KS Construction Co., Ltd. and nine others (Law Firm Dakel et al., Counsel for the plaintiff-appellant)

Korea

Dae Forestry Industry Co., Ltd. (Attorneys Hwang Jong-sung et al., Counsel for the defendant-appellant)

1. The Seoul High Court 201Ra1243 held that the above court's provisional disposition order on October 20, 201 is authorized with respect to the cases of provisional disposition application such as preservation of status between the creditors and the debtor.

2. The supplementary intervenor shall bear the part resulting from his participation in the total costs of the lawsuit, and the remainder shall be borne by the debtor.

Creditors: as shown in the Disposition.

The debtor: Revocation of the provisional disposition decision as stated in Paragraph (1) of this case (hereinafter referred to as the "provisional disposition decision of this case") and the creditor's application for provisional disposition of this case is dismissed.

1. Basic facts

According to the records, each of the following facts is proved:

(a) Execution and progress of tendering;

(1) On December 29, 2010, at the commission of the Public Procurement Service under the jurisdiction of the Public Procurement Service, publicly announced a tender (hereinafter “instant tender”) with respect to the construction work of the breakwater (hereinafter “the instant construction work”) in the middle port breakwater (hereinafter “instant construction work”) in the territory of the Public Procurement Service (hereinafter “instant tender”) under Article 2010125719-00 of the Public Notice of Facilities of the Public Notice of the Public Notice of the Public Notice of Facilities of the Public Procurement Service. (After that, on April 4, 2011 and on April 8, 2011, there was a corrective notice twice; hereinafter “instant tender notice”).

(2) Each obligee listed in Paragraph (1) through (7) is a company engaging in construction business, and each obligee listed in Paragraph (8) through (10) among the list of creditors listed in Paragraph (1) of the same Article is a design company. The obligees constitute a joint supply and demand company (hereinafter “joint supply and demand company for creditors”) and select among them as a joint supply and demand company for creditors KS Construction Co., Ltd. (hereinafter “creditor KS Construction”) among them, and submitted a joint supply and demand agreement and a written application for preliminary examination of participation in bidding on January 11, 2011, and were selected as a qualified bidder for the bid of the instant case.

(3) On April 28, 2011, the creditor E.S. construction, the representative of the creditor joint contractor, submitted a tender through the National Integrated Procurement System in the tender for the shop design implemented on April 28, 201, and was selected as the person eligible for design registration on June 21, 201 as a result of the examination of qualifications.

(4) However, among the non-party 1 and the non-party 22, who is the representative director, the creditor joint venture company (hereinafter “creditor navigational navigational navigation engineering”), the creditor joint venture company (hereinafter “creditor navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigation engineering”), the non-party 2 resigned from the representative director on March 31, 201 and the cancellation registration on April 7, 2011 was completed on the corporate registry, but did not change the registered information on the national comprehensive electronic procurement system. As a result, at the time of the Plaintiff’s submission of the tender document, two “non-party 1 and 2” were indicated as the representative of the creditor navigational navigational navigational navigation

(5) On June 24, 2011, the Administrator of the Public Procurement Service under the control of the debtor did not register the change of the representative of creditor's port engineering as above, and concluded a contract between the intervenor's joint contractor and the subcontractor's joint contractor on June 30, 201, on the ground that it constitutes grounds for invalidation of tender under Article 39(4) of the Enforcement Decree of the Act on Contracts to Which the State Is a Party (hereinafter "State Contracts Act") and Article 44-3(b) of the Enforcement Rule of the State Contracts Act (hereinafter "the invalidity provision of this case"). On June 24, 2011, the Administrator of the Public Procurement Service notified the cancellation of the designation of the person qualified for design (hereinafter "the notice of cancellation of this case"). On the same day, the joint contractor (hereinafter "joint contractor of the intervenor's joint contractor") composed of each company stated in the attached Form 2 " List of the Intervenor's joint contractor members." On the same day, on June 30, 2011>

B. Determination of provisional disposition, immediate appeal and objection of this case

(1) The obligees asserted that the obligor’s notification of cancellation of the instant lawsuit was invalid as the nullification provision of this case, the scope of invalidity of tender, the interpretation of the obligor’s obligation to review at the time of invalidity of tender, or it is invalid as it is in violation of the principle of good faith and good faith. Thus, the obligees still asserted that the obligees are in a position of qualified person for design in the instant bidding, and together with the confirmation that the obligees are in a position of qualified person for design in the instant bidding, the obligor’s application for provisional disposition of this case seeking to suspend all subsequent procedures under the premise that the person qualified for design in the tender in this case is a subsidiary joint contractor with the subsidiary joint contractors, but the above court dismissed the obligor’s application for provisional disposition on the ground that there

