[1] The basis provision of the local government ordinances stipulating that fees shall be imposed on a request for participation

[2] Whether a local government’s administrative work for a specific person at the same time is a local government’s own administrative work for a specific person (affirmative), and whether the administrative work accepting a request for participation in a tendering procedure is also for a participant in a tendering procedure (affirmative)

[1] The Local Finance Act and the Act on Contracts to Which the State is a Party, which provide for the conclusion of a contract by a local government, do not provide for the imposition of a fee for a request for participation in a tendering procedure, and there is no provision for the imposition of a fee for a request for participation in a tendering procedure. Thus, a local government may collect a fee for a request for participation in a tendering procedure under Article 128(1) of the Local Autonomy Act which provides that "if the affairs of the local government are for a specific person,

[2] The purpose of Article 128(1) of the Local Autonomy Act is not to collect fees only when the affairs of the local government are affairs for a specific person, but also when the affairs of the local government are affairs of the local government for a specific person at the same time. In full view of the bid affairs, the tender affairs of the local government are affairs for the administrative purpose of the local government for which the contracting party should be determined in concluding the contract as the private economic entity. However, the affairs to accept the application for participating in the tender are affairs for the local government as well as affairs for participation in the tender at the same time as affairs for the local government. Thus, the ordinances of the local government to collect fees for participating in the tender are legitimate within the scope of delegation by the Act.

[1] Articles 128(1) and 130(1) of the Local Autonomy Act / [2] Articles 128(1) and 130(1) of the Local Autonomy Act

Danam Construction Co., Ltd. (Attorney Kim Young-chul, Counsel for the plaintiff-appellant)

Busan District Court Decision 201Na1448 delivered on August 1, 201

Changwon District Court Decision 97Na731 delivered on April 17, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

According to the records, the defendant revised the "Ordinance on the Collection of Fees for Certification, etc. by the defendant on February 15, 1996 to provide that the defendant's application for participation in the tendering procedure shall also be subject to collection of fees, and at the same time, the fee shall be set at KRW 10,000 per case for each application for participation in the tendering procedure. Since there is no provision that allows local governments to impose fees on the application for participation in the tendering procedure under the Local Finance Act or the "Act on Contracts to Which the State is a Party" as applied mutatis mutandis under Article 63 of the same Act, there is no provision that allows local governments to collect fees on the application for participation in the tendering procedure to impose fees on a specific person, Article 128 (1) of the Local Autonomy Act which provides that "the local governments may collect fees on the affairs for which the local governments are responsible for a specific person." However, Article 130 (1) of the Local Autonomy Act provides that matters concerning the collection of fees shall be prescribed by municipal ordinances, and the proviso to Article 15 of the same Act provides that the residents shall impose or delegate.

However, the purpose of Article 128(1) of the Local Autonomy Act is not to collect fees only when the affairs of the local government are affairs for a specific person, but also when the affairs of the local government are affairs of the local government for a specific person at the same time. Considering the overall affairs of bidding, the affairs of bidding are affairs for the administrative purpose of the local government that the local government should determine the counter-party to the contract in concluding the contract as a private economic entity. However, since the affairs of accepting the application for participating in bidding are both affairs for the local government and affairs for bidding at the same time for the local government, the defendant's municipal ordinance that the local government has to collect fees for participating in bidding is legitimate within the scope of delegation by the law, and it is somewhat excessive to impose fees of KRW 10,000 on the application for participating in bidding, it cannot be said that it unfairly limits the right to participate in bidding. Accordingly, the judgment below that rejected the plaintiff's assertion that the above municipal ordinance is null and void is just and there is no reason to oppose all the arguments to this purport.

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

Justices Final Young-young (Presiding Justice)