(영문) 서울행정법원 2017.8.31. 선고 2016구합83341 판결

On December 5, 2016, the defendant revoked the plaintiff's disposition on December 5, 2016 to revoke the plaintiff's qualification to participate in competitive tendering process open only to small and medium entrepreneurs and to restrict

Reasons

1. Details and details of the disposition;

A. The Plaintiff is a corporation that produces and sells high-Robbery concrete files (PHC files) established around August 30, 201 and around August 30, 201.

B. A cooperative (hereinafter referred to as the "cooperative of this case") is a non-profit corporation established with the main objective of the development of the concrete industry and the promotion of the welfare of its members, among the domestic small and medium enterprises producing concrete poles for electricity transmission and communications, which reinforce the HC file around February 1990, as a PHC file that reinforces the brick base, which is sewage pipes, as well as the judgment of the court below, which is a sewage pipe, with the aim of facilitating the development of the concrete industry and the promotion of the welfare of its members. Seven small and medium enterprises producing the PHC file such as the plaintiff [the plaintiffs, C, D, D, E, E, F, H, G, H, I, K, K, K, K, K, K, K, K, M, N, M, Inc., Inc., Ltd., and the name of the corporation excluding the "stock company", limited liability company", and the "limited liability company]; all of them are members of the above cooperative.

C. On July 1, 2016, S, the representative director of the Plaintiff, in collusion with the executives of the instant association, the representative director of the instant association, or the person in charge of tendering affairs, from July 1, 201 to May 24, 2016, in relation to the purchase of government-funded PHC files between the instant association and the members of the instant association, prior to the designation of the successful bidder (association or individual member companies) and the person who is scheduled to award the successful bid, the remaining companies were to receive the successful bid by the method of not participating in the relevant competitive bid, or the remaining companies were to have the successful bidder receive the successful bid by intentionally failed to select the successful bidder in excess of the original bid price, or to have the person in charge of bidding affairs of the instant association enter into the contract by a negotiated contract, and to have a specific company convert the contract method into the contract method by means of a negotiated contract (hereinafter referred to as “instant collaborative act”) and to have a specific company acquire the bid price by means of a 3606365% or more of the successful bid price.

D. Accordingly, the Defendant recognized that the instant union and the instant member companies were in collusion in the government-class PHC file purchase bid as shown in the facts charged, among which, the Plaintiff was awarded a successful bid (attached Form 2 / [Attachment 2], the status of the Plaintiff’s successful bid, the total bid amount of KRW 21,404,976,40), and the portion (attached Form 3] that the instant union distributed to the Plaintiff according to the principle of allocation of the share of the joint venture to each member company in the bid awarded by the instant association (attached Form 3) and the portion (attached Form 9,452,720,963), on December 5, 2016, on the ground that “the Plaintiff committed an unfair act, such as collusion, etc.” against the Plaintiff on December 5, 2016, on the grounds that Article 8(3)3 of the Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Development of Agricultural Support for Small and Medium Enterprise Enterprises (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Relevant statutes

1) According to Articles 6(1) and 7(1) of the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Development of Market Support (amended by Act No. 14839, Jul. 26, 2017; hereinafter referred to as the “Market Support Act”), the Administrator of the Small and Medium Business Administration may designate a product directly produced and provided by a small and medium business proprietor as a competitive product among small and medium business proprietors (hereinafter referred to as “competitive product”), and the head of a public institution shall conclude a procurement contract for competing products through a limited competition for only small and medium business proprietors or a designated competition among small and medium business proprietors (hereinafter referred to as “competitive competition among small and medium business proprietors”).