(2) The creditors' interpretation of the grounds for invalidity of tender under the provision of invalidity of tender in this case is unfair. Even if the defects of some members of the joint supply and demand companies are the grounds for invalidity of tender in the form of a defect, the above defects are not significant enough to invalidate the entire tender in this case, and thus, the obligor's notification of cancellation of tender in this case was unlawful and filed an immediate appeal against the above decision of rejection in Seoul High Court (Seoul High Court 201Ra1243). The above court accepted the obligor's application for provisional injunction on the ground that the defects of some members of the joint supply and demand companies based on the notification of cancellation of the bid in this case are not significant to invalidate all of the bid in this case and the necessity for preservation

(3) The debtor filed an objection in this case with the assertion that there was no need to preserve since it was a part of the construction work after concluding a contract on the whole construction work of this case between the supplementary joint contractors and the supplementary joint contractors through the selection of the person eligible for design and the examination of the shop design.

C. Judgment of the first instance court on the merits

(1) The obligees filed the principal lawsuit against the obligor seeking confirmation that the obligees are in the status of qualified for design in the instant bidding, Seoul Central District Court 201Gahap128865, which rendered a judgment on May 18, 2012, which rendered a judgment that the obligees among the obligees is in the position of qualified for design on the ground that the obligees are not in the position of qualified for design on the ground that there is a defect falling under the grounds for invalidation of tender under the invalidation provision of the instant case, but the remaining obligees are not in the position of qualified for design on the ground that there is no other defect falling under invalidity of tender without being affected by the said invalidation.

(2) As to the judgment on the lawsuit on the merits, the status in which both the obligee and the obligor and the obligor’s supplementary intervenor have filed an appeal against each part against them.

(d) the relevant provisions;

The provisions of the Enforcement Decree of the State Contracts Act, the Enforcement Rule of the same Act, the relevant public notice, the established rules, etc. (hereinafter “the relevant provisions of this case”) related to the instant case are as shown in attached Table 4.

2. The parties' assertion

A. Summary of obligees' claims

In the instant bidding, the obligor revoked the obligor’s selection on the ground that the obligees were lawfully selected as a person qualified for design, and later the obligor did not change the registered information on the representative of some members of the joint supply and demand contractors. The obligor’s revocation notification of this case is unlawful due to the following defects, and the obligees were unfairly deprived of the obligee’s right to become a contracting party by being selected as a successful bidder in the instant bidding and the subsequent bidding. Accordingly, the obligees seek authorization of the provisional disposition decision of this case.

(1) The scope of “representative” as stipulated in the invalidation provision of this case

According to the relevant provisions such as Article 10 of the National Comprehensive Electronic Procurement System Act and Article 12(5) of the Statement of Special Consideration for Construction Works, etc., a Joint Venture System shall be a bidder in the event of participating in a tender by organizing a Joint Venture System. Thus, in determining the existence of the grounds for invalidation of a tender under the provisions of the invalidation of this case, only the representative of the Joint Venture System shall be deemed to be the representative of the Creditor Sc construction, who is the “tender” of the tender of this case, as the representative of the Joint Venture System, shall be deemed to be the “representative” under the provisions of the invalidation of this case. Unless there is any change in the registered matters, the creditor Sc construction registered the “Non-party 3, who is the sole representative,” and there is no ground for invalidity of the tender under the above invalidation provisions. Nevertheless, the debtor is confused with the “tender” and the “qualification for participation in the tender” required by the tender announcement of this case, which is merely a matter of arbitrary interpretation of the grounds for invalidation under the provisions of this case, which are merely a creditor’s internal regulations.

(2) Duty of the representative to modify the registered matters of the representative.

Even if the registration of change in the registered matters of each representative of the joint venture body of creditors constitutes an independent ground for invalidity of tender, insofar as the creditor's navigational navigational engineering was registered as the representative director Nonparty 1 as the representative on the National Comprehensive Electronic Procurement System, the failure of registration of change in Nonparty 2, who is the representative not the representative, does not constitute a ground for invalidity of tender under the provisions of this case.

