that the consortiums of the plaintiffs are in the position of the preferred bidder as above.

2) Determination as to the assertion by the Defendant and the Intervenor joining the Defendant

As to this, the Defendant and the Intervenor asserted to the effect that, in order for subordinate negotiation subjects to become priority negotiation subjects pursuant to paragraph 2-1.c. of the instant public invitation guidelines, the Defendant should separately designate subordinate negotiation subjects as priority negotiation subjects after losing their status as priority negotiation subjects, and the subordinated negotiation subjects should undergo the procedure of re-payment of the project application deposit within 10 days from the date of designation.

In this case, if a person who was deprived of the process of selecting a priority negotiation object and received the deposit for business application from the defendant is designated as a subordinate negotiation object due to the decline in the process of selecting a priority negotiation object, he/she shall pay the deposit for business application within 10 days from the date of designation, and if he/she fails to pay the deposit for business application within 10 days from the date of designation without any special reason, he/she may designate a subordinate negotiation object." However, the above public invitation guidelines provisions do not select a subordinate negotiation object.

In a situation where there is no need to newly designate a subordinate negotiating party due to the decline of the priority negotiating party even though it is serious, it is clear that this case is not applicable to which the initial subordinate negotiating party is selected.

Ultimately, the above argument by the Defendant and the Intervenor joining the Defendant cannot be accepted, premised on the premise that the Defendant separately designates the subordinate negotiation subject subject person as the priority negotiation subject person, but the subordinate negotiation subject becomes the status of the priority negotiation subject person.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified and it is so decided as per Disposition.

Judges Kim Jong-Gyeong

Judges Kim Byung-hun