입주자대표회의의 구성원인 병이 관리소장을 통하여 갑 아파트 입주자대표회의의 명의로 공동주택관리정보시스템에 접속하여 을 회사를 낙찰자로 입력한 결과 이러한 내용의 전자문서가 위 시스템에 게시된 점 등에 비추어 보면, 갑 아파트 입주자대표회의가 ‘을 회사를 낙찰자로 정하였다’는 전자문서를 을 회사를 포함한 입찰참가자들에게 송신하여 입찰참가자들이 이를 수신하였음이 인정되고, 입찰공고 및 시방서의 내용 등에 비추어 보면 위 입주자대표회의에게 입찰공고 및 시방서에 따라 ‘지하주차장 천장균열 누수부를 지하주차장특허공법으로 시공할 수 있는 업체’ 중 입찰가액을 최저가로 제출한 업체를 낙찰자로 결정할 의무가 있음이 인정되나, 구 주택관리업자 및 사업자 선정지침이 구 주택법 시행령(2015. 3. 30. 대통령령 제26172호로 개정되기 전의 것) 제55조의4 의 위임에 따라 제정된 법규명령으로 대외적인 구속력이 있는 점, 위 선정지침 제5조 [별표 3] 제4호에 의하면 담합하거나 타인의 경쟁참가를 방해하거나 입주자대표회의 또는 관리주체의 업무집행을 방해한 자의 입찰은 무효인 점, 을 회사는 전자입찰에 참가하면서 특허공법 사용승인서를 제출한 다른 입찰참가업체들과 공동으로 낙찰자와 낙찰가격을 결정하는 담합행위를 하고, 지하주차장특허공법 사용승인서를 제출하지 않은 업체의 경쟁참가를 방해하며, 갑 아파트 입주자대표회의의 업무집행을 방해한 점 등을 종합하면, 을 회사의 입찰은 위 선정지침 제5조 [별표 3] 제4호를 위반하여 무효라고 한 사례이다.

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

A. The defendant is the council of occupants' representatives comprised of the representatives for each building of the 33 Sung-dong, Seogu, Daegu-gu, Incheon-gu (8 Dong Dong 1,256 households, hereinafter "the apartment of this case"). The plaintiff is a company established for the purpose of the construction design construction business.

B. On March 13, 2015, the Defendant, with the long-term repair appropriations under the long-term repair plan, publicly announced the electronic bid (hereinafter “instant bid”) in order to give a contract for the rupture repair works, etc. of the instant apartment building (hereinafter “instant construction”) and to select the contractor, and the main contents are as follows.

(1) Table 2. Bidding: (2) Incidental and welfare facilities (including ancillary and welfare facilities) the underground parking lot floor repair and existing waterproof part (3) the construction work (4) the construction work for water leakage such as ceiling, 2.00 million won or more in capital at the time of the 2. see (1) the construction site preparation report; (3) the construction company (2) the construction work for specialized construction business (2) the construction project operator (2012, 2013, 2014) or the construction work for the apartment (2: 3: the construction site preparation work) the construction work for which 5.0 or more households have been submitted; (4) the construction work for the new construction project; (5) the construction work for the new construction project; (1) the construction project operator (2) the construction site preparation work for the new construction project; (2) the construction project operator (2) the construction site preparation work for the new construction project; 3: the construction project operator (4) the construction project operator is not subject to 2.5.0 or more than 15.

C. On March 23, 2015, the Defendant held the site site consultation committee and distributed specifications to the participating companies. Of the specifications, the method of construction of the department of water leakage in the ceiling for underground parking lots (i.e., the place that can be accumulated in the heating section of the building, outside walls, or the ceiling for underground parking lots) is that “the method of construction of the department of water leakage in the ceiling for underground parking lots (i.e., a building, outside walls, or the ceiling for underground parking lots) shall be sealed after waterproof measures, such as a projector, and if leakage occurs even after the completion of construction, it shall be deemed that the defect is deemed that the facility is defective (i.e., a small sum of water leakage in the ceiling for underground parking lots (hereinafter “the Patent Construction Act”). The details of the floor specifications of the underground parking lot is that

D. On March 31, 2015, the Plaintiff participated in the instant bidding with the bid price of KRW 615,600,000. The Plaintiff’s statement submitted by the Plaintiff was set at KRW 1350,000 as the construction cost for the underground parking lot patent construction, and the content of the “project proposal” is to use the Patent Law for Underground Parking Lot (patent registration number 1 omitted). The Plaintiff submitted a written approval for the use of the Business Proposal. The Plaintiff submitted a written approval for the use of the Patent Law for the apartment parking lot patent construction, and the content of the written approval for the use thereof was “the method of repairing ruptures for waterproof and painting the outer wall of the apartment (patent registration number 2 omitted),” “the concrete repair injection system, the inner extreme verification of concrete structures using it, and the index method (patent registration number 1 omitted).”