(3) Whether the violation of the duty to change the registered matters of the representative constitutes grounds for invalidation of the tender of this case

In addition, even if there were any defects in the above bidding procedure, deeming the instant tender to be null and void merely because it was interpreted by expanding the grounds for invalidity of the provision on invalidation of the tender, which is merely a mere internal rule of the debtor, and thus, it is unlawful. Thus, even if the creditor's defense engineering did not submit a certified copy, etc. concerning the tender in this case, it can be deemed null and void only when there are special circumstances where it would result in excluding the case where the decision of the successful bidder who did not know or could have known such defects to the extent that the public nature and fairness of the bidding procedure would be considerably infringed, or where it is evident that the other party would result in a violation of good customs and other social order, or where the decision of the successful bidder and the conclusion of the contract would result in a violation of the purpose of the State Contracts Act prescribed by the State Contracts Act as to the procedure without invalidation. The creditor's defense engineering submitted a certified copy of corporate register and a business registration certificate stating the representative's qualification registration certificate, even if it did not change the information on the representative, and the debtor was selected as a qualified person.

(4) Whether the obligation to take necessary measures, such as a request for document supplementation, partial invalidation and reexamination, and breach of the good faith principle

Meanwhile, even if the creditor's navigational engineering was defective in the bidding process without registering the change of the representative registration information on the National Integrated Procurement System, it is merely a simple error in the creditor's navigational navigational engineering. Although the debtor has a duty to take appropriate measures to supplement documents, etc. to the creditor's KS construction or creditor's navigational navigational engineering pursuant to Article 16 of the Enforcement Rule of the State Contracts Act, the revocation of the appointment of the person qualified for design without such procedure constitutes a violation of the above duty or abuse of discretionary power.

Even if the above defects were to be null and void due to a change in the registration information of the representative of creditor's port engineering, it is limited to the part concerning creditor's port engineering among the bidding by the creditor joint supply and demand company. The creditor joint supply and demand company only satisfies the qualification requirements for participation in the bidding in the bidding in this case. Thus, under the principle of excessive prohibition, the debtor is obligated to review it and allow the remaining members of the joint supply and demand company of the creditor to participate in the bidding in this case. Furthermore, the creditor joint supply and demand company can be selected only by the remaining members at the examination stage of qualification.

Moreover, the notification of cancellation in this case is in violation of the principle of trust and good faith since it is unfair not only because it is contrary to the existing inquiry made by the Ministry of Strategy and Finance, the Public Procurement Service, etc., but also because it does not give the creditors the opportunity

B. Summary of the assertion by the debtor and the intervenor joining the debtor

(1) The grounds for invalidity of a tender apply to all the members constituting a joint contractor. The legal nature of the tender constitutes mandatory provisions in light of relevant regulations, and so long as there is a defect corresponding to the warranty against the bidder, the tender concerned shall be deemed null and void, regardless of the seriousness of the defect.

(2) Even if the invalidity and invalidity should be individually determined on the basis of the gravity of the defects falling under the grounds for invalidity of the tender, such defects as the representative’s failure to register the modification of the tender, such as the invalidation provisions of this case, may impair the public nature and fairness of the tender, and thus, such a failure may be deemed as serious to the degree that the tender would be invalidated. On the other hand, as long as the obligor notified the cancellation of the tender of this case pursuant to the invalidation provisions of this case on the grounds of the defect in order to ensure the fair and uniform processing of the tender procedure, the obligees cannot assert

(3) Even if there are some members of a joint venture among the creditors' joint ventures, the bidding by the joint ventures is a single act, so it is impossible to determine the invalidity or invalidity by separating it, and the entire invalidation is only null and void. There is no ground for applying the legal principles on partial invalidation, and there is no room to acknowledge that the debtor is liable to review the eligibility of the joint ventures for the execution design by the creditor due to the nature

(4) After the notification of cancellation of this case, the debtor selected the joint supply and demand organization for the supplementary intervenor as the person qualified for design, and concluded a contract for construction of the whole construction of this case with the joint supply and demand organization for the supplementary intervenor. Accordingly, the joint supply and demand organization for the supplementary intervenor as the joint supply and demand organization for the supplementary intervenor has already been performing the part of the above construction work.

3. Issues

A. As to the right to be preserved

Since the obligees' notification of cancellation of this case is invalid due to various defects, the obligees still claim that the obligees are in the position of qualified person for design. The obligor and the obligor's assistant intervenor claim that the obligee lost the status of qualified person for design since the notification of cancellation of this case is legitimate, so it is a matter of whether the obligor's notification of cancellation is illegal or invalid