Article 8(3)3 of the former Act on Promotion of Purchase of Small and Medium Enterprises and Support for Development of Market (amended by Act No. 13866, Jan. 27, 2016; hereinafter referred to as the "former Act on Support of Market Support") provides that "the Administrator of the Small and Medium Business Administration may cancel the eligibility for participation or suspend it for a period not exceeding one year, where a small and medium enterprise participating in a small and medium enterprise competitive bidding among the small and medium enterprises has committed an unfair act, such as collusion. The Administrator of the Small and Medium Business Administration may restrict the acquisition of eligibility for participation within one year from the date of cancellation if he/she cancels eligibility for participation, but Article 8(3)3 of the former Act on Promotion of Market Support (amended by Act No. 13866, Jan. 27, 2016; hereinafter referred to as "the former Act on Promotion of Market Support") provides that "the Administrator of the Small and Medium Business Administration shall cancel eligibility for participation within one year from the date of cancellation of eligibility for participation."

2) Other regulations are as listed in attached Form 1.

B. Whether Article 8(3)3 of the Act on the Development of Market Support and Article 8(3)3 of the former Act on the Development of Market Support are unconstitutional

1) Whether the principle of clarity is violated

A) Summary of the Plaintiff’s assertion

Article 8(3)3 of the Act on the Development of Agricultural and Fishing Villages or Article 8(3)3 of the former Act on the Development of Agricultural and Fishing Villages provides that "unfair conduct, such as collusion," shall be construed as "unfair conduct". Since "unfair conduct" is excessively unclear and it cannot be known that certain conduct constitutes grounds for sanctions, it is invalid in violation of the constitutional principle of clarity. Thus, the instant disposition based on the provision

B) Determination

The reason for the instant disposition is that the Plaintiff committed collusion in the government-funded PHC file purchase bid, and thus, the part of the “competing act” under each of the above legal provisions is not applied, and the “unfair act” part is not applied. The Plaintiff’s above assertion is related to the part of the legal provision that is not applicable to the instant disposition, and therefore, it is without merit without further review.

2) Whether the principle of excessive prohibition is violated

A) Summary of the Plaintiff’s assertion

Article 8(3)3 of the Act on the Development of Market Organizations provides that the scope of participation in all business areas of a public institution is restricted to necessary without considering the individual, specific circumstances, degree of fraudulent act, etc. caused by the person who committed the above act, thereby infringing on the freedom of occupation in violation of the principle of excessive prohibition under the Constitution. Thus, the instant disposition based on such provision is unlawful.

B) Determination

Article 8 (3) 3 of the Act on the Development of Agricultural and Fishing Villages provides that a small and medium enterprise participating in a competitive bidding between small and medium enterprises shall be subject to revocation of the qualification for participation in the bidding of small and medium enterprises in the bidding of the small and medium enterprises concerned, if it is necessary to protect fair competition between small and medium enterprises in order to enhance the competitiveness of small and medium enterprises and to achieve the legislative purpose of promoting management stability, which is highly illegal to the extent that the collusion is punished by interference with bidding. The strengthening of administrative sanctions on this matter appears to be a legislative decision in consideration of the circumstances such as bid collusion in our society, and even if the qualification for participation in bidding of small and medium enterprises is restricted, it still violates the principle of excessive prohibition, such as the least

Inasmuch as it is difficult to readily conclude that the Plaintiff’s assertion on this part is without merit.

1) Summary of the Plaintiff’s assertion

(A) the existence of the reasons for the measure

Since the ratio of transportation cost to the cost of PHC file to the cost of transportation is very high, profitability is nonexistent if the distance from the construction site where the PHC file producer is located and the construction site where the PHC file is supplied. In such a situation, it is possible to participate in the tendering process in the competitive tendering process open only to local enterprises located adjacent to the construction site where the PHC file is supplied. As such, when the public announcement of the PHC file-related tendering process is made, it is merely a consultation on whether the PHC file producer in the vicinity of the construction site can share inventory to one another and hold a bid to ensure that the bidding is not possible, and it is merely a sufficient and sufficient way to avoid a bid to the extent recognized in general transaction norms. Moreover, the Plaintiff’s participation in the tendering structure formed by the combination of this case for the purpose of preventing the aggravation of the yield due to the unbrupted blood competition. Thus, it cannot be deemed that the Plaintiff engaged in the market support project under Article 8(3)3 of the former Act or Article 8(3)38(3) of the Act.

