2013Guhap23546 Disposition of revoking restrictions on participation in competitive tendering process open only to small and medium entrepreneurs

1. Dispatched concrete Co., Ltd.;

2. Scarlet Co., Ltd.;

3. A ready-mixed stock company;

4. A petition ready-mixed corporation;

5. Jinsung Co., Ltd.

6. A sex company.

7. Subcom Co., Ltd.;

8. Down-mixed Co., Ltd.;

9. Synified Co., Ltd.;

10. Alm Co., Ltd.

11. The new business of a stock company;

12. Mine-unmixed Co., Ltd.;

The Small and Medium Business Administration

December 4, 2013

December 13, 2013

1. All plaintiffs' lawsuits are dismissed.

2. 1/2 of the costs of lawsuit are assessed against the plaintiffs, and the remainder is assessed against the defendant.

The defendant's disposition of restricting participation in competitive tendering process open only to small and medium entrepreneurs on June 28, 2013 is revoked.

1. Basic facts

A. The Plaintiffs are small and medium entrepreneurs under Article 2 of the Framework Act on Small and Medium Enterprises, which engage in the business of manufacturing and selling ready-mixeds.

B. From March 22, 2013 to June 27, 2013, the Plaintiffs issued a small and medium enterprise confirmation form (hereinafter referred to as “small and medium enterprise confirmation form”) under Article 8(2) of the Act on Promotion of Purchase of Small and Medium Enterprise Products and Support for Development of Market Markets (hereinafter referred to as “Small and Medium Enterprise Support Act”) from the Defendant, and then a public institution has tendered for an ready-mixed supply contract that places an order by means of “competitive bidding between small and medium enterprises” under Article 7 of the Act on Support of Market Support.

C. Article 8-2 was newly established as the Act on the Development of Market Support was amended by Act No. 11462 on June 1, 2012, and Article 8-2 was newly established. Even if a small or medium enterprise is a small or medium enterprise, a person with a certain control or subsidiary relationship prescribed by the Presidential Decree with a large or medium enterprise is restricted from participating in competitive bidding, and Article 9-3 subparagraph 2 (c) of the Enforcement Decree of the same Act, which embodys this, provides that a small or medium enterprise owner who borrowed assets from a large enterprise, above

D. The Defendant conducted a fact-finding survey on the enterprises that participated in competitive tendering process open only to small and medium enterprises, and determined the Plaintiffs as enterprises meeting the requirements for restriction on participation (hereinafter referred to as “enterprises subject to restriction on participation”) and requested the Plaintiffs to submit their opinions on the plan to notify the public agencies of the plan to restrict the Plaintiffs’ participation in competitive tendering process open only to small and medium enterprises during the period from May 3, 2013 to May 16, 2013.

E. After that, on June 28, 2013, the defendant sent to a public agency a public notice of bidding through the competition system of small and medium enterprises subject to the restriction on participation, including the plaintiffs, through a list of enterprises subject to the restriction on participation in small and medium enterprises that are placed in the public notice of bidding after the end-of time (hereinafter referred to as "the notice of the list of this case") and (2) where a company subject to the restriction on participation applies for the issuance of a confirmation of small and medium enterprises through a comprehensive public purchase information network (www. Sp.go.k.) to the company subject to the restriction on participation in the public tender of small and medium enterprises pursuant to Article 8-2 of the Markets Support Act, and then notified the plaintiffs to the company subject to the restriction on participation as follows (hereinafter referred to as "the notification of this case").

No. 3. (b) He/she is judged to fall under Article 9-3 of the Enforcement Decree of the Act on the Development of Agricultural and Fishing Villages. (A) He/she becomes aware of the following as follows. He/she is found to fall under the restriction on participation in competitive tendering process open only to small and medium enterprises: He/she falls under Article 8-2 of the Act on the Development of Agricultural and Fishing Villages and Article 9-3 subparagraph 2 (c) of the Enforcement Decree of the same Act. In other words, the head of a public institution shall restrict participation in competitive tendering process open only to small and medium enterprises which fall under Article 8-2 of the Act on the Development of Agricultural and Fishing Villages. In addition, a small and medium enterprise owner who intends to participate in competitive tendering process open only to small and medium enterprises after the reason for such restriction has ceased to fall under the restriction on participation in competitive tendering process open only to small and medium enterprises, small and medium enterprises and disabled enterprises, and a small and medium enterprise owner who intends to participate in competitive tendering process open only to small

F. The plaintiffs filed the lawsuit in this case on September 16, 2013, and the defendant directed the plaintiffs on October 18, 2013 that "the notification of this case's restriction on participation constitutes an enterprise subject to restriction on participation, not an act subject to restriction on participation in competitive bidding." The defendant sent an official document stating that "the notification of this case's restriction on participation constitutes an enterprise subject to restriction on participation in competitive bidding," which is not an act subject to restriction on participation in competitive bidding, and that "the notification is withdrawn in order to prevent the occurrence of misunderstanding that it is an administrative disposition that has the effect of restriction on participation in bidding," ② the public institution withdraws the existing official document in order to prevent legal disputes, and the list of enterprises subject to restriction on participation will provide convenience to determine the restriction on participation in competitive bidding between small and medium enterprises."