In order to determine whether the notice of cancellation of this case by the obligor is illegal or invalid, first of all, the legal nature of the construction contract of this case, the meaning of the selection of the person qualified for the design in the bidding procedure of this case, the position of the person qualified for the design in the bidding procedure of this case, and the legal meaning and limitations of the notification of cancellation of the selection, and second, the creditor's tender of this case shall be deemed null and void because the defect in the tender procedure of the creditor's port engineering, which is the basis of the notification of cancellation of this case, falls under the provision of this case (in this case, there is no particular theory that the notification of cancellation of this case is legitimate and effective), and third, if the tender of the creditor joint venture is not null and void, the notification of cancellation of this case by the obligor goes beyond its limits due to the defects asserted by

B. Regarding the necessity of preservation

The issue is whether a joint venture for creditors ceases to have a profit to seek confirmation of the status of the person qualified for design any longer due to the designation of the person qualified for design for the joint venture for the obligor, etc., whether the obligor completed the execution design examination and the joint venture for the obligor completed the construction contract for the whole construction of this case between the joint venture for the obligor and the joint venture for the obligor.

4. Basic principles concerning the selection and cancellation of a person qualified for design

A. Nature and control principle of the instant construction contract

The instant construction contract is a contract concluded pursuant to the State Contracts Act and the Enforcement Decree thereof (the construction publication attached to the certificate No. 2-1 of the Party A provides that the instant construction work is a package deal contract for design and construction under Chapter VI of the Enforcement Decree of the State Contracts Act). Since the State, as the subject of private economy, is a private contract to be concluded on an equal basis with the other party, its essential contents do not differ from the contract between private persons, the principle of private law, such as the principle of private autonomy and freedom of contract, is equally applied (see Supreme Court Decision 2001Da33604, Dec. 11, 2001, etc.).

(b) Selection of a person qualified for design and status of tendering procedure;

(1) Process of the instant tendering procedure

According to the public tender notice of this case and the tender guide document (Evidence No. 3) of this case, the tender procedure of this case is conducted as shown in the attached Table 5, and the bidder who intends to participate in the construction of this case shall be determined as a successful bidder through the review of the Design Advisory Committee, and ① submit documents on the “Prior Examination” of participation in the construction of this case, ② shall be notified by the ordering agency through the review, ② shall participate in the tender, ③ shall be qualified as a successful bidder, ④ shall be submitted through the National Integrated Electronic Procurement System, ④ shall be selected as a person qualified for the design, ⑤ shall be selected as a person qualified for the design, ⑤ if the ordering agency prepares and submits the execution design document within 60 days from the date on which the person qualified for the design has received the notice of qualification, and ② shall be determined as a successful bidder through the review of the Design Advisory Committee by the ordering agency, and the procedure to conclude the contract for the construction of this case shall be conducted accordingly.

(2) The relevant provisions regarding the determination of successful bidders, conclusion of “contract,” etc.

Article 87 of the Enforcement Decree of the State Contracts Act, upon receipt of notification of the eligibility of the relevant shop design from the Design Advisory Committee regarding the determination of successful bidder in a package deal tender for design and construction as in this case, requires the person eligible for the execution design who submitted the relevant shop design to be the successful bidder (Paragraph 2), and the determination of a successful bidder shall be made within 60 days from the date on which the execution design is submitted unless there is any unavoidable reason (Paragraph 4), and where the person eligible for the execution design deems it necessary due to urgency of construction and other special circumstances, he/she shall have the person eligible for the execution design prepare the execution design by classifying the relevant construction work according to the order of priority by work process, and when the person eligible for the execution design is notified of the eligibility for the execution design, he/she may be determined as the successful bidder and have the person eligible for the execution design execute the construction work according to the order of priority (Paragraph 5, 200).

In addition, Article 11(1) of the State Contracts Act imposes an obligation on the State Contracts Act to prepare a contract clearly stating the purpose, contract amount, execution period, contract deposit, risk burden, liquidated damages, and other necessary matters, except as otherwise provided in the Enforcement Decree thereof. In case of preparing a contract under Article 11(2), the Act stipulates that the public official in charge and the other party to the contract have become final and conclusive by signing and sealing or signing

(3) Selection and status of a person qualified for working plans

In light of the relevant provisions of the State Contracts Act, etc. and the process of the tendering procedure of this case, the selection of a person qualified for working plans is limited to the interim phase that goes through the negotiation process prior to the determination of a successful bidder conducted prior to the conclusion of a contract under the private law between the debtor and creditors, and the person qualified for working plans is not the other party of the “contract” which is binding, but is not in the position of the right holder under the pre-contracted of the contract (see Supreme Court Decision 2005Da41603, Jun. 29, 2006, etc.).

