(영문) 서울행정법원 2018.1.12. 선고 2016구합83440 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 is a company established on April 4, 1989 and engaged in the production and sale of high-Robbery concrete files (PHC files).

B. The Korean Won-Hy concrete cooperative (hereinafter referred to as the "cooperative of this case") is a non-profit corporation established with the main objective of developing the concrete industry and promoting the welfare of its members by domestic small and medium enterprises producing a PH file that reinforces the tobacco powder base around February 1990, which is a PH file, a sewage pipe, the original decision-making concrete fume, electricity transmission and distribution, and telecommunication concrete power supply and distribution. Seven small and medium enterprises, including the Plaintiff, engaged in the production and sales of the PHC file (hereinafter referred to as the "member of the cooperative of this case"), including the Plaintiff, are 17 small and medium enterprises (hereinafter referred to as the "Plaintiff, Yangyang-dong Industry Co., Ltd., Ltd., Ltd., Simsan Industries Co., Ltd., Ltd., PHC Co., Ltd., Ltd., Simkdong Industry Development Co., Ltd., Ltd., Ltd., Simbaco Co., Ltd., Ltd., Ltd., Ltd., Simba Co., Ltd., Ltd.,

C. From July 201 to May 24, 2016, the public prosecutor conspireds with the instant member companies, including the Plaintiff’s representative director B, and the executives and employees of the instant association, to enter into a negotiated contract between the instant association and the instant member companies, and designated a successful bidder in advance (the instant association or the instant member companies) and a premium bidder, and to enter them into a bid at a pre-determined bid price, and the remaining companies were to enter into a bid at a higher price than this pre-determined bid price, and to prevent the Plaintiff from being selected as a successful bidder by intentionally failing to participate in the bid, or from being selected as a successful bidder in excess of the pre-determined bid price or in excess of the pre-determined bid price, and then ordered the ordering agency to change the contract method by a negotiated contract, etc., and then prosecuted the 3rd purchaser as an executive officer and employee of the instant case under a bid bid agreement with the pertinent 1,360 times in total on the basis of a specific company’s pre-determined bid price.

D. B was sentenced to two years of suspended sentence for one year of imprisonment on September 21, 2016 (Seoul Central District Court Decision 2016Da4187, 5376 (Joint)). B appealed against B, but the Seoul Central District Court dismissed the above appeal on February 3, 2017 (Seoul Central District Court Decision 2016No3816). B appealed, and the final appeal is currently pending (Supreme Court Decision 2017Do3426).

E. On December 8, 2016, the Defendant issued a disposition to revoke the eligibility for participation in competitive bidding and restrict the acquisition of eligibility for participation (hereinafter referred to as “instant disposition”) on the ground that the instant collaborative act against the Plaintiff constitutes “an unfair act, such as collusion,” as prescribed by 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”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 8, Eul evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

Inasmuch as the requirements are different in the Criminal Act and the "unfair act such as interference with bidding" under the Act on the Promotion of Market Support, the plaintiff's act of interference with bidding does not immediately constitute "unfair act such as collusion" under the Act on the Promotion of Market Support. The member companies of this case formed a joint supply and demand organization in the PHC file-oriented bidding, and the progress of mutual consultation in the process was an inevitable act to prevent an unbruptive competition in the situation where the profitability is likely to be worse due to the peculiarity of the PHC file market and the problems of the competition system between small and medium enterprises. The member companies of this case including the plaintiff et al. have actively participated in the bidding structure formed by the association of this case, and there was no reason for the disposition of this case.

B. Relevant statutes

It is as shown in the attached Form.

1) Designation of competing products between small and medium entrepreneurs

PHC file is designated as a competing product only for small and medium enterprises under Article 6 of the Act on the Development of Agricultural and Fishing Villages and is given an opportunity to participate in the tendering procedure for purchasing PHC files ordered by public institutions, such as the Public Procurement Service. In particular, since a public corporation or quasi-governmental institution, which was newly established on December 29, 2009, entrusted the purchase of PHC files to the Administrator of the Public Procurement Service, the size of the government-funded market of the PHC file has increased since that time.

