(영문) 대전고등법원 2020.1.30. 선고 2019누10410 판결

The Defendant’s disposition to cancel each registration of qualification for participation in bidding against Plaintiff A and B on September 13, 2017 and the disposition to cancel the registration of qualification for participation in bidding against Plaintiff C on September 26, 2017 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. All the plaintiffs' claims are dismissed.

Reasons

1. Quotation of the first instance judgment

The grounds for appeal by the defendant are not significantly different from the allegations in the first instance court, and the fact-finding and decision of the first instance court are justified even if the parties' arguments are examined in addition to the evidence submitted to this court in the first instance.

Therefore, the reasoning of the judgment of this court is as stated in the reasoning of the judgment of the court of first instance, in addition to the dismissal of part of the reasoning of the judgment of the court of first instance as set forth in the following paragraph (2). Thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence

2. Parts to be dried;

○, on the 3rd page, "5230250302" is raised to "5310250302" in the 9th column (the classification number of female mother and child goods against Plaintiff B).

The "other party" in the last 5th parallel shall be deemed to be the "other party".

Part 7 provides that "............................." is regulated, and Article 17 provides that the participation shall not be restricted by setting requirements, other than competition participation qualification, under Article 12 of the Enforcement Decree of the State Contracts Act, except as otherwise provided.

On the 8th page, 9, added "(the defendant stated that there is no other method to participate in the bidding unless he is registered as qualified to participate in the bidding at the first date for pleading of the trial)".

○ Parts 7 through 19 shall be changed to the following parts:

"A. Violation of the principle of statutory reservation."

1) According to the Electronic Procurement Use and Promotion Act of Electronic Procurement (hereinafter “Electronic Procurement Act”), the Administrator of the Public Procurement Service shall establish the Electronic Procurement System to electronically process the procurement business, determine and publicly notify the standards for the establishment and operation of the Electronic Procurement System (Article 12(1) and (3). When an electronic procurement user participates in a competitive bid or several contracting parties to a contract conducted through the Electronic Procurement System, he/she shall submit a bid document or quotation in electronic form, as prescribed by Presidential Decree (Article 7). The main sentence of Article 11(1) of the Framework Act on the Electronic Procurement, which is the public notice of the Public Procurement Service, provides that the head of the demanding agency, etc. shall not only automatically block the Electronic Procurement System pursuant to Article 9(2), but also through the information of the procuring company provided by the Electronic Procurement System, etc. of the Enforcement Rule of the Act on Contracts to Which the State Is a Party and Article 14(3) of the Enforcement Rule of the Act on Contracts to Which a Local Government Is a Party, he/she may verify and determine the qualifications for participation in the Electronic Procurement System.

2) In full view of the contents of the aforementioned statutes and the Enforcement Rule of the State Contracts Act and the Regulations on the Registration of Qualifications for Participation in the National Electronic Procurement System, the National Comprehensive Electronic Procurement System Qualification Regulations provide the procedures, requirements, criteria, effects, etc. of registration of participation in bidding in bidding procedures through the Electronic Procurement System, and can be deemed as one of the criteria for the establishment and operation of the Electronic Procurement System. Thus, the registration of participation in bidding and the cancellation of registration shall be deemed as the basis for the Electronic

In addition, although there was no particular defect at the time of the disposition, and there was no separate legal ground for the revocation or withdrawal after the disposition, where there was no change in circumstances that make it unnecessary to continue the original disposition, or where there was a need for important public interest, the disposition agency which has performed an administrative act may revoke or withdraw it (see Supreme Court Decision 2014Du41190, Mar. 15, 2017).

Therefore, where the defendant no longer needs to continue the above registration after the registration of qualification for participation, or where it is necessary for the important public interest to cancel the above registration, the defendant can cancel the above registration in a manner that cancels the registration of qualification for participation in bidding ex officio, even if there is no statutory provision on cancelling the already registered qualification for participation in bidding.

3) Therefore, this part of the plaintiffs' assertion that each of the dispositions of this case was made without legal grounds is without merit.

○○ The last 14th parallel shall be called “Dongbper” as “Dongbper”.

○ Heading No. 11, No. 15, “Evidence 1 and 9,” shall be understood as “Evidence 1, 9, 25, 29 through 31,” respectively.