B) A deviation from or abuse of discretionary power

Article 8 (3) 3 of the former Act on the Development of Agricultural and Fishing Villages provides that "the Administrator of the Small and Medium Business Administration may revoke the participation eligibility or suspend it for a period not exceeding one year if a small and medium business proprietor participating in competitive bidding between small and medium business proprietors has committed an unfair act, such as collusion." However, Article 8 (3) 3 of the Act on the Development of Agricultural and Fishing Villages amended by Act No. 13866 on January 27, 2016 provides that "the Administrator of the Small and Medium Business Administration shall revoke the participation eligibility where a small and medium business proprietor participating in competitive bidding between small and medium business proprietors has committed an unfair act

The Defendant rendered the instant disposition on the ground that the Plaintiff conspiredd with the Plaintiff to purchase government-funded materials PHC file on May 16, 2016, May 2016, and May 24, 2016, on the ground that the Plaintiff participated in the bidding without any consultation with the instant member companies at the time of the Plaintiff’s participation in the bidding on each of the above dates. As such, this part cannot be deemed to have been a collusion, and therefore, the Plaintiff’s act is subject to Article 8(3)3 of the former Act on the Promotion of Agricultural and Fishing Villages Development, which is the law that was enforced at the time of the violation, and thus, it is problematic whether to deviate from and abuse of discretionary power.

On April 2014, the Plaintiff joined the instant association and participated in the bid is short-term compared to other members. The Plaintiff discussed the quantity of goods to be distributed and the bid price with other members according to the bid structure that had been formed under the lead of the instant association, and delivered the PHC file by winning the bid in a way that assists each other, and the Plaintiff had no choice but to inevitably participate in the bid structure led by the instant association. Considering that the instant disposition was excessively harsh to the Plaintiff and abused discretion.

2) Facts of recognition

A) Designation of competing products between small and medium entrepreneurs

PHC file is designated as a competing product only for small and medium enterprises pursuant to Article 6 of the Act on the Development of Agricultural and Fishing Villages, and there was an opportunity to participate in the PHC file purchase procedures ordered by public institutions such as the defendant only for small and medium enterprises, and in particular, the purchase of PHC file by entrusting the defendant with mandatory purchase in accordance with Article 44 of the Act on the Management of Public Institutions established on December 29, 2009.

B) Organization of working-level council, representative council, etc.

(1) Around April 2009, the instant member companies established the “Operational Rules of the PHC File Working Council (hereinafter “Operational Rules”) consisting of members companies at the time of the instant association, and consulted on the quantity allocation and price maintenance in the PHC file supply market, including the private supply market among the members. As the representative of the instant association, the instant association regularly held working-level councils (hereinafter “Working-Level Council”), the Representative Council (hereinafter “Working-Level Council”) (the representative director meeting of the instant member companies), the file subcommittee, and the National File Council, etc., to exchange information on the monthly production and sales performance and inventory status of PHC files between members, and to maintain the supply unit price in the government-funded file market at a higher level than other small and medium enterprises compared with competing products, and to check and implement the production and distribution method of the PH files at a higher level, and to adjust the production and distribution method after the joint distribution plan.

(2) All members of the instant working group including the Plaintiff participated in the instant working group, and among the working group councils of the instant working group, 10 companies, including the Plaintiff, J, I, C, N, H, R, E, D (which were concurrently affiliated with the South-west Council and the Seoul Metropolitan Area Council), and four companies, including F, P,0, Q, etc., were affiliated with the Yong-Namnam Council, and five companies, including M, L, K, E, and D, respectively.

