Revocation of designation of items subject to competing products, etc. between small and medium enterprises 2017Guhap50645

A1) Cooperatives

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Park Young-ju, Counsel for the plaintiff-appellant

The Minister of SMEs and Startups

Attorney Lee Jong-hoon et al., Counsel for the defendant

May 4, 2018

June 22, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s announcement of the details of the designation of products eligible for direct purchase of competing products and construction materials between small and medium enterprises on January 4, 2017 (Public Notice No. 2017-9; hereinafter “Public Notice”) and public notice of the details of the designation of products eligible for direct purchase of competing products and construction materials among small and medium enterprises (Public Notice No. 2017-3; hereinafter “Public Notice No. 2017-3 of the Small and Medium Enterprise Administration”) (Public Notice No. 2017: hereinafter “Public Notice No. 2017: 205, Jan. 4, 2017”), with the exception of C file (S: D) from the date of public notice of the Defendant’s designation of products eligible for direct purchase of competing products and construction materials between small and medium enterprises on January 26, 2017 (Public Notice No. 2017-9, Jan. 26, 2017): The Defendant’s announcement of the designation of the Seoul Administrative Court of No. 20385.

1. Circumstances of the public announcement and notification;

A. The Plaintiff is an organization established pursuant to the Small and Medium Enterprise Cooperatives Act, which mainly aims at the development of C industry and the promotion of the welfare of its members by the domestic small and medium enterprises that produce E files (E; hereinafter referred to as “E files”), sewage pipes, Fme pipes, and electric power transmission, distribution, and telecommunications poles, which reinforce the tobacco powder base around February 1990. 16 small and medium enterprises that engage in the business of producing and selling E file files are currently subscribed to the Plaintiff’s member companies (hereinafter referred to as “the instant member companies”).

B. From July 201 to May 24, 2016, the prosecutor: (a) in collusion between the Plaintiff and the instant member companies, the Plaintiff and the instant member companies were designated as a successful bidder in advance (the Plaintiff or the instant member companies) and a premium bidder; and (b) the Plaintiff failed to bid at a higher price than the pre-determined bid price; and (c) the rest of the company was prohibited from being awarded a successful bidder in a manner that does not participate in the pertinent bidding; and (d) intentionally failed to select a successful bidder in excess of the pre-determined bid price, or from being selected as a successful bidder by intentionally bidding, single bidding, or higher price; and (e) had the ordering agency change the contract method by a negotiated contract method; and (e) had a specific company enter into the contract method by a negotiated contract method and then indicted the bid price in total of KRW 656,387,023,639 and the instant member companies (hereinafter referred to as “Seoul District Court 26136”).

C. On September 21, 2016, the above court convicted the above officers and employees of all the facts charged. The above officers and employees appealed on the grounds of mistake of facts or misapprehension of legal principles or unreasonable sentencing (Seoul Central District Court Decision 2016No3816), but the appellate court accepted only the assertion of unfair sentencing by some executives and employees on February 3, 2017, and dismissed the remaining appeal (hereinafter referred to as the “instant criminal trial”).

D. At the time of the instant collusion, E file was designated as competing products (hereinafter referred to as “competitive products”) among small and medium enterprises under 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”). However, the Public Procurement Service requested the designation of competing products based on Article 6(3) of the former Enforcement Decree of the Act on the Promotion of Market Support (amended by Presidential Decree No. 28213, Jul. 26, 2017; hereinafter the same), Article 10 of the Guidelines for the Operation of the Public Purchase System of Small and Medium Enterprises (Notice No. 2016-71, hereinafter referred to as the “former Operation Guidelines”).

E. On January 4, 2017, the Defendant issued the instant public notice stating that E files are excluded from products directly purchased from competitive products and construction materials (hereinafter “competitive products, etc.”), and the instant public notice was issued on January 4, 2017.

F. Upon filing the instant lawsuit, the Plaintiff filed an application for suspension of the execution of the part other than E files in the instant public notice and the instant public notice on January 4, 2017, and this court rendered a decision to suspend the execution of the part other than E files in the instant public notice and the instant public notice on January 25, 2017 by 30 days from the date the instant judgment was rendered.

