2018두46490 상업용 곰솥 또는 국솥 거래정지 처분취소 청구의 소

A Stock Company

Attorney Jeong-chul et al., Counsel for the defendant

The Seoul Local Public Procurement Service

Seoul High Court Decision 2018Nu30695 Decided May 24, 2018

March 28, 2019

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Case history

The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following facts.

가. 원고는 2014. 8. 12. 피고와 사이에 상업용 곰솥 또는 국솥에 대하여 계약기간을 2014. 8. 12.부터 2016. 6. 30.까지로 하는 다수공급자계약을 체결하였다. 다수공급 자계약은 피고가 조달사업에 관한 법률(이하 '조달사업법'이라고 한다)에 따라 품질, 성능 또는 효율이 같거나 비슷한 종류의 공통된 수요물자를 각 수요기관이 선택할 수 있도록 2인 이상을 계약상대자로 하여 체결하는 형태의 공급계약이다. 원고와 피고는 2017. 2. 22. 다시 같은 물품에 대하여 계약기간을 2016. 7. 1.부터 2019. 6. 30.까지로 하여 다수공급자계약을 체결하였다. 각 계약에는 '원고는 다수공급자계약 특수조건(이하 '이 사건 특수조건'이라고 한다)을 충실히 이행한다'는 취지가 포함되어 있다.

나. 원고는 이 사건 각 다수공급자계약에 따라 조달청장이 운영하는 국가종합전자 조달시스템인 나라장터 종합쇼핑몰에 상업용 곰솥 또는 국솥을 등록한 후 수요기관의 납품요구에 따라 이를 납품하여 왔다.

C. According to Article 22-2(1) Subparagraph 8 of the Special Conditions in the instant case, the Defendant may suspend transactions in the national funeral shopping mall for a period of not less than one month but not more than 24 months.

D. On May 29, 2017, the Defendant notified the Plaintiff on August 12, 2017 that the transaction in the instant special condition was suspended for six months pursuant to Article 22-2(1) Subparagraph 8 of the instant special condition on the ground that “the use of materials different from the standard of the contract was confirmed as a result of a field survey under the supply contract with multiple suppliers” (hereinafter “the instant special condition”).

2. The judgment of the court below

The lower court rejected the instant lawsuit seeking revocation, deeming that the instant disposition cannot be deemed an administrative disposition that is the subject of an appeal litigation, because it is merely a contractual declaration made in accordance with the special terms and conditions of the instant contract, which is a part of each of the instant multiple suppliers contract.

3. Judgment of the Supreme Court

A. The term "disposition", which is the object of an appeal litigation, means the exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other corresponding administrative actions (Article 2(1)1 of the Administrative Litigation Act); whether a certain act by an administrative agency may be the object of an appeal litigation cannot be determined abstractly and generally; and the contents and purport of the relevant Acts and subordinate statutes; the subject, content, form, and procedure of the act; substantial relation between the act and the disadvantage suffered by interested parties, such as the other party; and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the act (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18, 2010).

B. The Act on the Use and Promotion of Electronic Procurement, and the former Regulations on Comprehensive Electronic Procurement System (amended by the Public Notice of the Government Agency No. 2017-21, Jul. 14, 2017), related statutes and public notice, and the special conditions of this case, including the former Rules on Handling Contracts with Multiple Suppliers (wholly amended by the Government Procurement Service Directive No. 1794, Jul. 14, 2017), as well as the following circumstances revealed by the reasoning of the lower judgment and evidence duly admitted by the lower court. 1. In other words, where the Defendant takes measures to suspend transactions in the national master shopping mall, it constitutes an act of directly restricting or infringing the legal interests of the other party to this case, and the other party to this case’s comprehensive shopping mall transaction is at least at a disadvantage of all suspending transactions with the government agency, local government, and public institution, which are the procuring entity, as well as the other party to this case’s transaction, and it is reasonable to deem that the Defendant’s specific conditions of administrative disposition and suspension are unlawful. 208.

C. Therefore, the court below erred by misapprehending the legal principles as to the suspension of transactions under the special conditions of this case.

As to whether the contents of the special condition of this case or the time suspension of transactions based thereon were in violation of the statutes governing the national community or violated the principle of equality, the principle of proportionality, and the principle of trust protection, etc. should be examined further.

D. Nevertheless, the lower court rejected the instant lawsuit based on the determination that the instant disposition was merely an expression of intent based on a private contract and cannot be deemed an administrative disposition subject to an appeal litigation. In so determining, the lower court erred by misapprehending the legal doctrine on a disposition subject to an appeal litigation, thereby adversely affecting the conclusion of the judgment

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hwan

Justices Park Sang-ok

Justices Lee In-bokon

Justices Noh Jeong-hee