(영문) 서울행정법원 2017.10.13. 선고 2016구합83563 판결

The Defendant’s revocation of the Plaintiff’s eligibility to participate in competitive tendering process open only to small and medium entrepreneurs on December 8, 2016 and the restriction on the acquisition of eligibility to participate (six months) shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff and B Co., Ltd. (hereinafter referred to as “B”) are corporations that engage in the production, sale, etc. of high-Robbery concrete files (Phc file) and are subsidiaries B.

B. A cooperative (hereinafter referred to as the "cooperative of this case") consists of 17 companies (including plaintiffs, B, D, E, F, G, H limited liability companies, I, J, K Co., Ltd., Ltd., L Co., Ltd., Ltd., M Co., Ltd., N Co., Ltd., P Co., Ltd., P Co., Ltd., P Co., Ltd., P Co., Ltd., Q2, Inc., Ltd., and R Co., Ltd., hereinafter referred to as the "member company of this case") including the plaintiff who produces phc files, and individual companies are classified into "stock company" and "limited liability company

C. On July 1, 2016, the Seoul Central District Public Prosecutor’s Office (hereinafter “the Seoul Central Public Prosecutor’s Office”) held office as the representative director, the Plaintiff’s representative director, and TW as the executive director in charge of business in the Plaintiff and B, in collusion with the executives of the instant union, the representative director, or the bidding officer of the instant member company, from July 1, 201 to May 24, 2016, the instant association and member companies designated a pre-tender-clclclclclclcllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll, and 36.

D. On December 5, 2016, the Defendant revoked the qualification to participate in competitive tendering process open only to small and medium enterprises and notified the Plaintiff on December 8, 2016 (hereinafter referred to as “instant disposition”) that the instant collaborative act constitutes “an unlawful act, such as collusion,” under Article 8(3)3 of the Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Development of Market Support (hereinafter referred to as the “Distribution Support Act”). The Defendant revoked the qualification to participate in competitive tendering process open only to small and medium enterprises and notified the Plaintiff of the fact that the said qualification is limited for six months (from December 8, 2016 to June 7, 2017) (hereinafter referred to as “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 28, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

In light of the characteristics of the Phc file, it is difficult for public institutions to supply all of the Phc files to small and medium enterprises through competitive tendering process open only to small and medium enterprises. Moreover, the Phc file is a product that requires a large amount of transportation cost, and it is difficult for the manufacturers to participate in competitive tendering process to the supply site located in a remote place. The member companies, including the Plaintiff, etc., such as the Plaintiff, etc., do not constitute an act of collusion under Article 8(3) of the Act on the Promotion of Collaborative Acts and Subordinate Acts and Subordinate Acts and subordinate statutes, in order to prevent the occurrence of a situation that the Phc file itself is excluded from the competitive tendering process of small and medium enterprises, or to prevent the occurrence of a situation that the Phc file itself is excluded from the competitive tendering process of small and medium enterprises, or to prevent the occurrence of a situation that the Phc file is excluded from the competitive bidding process of small and medium enterprises. In addition, the act of collusion in this case was not an act of collusion under Article 38(3) of the Act.

2) Illegal application of law

Article 8 (3) 3 of the former Act on the Promotion of Purchase of Small and Medium Enterprises and the Promotion of Market Support (amended by Act No. 1386, Jan. 27, 2016; hereinafter referred to as the "former Act on the Promotion of Development of Agricultural and Fishing Villages") which provides for the revocation of the Plaintiff's participation eligibility among the details of the Plaintiff's bidding is only two bidding cases on April 29, 2016 and 'V construction case' on May 2, 2016. However, Article 8 (3) 3 of the former Act on the Promotion of Purchase of Small and Medium Enterprises and Support of Market Support (amended by Act No. 14839, Jul. 26, 2017; hereinafter referred to as the "Revised Act on the Promotion of Development of Agricultural and Fishing Villages"), which provides for the revocation of participation eligibility, is unlawful.