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 1-15, 20-22, Eul evidence Nos. 1, 2, 4, 5, and 9 (in the case of documentary evidence with a serial number, including a serial number), the purport of the whole pleadings

2. Determination on the legitimacy of the instant lawsuit

A. The defendant's main defense

1) A disposition imposing restrictions on competitive tendering process open only to small and medium enterprises pursuant to Article 8-2(1) of the Act on the Development of Market Support for Small and Medium Enterprises is conducted by the head of a public institution that is not the defendant. The Defendant’s notification to the Plaintiffs, public institutions, etc. that the Plaintiffs constituted a company subject to restrictions on participation in tendering is not a disposition that imposes restrictions on the Plaintiffs’ qualifications for participation in tendering, but a notification of the fact

2) Even if each of the instant measures constitutes an administrative disposition, the Defendant withdrawn all of the instant measures on October 18, 2013. The instant lawsuit is unlawful as it seeks revocation of an administrative disposition that did not exist.

B. Determination

1) Whether it constitutes an administrative disposition

A) The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly. In a specific case, an administrative disposition is an enforcement of law with respect to specific facts conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. The decision should be made on an individual basis by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see Supreme Court en banc Decision 2008Du167, Nov. 18

B) We examine whether each of the instant measures constitutes an administrative disposition.

First of all, Article 8-2(2) of the Act on the Assistance in Development of Agricultural and Fishing Villages stipulates that the Administrator of the Small and Medium Business Administration shall confirm whether a small and medium enterprise constitutes an enterprise subject to restriction on participation, and Article 6(1) of the Guidelines for the Confirmation of Small, Medium, and Disabled Enterprises (attached Form 2) of the Act on the Assistance in Development of Agricultural and Fishing Villages provides that if an enterprise subject to restriction on participation falls under an enterprise subject to restriction on participation, it shall be noted that the enterprise is subject to restriction on participation in the small and medium enterprise under Article 8-2(2) of the Act on the Assistance in Development of Agricultural and Fishing Villages. Thus, the computerized measure in this case constitutes an act of confirmation under Article 8-2(2) of the Act on the Assistance in Development of Agricultural and Fishing Villages, even if the defendant's confirmation was made without a small and medium enterprise owner's request, the defendant's act of confirmation does not constitute an act under Article 8-2(2) of the Act on the Assistance in Development of Agricultural and Fishing Villages.

C) Next, the final determination of whether the instant list notification and the instant notice of restriction on participation are health groups and the head of the public agency ordering the contract to determine whether they are enterprises subject to the restriction on participation is entrusted with the determination of whether they are enterprises subject to the restriction on participation, and the Defendant is granted the right to only confirm under Article 8-2(2) of the Act on the Development of Agricultural and Fishing Villages. As seen earlier, even if the public agency notified the Defendant of the list of enterprises subject to the restriction on participation recognizes that the Plaintiffs were enterprises subject to the restriction on participation, such notification is merely an administrative agency’s mutual exchange of information, and the said notification does not affect the Plaintiffs’ rights and obligations. Thus, the instant list notification and the instant notice of restriction on participation cannot

2) Whether an administrative disposition is withdrawn

Since October 18, 2013, the defendant taken measures to prevent the expression of restriction on participation from being written on the confirmation issued to the plaintiffs after the defendant had been written on the confirmation document issued to the plaintiffs, and the withdrawal of the violated administrative disposition does not require prior notification and hearing of opinions in accordance with the Administrative Procedures Act. Thus, the computerized measure in this case was lawfully withdrawn, and the lawsuit in this case seeking the revocation of the withdrawn computerized measure is unlawful.

3. Conclusion

Therefore, the plaintiffs' lawsuit of this case is unlawful and dismissed in its entirety, and it is so decided as per Disposition.

Appointment of presiding judge or judge;

Judges Lee Byung-hee

Judge Kim Gin-hun

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.