G. According to the above suspension of execution, the Defendant abolished the announcement as of January 4, 2017 of the instant case, and re-designated the E file as competing products, etc. on January 26, 2017, and issued the instant announcement as of January 1, 2017, which limits the period to the period to the period to the 30 days from the date the instant announcement was pronounced, and the current announcement as of February 9, 2018 is also designated as competing products, etc. (hereinafter the instant announcement as of January 4, 2017; the instant announcement as of January 26, 2017; the instant announcement as of February 9, 2018; the instant announcement as of February 2018; the instant announcement as of February 26, 2017; and the instant announcement as of February 9, 2018; and each of the instant competing products is excluded from the instant announcement as of February 20, 2018.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 4 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the defendant's defense prior to the merits

A. Defendant’s defense prior to the merits

1) Absence of administrative disposition

The instant public notice and each of the instant public notice do not have an appearance as an administrative disposition, and do not require the Plaintiff to have a direct right or obligation to make the instant public notice and each of the instant public notice. Therefore, the instant public notice and each of the instant public notice cannot be deemed an administrative disposition.

(2) Non-existence of standing to sue

On March 2, 2016, the Plaintiff is unable to participate in competitive tendering procedures open only to small and medium enterprises upon revocation of the eligibility to participate in competitive tendering procedures open only to small and medium enterprises and limitation of acquisition of eligibility to participate. Therefore, even if the instant public notice and each public notice of this case are excluded or are likely to be excluded from competing products, etc. due to the instant public notice and each public notice of this case, the Plaintiff has no legal interest to seek

B. Determination

1) Determination as to the non-existence of administrative disposition

A) If a certain notice has a general and abstract character, it constitutes an administrative disposition, however, if it has a character to directly regulate the rights and obligations or legal relations of the people as a result of without any other intermediate executory act (see, e.g., Supreme Court Order 2003Du23, Oct. 9, 2003; Supreme Court Order 2006Du2506, Sept. 22, 2006).

B) “The part related to the E file” in each of the instant notifications and announcements directly regulates the legal relations, such as whether they are designated as E file competing products, etc., and whether they are possible to competitive tendering process open only to small and medium enterprise proprietors under the Act on the Support of Development of Agricultural and Fishing Villages for E Files, and directly affect the members of the instant files and the Plaintiff’s specific rights and obligations. Therefore, each of the instant notifications and the instant notices constitute administrative disposition.

C) Therefore, the defendant's defense prior to the above merits is without merit.

2) Judgment on the non-existence of standing to sue

A) Even if a third party who is not the other party to an administrative disposition is not the direct party, if the interests protected by law are infringed by the administrative disposition, the party is entitled to obtain a decision of the propriety thereof by filing an administrative litigation seeking the revocation or nullification confirmation of the administrative disposition. The term “legal interests” refers to the cases where there are individual, direct, and specific interests protected by the relevant laws and regulations and regulations and relevant laws and regulations (see, e.g., Supreme Court en banc Decision 2006Du330, Mar. 16, 2006; Supreme Court Decision 2006Du14001, Dec. 22, 2006).

B) The following circumstances revealed by the purport of Gap evidence Nos. 16 and Eul evidence Nos. 16 and Eul evidence Nos. 5 and the entire arguments, namely, ① the Defendant revoked the Plaintiff’s eligibility to participate in the competitive tendering process open only to small and medium enterprises and imposed restrictions on the Plaintiff’s acquisition of such eligibility for participation for six months thereafter. However, upon the expiration of the foregoing restriction period, the Plaintiff, a small and medium enterprise cooperative under the Small and Medium Enterprise Cooperatives Act, may obtain the eligibility for participation in competitive tendering process open only to small and medium enterprises pursuant to the requirements and procedures prescribed in Article 8(2) of the Act on the Promotion of Development of Small and Medium Enterprises, and may participate in competitive tendering process, which is competing products. ② Operational Guidelines for Public Purchase System (Public Notice No. 2017-23 of the Ministry of SMEs and Startups; hereinafter referred to as “Operation Guidelines”) enable the Plaintiff to apply for the designation of competing products to the National Federation Chairperson (Articles 5(1), 2 subparag. 7 and 9), and in fact, there are concerns for the Plaintiff’s exclusion of the E-related files.