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

A) Around April 2009, the instant member companies established the “Operational Rules of the PHC File Working Council (hereinafter “Operational Rules”) consisting of members companies at the time through the instant association, and consulted on the allocation of quantities and price maintenance in the PHC file supply market, including the private capital market among the members. On a regular basis, the establishment of the instant association had regularly conducted consultation on the allocation of quantities and price maintenance in the PHC file supply market including the private capital market among the members. As the representative of the instant association, the Working-Level Council (hereinafter “Working-Level Council”), the Representative Council (referring to the meeting of the representative director of the instant member companies), the Electronic Council (referring to the meeting of the representative director of the instant member companies), and the National File Council, etc., to exchange monthly results of production and sales of the PHC file files between members and maintain the unit price of supply in the government-funded market, and to check whether the production of the PH files will be carried out as the implementation method of the joint production plan.

B) All of the 17 PHC files producers, a member company of the instant case, participated in the instant working-level council.

3) The method of the instant collusion

A) The instant member companies, with respect to the government-funded PHC file purchase bid, failed to determine the level of successful bidders, reporters, and bidding price by taking into account the activity areas, production stock, bidding eligibility points, etc. of the members. The instant member companies, other than those scheduled to award a contract and those members, conducted bid collusion in a way that does not participate in the pertinent bidding. In order to enhance the basic amount of the public notice given by the agency awarding the contract, a specific member could enter into a private contract by reporting the relevant bid in the form of “non-tender, single bid, and bid exceeding the estimated price.”

B) (1) In the case of a bid of at least one billion won, a joint contractor shall be organized, and the instant partnership shall participate in the bidding under the name of the instant partnership, and shall be awarded a successful bid price by dividing the bid price into shares of the joint contractors, and the instant partnership shall be allowed to participate in the joint contractors. ② In the case of a bid of at least one billion won, a joint contractor shall be organized and a principal contractor shall be selected and appointed to participate in the bidding under the name of the principal contractor. ③ In the case of a bid of at least one billion won in the name of an individual company without a joint contractor, a company located as near the site of the construction due to transportation costs shall be preferentially allocated to each other.

C) Examining the specific implementation process, in a case where a specific member participates in a tendering procedure individually, the first decision on whether to participate in the tendering procedure is made, and then the first decision on whether to participate in the final tendering procedure for each case after consultation with other companies at the Consultative Council of the Working-Levels in this case. If a specific member is determined by the Consultative Council of the Working-Levels in this case as a successful bidder for a specific PHC file delivery case, the member requests a bidding by notifying the amount of his bid or the amount of his bid bid in color among the other member companies, and the rupture is a method by which the rupture can award the relevant contract by conducting a bidding in excess of 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 allocated data to the employees of the instant association, and had the instant association manage the fair distribution of the contract amount by enterprise.

4) Main contents of the instant operational rules

The PHC Working Council under Article 5 of the Operating Rules of the PHC File Working Council (the duties of the Council) shall deliberate and decide on, and execute, the following paragraphs.1. 1. Coordination of the fair Serial System and the reasonable price through mutual consultation, and the head of 2. Joint response to the monitoring of unfair acts and the control of unfair bidding; 3. Determination of the order of priority in government-funded and private bidding; 4. When the representative director has committed an act in violation of the purposes of Article 2 by presenting the execution of all acts to the representative director's meeting for the stabilization of the file industry to the representative director's meeting in violation of the following paragraphs, the execution of all acts for the stabilization of the file industry shall be jointly dealt with by a resolution of the Council. 1. 2. When the violation is discovered, the relevant representative director's meeting shall be visited to the representative director's meeting. 2. 2. The number of violations shall be excluded from the order of priority twice the number of violations in government-funded and private bidding.