However, in the event that a person qualified for design submits a subsequent design document and receives the notice of eligibility, the person qualified for design is in a position of successful bidder who can determine the contract by preparing the contract, and according to the “the manual of parallel design and construction” attached to the public announcement of the instant case, the person qualified for design has the right to consult with the ordering authority about the overall execution of the project prior to the commencement of the contract, such as the conclusion of the contract, the construction period, the construction cost, and the timing for payment, after being selected as the person qualified for design. (However, the ordering authority has the right to withhold or cancel the contract after notifying the person qualified for design in advance to the person qualified for design if it is impracticable to apply the method of package recording due to unavoidable reasons).

Ultimately, the person eligible for design has a kind of expectation right for the determination of the successful bidder and the conclusion of the contract, but in principle, it shall be deemed that the ordering party does not have the binding force to enforce the contract. However, if the right to expect is duly formed, the principle of good faith (Article 5(1) of the State Contracts Act provides that "the contract shall be concluded by mutual agreement between the parties on equal terms, and the parties shall implement the contents of the contract in accordance with the good faith principle, and it shall be applied to the negotiation prior to the conclusion of the contract in principle). It shall be interpreted that the ordering party does not infringe

C. Legal meaning and limitation of notification of cancellation

The legal nature and status of the selection of a person qualified for working plans, as seen above, are deemed not to be a successful bidder's decision and the conclusion of a contract, but as a kind of judicial expectation therefor, the general binding force of the contract is not recognized, and the debtor is free to reverse the selection of a person qualified for working plans under the principle of freedom of contract and not to proceed with negotiations after the conclusion of the contract. In other words, the notification of cancellation of the selection of the person qualified for working plans does not include cancellation, withdrawal, cancellation, or termination of the successful bidder's decision or the contract for which the performance or the progress of the subsequent procedures is enforced, but means the unilateral withdrawal of the existing procedures and the refusal or suspension of the subsequent procedures during the negotiation process for concluding the contract at the preceding stage (in this sense, the notification of cancellation is not problematic unless it goes beyond the limit to be seen below. However, even if there is a defect in the selection of the person qualified for working plans, the debtor may refuse the subsequent procedures unless it goes against the principle of good faith.

However, as seen earlier, the legitimate expectation right formed by the person qualified for working plans shall be deemed not to have been withdrawn by unilateral declaration of intent by the other party under the principle of good faith or not to infringe on nonperformance or interfered with it by other methods, and there is a limit

In this case, under the premise that the defects in the tender procedure of the creditor's port engineering in this case are not significant enough to invalidate the tender of the creditor's port engineering in accordance with the invalid provision of this case, the creditor claims that the cancellation notification of this case is unlawful and invalid. In the end, if the notification of this case is based on the premise that the tender of the creditor's port engineering is invalid, the above cancellation notification is unlawful and invalid without necessity. Even though the notification of this case is not based on the premise that the creditor's bid of the creditor's port engineering is invalid, the above cancellation notification can be interpreted as the assertion that the above cancellation notification goes beyond the limit of freedom of contract due to various defects in itself and infringes the creditor's legitimate expectation right formed in violation of the principle of good faith. (However, if the cancellation notification of this case goes beyond the limit of freedom of contract and unfairly infringes the creditor's expectation right, the creditor's notification of cancellation itself can claim that it is invalid in addition to compensation for damages. However, as long as the creditor's right of cancellation can be seen as a violation of the right of trust and good faith.

5. Review of the effect of notification of cancellation;

The debtor's notification of cancellation is mainly based on the fact that the violation of the obligation to register the change of the representative's registered matters in the creditor's navigational engineering constitutes the invalidity of a bid. Thus, the validity of the notification of cancellation premised on the grounds of invalidity of a bid should first be examined, and further, it should be examined whether the notification of cancellation of this case can be permitted in accordance with the principle of freedom of contract, etc. without premised on the

(a) Validity of notification of cancellation premised on the invalidity of a tender;

(1) The scope of “representative” as stipulated in the invalidation provision of this case

Where a contracting partner is selected as a successful bidder after participating in a tender under the State Contracts Act, and enters into a contract by being selected as a successful bidder, all members of the contracting partner shall become a contracting party to a joint contract under Article 25 of the State Contracts Act, regardless of the method of joint performance, and shall hold rights or assume obligations under the joint contract. In addition, when the debtor's contracting officer conducts prior examination of qualification for participation in a contract or qualification examination, it is, in principle, intended for all members of the contracting partner, not for the representative of

Therefore, the main text of Article 10(3) of the National Integrated Electronic Procurement System Act and the main text of Article 12(5) of the "Public Notice of the Public Procurement Service" (the "Public Notice of the Public Procurement Service" No. 2010-23 of Aug. 17, 2010) provides that "if a joint contractor forms a joint contractor and participates in a bid, the bidder shall be the representative of the joint contractor." This means that the specific tendering act must be the representative of the joint contractor, and the bidding act of the representative of such joint contractor constitutes an act of delegation of authority from the members of the joint contractor as stipulated in the proviso of the aforesaid provisions and acting as the representative or representative of the joint contractor."