C) Therefore, the defendant's defense prior to the above merits is without merit.

3. Whether the notice of this case and the notice of this case are legitimate

A. The plaintiff's assertion

For the following reasons, "the part related to the E file in each public notice and public notice of this case" is illegal.

1) In order to exclude competing products from the designation of competing products, i.e., non-existence of the grounds for exclusion from the designation of competing products should take into account 'the possibility of competition between small and medium enterprises' and 'the necessity of fostering the relevant small and medium enterprises' pursuant to Article 6(3) of the former Enforcement Decree of the Act on the Development of Agricultural and Fishing Villages. However, in light of the following circumstances, even though 'the possibility of competition between small and medium enterprises producing the EM files' and 'the necessity of fostering the small and medium enterprises producing the EM files', the E file is excluded from the designation of competing products

A) Since it is difficult for a small and medium enterprise owner to independently supply E files based on the class 792 of the number of files, competition with the large and medium enterprise is necessary to foster and protect the small and medium enterprise owner who produces E files.

B) The production of E files by the instant member companies is not likely to rapidly increase demand; among the small companies, the instant member companies are likely to produce diverse specifications E files in a timely fashion and supply them to the demand source due to the restriction on the production capacity of the instant member companies; due to transportation costs, only in the situation where only the members of the shop located in the construction site where the instant member is supplied due to transportation costs are members of the construction site where the bidding participants shared inventory and consulted at least in the process of determining the participating companies to prevent a bid to maintain E files as competing products. Therefore, it cannot be evaluated that there is no “the possibility of competition between small and medium enterprises that produce E files” and “the necessity of fostering the relevant small and medium enterprises related to the relevant products” merely on the ground that the instant collusion act was conducted.

C) In addition, under the premise that the disposition of restricting participation by the Administrator of the Public Procurement Service against the members of the instant case and the Plaintiff is lawful, the Defendant has no "the possibility of competition between small and medium entrepreneurs producing the E file

Although it seems to have judged that the restriction on participation in a tendering procedure was revoked, the restriction on participation in the tendering procedure was also revoked.

D) Even after the instant public notice on January 4, 2017, new small and medium enterprises producing E files have occurred, and since competitive bidding on E files has been practically conducted after the instant criminal trial, “The possibility of competition between small and medium enterprises producing E files is sufficiently recognized.”

2) A deviation from or abuse of discretionary power

As alleged earlier, since the diversity of products and the need for the formation of a joint supply and demand organization, the bidding is conducted through the adjustment rate, and the bidding does not take an unreasonable width through the collusion in this case, the plaintiff and the member companies of this case are already subject to the disposition of restricting participation in bidding from the Administrator of the Public Procurement Service, the cancellation of the qualification for participation in competitive bidding between the defendant and the restriction on the acquisition of participation eligibility from the defendant, if the file is excluded from the competing products, etc., it constitutes double punishment, and the member companies of this case are excluded from the E file competing products, etc., due to the "the part related to the E file in each public notice and public notice of this case," and thus, the plaintiff and the member companies of this case will be deemed to suffer enormous shooting, which are in violation of the principle of proportionality.

(b) Attached entry, such as relevant statutes;

(c) Fact of recognition;

1) Details of the designation of E file competing products, etc.

A) The E file was designated as competing products, etc. under the Act on the Development of Market Support, and was given an opportunity to participate in the tendering procedure ordered by public institutions such as the Public Procurement Service only to small and medium enterprises. In particular, as a result of a public corporation and quasi-government agency’s mandatory consignment to the Administrator of the Public Procurement Service pursuant to Article 44 of the Act on the Management of Public Institutions established on December 29, 2009, the size of the E file increased since around that time.