(iii) deviation from and abuse of discretionary power;

The Plaintiff’s act is not likely to undermine the fair enforcement of competition in the future or appropriate implementation of contracts, and the Plaintiff did not have any position to lead the instant collusion. In addition, there were inevitable circumstances to prevent the characteristics of phc file, market conditions, and phc file from being excluded from the competing products open only to small and medium enterprises, and the Plaintiff’s disposition of this case where the Plaintiff’s act of having the Plaintiff not fully participate in the competitive tendering procedure open only to small and medium enterprises for six months in the future constitutes deviation from and abuse of discretionary authority.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

1) Facts of recognition

A) PHc files designated as competing products only between small and medium enterprises pursuant to Article 6 of the Act on the Development of Agricultural and Fishing Villages, which are designated as competing products only between small and medium enterprises. In particular, the number of Phc files ordered by public institutions, including the Defendant, was increased since a public corporation or quasi-governmental institution entrusted the Defendant with mandatory purchase of Phc files pursuant to Article 44 of the Act on the Management of Public Institutions, which was established on December 29, 2009.

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

(1) On April 2009, the member companies of this case, at the initiative of the cooperative of this case, established the operation rules of the Phc file working council (hereinafter referred to as the "operation rules of this case") consisting of members companies at the time of the establishment of the "Operational Rules of the Phc file working council (hereinafter referred to as the "Operational Rules of this case"), consulted on the allocation of quantities and price maintenance in the Phc file supply market including the private supply market among members. On a regular basis as the representative of the cooperative of this case, the working-level council (hereinafter referred to as the "working-level council of the officers in charge of the business of the member companies of this case"), the representative council (hereinafter referred to as the "council of representative directors of the member companies of this case"), the file subcommittee, and the National File council, etc., to exchange information on the monthly production and sales results and inventory status of Phc files between members, and to adjust the unit price of the Phc file supply in the government-funded market to the level of other small and medium enterprises, and to inspect the production method of production and implementation.

(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 Plaintiff B (the Plaintiff and B were affiliated with the Seoul Metropolitan Area Consultative Council and the Seoul Metropolitan Area Consultative Council), F, K, K, J, E, N, I, R, and H, four companies, including G, P,O, Q, etc., and the Yong-Nam Consultative Council were affiliated with the Plaintiff, B, D, M, and L.

C) The instant collusion method

(1) In relation to the government-funded file purchase bid, the instant member failed to determine the level of the successful bidder's scheduled bid price, i.e., bidding price, 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 members, other than the successful bidder and the ralian, failed to participate in the bidding in question, and the pertinent bidding in the form of "non-tender, single bid, excess bid price," etc. in order to enhance the basic amount publicly notified by the agency awarding the contract, so that a specific member can enter into a private 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 cooperative of this case by participating in the bidding in the name of the joint supply and demand company, and the association of this case divided the bid price into shares of the joint supply and demand company and allocated the bid price to the relevant member. (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 to participate in the bidding in 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

(3) Examining the specific process of implementation, where a specific member participates in a tendering procedure individually, the first internal decision on whether to participate in the tendering procedure is made and the first decision on whether to participate in the final tendering procedure is made at the Consultative Council of the Working-Levels of this case, and where a specific member is determined as a successful bidder for a specific phc file delivery case at the Consultative Council of the Working-Levels of this case, the member requests a bid by notifying the amount of his bid or the amount of his bid bid in color among the other member companies of this case by conducting a bidding at a price exceeding the bid price 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.