C) The instant collusion method

(1) In relation to the public-grade PHC file purchase bid, the instant member failed to determine the level of bid price scheduled, i.e., bid price scheduled, i., bidding price, and bidding price by taking into account the activity areas, production and inventory volume, bidding eligibility points, etc. of the members, and the member companies, other than the successful bidder and the bidding price scheduled, were allowed a specific member to enter into a private contract by failing to participate in the bid in the form of “no bid, single bid, and excessive bid price” in order to enhance the basic amount publicly notified by the agency awarding the contract.

(2) (1) In the case of a bid of at least one billion won, a joint supply and demand company shall be organized, and the bid price shall be awarded in the name of the partnership of this case by participating in the bidding, and the partnership of this case divided the bid price into shares of the joint supply and demand company and allocated the bid price to the members of the partnership of this case. (2) In the case of a bid of at least one billion won, a joint supply and demand company shall be organized, a joint supply and demand company shall be selected and appointed under the name of the principal agent, and a principal agent and a manager shall be designated and allocated. (3) In the case of a participation in the bidding in the name of an individual company without a joint supply and demand company, a neighboring company

(3) Examining the specific implementation process, in a case where a specific member participates in a tendering procedure individually, the first decision on whether to participate in the tendering procedure is made, and then the first decision on whether to participate in the final tendering procedure for each case after consultation with other companies at the working group of the instant working group, which is held once a week. If a specific member is determined by the working group of the instant working group to be the successful bidder for a specific PHC file delivery case, the member requires the member to participate in the bidding by informing him/her of his/her bid amount or the bid amount in color among other member companies, and the operator may arrange for the relevant contract by conducting a bidding at a price exceeding the bid amount of the successful bidder.

(4) The working-level council of the instant case allocated membership and quantity to be awarded a contract for each case of public announcement of tender, and delivered the allocated data to the employees of the instant association, and had the instant association manage the fair distribution of the contract amount by enterprise.

D) The main contents of the instant operational rules are as follows.

The PHC Working Council under Article 5 of the Operating Rules of the PHC Council (the duties of the Council) shall deliberate and decide on the following paragraphs.1. 1. The coordination of the fair No. Serial System and the reasonable price through mutual consultation and the head of the agency 2. Joint response to the monitoring of unfair acts and the solicitation of unfair bidding; 4. The execution of all acts for the stabilization of the file industry at the meeting of the representative director's meeting shall be carried out jointly by the resolution of the Council when the representative director of the Council has committed an act in violation of the purpose of Article 2, in violation of the following provisions: 1. 2. The relevant representative director of the Council shall visit the organization at the time of detection of the violation. 2. 3. Where the violation has great damage to the industry, the former member companies may be allowed to withdraw temporarily and temporarily from the negotiation at the Working Council (the first 2.5. 1. 5. 1. 1. 2. 1. 2. 1. 1. 2. 1. 1. 1. 1. 1. 1. 2 2 5 5 3. /1. /1. 3. 3 3 5 /1. /1. 2 2 /1. /1. /1. 2. 3. 2 /1. /1. /1. 2. /2. 2. /2. /2. /2. /2. 2. 2. 3. 3. /2. . . . . . . . . . . . . . . . . . . . . .. . . . . . . .

(3) Each member shall be obligated to notify in the executive organ whether or not he/she has received the request for a tender(s) within the prescribed time limit without any falsity, and shall be at all times subject to any disadvantage in the tender(s). (4) Each member shall make his/her best best and may impose sanctions when he/she takes place without prior consultation so that each member may obtain a successful bid at a unit price set by the Council (s). (4) Each member shall hold in the order of priority (s) each bid(s) and each bid(s) shall make an occasional consultation, decision, settlement terms and conditions, etc. (s) shall be notified and managed at any time. (5) According to the size of the quantity of each bid(s) the priority bidder may replace the sequence with a lower-net company, etc. suitable for his/her interests (2/3 affirmative votes of the members present at the meeting). (6) If a representative director leaves the order of priority by a bidding, he/she shall carry out it with the consent of the first member(s) and shall convene a three-day disciplinary action(s).