B) On October 6, 2015, the term of validity of the designation of E file competing products, etc. expires, and the G Federation Chairperson recommended the Defendant to re-designation (maintenance of designation) of E file competing products, etc. on the ground that “The total market size of E file is KRW 8,000,000,000,000,000,000,0000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,0000,

C) After the re-designation was made, the instant collusion was discovered, and the Defendant issued the instant public notice on January 4, 2017, stating the exclusion of E files from competing products, etc., and the instant public notice on January 4, 2017.

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

A) Around April 2009, the member companies of the instant case established the "Operational Rules of the E File Working Council" (hereinafter referred to as the "Operational Rules of the instant case") through the Plaintiff, and consulted on the allocation of quantities and price maintenance in the E file supply market including the private capital market among the members, and regularly held the working-level council (the meeting of the executive officers in charge of the business of the instant member companies; hereinafter referred to as the "Working-Level Council"), the representative council (the meeting of the representative directors of the instant member companies), the files subcommittee, and the Korean file council, etc., to exchange monthly sales performance and inventory information on E files between the members companies, and maintain the unit price of the electronic file supply in the government-funded market, and check compliance with the implementation method of the joint depreciation plan, and adjust the quantity of the production of the government-funded E files by checking whether they comply with the schedule.

B) At the time, all the 17 E file producers joined the Plaintiff’s membership company and participated in the instant working-level council.

3) The method of the instant collusion

A) The instant member companies, with respect to the government-class E file purchase bid, failed to determine the level of successful bidders, reporters, and bid bid amount by taking into account the activity areas, production and inventory volume, bidding eligibility points, etc. of the members, and the members, other than those who are scheduled to win the bid and those who do not participate in the bid, conducted bid collusion in a way that they do not participate in the bid in question. In order to enhance the basic amount publicly notified by the agency awarding the contract, the instant member companies were able to enter into a private contract by putting out the relevant bidding in the form of “non-tender, single bid, and excess bid price.”

B) ① In the case of a bid of at least one billion won, a joint contractor shall be organized, and the bid price shall be awarded in the name of the Plaintiff, and the Plaintiff shall be allocated to the relevant member by dividing the bid price into shares of the joint contractors. ② In the case of a bid of at least one billion won, a joint contractor shall be organized and the principal contractor shall be selected and appointed to participate in the tender under the name of the principal contractor. ③ In the case of a bid of at least one billion won, a joint contractor shall be designated and allocated to each company, and ③ in the case of a participation in the tender in the name of an individual company without a joint contractor, a company located close to the construction site due to transportation costs shall

C) Examining the specific implementation process, 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 by the Consultative Council of the Working-Levels of this case as a successful bidder for a specific e-mail delivery case, the member requests a bid by informing the other member of his bid price or the bid price for the e-mail with a physical coloring of the e-mail among the other member companies, and the e-mails may conclude the relevant contract by conducting a bidding at a price exceeding the bid price of the successful bidder.

D) 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 Plaintiff’s materials to the employees, thereby having the Plaintiff manage the fair distribution of the contract amount for each company.

4) Main contents of the instant operational rules

Article 5 (Duties of Council) of the Working Council of Files shall deliberate and decide on the following paragraphs.1. Joint response to the implementation of the fair system and the reasonable price by mutual consultation; 2. Pursuant to the order of priority of government officials and government-private bidding; 4. The proposal of all acts to stabilize the file industry to the representative director's meeting shall be made at the meeting of the Council; 2. The number of members shall be set at the order of priority of two times the number of members shall be set at the meeting of the first half of the bidding (the first half of the bidding) and the first half of the bidding (the second half of the bidding) shall be set at the order of priority of all members (the second half of the bidding). The third half of the bidding shall be set at the order of priority of all members (the second half of the bidding) and the first half of the bidding shall be set at the order of priority of all members (the second half of the bidding). The second half of the bidding shall be set at the order of priority of each bidding (the second half of the bidding).