E. The 17 companies, including the Plaintiff, participated in the instant tender, and only the 4 companies higher than the bid price were issued with a letter of approval for use of underground parking lot patent law as follows. The bid price of the Hain Construction Co., Ltd. among the remaining companies was the minimum of KRW 327,00,000.

Hosung Construction Co., Ltd. 623,000,000 on 2,000 623,000,000 3 Changsung Construction Co., Ltd. 621,00,000,000 4 Plaintiffs 615,600,000

F. According to the public notice of the instant tender, the instant bid was conducted by electronic bidding, and the Defendant’s opening to the company that passed the document review by accessing the Ministry of Land, Infrastructure and Transport’s multi-family housing management information system (www.k-apt.go.go.) was automatically determined and publicly announced as the successful bidder in the instant system.

Multi-family housing management information system is operated by the Minister of Land, Infrastructure and Transport pursuant to Article 45-7 of the former Housing Act (amended by Act No. 12959, Dec. 31, 2014; enacted on April 1, 2015; hereinafter “former Housing Act”). It is a multi-family housing management information system operated by the Minister of Land, Infrastructure and Transport pursuant to the provisions of Article 45-7 of the former Housing Act, including management expenses, etc. of multi-family housing subject to compulsory management, maintenance records, bid

G. In the examination of documents, the Defendant issued a letter of approval to use the underground parking lot patent law and the 13 companies that did not submit a letter of approval to use the underground parking lot patent law, but did not comply with the construction of a creative company that did not submit relevant documents, and opened thereafter. On April 2, 2015, the Ministry of Land, Infrastructure and Transport multi-family housing management information system posted electronic documents that the Plaintiff bid at the lowest price of 615 million won as the successful bidder.

The purport of the document sent by the Defendant to the Plaintiff on May 29, 2015 is that “Although the Plaintiff was awarded the bid in the instant bidding on March 31, 2015, the bid price was revoked as it violates the relevant laws and regulations concerning the use of reserves for long-term repairs under the long-term repair plan, the former Housing Management Operator and Business Entities Selection Guidelines (Notice of the Ministry of Land, Infrastructure and Transport No. 2014-393, hereinafter “instant Selection Guidelines”) and the successful bid price are considerably different from the sentiments of the resident in the process of bidding (in the event of limited competitive bidding, restrictions on the specification of a specific patent at the time of limited competitive bidding) and the successful bid price

H. Relevant statutes applicable to the instant case are as stated in the attached Table 2 “related statutes”.

[Basis] Facts without dispute, Gap evidence Nos. 1, 3-1 through 12, 4-1 through 15, 6, 8-1, 2, and 2-1, 2, 3, 14, 15, 20, 22, and 28 of the evidence Nos. 1-1, 2, 2, and 28 of the evidence Nos. 1, 3, 3, 15, 20, 22, and 28

2. Parts of the main claim;

A. The plaintiff's assertion

Since the Defendant publicly announced the Plaintiff as a successful bidder on April 2, 2015, the Defendant and the Plaintiff have concluded a contract for the instant construction work or a pre-contract between the Defendant and the Plaintiff, and thus, the Defendant is obligated to implement the procedures for concluding the instant construction contract between the Plaintiff and the Plaintiff.

B. Legal principles

The council of occupants' representatives of multi-family housing is an unincorporated association consisting of representatives by buildings elected in proportion to the number of households by buildings (see Supreme Court Decision 2007Da6307, Jun. 15, 2007, etc.).

Where the representative of a non-corporate company performs an external transaction in violation of the provisions of the articles of incorporation, etc. regarding restrictions on the power of representation, and the other party to the transaction knew or could have known such restrictions, the transaction becomes null and void (see, e.g., Supreme Court Decision 2007Da21986, Sept. 7, 2007).