Article 5 (Duties of Council) of the Detailed Rules of Operation of Phc File Working Council shall deliberate, determine and execute the following paragraphs.1. 1. The coordination of the fair No. Serial System and the reasonable price through mutual consultation and the head of 2. Joint response to the monitoring of unfair acts and the bidding price; 4. The execution of all acts to stabilize the file industry at the meeting of the representative director shall be jointly dealt with by the resolution of the Council when the representative director has committed an act in violation of the purpose of Article 2 due to the violation of the following subparagraphs: 1. 2. The visit of the representative director at the meeting of the Council at the time of detection of the violation. 2. 3. Where the violation has great damage to the industry, the order of priority shall be excluded from 20 times in the bidding of government officials and private level. 2. 1. 1. 2. 1. 2. 1. 1. 2. 1. 2. 1. 2. 2. 1. 1. 1. 2 of the previous members companies (permanent) by mutual consent (permanent). 2/3). 2. 3. 1. 3. 1. 1. 2. 3. 3. 3. 1. 2. 3. 3. 3. 3. 2. 3. 3. 3. 3. 3. 3. 3. 3. 3. 2. 2. 3. 2. 2. 2. 3. 3. 3. 2. 2. 2.

(3) Each member has a duty to notify within the prescribed time limit without falsity to the executive organ whether or not he/she has received a request for bid(s) and shall accept it even if there is any disadvantage in the tender(s). (4) Each bid(s) shall make his/her best to be awarded a successful bid at the unit price determined by the Council, and may impose sanctions when he/she takes place without prior consultation.(4-1) Each bid(s) shall determine, notify, and manage the bid price, settlement terms, etc. at any time.(5) According to the size of quantity of each bid(s) tender(s) the preferential bidder may replace the sub-satise with the lower-satise, etc. (satis 2/36) with the consent of the representative director (satis 2/36).

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 was sentenced to a suspended sentence of three years for one year of imprisonment and two years of suspended sentence for ten months of imprisonment. S, and T’s appeal were all dismissed on February 3, 2017 (2016No3816), and is still pending in the final appeal (2017Do3426).

F) On July 18, 2011, the instant cooperative organized a joint supply and demand organization, such as the Plaintiff’s successful bid, and received a successful bid in an amount equivalent to 96.918% of the projected price (248,112,151 won) in a PHC file purchase tender of “WHC” publicly announced by the Busan Government Procurement Service as an end-user institution, in accordance with the method of the instant collaborative act prior to the instant collaborative act, from that time, the Plaintiff was awarded a successful bid for an amount equivalent to KRW 281,264,025,739 in total from the government-funded purchase bid until December 16, 2015, and was allocated at the agreed distribution rate by participating in a part of the bid as the principal or joint supply and demand organization.

Meanwhile, on August 12, 201 through the instant collusion, the Plaintiff was awarded a successful bid of KRW 22,880 equivalent to 99.705% of the projected price, on the ground that M was as a business entity for the manufacture of government-funded materials (PHCIE) by the Gwangju Metropolitan City as an end-user institution on August 12, 201, and was awarded a successful bid of KRW 116 times from the government-funded purchase tender until May 2, 2016.

As such, the sum of the amount distributed by the Plaintiff according to the share of the joint contractor is KRW 65,445,240,241.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 23, 29 through 32, Eul evidence No. 3, the purport of the whole pleadings

2) Whether there exist grounds for the disposition

A) Article 8(3) of the former Act on the Support of Development of Agricultural and Fishing Villages stipulates that "the Administrator of the Small and Medium Business Administration may revoke the participation eligibility of a small and medium business proprietor participating in competitive tendering process only in any of the following cases or suspend the participation eligibility for up to one year. The Administrator of the Small and Medium Business Administration may restrict the acquisition of participation eligibility within one year from the date of revocation if the participation eligibility is revoked." Article 8(3) of the amended Act amended on January 27, 2016 and enforced on April 28, 2016 provides that "the Administrator of the Small and Medium Business Administration may cancel the participation eligibility of a small and medium business proprietor participating in competitive tendering process between small and medium business proprietors or suspend the participation for up to one year if the small and medium business proprietor falls under any of subparagraphs 1 through 3: Provided, That in cases falling under any of subparagraphs 1 through 3, the Administrator of the Small and Medium Business Administration may restrict the acquisition of participation eligibility within one year from the date of revocation of the participation eligibility."