○ From the bottom of the 15th to the 5th "tax invoices," followed by the following:

○ The following shall be added at the end of 16th page 9:

Comprehensively taking account of the overall purport of the arguments in the descriptions or videos of the evidence Nos. 25 and 29, E supplied letter-post upon request from the Plaintiff A to April 2017. The Plaintiff is recognized as having performed the process of wing, finishing, labeling, packing, etc. using the original body post that was supplied as above.

In full view of the overall purport of the arguments in the letter Nos. 30, 31, and 16 of the title No. 16, the phrase “as seen above,” the fire officers and other fire-fighting-related individuals purchase the Plaintiff’s product, booms, her caps, and her caps through the shopping mall operated by the Plaintiff A, and thus the same is changed to the phrase “.......”

Then, the phrase “the fact that he/she was from June 14, 2016 to September 30, 2017” of the 12th eth 17th eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth

○ Heading 3, “No. 2, No. 11, and No. 26 of A,” of heading 18 shall be “Evidence No. 2, 10, 32, and 33 of A, and Evidence No. 11, 26, 29, and 30 of A.

Pursuant to the statement in Eul evidence 1-2, "No. 1-2 of Eul evidence No. 1-2" of the 18th page No. 9-10 of the 18, the plaintiff Eul (the plaintiff's mother) was changed to "the fact that the plaintiff Eul purchased the fire captain's 1,014,800 won in total on June 30, 2016, the sum of 9,120,000 won in total on October 25, 2016, and the fact that the fire captain purchased the mother's 120,000 won in total on November 9, 2016."

In Section 18, "no evidence exists" in Section 12, the following is added to "(the plaintiff B also sold goods, such as her mother and child, to an individual related to fire-fighting, such as the plaintiff B)."

Each "60,000,000 won" of 18, 15, 17, shall be read as "1,250,000 won", and "120,000 won" of 16-17, as "the above", shall be changed to "the equivalent amount".

○ The following shall be added to the end of the 12th page 19.

Comprehensively taking account of the overall purport of the arguments in Articles 10, 33, and 29, and 30 of “A”, the Defendant sent a letter to the Plaintiff on August 7, 2017, stating that he/she will conduct on-site inspections for the verification of direct production, and that he/she will prepare necessary documents. Upon the competent authority having jurisdiction over the Plaintiff’s visit the Plaintiff’s site on August 9, 2017 and request for perusal of documents within the glnet, he/she could not read the Plaintiff’s trade secret. On August 18, 2017, the Defendant notified the Plaintiff B of the submission of a written estimate, electronic tax invoices, transaction specifications, etc. by purchaser among the materials that he/she refused to peruse and submit at the time of the verification of direct production. In light of the circumstances that the Plaintiff sent to the Defendant on August 23, 2017, including tax invoices, etc., the Defendant’s refusal to conduct an investigation is difficult to readily conclude.

○, No. 14 of the 19th page 14, "Evidence 3 of the A" means "Evidence 3, 27 of the A".

○ The following shall be added at the end of the fourth page 20:

『오히려 갑 제27호증의 기재 내지 영상에 변론 전체의 취지를 종합하면, 원고 C는 주식회사 N로부터 소방공무원용 방한복 및 우의 생산에 필요한 씸실링기를 빌려서 사용하고 있는 사실이 인정되기도 한다.』

○ From the bottom of the 20th to the 5th 7th 7, “The facts of No. 1-3 of the evidence is recognized.”

According to the evidence No. 1-3 of "B", it is recognized that the plaintiff C received a tax invoice from I that "the son and woman, who is a product registered for participation in bidding, was supplied with "the son and woman, who is a product registered for the participation in bidding," for the period during which the plaintiff C was supplied to the end-user institution."

○ From the bottom of the 20th to the second, each "80 million won" of the 21st to the "50 million won" of the 21st to the "58.6 million won", and the "amounting to 2,285,600 won of the 21st to the same part" shall be changed to the above.

○ In addition, this judgment (attached Form) is added to the relevant Acts and subordinate statutes of the first instance judgment.

3. Conclusion

Therefore, the plaintiffs' claims are justified, and the judgment of the court of first instance is just in conclusion. Therefore, the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.