Where a person who is to be a contractor for a construction contract determines a successful bidder through a tendering procedure to select a contractor, a contract relationship between the bidder and the successful bidder is established with the content of the obligation to conclude the contract, and where either party refuses to conclude the contract without justifiable grounds, the other party may claim compensation for damages on the ground of nonperformance of the obligation to perform the contract (see Supreme Court Decision 2011Da41659, Nov. 10, 201).

Any declaration of intention made by the other party shall take effect when it reaches the other party (Article 111 of the Civil Act).

According to Article 43(7)1 of the former Housing Act, “electronic bidding method” means a method selected through an information processing system under subparagraph 2 of Article 2 of the Framework Act on Electronic Documents and Transactions. According to the “Framework Act on Electronic Documents and Transactions”, an electronic document shall be deemed sent when it was entered into an information processing system through which an addressee or his/her agent can receive the relevant electronic document (Article 6(1)), and if an addressee designates an information processing system through which he/she can receive the electronic document, it shall be deemed that it was received at the time of entry into the designated information processing system (Article 6(2)), and an expression of intent contained in an electronic document transmitted by a computer program or any other electronic means capable of transmitting and receiving the electronic document automatically is deemed to have been transmitted by the originator (Article 7(1)2).

(c) Whether to transmit the successful bidder's decision (esteem);

1) Facts of recognition

The following facts are acknowledged according to the above facts of recognition, the absence of dispute, the evidence Nos. 14, 15, the evidence No. 22-6, and 42, the testimony of Non-Party 1 of the first instance trial witness:

① According to the instant bidding notice, the bidding method is as follows. In other words, until March 31, 2015, the bidding participants have access to the multi-family housing management information system (www.k-apt.go.kr) at the Internet address by the Ministry of Land, Infrastructure and Transport (www.k-apt.go.r) and have access to the electronic bid electronically, and the Defendant opened the bid at the management office on March 31, 2015 and publicly announced the successful bidder in the said multi-family housing management information system (www.k-apt.go.r.).

② The Defendant consists of 14 persons who are eight Dong Dong-dong representatives. At the time of the instant tender, ten Dong-dong representatives were composed except the vacant and vacant persons. On April 2, 2015, Nonparty 2, the Defendant’s representative, asserted that the Defendant’s meeting should not withdraw from the document examination the company which failed to submit a written approval for the use of the underground parking lot Patent Law at the Defendant’s meeting. Nonparty 2 opposed to the opening of the meeting without accepting his claim and went at the meeting place.

③ Of the Defendant’s members, Nonparty 3, one representative of the Dong, Nonparty 1, the managing director, directed Nonparty 1, the head of the management office, to select and open three companies (Plaintiffs, Daesung Co., Ltd., and Mancheon-day Co., Ltd.) that submitted a letter of approval for the use of the underground parking lot Patent Law as document screening companies. Nonparty 1, linked to the multi-family housing management information system, opened the bid for the said three companies, entered the bid price for the said three companies as the lowest successful bidder, and the electronic document on April 2, 2015 was posted on the said system.

④ The purport of the document sent by the Defendant to the Plaintiff on May 29, 2015 is that the Plaintiff was successful in the instant tender on March 31, 2015.

2) Determination

The issue is whether the successful bidder's decision on the bidding of this case was externally indicated. ① The bidding of this case is a method of selecting an electronic bidding method, i.e., an information processing system under Article 2 (2) of the former Housing Act, i.e., the method of selecting a participant through the information processing system under Article 2 (2) of the Framework Act on Electronic Documents and Transactions; ② according to Articles 6 and 7 (1) 2 of the Framework Act on Electronic Documents and Transactions, an electronic document is deemed to have been transmitted and received at the time of entry into the information processing system through which the electronic document can be received; ③ the expression of intent included in the electronic document transmitted by electronic means is deemed to have been transmitted by the originator; ③ the defendant's member Nonparty 3 was linked to the multi-family housing management information system under the defendant's name and entered the plaintiff as the successful bidder, and it is reasonable to view that the defendant sent the electronic document to the participant including the plaintiff as the successful bidder on April 2, 2015.

The defendant's assertion is that since the defendant opened a bid without the representative of the defendant on April 2, 2015 and decided as the successful bidder, the decision of the successful bidder is invalid for the defendant.