5) The pertinent administrative disposition, etc. due to the instant collusion

A) When the Plaintiff and the instant member companies were found to have been awarded a bid price of KRW 656,387,023,639 in total on a total of 1,360 occasions through the instant collusion, the Administrator of the Public Procurement Service imposed on the instant member companies on September 1, 2016, the instant member companies subject to the restriction on qualifications for participation in the competitive tendering process for two years, and on December 8, 2016, the Defendant issued a disposition to revoke the qualifications for participation in the competitive tendering process open only to small and medium enterprise proprietors and to restrict the acquisition of qualifications for participation (six months) (hereinafter referred to as the “disposition by the Administrator of the Public Procurement Service,” and the Defendant’s above disposition is referred to as the “the Defendant’s disposition”).

B) The instant member companies had received a decision to suspend the execution while filing a revocation lawsuit against the said disposition, and continued to participate in the government-funded E file purchase bid until now, and even after the instant public notice was given on January 4, 2017 and the instant public notice, small and medium entrepreneurs producing E files were newly created.

C) Meanwhile, H Co., Ltd., one of the members of the instant member companies, filed a lawsuit seeking revocation of the instant disposition by Seoul Administrative Court No. 2016Guhap74521, and the said court rendered a favorable judgment on April 27, 2017 on the ground that “H Co., Ltd. was aware of the grounds for restricting participation in the instant collaborative act by engaging in the instant collaborative act, but it cannot be deemed as the person who led the instant collaborative act, and thus, it cannot be deemed as the person who led the instant collaborative act, and thus, the disposition by the Administrator of the Public Procurement

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3, 7, 9, 10, 13, 14, Eul evidence No. 4, the purport of the whole pleadings

D. Determination

1) Determination as to whether the reasons for exclusion from the designation of competing products exist

In full view of the following circumstances revealed by adding up the purport of the entire pleadings, the grounds for excluding the designation of competing products are recognized as to E files.

A) The Defendant shall not designate the product as competing products with respect to which the head of the relevant central administrative agency requested exclusion from designation, except in extenuating circumstances (the latter part of Article 6(2) of the former Act on the Development of Agricultural and Fishing Villages), and the head of the relevant central administrative agency shall request the Defendant to exclude the designation of competing products in consideration of “the possibility of competitive tendering process open only to small and medium enterprise proprietors for the relevant product,” and “the necessity of fostering the relevant small and medium enterprise owners

According to Article 10 (1) 1 and 3 of the former Operational Guidelines enacted pursuant to the above delegation provision, the defendant may exclude the designation of competing products where it is difficult for the relevant agency to request the exclusion of the designation of the relevant product due to unfair acts such as the examination and investigation conducted by the Fair Trade Commission and the investigative agency on the quantity, price collusion, intentional failure, etc.

Therefore, the officers and employees of the Plaintiff and the instant member companies were subject to criminal punishment in the instant criminal trial due to the instant collaborative act, and the possibility of competitive bidding among small and medium enterprise proprietors due to each of the dispositions by the Defendant was rare, which constitutes grounds under Article 10(1)1 and 3 of the former Operational Guidelines. Accordingly, on September 5, 2016, the Public Procurement Service was indicted by the instant member companies due to the instant collaborative act, and it is difficult for the Defendant to secure competition in competitive bidding among small and medium enterprise proprietors by being subject to the two-year restriction on participation in competitive bidding." On the ground that Article 6(3) of the former Enforcement Decree of the Act on the Support of Agricultural and Medium Enterprises, Article 10 of the former Operational Guidelines, and Article 6(2) of the former Operational Guidelines, were requested to exclude competing products from E files pursuant to the latter part of Article 6(2) of the former Act, and thus, the Defendant in receipt of such request is sufficiently recognized as grounds for exclusion from the designation of competing products.

