Has General Construction Co., Ltd. (Law Firm Jeong-ju, Attorney Park Ha-soo, Counsel for the plaintiff-appellant)

The astronomical Market

APP Co., Ltd. (Attorneys Lee Jae-de et al., Counsel for the plaintiff-appellant)

March 9, 2017

Daejeon District Court Decision 2015Guhap10505 Decided October 12, 2016

1. All appeals filed by the defendant and the defendant assistant intervenor are dismissed.

2. The supplementary intervenor shall bear the costs incurred by the participation in the appeal, and the remainder shall be borne by the defendant.

1. Purport of claim

On August 4, 2015, the Defendant’s revocation of the designation of a person eligible for preferential bargaining for the development project of the Nowon-gu Park Park and the Korea Investment Securities Co., Ltd. on August 4, 2015.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on this case is as stated in the reasoning for the judgment of the court of first instance, except where the decision of the court of first instance is used as stated in the following Paragraph 2. Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts to be dried;

○ The following shall be added to Chapter 5 7:

On the other hand, the proposal submitted by the intervenor is accompanied by the joint agreement (No. B. 5; hereinafter referred to as the "instant agreement") with the following contents:

(4) The joint project agreement between the public corporation and the public corporation (hereinafter referred to as the "public corporation") shall include the following roles of the public corporation (hereinafter referred to as the "public corporation") and the public corporation (hereinafter referred to as the "public corporation") to cooperate with each other on the basis of mutual trust for the success of the public corporation (hereinafter referred to as the "public corporation") in the project with the public corporation (hereinafter referred to as the "public corporation") and the public corporation (hereinafter referred to as the "public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's private investment in the public corporation's public corporation's public corporation's public corporation's public corporation's private investment in the public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation's public corporation' private investment in the public corporation's public corporation'.

○○ Part 6, “B 1 and 2” was added to “B 1 and 2,” and the “non-party 1’s testimony” in the 13th sentence is added to “non-party 1’s testimony of the first instance court and the trial court’s witness.”

○ Heading 11-13 of pages 11 are as follows.

The Asia Trust, the Scco Construction, and the Mcco Construction should not be considered as a financial participating enterprise. In addition, the Korea Investment Securities is a joint proposal of the instant project with the Intervenor, and it should not be included in the subject of calculation of the financial participating enterprise. If so, the Intervenor’s point of “fund raising capacity” shall not exceed six points.

The part of paragraphs 16-20 of section 16 to 20 of section is as follows.

“2) Whether or not the discretion has been exceeded or abused

The instant disposition is a beneficial administrative act that grants rights or interests to a specific person, and it is deemed that the Defendant’s specific evaluation items and detailed evaluation criteria are determined within the scope of the contents stipulated in the instant guidelines, and the Defendant’s method of evaluation, method of calculation of evaluation points, and method and criteria for calculation of evaluation points are subject to the Defendant’s discretion to examine the proposal. Therefore, in interpreting and applying the detailed evaluation criteria set by the Defendant, the Defendant’s specialized and technical judgment once it comes to be respected, and the Defendant’s interpretation and application of the detailed evaluation criteria is illegal as deviation from and abuse of discretionary power when it lacks objective rationality or validity due to reasons such as in violation of

In light of the above criteria, it is examined in order to determine whether the evaluation of the part concerning the plaintiff and the intervenor's dispute, among the items of quantitative evaluation of the business of this case, lacks objective rationality and feasibility.

A) Items of financing capacity

If Gap evidence Nos. 4, 5, Eul, and Eul evidence Nos. 8 and the testimony of non-party 1 of the court of first instance added the purport of the whole pleadings, the evaluation items table of this case contains six points in the case of one company based on the number of participating companies, for which the letter of intent to participate and the letter of commitment, etc., were submitted, 7 points in the case of two companies, 8 points in the case of three companies, 9 points in the case of four companies, 9 points in the case of five companies, 10 points in the case of five companies. The agreement of this case submitted by the intervenor is that "the intervenor provides and secure funds necessary for the implementation of the project as a joint representative proposer and the financial company as a joint representative proposer, and the extension of credit through internal deliberation, etc. by the joint representative proposer and the financial company of the court of first instance, and the large-scale industry and the Scco Construction as a responsible for completing the construction of the Asia and the defendant stated that it is an intervenor's participation in the business trust as a new company.

According to the above facts, since the financial participating company is not limited to financial institutions under the evaluation items table of this case, and the documents to be submitted by the defendant in calculating the number of the financial participating company are "written intent to participate, written undertaking, etc.", it is reasonable to view that it is not limited to the intent to participate, written undertaking, and that it is unnecessary to submit documents clearly indicating the intent to provide or invest funds for the implementation of the project to the project operator, i.e., the intent to provide or invest in the project (However, it is difficult to view that the investment intent is required even as the judgment of the court of first instance).