On the other hand, Article 3.5 of the Public Notice of Tender in this case provides that "if a person intends to participate in a tender by constituting a joint subcontractor, all members shall participate in the Public Procurement Service." Article 3.7 provides that "any person who intends to participate in a tender shall be qualified to participate in the tender, shall be qualified to participate in the tender after confirming whether the matters registered for the tender, certified copy of corporate register (if there are many representatives), address, trade name, etc. are consistent, and shall participate in the tender." Article 9.3 provides that "Article 39(4) of the Enforcement Decree of the State Contracts Act, Article 44 of the Enforcement Rule of the State Contracts Act, Article 15 of the Public Notice of Tender (amended by Ordinance of the Ministry of Strategy and Finance No. 200.4-102-17 of Nov. 30, 2010) and Article 8(6) of the Special Statement of Tender for Construction Work, such as Package Tender shall be treated as invalid, regardless of the form or status of the tender, and thus, the scope of qualification of the tender shall be deemed invalid."

Ultimately, since the representative of creditor's port engineering, one of the members of the joint venture body for creditors, constitutes "representative" as stipulated in the invalid provisions of this case, the creditor's port engineering is subject to determination as to whether the registered matters related to the change of representative director should be determined in accordance with the above invalid provisions.

(2) Determination as to whether the bid invalidation is a cause for not changing the registered matters if a person, other than the representative, resigns from among the representatives of the joint contractors who are not the representative of the joint contractors.

(A) The provision on the determination of a successful tenderer under the relevant provision, including the State Contracts Act, and the legal nature of the detailed examination criteria, and the validity of public contracts

Article 10(2)2 of the State Contracts Act provides that the State shall, in principle, make a competitive tender (Article 7), and the State shall determine a person who has made the most favorable tender to the State in accordance with the criteria specified in the tender notice or tender explanation (Article 10(2)2). The Enforcement Decree of the same Act provides that the detailed criteria for examination shall be determined in accordance with the criteria for examination determined by the Minister of Strategy and Finance, comprehensively taking into account the performance results, technical capability, financial status, degree of sincerity in the past performance of the bidder concerned, materials and human resources procurement price, appropriateness of the materials and human resources procurement price, degree of compliance with contract order, quality degree of the past construction, and bid price, etc. However, such provision provides for matters necessary for the performance of contract affairs to be observed by the relevant public officials so that the State can process the contractual relationship between private persons fairly, rationally and efficiently (see, e.g., Supreme Court Decision 95Da

Therefore, it is reasonable to interpret that, as a matter of course, a successful bidder’s decision or a contract based on the grounds that a public official in charge of contracts conducted an examination of qualification in violation of the above statutes or detailed examination criteria thereof does not become null and void merely on the sole basis of the reasons that the public official in charge of contracts conducted an examination of qualification in a tendering procedure, and where it is serious that the public nature and fairness of the tendering procedure would be considerably infringed, and the other party knew or could have known of such circumstances, or even if short, it is evident that the determination of a successful bidder and the conclusion of a contract was conducted through an act contrary to good morals and other social order, it shall be null and void only under special circumstances where it would result in excluding the intent of the State Contracts Act as to the procedure (see Supreme Court Decision 2001Da

(B) Interpretation and application of the invalidation provision of this case

As long as the invalidity provision of this case is part of the relevant provisions such as the State Contracts Act, in principle, it may be deemed that the State is merely the internal regulations of the debtor, the State. However, if the State claims invalidation of bidding act, etc. on the basis thereof externally, it would be a matter of legitimacy and validity of the interpretation of the provision. In the event of a dispute surrounding this, the State cannot refuse judicial judgment on the ground that the above invalidation provision is the internal regulations, and the court has the authority to determine whether it was illegal or unreasonable, such as deviation from the

In this case, the debtor asserts that it is difficult for the public official in charge to maintain the public nature and fairness by prohibiting the uniform and uniform interpretation and application of the invalidation provisions of this case, and that there is a possibility to prevent prompt and proper handling of tendering affairs by taking into account the possibility of post-control by the court. However, if it is necessary to uniformly and uniformly interpret and apply the invalidation provisions of this case, it should have been resolved by specifying the contents to the extent consistent with the needs, and if it is necessary, the risk or disadvantage caused by the failure should be borne by the state that prepared it is consistent with the principle of equity, and it is natural for the court to judge the legitimacy and validity of the act in case a dispute arises between the state and the private person surrounding the act under private law. Therefore, the argument that there is an obstacle to prompt and appropriate handling of affairs cannot be accepted.

