(영문) 서울고등법원 2018.4.24. 선고 2017누71774 판결

The judgment of the court of first instance shall be revoked. On December 5, 2016, the defendant revoked the qualification to participate in competitive tendering process open only to small and medium enterprises and revoked the disposition to restrict the acquisition of qualification to participate for six months

Reasons

1. Quotation of the first instance judgment

The reasoning for the judgment of the court in this case is as stated in the reasoning of the judgment of the court of first instance, in addition to the parts added or used by the court below, and thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○○ The following items shall be added to 4 pages 4 of the first instance judgment, 4 5 e.g., 5 e., 5 e.) and 9 e.g. 3 e.

1) According to Article 8(3)3 of the former Act on the Development of Market Support, where a small and medium enterprise participating in a competitive bidding between small and medium enterprises has committed an unfair act, such as collusion, the Defendant may revoke the qualification for participation or suspend it for a period not exceeding one year. However, the Defendant’s disposition subject to the disposition includes the Defendant’s collusion in a bidding case which is not a competitive bidding between small and medium enterprises without the authority to dispose of the case

In addition, "38 times in total" of 8 pages of the judgment of the first instance (excluding gambling parts; hereinafter the same shall apply) shall be added to the following (attached Form) and attached to this judgment.

○ The following is added to the 8th sentence below the 10th sentence of the first instance judgment:

(d)the existence of disposition authority;

1) The Plaintiff was indicted on the ground that the instant collaborative act was committed from July 201 to May 24, 201 in collusion with the executives of the instant cooperative, the representative director of the instant member company, or the person in charge of tendering affairs, etc., and was convicted of the instant collaborative act regarding the “tender for the purchase of government-funded PHIC file” case. As seen earlier, the Seoul Central District Court was found guilty in Seoul Central District Court Decision 2016Da4187, 5376 (Joint). As seen earlier, the PHC file is designated as a competing product only between small and medium enterprises pursuant to Article 6 of the Act on the Promotion of Agricultural and Fishing Markets, and the opportunity for the Plaintiff to participate in the procedures for the purchase of the PHC file, which is not subject to competitive bidding only between small and medium enterprises, and thus, it cannot be deemed that the Defendant’s disposition subject to

2) According to the evidence evidence No. 13, K, a member company of the instant case, concluded a contract through a closed number of negotiations, not through competitive bidding, on August 10, 2015 and December 29, 2016, not through competitive bidding. However, the member company of the instant case, preventing the instant member company from intentionally failing to select a successful bidder in excess of the initial bid price, single bidding, or estimated price, leading the ordering agency to failed to enter into a contract publicly notified by the method of limited competitive bidding to change the contract method by free contract method, and thereby interfering with bidding by the specific company. Furthermore, unlike Article 76(1) of the Enforcement Decree of the Act on Contracts to Which the State is a Party, it is reasonable to deem that the Plaintiff’s act constitutes an abuse of authority to participate in competitive bidding under Article 8(3) of the Act on Support of Market Support to Small and Medium Enterprises by stipulating that it constitutes an abuse of authority to participate in competitive bidding under the former Enforcement Decree of the Act on Contracts to which the State is a party to a negotiated contract.

○○ The 8th 11th 11th m. written judgment of the first instance court is "Ma.," 9th m., 10th m., and 12th m. m. to "g.," respectively.

○ The following is added to 12 pages of the first instance judgment:

F) Even if the Plaintiff’s assertion that there was no authority to dispose of the collusion in the process of concluding a contract under a negotiated contract, it is difficult to deem that the instant disposition was abused or abused the scope of discretionary authority. Even if some of the grounds for several dispositions are lawful in an administrative disposition, the disposition cannot be deemed unlawful if the disposition is justified on other grounds (see, e.g., Supreme Court Decisions 96Nu1184, May 9, 1997; 2010Du15674, Dec. 9, 2010). In the foregoing circumstances, the number of winning a contract independently constituted a joint contractor is 38 cases, and the bid price is 16,257,471,352 won (attached Form 29), and the bid price is 37 cases, successful bid price is 16,179,178,387, etc., and it cannot be deemed that the Plaintiff’s disposition is too harsh than the Plaintiff.

2. Conclusion

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit.

Judges

Awards and decorations for judges;

Judges Lee Jong-chul

Judge Cho Jae-soo

Note tin

1) Supreme Court Decision 2007Du13791, 13807 Decided February 28, 2008 is interpreted and applied strictly, and it shall not be excessively expanded or analogically interpreted or analogically interpreted to the disadvantage of the party against the other party to the administrative disposition. Even if the teleological interpretation taking into account the legislative intent and purpose, etc. is not entirely excluded, such interpretation shall not go beyond the ordinary meaning of the language and text. In light of the fact that the Enforcement Decree of the Act on Contracts to Which the State is a Party stipulates the subject of limitation of participation in bidding as "contractor or bidder", it is reasonable to view that "the person who has participated in the competitive bidding" as "the person who has participated in the competitive bidding," and that "the person who has participated in the competitive bidding for the purpose of getting a specific person to be successful in the bidding in question." Even if the act of interference with the establishment of competitive bidding itself due to the failure to participate in the competitive bidding was for the purpose of concluding a negotiated contract, it shall not be deemed as a "contractor or bidder."