E) Criminal judgment

The facts charged in Section 1-C (Interference with Tender) was found guilty on September 21, 2016 in the Seoul Central District Court Decision 2016Da4187, 5376 (Joint), and the representative director of the Plaintiff was sentenced to one year imprisonment and two years of suspended execution. According to the Defendants’ appeal, the Seoul Central District Court, the appellate court, maintained the purport of conviction of the first instance judgment in the case of No. 2016No3816 (hereinafter “Seoul Central District Court”). At present, the Defendants’ appeal is pending in the final appeal (Supreme Court Decision 2017Do3426).

F) The Plaintiff’s award, etc. in the instant collusion

(1) On July 11, 2014, according to the method of the instant collusion, the Plaintiff was awarded the bid amounting to KRW 97.979% bid price (92,063,00) on the ground that N is an end-user institution of the Ministry of Science, ICT and Future Planning, and the postal service procurement office of the Ministry of Science, ICT and Future Planning publicly announced by the said procurement office, on the ground that N was awarded a bid for an amount equivalent to 97.979% bid price (92,063,00) of the projected price, from the tender of the government-funded material PHC file purchase until May 24, 2016 (attached Form 2).

(2) On July 18, 2011, the instant cooperative organized a joint contractor and was awarded a successful bid in an amount equivalent to 96.918% of the estimated price (161,272,898 won) on the ground that the Plaintiff was awarded a successful bid for the PHC file purchase of the PHC file in accordance with the method of the instant collaborative act as seen earlier, which was announced by the Busan National Institute of Marine Survey and publicly notified by the Busan National Government Agency, from the bid for the purchase of the PHC file of the “PHC file purchase of government-funded materials” until December 16, 2015 (attached Form 3), from the bid “the purchase of government-funded materials PHC file” to 281,264,025,739 won, and the Plaintiff was awarded the right to receive the PHC file purchase equivalent to the successful bid price by participating in the competent joint contractor or joint contractor, and the amount allocated to the Plaintiff in such a manner reaches KRW 9,452,7963 won.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 9-12 (including branch numbers), Eul evidence No. 3, the purport of the whole pleadings

3) Whether the Plaintiff constitutes a case where collusion was conducted

In light of the facts acknowledged earlier, the method of the collusion in this case is to induce a free contract by excluding the external competition in a bidding, or to conduct a competitive bid in an external form, but it seems that a certain enterprise had affected or is highly likely to have affected the determination of price and other trading conditions by excluding competition in a bidding by prior agreement to become a successful bidder, it is reasonable to deem that the collusion in this case constitutes "the case where an unfair act, such as collusion,, was committed" under Article 8 (3) 3 of the former Act on Support of Development of Agricultural and

4) Whether the discretion is deviates or abused or abused

A) Confirmation of applicable legislation

(1) In principle, whether an administrative disposition is lawful shall be determined on the basis of the relevant statutes and facts at the time when the administrative disposition was taken. However, in the case of a punitive administrative disposition against an illegal act, the legality of the administrative disposition should be determined on the basis of the relevant statutes and facts at the time of the act. The instant disposition is a sanction against the collaborative act, and it is “a disposition revoking the qualification for participation in competitive bidding among small and medium enterprises, and restricting

(2) From July 11, 2014 to May 24, 2016, the Plaintiff was awarded a successful bid of an amount equivalent to KRW 21,404,976,400 of the successful bid price through 66 times from the bid “purchase of government-funded materials PHC file” as shown in attached Form 2, and the Plaintiff was awarded a successful bid of an amount equivalent to KRW 281,264,025,739 of the successful bid price on 169 occasions from the bid “purchase of government-funded materials PHC file” as described in attached Form 3, and the Plaintiff was awarded a successful bid of an amount equivalent to KRW 281,264,025,739 of the successful bid price by participating in the share of KRW 9,452,720,963 for shares with the competent company or joint supply and demand for the supply of the pertinent PHC file.