Permanent) Whether or not to withdraw may be identical. The Regulations on the Operations of the Serial System (Detailed Matters) Nos. 7 (1) (1) shall be established by setting forth the sequences of each company (basic once), production capacity industry 1 and 2, and the companies separately recognized by the member companies may set up the sequences of 1.5 times (the concurrence of 2/3 of all the members companies) by agreement, and the selection of the first net company (the concurrence of 2/3 of all the members companies) shall be made once more than once in bidding, the first order of preferential bargaining shall be the same as the first order among the members companies initially requested, and the sequence of 3 (3) members shall also be the same as the lower order of rule. Each member company shall be obliged to notify the Executive Department of whether it has been requested by the bidding (contest), and shall be subject to prior consultation (the first order) and shall be able to be held at any time and shall be able to be held more than once in accordance with the schedule of each bid (the highest order).

5) The Plaintiff, such as the Plaintiff’s successful bid through the instant collusion, was awarded a successful bid on July 26, 201 through the instant collusion at KRW 116,80,00 equivalent to 95.126% of the estimated price, on the ground that the Plaintiff’s bid for the purchase of government-funded materials (PHC file) materials (PHC file 2) announced by the Ministry of Land, Transport and Maritime Affairs by the Ministry of Land, Transport and Maritime Affairs, on July 26, 2011, was awarded a successful bid at KRW 25,10,63,120, from the bid for the “PHC file purchase of government-funded materials” until March 31, 2016, and the aggregate of the amount that was awarded a direct bid and the amount allocated according to the share of joint contractors is KRW 25,10,63,120.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3, 8 through 12, Eul evidence Nos. 1, 2 and 3 (including each number), the purport of the whole pleadings

D. Determination

1) Confirmation of applicable legislation

In principle, whether an administrative disposition is lawful shall be determined based on the relevant statutes and facts at the time when the administrative disposition was taken (see, e.g., Supreme Court Decision 80Nu412, Dec. 8, 1981); however, in the case of a punitive administrative disposition, the legality of the administrative disposition should be determined based on the relevant statutes and facts at the time of the unlawful act (see, e.g., Supreme Court Decisions 83Nu383, Dec. 13, 1983; 86Du63, Jan. 20, 1987); however, the instant disposition is a restrictive administrative disposition, “a disposition revoking the qualification for participation in competitive bidding between small and medium entrepreneurs and restricting the acquisition of qualification for participation for six months,” and thus, the applicable law at the

However, Article 8 (3) of the current Act on Support for Market Development (amended by Act No. 13866, Jan. 27, 2016) provides that "the Administrator of the Small and Medium Business Administration may cancel the participation eligibility or suspend it for a period not exceeding one year in any of the following cases: Provided, That in cases falling under any of subparagraphs 1 through 3, the Administrator of the Small and Medium Business Administration shall cancel the participation eligibility," and Article 8 (5) provides that "if the Administrator of the Small and Medium Business Administration cancels the participation eligibility, he/she may restrict the acquisition of the participation eligibility within one year from the date of cancellation of the participation eligibility," and the above provision does not provide for separate provisions concerning the above provisions in the Addenda since April 28, 2016.

In addition, Article 8 (3) of the former Act on the Development of Market Support (amended by Act No. 10504, Mar. 30, 2011; effective from July 1, 2011; and Article 8 (3) of the same Act (amended by Act No. 13866, Jan. 27, 2016) provides that "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 participation eligibility," and provides that "where a small and medium enterprise participating in a competitive tendering procedure falls under any of the following subparagraphs, he/she may cancel the participation eligibility or suspend it for a period not exceeding one year." The above provision does not provide for a separate provision as to the above provision in the Addenda, which was amended on March 30, 201 and enforced from July 1, 2011. In addition, Article 4 [Attachment 1] 3 of the Enforcement Rule of the Act on the Development of Market Support and the cancellation of participation eligibility under Article 8 (3).