B) As seen earlier, Article 6(3) of the former Enforcement Decree of the Act on the Development of Market Support provides that “The possibility of competitive bidding between small and medium enterprises and small and medium enterprises for the pertinent product” is one of the requirements other than the designation of competing products. According to Article 8 of the former Operational Guidelines, a product that intends to obtain a recommendation for designation must be at least 10 small and medium enterprises directly produced in the Republic of Korea (at least five if necessary

However, due to the instant collaborative act, the instant member companies were subject to the disposition of the Administrator of the Public Procurement Service that restricts participation in competitive bidding for two years, and was also subject to the Defendant’s disposition that restricts the revocation of participation in competitive bidding for small and medium enterprise proprietors and the acquisition of participation eligibility (six months). At the time of each of the instant dispositions, the instant member companies were all small and medium enterprise owners that produce electronic files. As such, due to the instant disposition of the Administrator of the Public Procurement Service and the Defendant’s respective dispositions, there was no possibility of competitive bidding for small and medium enterprise proprietors who have the qualification to participate in competitive bidding for small and medium enterprise proprietors at the time of the instant public announcement and the instant public announcement.

[On the other hand, according to the letter of request from the Public Procurement Service (Evidence No. 4), there may be two small and medium enterprises that directly produce the E file at the time of the public notice as of January 4, 2017, other than the instant member companies. However, if the Plaintiff excludes a new small and medium enterprise that started to produce the E file after the public notice as of January 4, 2017, it cannot be deemed that the instant member companies are all small and medium enterprises that actually produce the E file, and that there exist two small and medium enterprises that directly produce the domestic file, it cannot be deemed that there is a possibility of competitive bidding between small and medium enterprises and small and medium enterprises that directly produce the E file.

In addition, although it is deemed that small and medium enterprises that produce new E file from the members of the instant case participate in the current government-funded E file purchase bid and there is a possibility of competitive bidding, the member companies of the instant case are merely involved in the government-funded E file purchase bid until now after having received a decision to suspend execution on each disposition of the instant Administrator of the Public Procurement Service and the Defendant, and the small and medium enterprises that produce a small number of new E file (the Plaintiff asserts that five new small and medium enterprises have occurred, and the Defendant asserts that three new small and medium enterprises have occurred, but both parties do not submit specific and direct evidence to recognize them) alone, it does not satisfy the requirements required under Article 8 of the former Operating Guidelines.

On the other hand, the plaintiff asserts that the disposition of the Administrator of the Public Procurement Service of this case is partly revoked and the possibility of competitive tendering process open only to small and medium enterprise proprietors exists. However, although the disposition of this case against H Co., Ltd. was revoked through administrative litigation, it is possible to impose restrictions on participation in competitive tendering procedure due to the instant collaborative act, but it was revoked on the ground that it was erroneous application of specific criteria for disposition (constition). Therefore, it is difficult to view H Co., Ltd. to have been able to participate in competitive tendering procedure open only to small and medium enterprise proprietors for file (in addition, there is no evidence to deem that each

C) In the situation where a large enterprise has occupied most of the revenue from the E file private market, there exists a need to protect and foster the E file producers in competition with large and medium enterprises. Considering this point, it seems that the E file was designated as competing products. However, it is difficult to view that there is a great need to foster the E file producers in the situation where the entire business owner of the E file produced and engaged in the instant collusion.

D) The Plaintiff asserts that: (a) the production of E files by the instant member companies did not rapidly increase demand; (b) the restriction on the production capacity of the instant member companies, which are small and medium entrepreneurs, is likely to produce diverse specifications E files in a timely fashion and supply them to the demand source; and (c) as a result of transportation costs, participants are only members of the construction site adjacent to the construction site subject to supply; (d) in the process of sharing inventory quantity and determining the participating companies for the purpose of preventing a bid in order to maintain E files as competing products, the Plaintiff still asserted that there was a need to “the possibility of competitive bidding between small and medium entrepreneurs of E files,” and “the necessity to foster small and medium entrepreneurs related to E files.”