According to the public notice of the bid in this case, the defendant opened on March 31, 2015 by the electronic bidding method to the management office and select the minimum company (restricted competition). ② The specifications distributed by the defendant to the bidding participants at the site site conference on March 23, 2015 stated that “the underground parking lot emulsion unit of the underground parking lot shall be constructed by the Patent Law of the Underground Parking Lot.” ③ Although the 17 companies including the plaintiff participated in the bidding in this case, the company, including the plaintiff, submitted a letter of approval for the use of the Underground Parking Lot Patent Law, was four companies including the plaintiff, and among which the plaintiff's bid price was the minimum, the defendant is obligated to determine the bid price as the successful bidder pursuant to the specifications distributed to the public notice of the bid in this case and the participating companies.

Since the defendant is an unincorporated association consisting of representatives from each building elected in proportion to the number of households for each building, members who are not the defendant's representative cannot represent the defendant. However, considering the fact that the defendant must determine the plaintiff as the lowest price company (restricted competition) according to the public announcement of the present case, the representative of the defendant left the opening place, and the defendant's electronic document should be deemed to have been transmitted and received when entering the electronic document into the multi-family housing management information system, so long as the non-party 3, who is the defendant's member, has access to the multi-family housing management information system through the head of the management office and sent the electronic document to the participants including the plaintiff as the successful bidder, the defendant's determination of the successful bidder shall not be deemed to have been effective against the defendant and the participants in the present case, barring any special circumstance. Thus, the defendant'

D. Whether the plaintiff's bid is invalid (esteem)

1) The defendant's assertion

The plaintiff's bid is invalid in accordance with the selection guidelines of this case, since the plaintiff interfered with the tender by being notified in advance by the non-party 3, who is the representative of the defendant.

2) Legal principles

According to the provisions of Article 19 (1) 8 of the Monopoly Regulation and Fair Trade Act, a business entity shall not jointly determine the successful bidder, successful bidder, bidding price, successful bid price or successful bid price or other matters prescribed by Presidential Decree with other business entities.

이 사건 선정지침 제5조, [별표 3] 제4호에 의하면, 담합하거나 타인의 경쟁참가를 방해하거나 입주자대표회의 또는 관리주체의 업무집행을 방해한 자의 입찰은 무효이다.

Unless there are special circumstances where it is difficult to adopt a factual judgment in a criminal trial in light of other evidence submitted in the civil trial, the fact that the criminal court already became guilty of the same factual basis even though it is not bound by the fact-finding of the criminal trial is not a sufficient evidence (see Supreme Court Decision 96Da9621, May 28, 1996, etc.).

3) The legal nature of the instant selection guidelines

If a provision of a statute grants a specific administrative agency the authority to determine the specific matters of the statute, and the delegated administrative agency does not specify the procedure or method of exercising its authority, and specifically provides for the matters to be the contents of the statute in the form of administrative rules, such administrative rules are not a general effect of administrative rules as seen above, but a general effect of the administrative rules, and have the function to supplement the contents of the statute in accordance with the validity of the provisions that grant the administrative agency the authority to supplement the specific matters of the statute. Accordingly, such administrative rules have the effect of an external binding legal order, combined with them, unless they go beyond the delegated limit of the pertinent statute (see Supreme Court Decision 2006Du3742, 3759, Mar. 27, 2008, etc.).

According to Article 45(4)3 and (5)2 of the former Housing Act, the council of occupants' representatives shall follow the method prescribed by Presidential Decree when it intends to select a business operator to execute the long-term repair appropriations and the amount accumulated therein. According to Article 55-4(1)3 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 26172, Mar. 30, 2015) (amended by Presidential Decree No. 26172, Apr. 1, 2015), the council of occupants' representatives shall select and execute a business operator who uses the long-term repair appropriations by the method determined and publicly announced by the Minister of Land, Infrastructure and Transport, and accordingly publicly announced the selection guidelines

In full view of the contents, form, purport, etc. of the above-related statutes, it is reasonable to deem that the instant selection guideline has its validity as an external binding legal order by supplementing the provisions concerning the selection of a construction business operator who uses reserves for long-term repairs by delegation under Article 55-4 of the former Enforcement Decree of the Housing Act.

4) Facts of recognition

The following facts are acknowledged according to each description of the facts without dispute, evidence of the above quoted, and evidence of Eul Nos. 18, 21, 23.