Meanwhile, the fact that the instant collusion was conducted from April 17, 2012 to May 24, 2016 is as seen earlier.

Therefore, from April 17, 2012 to April 27, 2016 among the instant collusion acts, Article 8(3)3 of the former Act on the Development of Agricultural and Fishing Villages, Article 4 [Attachment Table 1] 3A, Article 4 [Attachment Table 1] from April 28, 2016 to May 24, 2016, Article 8(3)3 of the Act on the Development of Agricultural and Fishing Villages, and Article 4 [Attachment Table 1] 3 of the Enforcement Rule of the Act on the Development of Agricultural and Fishing Villages shall apply.

2) Whether an act constitutes “an act of improper conduct, such as collusion,” under the Act on the Support of Market Support or the former Act on the Support of Market Support

In full view of the following circumstances revealed by comprehensively taking account of the facts acknowledged earlier and the purport of the entire argument, it is reasonable to view the instant collusion as constituting “an act of improper conduct, such as fair competition or appropriate implementation of a contract” under Article 8(3)3 of the Act on the Development of Agricultural and Fishing Villages or Article 8(3)3 of the former Act on the Development of Agricultural and Fishing Villages and the former Act.

A) Around April 2009, the members of the instant association, including the Plaintiff, established the instant operational rules that consist of members of the PHC file producers at the time through the instant association, and consulted on the allocation of volume and price maintenance in the PHC file supply market including the private-class market among the members. They regularly held a meeting of the instant association’s working group, representative council, file subcommittee, and national file council, etc. to exchange information on the monthly performance and inventory of production and sales of the PHC files between members and maintain the unit price of the PHC file supply in the government-funded market by exchanging information on the monthly performance and inventory status of production and sales of the PHC files between members, and inspecting compliance with the implementation of the PHC file system as a method of practice, and adjusted the production volume of the government-funded PHC file by checking whether the joint reduction plan was implemented.

B) With respect to the method of the instant collusion, the instant member companies failed to determine the level of bid price, i.e., successful bidders, and bid price by taking into account the activity areas, production and inventory quantity, bidding score, etc. of the members with respect to the instant bid for government-grade PHC file purchase, and then failed to determine the bid price level, and members other than those of the successful bidder and the bidder have conducted the bid collusion in a way that does not participate in the relevant bidding. In order to enhance the basic amount of the public notice given by the agency awarding the contract, the instant member companies participated in the relevant bidding in the form of “free bid, single bid, and excess bid price,” thereby allowing a specific member to enter into a private contract.

C) From July 201 to May 24, 2016, B, the Plaintiff’s representative director, in collusion with the instant member companies, and executives and employees of the instant association, had the instant company enter into a negotiated contract with the instant company and the instant association enter into a bid for the government-grade PHC file purchase, and bid with the winning company and the winning company enter into a bid with the bid price determined in advance, and the remainder company failed to participate in the bid at a higher price than this, and had the winning company receive the successful bid by the winning company, or failed to intentionally participate in the bid, to prevent the selection of the successful bidder by an intentional bid, single bid, or a bid price exceeding the expected price, and then had the ordering company change the contract method by a negotiated contract, and then had a specific company enter into the contract method by 1,360 times in total, 65,387,023,639, government-funded PH file purchase contract, and thereby, was indicted by the appellate court and the appellate court convicted the Defendant (hereinafter referred to as a public prosecution).

D) The Plaintiff, through the instant collusion, was awarded a successful bid on 37 occasions in the bid for the “PHC file purchase of government-funded materials” through the instant collusion, and the total amount allocated according to the share of the amount awarded a direct bid and the joint contractor’s share reaches KRW 25,100,63,120.