However, in light of the frequency of collusion and the amount of successful bid, and the fact that the instant member companies led to a private contract or set up a joint production plan and adjust the supply volume, etc., it is difficult to view that the instant collaborative act, as alleged by the Plaintiff, was merely a serious and compromise between bidders within the scope recognized in light of the general transaction norms in order to prevent an unbruptive competition in the appropriate line taking account of corporate profits into account.

In fact, the plaintiff and the member companies of this case controlled the E file delivery unit price in the government-funded market using the situation where competition was excluded in the government-funded market, and adjusted the production and release volume of the government-funded E file by formulating and implementing a joint production plan. The plaintiff and the member companies of this case had a direct impact on the decision of the terms and conditions of transaction, such as allowing a specific member to enter into a free contract by using the methods such as non-tender, single bidding, and price excess bidding.

In addition, even if considering the circumstances as alleged by the Plaintiff, the problems arising from such circumstances should be resolved through the normal process of competitive bidding, such as retenders through changes in the terms and conditions of trading after a failure to observe a certain number of times, and a negotiated contract based on due process after a failure to observe a certain number of times, so the act of excluding competition in bidding collusion cannot be justified. The purpose of maintaining the designation of E file competing products is to ensure the interests of the members of the instant company

2) Determination as to whether discretionary power is deviates or abused

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to such disposition, by objectively examining the content of the offense, which is the reason for the disposition, the public interest to be achieved by the relevant disposition, and all the relevant circumstances (see, e.g., Supreme Court Decision 20043854, Apr. 14, 2006)

B) Based on the above legal doctrine, comprehensively taking account of the following circumstances revealed by adding the aforementioned facts to the purport of the entire pleadings, the part related to the E file in each of the respective notifications and notifications of this case, which excluded the E file from competing products, cannot be deemed as deviating from and abusing discretionary power in violation of the proportionality principle, even if considering the various circumstances alleged by the Plaintiff.

(1) The purpose of the Act on the Development of Market Support is to contribute to the improvement of competitiveness and management stability of small and medium enterprises. To this end, the Act designates certain products produced by small and medium enterprises as competing products and excludes participation in competing products, thereby allowing small and medium enterprises to enter into a contract for the procurement of goods with public institutions through competition among the small and medium enterprises. The head of a public institution that intends to place an order for construction exceeding a certain size requires small and medium enterprise owners to purchase the items subject to direct purchase of construction materials (Articles 6, 7,

As such, it is necessary to maintain fair market economy by excluding the pertinent product from competing products, etc., in cases where there is no longer "the possibility of competitive tendering process open only to small and medium enterprise proprietors" and "the necessity of fostering small and medium enterprise proprietors" among the pertinent product related to competing products, etc. while taking advantage of such a system and taking unfair profits, it is necessary to maintain fair market economy order.

(2) All of the small and medium entrepreneurs producing E files engaged in the instant collaborative act in a systematic manner, and the period, frequency, and scale of the instant collaborative act is also reasonable. Since the instant collaborative act by all the small and medium entrepreneurs producing E files results in the exclusion of competition entirely from the designated purpose in the E file tender designated as a competitive product, the need to foster the E file-related small and medium entrepreneurs is not significant.

In addition, the need to maintain the designation of competing products for E files is not significant in the situation where there is no possibility of competitive bidding because the participation in competitive tendering process open only to small and medium enterprise owners in E files is difficult due to each disposition of the Administrator of the Public Procurement Service and the Defendant.

(3) According to Article 6(1), (2), and (4) of the Enforcement Decree of the Act on the Development of Markets, the Defendant shall designate new competing products on a three-year basis, and if necessary, he/she may designate competing products from time to time. According to Article 5(1) of the Operating Guidelines, at least 10 small and medium entrepreneurs who directly produce the Plaintiff or E files may file an application for the recommendation of the designation of competing products with the National Federation Chairperson.

