2014Guhap57478 Action to seek confirmation of invalidity of the designation of a product subject to direct purchase

A Stock Company

The Small and Medium Business Administration

August 29, 2014

September 23, 2014

1. The instant lawsuit shall be dismissed.

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

On December 31, 2009, the Defendant confirmed that the Defendant’s designation of rubber powder products as competing products among small and medium entrepreneurs is invalid.

1. Details of the disposition;

A. On December 31, 2009, the Defendant designated 196 products as competing products only among small and medium enterprises and designated 120 items, including furniture, as products subject to direct purchase of construction materials (hereinafter “the instant disposition in which the Defendant, on December 31, 2009, designated rubber powder as a competitive product between small and medium enterprises and the Small and Medium Business Administration, and announced the Small and Medium Business Administration’s announcement B.).

B. Article 1 of the Addenda to the Public Notice of this case provides that "the public notice shall enter into force on January 1, 2010," and Article 2 provides that "the term of validity shall be effective until December 31, 2012, for products directly purchased competing products and construction materials from small and medium entrepreneurs by public notice."

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. The plaintiff's assertion

According to Article 8 of the Operational Guidelines for Public Purchase System, recommendation for designation of competing products between small and medium enterprises and small and medium enterprises is required to be made by a small and medium enterprise directly produced in the Republic of Korea (at least five if necessary for protecting and fostering domestic small and medium enterprises), and annual purchase records of public institutions are at least one billion won. The Defendant, upon the separate request of the Ministry of Environment, designated rubber so as to have more than five products directly produced in the Republic of Korea as a competitive product between small and medium enterprises. However, three of the above five small and medium enterprises failed to meet the verification standards for direct production of competing products between small and medium enterprises, and one of the five small and medium enterprises failed to meet the conditions that public institutions meet the requirements for designation of competing products between small and medium enterprises. Ultimately, in light of the fact that the instant disposition was unlawful and illegal, and that there is any harmful effect that one small and medium enterprise obtains enormous profits while olizing and causing financial losses to the State, it is apparent that the Plaintiff, who received the Defendant’s claim for confirmation of the instant disposition, can seek for nullification of the instant disposition.

3. Whether the lawsuit of this case is legitimate

As long as the term of validity of the instant disposition has already expired as at the time the Plaintiff filed the instant lawsuit, the Defendant did not have any legal interest in seeking confirmation of invalidity of the instant disposition, and thus, made a defense prior to the instant lawsuit unlawful.

In a case where the effective period of an administrative disposition is specified, the effect of the administrative disposition is invalidated upon the lapse of the effective period. Thus, there is no legal interest in seeking confirmation of invalidity of the disposition, barring any special circumstance to deem that there is a violation of any legal interest due to the remaining external form after the expiration of the effective period (see Supreme Court Decision 89Du1032, Jan. 12, 1990). According to the above facts of recognition, Article 2 of the Addenda to the public notice of this case sets the effective period of the disposition of this case until December 31, 2012. Thus, the disposition of this case has already lost its validity after the lapse of December 31, 2012, and since there is no special circumstance to deem that there is a violation of any legal interest of the plaintiff due to the remaining external form of the disposition of this case, the plaintiff has no legal interest in seeking confirmation of invalidity of the disposition of this case.

4. Conclusion

Therefore, the lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.

The presiding judge, the highest judge;

Judges Park Jong-il

Judge No. Doingk