① Nonparty 3, the representative of the Defendant, and Nonparty 4, the representative of the Plaintiff, were indicted on suspicion of interfering with the instant bidding, and was sentenced to six months of imprisonment on January 12, 2018 (Seoul District Court Decision 2016Kadan1723), and Nonparty 3 and Nonparty 4 appealed, but was sentenced to the dismissal of the appeal on June 1, 2018 (Seoul District Court Decision 2018No378). Nonparty 3 appealed and withdrawn the appeal, and the judgment of the first instance became final and conclusive as it is, and Nonparty 4 was still pending in the final appeal (Supreme Court Decision 2018Do9794).

② The criminal facts of the final and conclusive judgment against Nonparty 3, as indicated in the attached Table 1, are as follows: Nonparty 3 and Nonparty 4 conspired to put the underground parking lot patent construction method into the specifications and pass the document review only by the company which submitted the approval of use; (b) Nonparty 3 informed Nonparty 4 in advance of the amount allocated to Nonparty 4 as the Defendant’s long-term repair appropriations (620 million won) and submitted the approval of use of the underground parking lot patent construction method to Nonparty 3, who submitted the approval of use of the underground parking lot patent construction method, and the Plaintiff was awarded the construction of this case by setting up a bid price higher than the Plaintiff’s bid price.

5) Determination

살피건대 ① 이 사건 선정지침은 구 주택법 시행령 제55조의4 의 위임에 의하여 제정된 법규명령으로 대외적인 구속력이 있는 점, ② 이 사건 선정지침 제5조, [별표 3] 제4호에 의하면, 담합하거나 타인의 경쟁참가를 방해하거나 입주자대표회의 또는 관리주체의 업무집행을 방해한 자의 입찰은 무효인 점, ③ 원고는 이 사건 입찰에 참가하면서 주식회사 창인 등과 공동으로 낙찰자와 낙찰가격을 결정하는 담합행위를 하고, 지하주차장특허공법 사용승인서를 제출하지 않은 업체의 경쟁참가를 방해하며, 입주자대표회의인 피고의 업무집행을 방해한 점 등을 종합하면, 원고의 입찰은 이 사건 선정지침 제5조, [별표 3] 제4호를 위반하여 무효라고 할 것이다.

(e) Whether the contract is concluded or not;

Since the Defendant, who will be a contractor of the instant construction, sent an electronic document to the Plaintiff through the multi-family housing management information system of the Ministry of Land, Infrastructure and Transport on April 2, 2015, and the Plaintiff received it, the contract relationship between the Plaintiff and the Plaintiff was established when the Plaintiff’s bid becomes effective. However, as seen earlier, since the Plaintiff’s bid becomes null and void, electronic document of the determination of the successful bidder sent by the Defendant to the Plaintiff is invalid, and therefore, the Defendant has no obligation to conclude the instant construction contract between the Plaintiff. Accordingly, the Plaintiff’s assertion of the contract on a different premise is without merit.

3. Part of the preliminary claim (Dismissal); and

A. The plaintiff's assertion

The Defendant, by determining the Plaintiff as a successful bidder, is obligated to conclude the instant construction contract between the Plaintiff and the Plaintiff. On May 29, 2015, the Defendant breached its duty to conclude the contract by notifying the Plaintiff that it would not conclude the contract, and the Plaintiff was able to gain a profit equivalent to KRW 61,500,000,000,000, which is about 10% of the bid price when the instant construction work was conducted. As such, the Defendant is obligated to pay the Plaintiff KRW 61,50

B. Determination

As seen earlier, since the Plaintiff’s bid is null and void, the Defendant is not obligated to conclude the instant construction contract with the Plaintiff. As such, the Defendant’s assertion on the Plaintiff’s compensation for damages on a different premise is without merit without examining any further.

4. Conclusion

The plaintiff's primary and conjunctive claims are without merit, and all of them shall be dismissed. The judgment of the court of first instance, which dismissed the plaintiff's primary claims, is just, and thus, the plaintiff's appeal is dismissed, and the additional conjunctive claims are dismissed in the trial. It is so decided as per Disposition.

[Attachment 1] Criminal facts: omitted

[Attachment 2] Relevant Statutes: omitted

Judges Jin Sung-chul (Presiding Judge)