B) Comprehensively taking into account the above facts and the purport of the entire pleading, the following circumstances are as follows: ① the method of the collusion in this case is to induce a free contract by excluding external competition from bidding; although there is external competition, it seems that a certain enterprise has influenced or is highly likely to affect the determination of price, etc. by excluding competition from bidding; ② in light of the frequency and amount of the collusion in this case’s act of 656,387,023,639 won in total over 1,360 times, and the successful bid price contract amount, it is difficult to see that the act of the collusion in this case was merely one of the bidders’ intention and compromise within the scope recognized in general transaction norms in order to prevent reckless competition, as alleged by the Plaintiff, and it is difficult to see that the act of the collusion in this case is limited to 3rd files because it is a small and medium enterprise owner, which is a small and medium enterprise owner, and thus, it is difficult to take into account the following circumstances such as the amendment of the contract’s compliance with due process.

3) Whether the application of law is unlawful

A) In principle, whether an administrative disposition is lawful shall be determined on the basis of the relevant statutes and facts at the time when such administrative disposition was taken place (see, e.g., Supreme Court Decisions 80Nu412, Dec. 8, 1981; 83Nu383, Dec. 13, 1983; 86Nu63, Jan. 20, 1987; etc.). The instant disposition is subject to the applicable law at the time of the act, since it is a restrictive administrative disposition for which acquisition of participation eligibility is revoked between small and medium entrepreneurs, and it is a "disposition restricting acquisition of participation eligibility for six months". Article 4 [Attachment 1] [Attachment 1] 3 of the Enforcement Rule of the Act on the Promotion of Purchase of Small and Medium Enterprises and Support for Development of Agricultural Products (hereinafter referred to as the "Enforcement Rule of the Sales Support Act"), and Article 8(3)3 of the Act provides for the criteria for disposal of participation in a new disposition for 10 months after its implementation.

The facts that the instant collaborative act had existed from July 201 to May 24, 2016 are as seen earlier. As such, among the instant collaborative act, ① from July 201 to April 27, 2016, Article 8(3)3 of the former Act on the Development of Agricultural and Fishing Villages, Article 4 [Attachment 1] 3 A, and Article 2 [Attachment 1] of the Enforcement Rule of the Act on the Development of Agricultural and Fishing Villages, ② from April 28, 2016 to May 24, 2016, Article 8(3)3 of the amended Act on the Development of Agricultural and Fishing Villages, Article 4 [Attachment 1] 3 of the Enforcement Rule of the Support Act on the Support of Agricultural and Fishing Villages, and Article 4 [Attachment 1] of the Enforcement Rule of the Support Act on the Support of Agricultural and Fishing Villages apply to the instant collaborative act (the Plaintiff’s assertion that the instant collaborative act constituted a cause for the instant disposition only under the premise that it constituted a cause for the instant construction project.

B) As seen earlier, the Defendant only took the applicable provisions of Article 8(3)3 of the former Act as applicable provisions at the time of the instant disposition, but did not specify the applicable provisions of the Act separately at the time of the instant collusion. As such, it can be deemed that the Defendant disposed of all the instant collusion by applying the amended Act, which was enforced at the time of the instant disposition.

However, whether the former Act on the Promotion of Market Support and the former Act on the Promotion of Market Support should cancel the eligibility for participation in the event of an unfair act, such as collusion. Article 4 [Attachment 1] 3 of the Enforcement Rule of the former Act on the Promotion of Market Support provides that the revocation of eligibility for participation and the restriction on the acquisition of eligibility for participation for six months shall be made in the event that an unfair act, such as collusion, was committed even at the time of the enforcement of the former Act on the Promotion of Market Support, so the disposition of "cancellation of eligibility for participation in part to which the former Act on the Promotion of Market Support shall apply" among the reasons for the disposition of this case is consistent with the above discretionary rules. Even if the part to which the former Act on the Promotion of Market Support should apply is excluded, some of the reasons for the disposition of this case is subject to Article 8(3) 3 of the former Act on the Promotion of Market Support, and thus, it cannot be said that the issue of the disposition of qualification for participation has changed depending on whether the Defendant applied the former Act on the

C) Therefore, the Plaintiff’s above assertion is without merit.