According to the evidence No. 8, Eul, and evidence No. 2, all of the 11 companies included in the plaintiff's proposal include the purport of "to make investments", "to participate in loans or financing," or "to participate in equities," and even in the agreement of this case included in the intervenor's proposal, it can be seen that the above companies have explicitly expressed that they are actively participating in investment. However, since the agreement of this case contains "to determine whether to participate in business under consultation with the participating companies," it cannot be deemed that the 11 companies, including the participating companies, including the 11 company's proposal, "to participate in financing or financing," or "to participate in financing," it cannot be deemed that the 3rd company's external investment project cannot be deemed that the 3rd company's participation in financing or investment is an entity that is a joint entity of financing, not an entity of financing."

Ultimately, the points of the item of financial ability of the Intervenor should be 6 points (if the financial participating company is one Asian trust), and the defendant's granting nine points to the intervenor is contrary to the criteria of evaluation set by the defendant himself. The plaintiff's assertion in this part is with merit.

B) Items of financial structure status of the manager

In addition to the testimony of the non-party 1 of the first instance trial and the witness of the first instance trial, the Defendant’s evaluation of each of the proposals by the Plaintiff and the Intervenor may examine the financial statements submitted by the proposing company on the premise that the “general manager” in the evaluation table of this case is a “Proposal” and recognize the fact that the Plaintiff submitted the financial statements, nine points equivalent to the size of capital between 10 billion won and 19.9 billion won to the Plaintiff, and six points to the non-party 1 on the presentation of evidentiary documents.

The plaintiff asserts that the "managing Director" of the above evaluation items means a special purpose corporation which will be established with investors for the implementation of the project, and thus, the defendant's evaluation of the financial structure of the special purpose corporation has been wrong on different premise despite the evaluation of the financial structure of the special purpose corporation. However, the plaintiff argues that the special purpose corporation is one of the methods in which the project implementer implements the project (the proposing company may be responsible for and led by the project. The method in which the project implementer implements the project may be diverse, such as receiving investment from investors or establishing a special purpose corporation for only the project with investors, and conducting the project separately with investors). If the project implementer selects the method in which the project implementer directly implements the project, the special purpose corporation cannot be established, and even if the project implementer selects the method in which the special purpose corporation selects the method in which the project is implemented, it is impossible to evaluate the financial structure of the company that does not exist at the time of the project. The defendant's argument that the "financial structure in which the project is supervised" of the plaintiff's project without the reason for the evaluation of the above project.

On the other hand, the intervenor in the public notice of this case: ① it is improper to use it as an assessment item despite the absence of the requirement to submit the proposal company's financial statements; ② If the defendant intended to adopt the proposal company's financial statements as an assessment criteria, even if the intervenor and the joint representative proposing company did not submit the financial statements, it should have been referred to the evaluation by inquiring about and evaluating the financial statements of the intervenor and the Korean investment securities disclosed in the electronic public disclosure system of the Financial Supervisory Service, but it is improper for the defendant to give the participant an item as 6 points on the ground that the plaintiff failed to submit evidentiary materials. ③ The defendant assessed the size of the plaintiff's capital as 1.6 billion and granted 10 points to the participant. According to the financial statements submitted by the plaintiff, according to the plaintiff, the plaintiff's capital size is 5.8 billion won, and thus, the points of the evaluation items on the plaintiff should be

In light of the following circumstances, which are acknowledged by adding the overall purport of the pleading, namely, the reason why the defendant set the "financial structure state of the supervising company" as separate assessment items from the "financial structure of the proposing company" is to determine the capacity to implement the project by evaluating the financial structure conditions of the proposing company. The guidelines of this case stipulate that the proposal includes matters to evaluate the capacity to implement the project, such as investment plans and fund raising plans, and accordingly, the defendant instructed the proposing company to submit all documents in accordance with the guidelines of this case as included in the proposal at the time of the announcement of this case, and there is no public notice that the defendant would evaluate the financial structure of the proposing company as information disclosed to the Financial Supervisory Service, etc., the proposing company can sufficiently expect that objective evidence, such as financial statements, should be submitted for assessing the capacity to implement the proposing company's project. In evaluating the project proposal of this case, it is difficult to view that the defendant should reflect the information disclosed to the above electronic disclosure system, etc. in addition to the materials submitted by the proposing company. Therefore, the above intervenor's ①

However, according to Gap evidence Nos. 5 and 8, the plaintiff's financial status as of 2014 is KRW 8.2 billion in assets, debt 2.4 billion in total (property - debt) is KRW 5.8 billion in total (property - KRW 8.2 billion - 2.4 billion in total) according to the evaluation items of this case, and where the size of the proposer's capital as of the evaluation items of this case exceeds KRW 10-9.9 billion in total, it can be recognized that the plaintiff's capital should be 8 points in total. According to this, although the amount of the plaintiff's capital should be 5.8 billion in total, it is against the evaluation criteria set by the defendant himself/herself. The plaintiff's above argument three is with merit.

