New Engineering Architect Co., Ltd. (Law Firm Pungsung, Attorney Cho Dong-chul, Counsel for the defendant-appellant)

Private Equity Zone 2 Housing Redevelopment and Improvement Project Association (Law Firm Gyeongsung, Attorneys Masung-si et al., Counsel for the plaintiff-appellant)

January 19, 2011

1. Of the Defendant’s resolution on the special general meeting of the Defendant on June 12, 2010, the resolution that selects the YAD Construction Comprehensive architect Office and the UP Engineering Comprehensive architect Office as an architectural designer, and the resolution that approves the conclusion of a construction design contract with the above company is invalid.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. On March 5, 2010, the Defendant publicly announced a bid for the selection of a construction designer company (hereinafter “instant bid”) with respect to the “Private District Two Housing Redevelopment Improvement Project” (hereinafter “instant project”) under Article 2010-1 on March 5, 2010, the Defendant determined that the tender or selection was based on the bidding guidelines to be distributed by the site site preparation committee.

B. On March 15, 2010, the Plaintiff and the Korea Engineering and Engineering Architect (hereinafter “Plaintiff, etc.”) constituted a consortium, and the Korea Forest Engineering and Engineering Architect Co., Ltd. and the Korea Civil Engineering Architect Co., Ltd. (hereinafter “Gu forest construction, etc.”) constituted a consortium. On March 15, 2010, the Plaintiff, etc., attended the site site conference held at the Defendant’s association office, and received a bid guide for the selection of the construction design company (hereinafter “tender guide”) from the Defendant. The main contents are as follows.

(1) Invalidity of a tender (Article VIII)

A person who falls under any of the following subparagraphs among those who intend to participate in a tender shall become null and void:

(1) Where a company which has no qualification to participate in bidding tenders.

(2) Where all documents related to the tender have not been submitted until the compliance of the tender is completed.

(3) Where the important part of an application for bidding, etc. is unclear or corrected and seals are omitted.

④ 참여회사(관계직원을 모두 포함한다)간 담합 또는 타사의 경쟁참가를 방해하거나 조합의 입찰 업무집행을 방해하는 등 불공정행위를 하였을 경우

(5) Where he/she violates any content of a performance memorandum.

(6) Where he/she violates the tender regulations and all the conditions based on the tender guidelines.

(7) Where the same person submits two or more bidding documents for the same matter.

(8) Where it is deemed that any other false or unreasonable it is clear.

(2)The obligation of fair competition of bidders (Article XI)

(a) The bidder must not defame each other and shall not commit any unlawful or unfair act such as spraying money or goods (Paragraph 1).

(b) If the bidder violates any of the above obligations, the tender shall be invalidated (Paragraph 2).

(3) Other matters (Article 18).

The company which has submitted the tender participation documents shall be deemed to have consented to the tender guidelines (paragraph (1)).

C. On April 5, 2010, the Plaintiff et al. submitted an application for bid participation and a statement of performance, etc. requested the Defendant to submit the instant tender notice, tender guide, etc., to the Defendant. The main contents of the written rejection of performance are as follows.

○ In applying for participation in a tender of a construction design company for a privately placed zone 2 housing redevelopment project, the said person promises to comply with the decision made by the Association without raising any civil or criminal objection against the loss of qualification or the selection of the entity, even if the entity violated any of the following prior to or even after the selection as the entity for the construction design, if it violated any of the following:

The following:

1. We will not raise any objection to the selection method of the Company and the results of the General Meeting of the Association set forth by the Association.

2. I will implement the submitted documents by the designated date, upon request of the partnership, due to any defect or necessity of supplementation.

3. It will not claim all the expenses incurred by participation in tendering to the Association.

4. We will not employ any employee or outside person to engage in any promotional activity, and will not engage in any conduct, such as mutual criticism, dissemination of wills, etc. of participating enterprises.

5. In any case, I will not offer entertainment or provide money, goods, etc. to members, landowners, and other interested persons.

6. our service costs will be paid after the selection of the contractor if our selection is made.