(C) The purport of the invalidity provision of this case

The purpose of the invalidation provision of this case is to prevent the possibility of dispute over legitimate exercise of representative authority and the validity of representative authority in subsequent procedures, such as tendering procedures and contract procedures, and to prevent bidders from participating in fraudulent tendering and overlapping tendering by means of false representation, etc., and to ensure the public nature and fairness of tendering procedures, such as preventing the participation of unjust enterprisers who are not qualified to participate in tendering, etc.

Therefore, if several representative directors have the power of representation, or if there is no new representative director after the resignation of the existing representative director, there is no legitimate representative such as the representative director, or a new representative director after the resignation of the existing representative director, or a new representative director is appointed after the resignation of each existing representative director, or a new representative director is appointed in addition to the existing representative director, or a new representative director is appointed in addition to the existing representative director, a dispute may arise as to the legitimate exercise of the power of representation or the validity thereof in bidding, etc., and there may arise a problem of fraudulent bidding or duplicate bidding.

(D) In the instant case:

As seen earlier, the obligee’s navigation engineering failed to perform the obligation to register the modification of Nonparty 2’s resignation that was registered as one of the representative directors on the National Integrated Electronic Procurement System prior to the submission of tender documents. As such, whether the said provision applies to the case where one of the two representative directors who already held the right of representation withdraws and the remaining representative director is not separately appointed.

Article 389(1) of the Commercial Act provides that "the company shall select a director who shall represent the company by a resolution of the board of directors. However, in the case of paragraph (2), several representative directors may jointly represent the company." In principle, where there are several representative directors of the company, they shall have their respective power of representation. In the case of creditor resistance engineering, Non-Party 1 and Non-Party 2 have their respective power of representation, and even after Non-Party 2 withdraws, they remain as representative directors. Since Non-Party 1 registered Non-Party 1 as representative of the bidding in this case as the representative of the bidding in this case, the resignation of Non-Party 2 is no problem with the legitimate exercise of power of representation of the creditor aviation engineering in the above bidding, and it is reasonable to interpret the provisions of the State Contracts Act to be invalid in light of the purpose of this case, including the case where non-party 2's failure to accept the registration of the change (in case where some of the existing representative directors fail to do so, it may be an obstacle to the invalidation of the tender in this case.)

(E) Therefore, the non-party 2, who was the representative of creditor navigational engineering, did not register the change of the registered matters after resignation, does not constitute a ground for invalidity of the provision on invalidation of the tender of this case, and the debtor’s notification on the premise that this constitutes a ground for invalidity of tender is null and void without examining the remaining defects of the creditor’s assertion.

(b) Validity of notification of cancellation according to the freedom of contract, etc.;

If the obligor’s notice of cancellation is not based on the premise that the defect in the bidding procedure as above of the obligee’s navigational engineering constitutes invalid, but is based on the principle of freedom of contract in a private contract, if the notice of cancellation goes beyond the scope of general freedom of contract or the limit under the principle of good faith, it shall not be deemed null and void as seen above. Moreover, it shall not be deemed that the bid of this case, which is implemented by the State with a huge budget as one of the parties, is identical to the transaction relation between private parties, since it cannot be denied that the bid of this case, which is implemented by the State as a party, is the same as the transaction relation between private parties.

The circumstances leading up to the obligor’s notification of cancellation are merely because, as seen earlier, Nonparty 2 did not register the change of registered matters after Nonparty 2’s resignation as the obligee’s representative director, even though it does not constitute grounds for invalidity of bid. The following circumstances acknowledged by the record: (a) Nonparty 2 resigned from the obligee’s representative director, but had previously been maintained; (b) Nonparty 2 had already resigned from the representative director, and (c) at the time of resignation of the representative director, the time of Nonparty 2 had already completed the examination of bidding qualifications and site descriptions for the obligee’s defense engineering, and even if Nonparty 2 was employed in another company after the resignation of the representative director, it was impossible for the obligee to attempt double bidding or fraudulent bidding by bidding for the obligee’s defense engineering, even if the obligee’s defense also did not register the change due to resignation of Nonparty 2, and thus, it is not clear that the obligee’s front joint supply and demand was detrimental to fairness or fairness of bidding, and even if the obligor did not register the change of registered matters similar to this case’s construction.