C) the adequacy item of the introduced facility;

In addition to the statements in Gap evidence Nos. 4, 5, 8, and 15, the plaintiff introduced multi-family housing and hotel as non-park facilities in the instant park site, and submitted a proposal to procure business expenses by selling the hotel site. As a result of considering the possibility of selling the hotel site through consultation with the Urban Park Deliberation Committee, the possibility of selling the hotel site where the hotel site was not sold, the plan to procure business expenses where the hotel site was not sold, and the number and size of the hotel existing in the present tent, etc., it can be recognized that the defendant granted 46 points to the plaintiff about the appropriate items of the introduced facility. The evidence submitted by the plaintiff alone is insufficient to find that the judgment of the defendant lacks objective rationality or feasibility, and there is no other evidence to support this. Accordingly, the plaintiff's assertion in this part

D) Items to verify the feasibility of data on evaluation of revenues of non-park facilities;

The Intervenor submitted a consulting report prepared by the Plaintiff and the project counterpart review report prepared by the Gado appraisal corporation Co., Ltd. (hereinafter “Gado appraisal corporation”) as data on the evaluation of revenues, such as sale in lots, to non-park facilities, and the project counterpart review report prepared by the Gado appraisal corporation (hereinafter “Gado appraisal corporation”). The Gado appraisal corporation is a company which has appraised the price of the proposal submitted by the Plaintiff, and the Gang Engineering is a company which has prepared the proposal, and the report prepared by the above company and the project counterpart review report do not constitute “necessary data for evaluation of revenues, such as sale in lots, etc. of non-park facilities prepared by taking account of feasibility studies, etc., by an institution or company specializing in accounting, etc.” as stipulated in Section 3-3-2 of the instant Notice and Section 3-2 of the instant Directive. Thus, it is unreasonable that the Plaintiff received three points from the above evaluation

In addition to the contents of evidence Nos. 8 and 14, the Plaintiff received a review of the overall purport of the pleadings from Nonparty 2 about the business feasibility review report prepared by the Sejong Engineering Co., Ltd., and submitted a written review opinion prepared by Nonparty 2 to the Defendant for the aforementioned purpose. According to the above facts of recognition, it is reasonable to give four points to the Plaintiff on the premise that the Defendant falls under the “verification by Corporation, etc.” as to the above evaluation items. This part of the Intervenor’s assertion is without merit.

E) Appropriateness of the calculation of land purchase costs;

An intervenor asserts that the cost of land purchase for the project proposed by the plaintiff is calculated without official appraisal and objective verification by an external specialized institution, and that the plaintiff's score for the relevant item should be reduced.

In evaluating the appropriateness items of the calculation of land purchase cost, the appraisal corporation may also be deemed to be a specialized institution with regard to the calculation of land purchase cost, and it is difficult to view that the land purchase cost was calculated by consulting form, not regular appraisal. Therefore, the intervenor's assertion is without merit.

F) Sub-decisions

Therefore, although the defendant should have given 6 points to the intervenor in the item of financing ability among the item of the evaluation items of this case, 9 points were granted to the plaintiff, and 8 points were granted to the plaintiff in the item of financial structure of the supervisor, which is lack of objective rationality and validity as it violates the evaluation criteria set by the defendant himself. Accordingly, if the plaintiff and the intervenor were to pay the points to the plaintiff, the intervenor's total point 83.56 points and the plaintiff's 85.33 points and the plaintiff's highest point are the plaintiff's highest point, so the disposition of this case which designated the intervenor who is not the plaintiff who is not the plaintiff in braille as the person eligible for priority negotiation of the project of this case is unlawful.

3. Conclusion

The plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the appeal of the defendant and the intervenor is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

The judge’s seat (Presiding Judge) Ma-hee Park Jong-hee

(1) The Plaintiff sought revocation of the “disposition for the Selection of Project Subjects,” but according to the purport of the entire pleadings, the Plaintiff appears to have sought revocation of the disposition that the Defendant designated the Defendant’s Intervenor and the Korea Investment Securities Company as the priority negotiation subject of the Nowon-gu Park Development Project for the Nowon-gu Park as the preferred negotiation subject of the project. Therefore, the Plaintiff