7. A person selected as a construction design firm shall settle all the costs incurred in relation to Congress within 10 days after the selection of the construction design firm and be borne by the construction design firm.

D. On May 25, 2010, forestry construction, etc. sent nine pages of promotional leaflets to the Defendant’s members by mail. Among the promotional leaflets, the contents include the following: (a) the Plaintiff, etc. participating in the Plaintiff, etc. as an enterprise No. 2 of the instant bidding marks offered dumping prices; and (b) the Plaintiff, etc. is selected as a design enterprise; (c) the Plaintiff, etc. may cause damage to the Plaintiff, etc. due to the decline in design quality, unreasonable

E. On June 12, 2010, the Defendant: (a) held an extraordinary general meeting at the Seo-gu Cheongju-dong Resignation Elementary School of Cheongju-dong, Chungcheongnam-gu, Seoul; (b) selected Jung-gu as the construction design business entity of the instant project; and (c) approved the conclusion of a construction design contract with static Construction, etc. of the instant project (hereinafter “the instant resolution”); (d) at the time, Cheongdong Construction, etc. engaged in public relations activities, such as distributing the leaflets around the place where the said extraordinary

F. Around the time of the instant resolution, the Defendant concluded a construction design service contract with the forest construction, etc. (hereinafter “instant contract”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, Gap evidence 3, Gap evidence 6-1 through 3, Gap evidence 8, Gap evidence 9-1 through 20, and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

The Plaintiff participated in the instant bidding by organizing a consortium with the prior engineering certified architect office (hereinafter “prior engineering”), and the consortium constituted a partnership under the Civil Act and the Plaintiff and prior engineering jointly file the instant lawsuit. However, the instant lawsuit is unlawful, since the Plaintiff independently filed the instant lawsuit. Furthermore, even if the Plaintiff independently participated in the instant bidding by organizing a prior engineering and consortium, even if the instant lawsuit was accepted by the Plaintiff, it cannot be the successful bidder in the instant bidding procedure, and thus, the instant lawsuit filed by the Plaintiff is unlawful, as there is no benefit of lawsuit.

B. Determination

Unless there are special circumstances, a consortium for participation in the bidding of the Plaintiff and engineering is a kind of joint supply and demand company and constitutes a partnership under the Civil Act. The partnership property becomes joint supply and demand of union members (Article 704 of the Civil Act), and the act of preserving partnership property can be performed independently by the joint owners (proviso of Article 272 of the Civil Act). Since the lawsuit in this case is for the benefit of all union members, it constitutes the act of preserving partnership property. Thus, even if only the Plaintiff constituting a joint supply and demand company filed the lawsuit in this case, it cannot be deemed unlawful.

Meanwhile, as long as the Plaintiff did not seek confirmation of the status of successful bidder in the instant lawsuit, it is difficult to deem that the Plaintiff’s participation in the instant bidding procedure may independently become a successful bidder in the event that the bid procedure becomes null and void, affecting the interests of the lawsuit.

Therefore, all of the defendant's defenses cannot be accepted.

3. Judgment on the merits

According to the reasoning of the lower judgment, the lower court erred by misapprehending the legal doctrine on the following facts: (a) the Defendant’s public relations activities, including the Plaintiff’s public relations activities on bidding guidelines (Article 8 subparag. 4, 5, and Article 11(1)), and the content of the bidding guidelines (which included the following facts: (b) the Defendant’s public relations activities, such as the instant bidding guidelines, are deemed unlawful; and (c) the Defendant’s public relations activities, such as the instant bidding guidelines, are deemed unlawful even if the Plaintiff’s public relations activities were conducted on the grounds that the Defendant’s failure to comply with the provision regarding the instant bidding guidelines, such as the instant bidding guidelines, were clearly included in the public relations activities or the details of the bidding guidelines, and thus, the Defendant’s public relations activities, such as the instant bidding guidelines, are deemed unlawful even after the Defendant’s public relations activities were conducted on the part of its members, and thus, the Defendant’s public relations activities, such as the instant bidding guidelines, were conducted on the part of its members.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Park Jong-hee (Presiding Judge)