Thus, the plaintiff and the member companies of this case can be designated as re-competitive products by filing an application for designation of competing products with respect to E files and obtain designation of re-competitive products on the ground that "the possibility of competitive tendering process open only to small and medium enterprise proprietors for E files after the expiration of the respective disposal period of the plaintiff and the defendant after the termination of the validity thereof" exists. Thus, it is difficult to view that "the purport of excluding E files from competing products, etc." is that "the part related to E files among the respective public notice and public notice of this case" is a huge disadvantage to

(4) A new small and medium enterprise that started to produce E files after the public notice of January 4, 2017 of this case was disadvantaged due to 'the E file-related parts' of each public notice and public notice of this case. However, even though the new small and medium enterprise owner was able to be excluded from competing products, etc. by the public notice of this case and the public notice of this case, it cannot be said that the new and medium enterprise owner's new production of E files was relatively much disadvantaged.

(5) Unless there are special circumstances, the Defendant’s product should be excluded from competition products with respect to the product for which the head of the relevant central administrative agency requested exclusion from designation (the latter part of Article 6(2) of the former Act on the Development of Agricultural and Fishing Villages), and there is no special reason to refuse the Defendant’s request for exclusion from designation of the Public Procurement Service and keep E

3) Sub-decisions

Therefore, there is a reason to exclude E files from the competing products, and "the purport to exclude them from competing products, etc." cannot be viewed as a disposition that deviates from or abused its discretionary power. Thus, the Plaintiff's assertion is without merit.

4. Conclusion

Therefore, all of the plaintiff's claims are dismissed, and it is so decided as per Disposition.

Judgment of the presiding judge;

Judges Slocks

Judges Kang Jae-sung

1) The Plaintiff entered the Plaintiff’s party as “B union” in the Plaintiff’s complaint, but it is apparent that it is a clerical error in the “A union,” thereby correcting it ex officio.

2) Pursuant to Article 2 of the Addenda of the Government Organization Act (amended by Act No. 14839, Jul. 26, 2017; Act No. 15624, Jun. 2, 2018), the authority of the Administrator of the Small and Medium Business Administration is succeeded to the Minister of SMEs and Startups on July 26, 2017, and thus, the Administrator of the Small and Medium Business Administration is the Administrator of the Small and Medium Business Administration as of September 5, 2016, without distinguishing the Administrator of the Small and Medium Business Administration from the Minister of SMEs and Startups

3) Of the respective notifications and notifications in the instant case, the parts relating to the file are excluded from the products subject to direct purchase of competing products and construction materials (i.e., competing products). According to Article 12 of the former Act on the Development of Agricultural and Fishing Villages (amended by Act No. 14839, Jul. 26, 2017; hereinafter the same), where the designation of a product subject to direct purchase of construction materials among competing products is excluded from the designation of a competing product, it is naturally excluded from the category subject to direct purchase of construction materials, and the existence or absence of the reasons for exclusion from the designation of a competing product is limited to the category subject to direct purchase of construction materials, and the legality of the part relating to the E file in the respective notifications and announcements in the instant case is determined mainly by the legality of the “excluding the designation of a competing product from the category relating to the E file”.

4) Unlike Article 6(3) of the former Enforcement Decree of the Act on the Development of Agricultural and Fishing Villages, the Plaintiff asserts that the latter part of Article 6(2) of the former Enforcement Decree of the Act on the Development of Agricultural and Fishing Villages only applies to only the first designation of competing products, but does not apply to cases where the designation of competing products is excluded after the first designation of competing products. However, Article 6(3) of the former Enforcement Decree of the Act on the Development of Agricultural and Fishing Villages provides the requirements and procedures for the exclusion of the designation of competing products pursuant to the latter part of Article 6(2) of the former Enforcement Decree of the Act on the Development of Agricultural and Fishing Villages. Therefore, there is no ground to view different application scope of Article 6(3) of the former Enforcement Decree of the Act on the Development of Agricultural and Fishing Villages and the latter part of Article 6(2) of the former Enforcement Decree of the Act on the Development of Agricultural and Fishing Villages. In addition, Article 6(1) and (2) of the former Enforcement Decree of the Act on the Development of Agricultural and Fishing Villages established pursuant to the former Act.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.