E) Based on Article 27(1) of the former Act on Contracts to Which the State is a Party (amended by Act No. 14038, Mar. 2, 2016; hereinafter “State Contract Act”), Article 76(1)7 of the former Enforcement Decree of the State Contracts Act, and Article 76(1) [Attachment 2] subparagraph 9(a) of the Enforcement Rule of the State Contracts Act, the Plaintiff was subject to a disposition of restricting the Plaintiff’s participation in bidding for 24 months from the Administrator of the Public Procurement Service on September 1, 2016 and from the Minister of National Defense on November 9, 2017, based on Article 76(1) [Attachment 2] subparagraph 9(a) of the Enforcement Rule of the State Contracts Act, on the ground that the instant collaborative act constitutes “person who was awarded a successful tender by leading to collusion in the competitive bidding.” The Plaintiff’s first instance court dismissed the Plaintiff’s claim for cancellation of the enforcement action against the restriction on participation in bidding (Seoul Administrative Court Decision 20170Da17519, supra).

F) The instant member companies, including the Plaintiff, and the instant association obtained unjust excess profits by winning a successful bid at a higher price than the successful bid price (which seems to be 90% of the normal estimated price) through the instant collusion. In this process, the Plaintiff’s assertion that the instant member companies, including the Plaintiff, actively participated in the bid structure formed under the lead of the instant association, and that there was no fact that there was no prejudice to the fairness of bidding.

G) The instant member companies, including the Plaintiff, have reached 17 parts of the instant member companies, and each region has been appropriately distributed, and 1) the bidding process is also permitted. As such, the characteristics of the PHC file market with a relatively large portion of the cost of transport storage and the case where individual small and medium enterprises are difficult to cope with the contractual volume, solely on the ground that there is no collusion act in this case, it is difficult to deem that the instant collusion act was inevitable to prevent the occurrence of a risk that government-funded bid will continue to be excluded from the competing products between small and medium entrepreneurs, and even if so, it cannot be

H) In a case where a normal competitive bidding was conducted by only the data submitted by the Plaintiff, it is insufficient to recognize that the Plaintiff had reached the extent that it was impossible to pursue the normal profit of the instant member companies due to the occurrence of a false blood-related competition among the members of the instant case.

3) ADDDD ACT ACT. - Supplementary determination

A) Even if the criteria for a punitive administrative disposition are prescribed in the form of a Ordinance, it has no effect to externally bind citizens or courts, and whether such disposition is legitimate or not must be determined in accordance with the contents and purport of the relevant laws and regulations, not only the above criteria for disposition, but also with the purport of the relevant laws and regulations. Therefore, the pertinent disposition cannot be deemed legitimate as soon as it conforms to the above criteria for disposition. However, the above criteria for disposition does not in itself conform with the Constitution or laws, or unless there are reasonable grounds to believe that a punitive administrative disposition in accordance with the above criteria for disposition is considerably unreasonable in light of the contents and purport of the relevant laws and regulations and the contents of the relevant laws and regulations, it shall not be determined that the pre-paid administrative disposition is an abuse of discretionary authority (see, e.g., Supreme Court Decision 20076946, Sept. 20,

B) In light of the aforementioned legal principles, it is difficult to find that the instant disposition was an unlawful act of deviating from and abusing discretion when comprehensively taking into account the following circumstances known by the facts acknowledged earlier and the purport of the entire pleadings.

(1) Considering that the period, frequency, and scale of the instant collaborative act, and the instant collaborative act was committed systematically, and that the result resulted in the exclusion of competition entirely differently from the purpose of designation in the PHC file bid designated as a competing product open only to small and medium enterprises, criticism is highly likely and there is a need to impose strict sanctions against the instant collaborative act.

(2) The instant disposition conforms to the sanctions standards set forth in Article 4 [Attachment 1] 3 of the Enforcement Rule of the former Act on the Support of Market Development.

(3) The Plaintiff’s act of collusion was inevitable on the sole basis of the circumstances alleged by the Plaintiff.

It is difficult to see it, even if there were such circumstances, it cannot be viewed as a legitimate purpose.

3. Conclusion

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