(3) According to the foregoing legal doctrine, the act of the instant collusion from July 11, 2014 to April 27, 2016 among the instant collusion shall be subject to Article 8(3)3 of the former Act on Support of Agricultural and Fishing Villages, Article 4 [Attachment 1] 3A, Article 4 [Attachment 1] from April 28, 2016 to May 24, 2016, Article 8(3)3 and (5) of the Act on Support of Agricultural and Fishing Villages, Article 4 [Attachment 1] 3 of the Enforcement Rule of the Act on Support of Agricultural and Fishing Villages shall apply.

B) Determination

(1) Whether a punitive administrative disposition exceeds the scope of discretion under the social norms or abuse of discretionary power ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the offense committed as the ground for the disposition, the public interest achieved by the relevant disposition, and all the relevant circumstances. In this case, even if the criteria for the punitive administrative disposition are prescribed in the form of Ministerial Ordinance, it is nothing more than that prescribed by the internal rules of administrative agency, and it is not externally binding upon citizens or courts. Whether such disposition is legitimate or not should be determined in accordance with the relevant laws and regulations, not only the above criteria for disposition but also with the above criteria. Thus, it cannot be said that the pertinent disposition is legitimate merely because it conforms to the above criteria for disposition. However, unless there are reasonable grounds to believe that the sanction administrative disposition in accordance with the above criteria does not conform with the Constitution or laws, or that it constitutes an abuse of discretionary power in light of the content and purport of the relevant laws and regulations (see Supreme Court Decision 2007Du64667, Sept. 27, 2007).

(2) In light of the following circumstances revealed through the aforementioned facts, it is difficult to deem that the criteria for disposition under Article 4 [Attachment 1] 3 of the Enforcement Rule of the Act on the Support of Development of Agricultural and Fishing Villages based on delegation under Article 8(4) of the former Act do not conform to the Constitution or the law, and there is no reasonable ground to deem the instant disposition to be considerably unfair in light of the content and degree of the offense, and the purport of the relevant provisions. The instant disposition cannot be deemed to have been abused or abused by the Plaintiff’s discretion due to excessive suspicion.

(A) A small and medium enterprise owner who engages in collusion in a contract under the Act on the Development of Market Support has a great need for public interest to prevent losses that public institutions will suffer by suspending the participation eligibility for a certain period of time or revoking the participation eligibility.

(B) The instant collaborative act was organized over a long time, and the degree of the Plaintiff’s participation in the instant collaborative act is not weak, and the profits accrued therefrom are also significant (the Plaintiff could supply a PHC file equivalent to KRW 30.8 billion in total the successful bid price or the supply price to the government-funded market due to the instant collaborative act). Therefore, the Plaintiff is deemed to have significantly impaired the fairness of bidding by abusing the designation of a small and medium-sized competitor file, and thus, there is a high possibility of criticism on the instant collaborative act.

(C) Whether the PHC file is a competitive product open only to small and medium entrepreneurs and its suppliers are limited to the instant member companies, which are small and medium entrepreneurs, and in the case of local demand points, the company should supply them to the members engaged in production activities in the local area under the conditions such as transportation cost, etc., even if considering the special circumstances of the supply of the PHC file in the government-funded market claimed by the Plaintiff, the issues arising from such circumstances should be resolved through the normal process of competitive bidding, such as retender through changes of transaction conditions, etc., a certain number of failed inspections, and a free contract based on due process after a certain number of inspections, etc., so the above bidding collusion cannot be justified.

D. Sub-committee

Article 8(3)3 of the Act on the Development of Agricultural and Fishing Villages and Article 8(3)3 of the former Act on the Development of Agricultural and Fishing Villages cannot be deemed unconstitutional. The grounds for the instant disposition are recognized, and the instant disposition cannot be deemed to constitute a deviation or abuse of discretionary power. Thus, the instant disposition is lawful.

3. Conclusion

The plaintiff's claim is not acceptable, and it is dismissed. It is so decided as per Disposition.