4) Whether the discretion is deviates or abused or abused

Even if the criteria for a disciplinary administrative disposition are prescribed in the form of Ministerial Ordinance, it does not have any effect to the public or court externally, and whether such disposition is legitimate or not must be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes, not only the above disposition criteria, but also with the provisions of the relevant Acts and subordinate statutes. Therefore, it cannot be said that the pertinent disposition is legitimate immediately when the above disposition criteria meet the above disposition criteria. However, barring any reasonable ground to believe that the disposition is considerably unreasonable in light of the content of the act of violation and the contents and purport of the relevant Acts and subordinate statutes, it shall not be readily determined that the disposition goes beyond the scope of discretionary authority or is abuse of discretionary authority (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 2007).

Comprehensively taking into account the following circumstances, which can be recognized by comprehensively taking into account the facts admitted as seen earlier and the purport of the entire pleadings, the instant disposition cannot be deemed to have exceeded and abused discretion by violating the principle of proportionality. Therefore, the Plaintiff’s assertion on this part is without merit.

A) Article 4 [Attachment 1] 3 of the Enforcement Rule of the Act on the Promotion of Market Support. Article 8(3)3 of the former Act on the Promotion of Market Support and the revised Act provides that "unfair acts, such as collusion, which are not "an act leading to collusion" shall be subject to sanctions. Article 4 [Attachment 1] 3 of the Enforcement Rule of the Act on the Promotion of Market Support provides that "Revocation of Qualifications for Participation" and "six months of the period of restriction on the acquisition of qualifications for participation, regardless of whether the plaintiff led collusion, shall be subject to the disposition standards." Thus, even if the plaintiff did not lead collusion, there is no difference in the application of such disposition standards.

B) Furthermore, the executives and employees of the instant member companies regularly held meetings, including the instant working group, to form and maintain the framework for the instant collaborative act, and allocated the member companies and quantities to be awarded a successful tender by case of public announcement of tender, and the successful bidder was awarded a contract for the purchase of government-grade files by collusion by requesting a bid bid by bidding at the price exceeding the bid price of the successful bidder. Therefore, even if the instant association was in a serious mind and formed the framework for the instant collaborative act, in light of the aforementioned active attempt and method of collusion, the instant member companies can be deemed to be all the persons who led the instant collaborative act.

C) In particular, even though the State granted preferential treatment to designate phc files as competing products with a view to supporting the competitiveness improvement and management stability of the member companies of the instant case, which are small and medium enterprises, the instant collaborative act is a case where the instant member companies, including the Plaintiff, abuse them on a large scale and organized basis, and acquire unfair profits through a large-scale and systematic collusion over several years, there is a high possibility of criticism, and there is a need to impose strict sanctions thereon.

D) The necessity of public interest to ensure fair enforcement of competition by causing restriction on participation in tendering for a certain period of time to a person who has committed a collusion in tendering, and to prevent disadvantages suffered by public institutions, is greater than the economic disadvantage suffered by the Plaintiff due to the instant disposition.

E) In the case of a local demand center due to excessive transportation costs, etc., the special circumstances alleged by the Plaintiff, such as the fact that the member companies engaged in production activities in the local area should supply the PHc file files and the companies are limited, should be resolved through the normal process of competitive bidding, such as retenders through changes in the transaction conditions, etc. after the failure to participate in the bidding, a negotiated contract based on due process after a certain number of times, etc., so the instant collaborative act cannot be justified on the grounds of such circumstances.

5) Sub-committee

Therefore, the instant disposition is unlawful and lawful without any justifiable reason alleged by the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.