6. Right to be preserved;

Ultimately, a debtor's notification of cancellation of this case is null and void because the obligees' assertion and other defects are not required to be examined, and the obligees are in the original position as the person qualified for the design of this case, and the obligor's right to seek confirmation against the debtor for the prevention of infringement of the right to expect that has already been duly formed due to the selection of the person qualified for the design is recognized.

7. Necessity of conservation.

The debtor and the debtor's intervenor asserted to the purport that "if the debtor had already cancelled the selection of the person qualified for working plans for the creditor's joint venture on June 30, 201, the joint venture for the supplementary participant shall be determined as the person qualified for working plans, and the contract for all the construction works in this case was concluded with the joint venture for the supplementary participant. Accordingly, the joint venture for the supplementary participant shall have already commenced the construction works in accordance with the design and construction parallel method and record the construction ratio up to 67.91% as of September 28, 201, and the construction ratio up to 67.91% as of September 28, 201 has already been completed until the working design deliberation for the whole construction works submitted by the joint venture for the supplementary participant was completed on October 11, 2011, even if the joint venture for the creditor's joint venture has confirmed the person qualified for working plans for the construction works in this case, it is no longer possible to participate in the construction works in this case.

According to the records, the joint supply and demand organization for the supplementary intervenor entered into a contract with the obligor for the supplementary intervenor, and the joint supply and demand organization for the supplementary intervenor entered into a contract with the intervenor for the supplementary intervenor for the execution of the construction project equivalent to KRW 3.229 billion, which is equivalent to KRW 3.7 billion, based on the first construction contract amounting to approximately KRW 4.755 billion, which is about KRW 67%, the total construction contract amount is equivalent to KRW 118.47 billion, and the fact that the joint supply and demand organization for the supplementary intervenor was notified to the supplementary intervenor on October 11, 201 that it passed the deliberation on the eligibility for the execution of all other construction works than the first construction contract amount submitted by the joint supply and demand organization for the supplementary intervenor for the supplementary intervenor for the execution of the construction project.

However, in full view of the records and the purport of the whole examination, the Design Advisory Committee’s review result, which was notified by the Posisi District Maritime Affairs and Port Office to the Intervenor on October 11, 201, includes the content that the execution design documents submitted by the joint venture body of the Intervenors for the support are eligible for design. However, the written opinion of the members of the Design Advisory Committee attached thereto, which is attached thereto, has a lot of specific points out of the contents of the execution design documents to be supplemented, revised, or reviewed, and accordingly, the above notice of review on October 11, 2011 stated that “after complying with the construction period as reflected in the basic design proposed by the Deliberative Committee, it would be difficult to submit the result within 15 days from the date of notification.” Article 3 of the Additional Terms and Conditions of the Contracts on the part of the Intervenors for the support of this case, stating that “after the determination of the execution design documents for the remainder of the construction work,” and that the Intervenor’s request for provisional disposition of this case is not included in the above construction contract amount of KRW 10.29 billion.

In light of the above circumstances, it is difficult to readily conclude that the deliberation of the execution design drawings was completed on October 11, 201 by only the deliberation and notification of the standing deliberation process for the execution design of the Port Office, which is an end-user institution of the construction project of this case, and the execution design drawings were concluded, or that the contract for the entire construction project of this case except for the priority construction portion was concluded according to the supplementary intervenor contract of this case. Even if the relevant provision of this case or the tender documents related to the construction project of this case were integrated, it only remains a formal procedure to replace the calculation sheet, etc. submitted at the time of the tender after the deliberation on the eligibility for the execution design of this case, and the contract itself has already been concluded by the selected person qualified for the execution design of this case as of June 30, 201, the successful bidder's decision and the supplementary intervenor's contract based thereon, so long as the obligees's application for provisional disposition of this case had already been concluded by the obligor and the entire joint contractor of this case's request for construction of this case cannot be justified.

Rather, in light of the fact that the debtor tried to select the joint venture for the supplementary intervenor as the person qualified for the design and to follow the subsequent procedures, the creditor's application for provisional disposition of this case is required to confirm that he is in the status of qualified for the design, and to obtain provisional disposition prohibiting the debtor's subsequent implementation of the procedure against the joint venture for the supplementary intervenor.

8. Conclusion

If so, the obligees' application for provisional disposition of this case is clearly explained about the preserved right and the necessity of preservation, so the decision of provisional disposition of this case is authorized.

[Attachment]

Judges Jo Hee-de (Presiding Judge)