(영문) 서울행정법원 2014.9.4.선고 2014구합60993 판결

On April 15, 2014, the Defendant revoked the restriction on qualification for participation in the competition between small and medium enterprise proprietors to the Plaintiff.

Reasons

1. Details of the disposition;

A. The Plaintiff is a small and medium business proprietor under Article 2 of the Framework Act on Small and Medium Enterprises who produces and sells ready-mixeds.

B. The Plaintiff issued a small and medium enterprise confirmation document (hereinafter “small and medium enterprise confirmation document”) under Article 8(2) of the Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Development of Market Support (hereinafter “Small and Medium Enterprise Products Support Act”) from the Defendant, and then a public institution has made a bid for the supply of ready-mixed by means of “small and medium enterprise competitive bidding” among the “small and medium enterprises under Article 7 of the Act on the Support of Development of Small and Medium Enterprise Products.” The Defendant held that the Plaintiff is a company in a dominant or subordinate relationship with the “large enterprise” under Article 8-2(1)2 of the Act on the Support of Development of Small and Medium Enterprise Products and Article 9-3 of the Enforcement Decree of the Act on the Support of Development of Small and Medium Enterprise Products and requested a public institution to present its opinion on May 3, 2013, by giving prior notice to the Plaintiff’s participation in the competitive tendering process

D. On June 28, 2013, the Defendant sent an official document to a public institution, accompanied by the list of enterprises subject to the restriction on participation in a bid through the competition system established between small and medium enterprises and small and medium enterprises, which are ordered after the end of the time. In addition, the Defendant took measures to include the phrase “the main time of the restriction on participation” (hereinafter referred to as “the phrase “the restriction on participation”) in the written confirmation when a company subject to the restriction on participation applies for the issuance of a written confirmation of small and medium enterprises through the public purchase comprehensive information network (www. S.go.K.) around that time, it is a company subject to the restriction on participation in a competitive tendering procedure established by a small and medium enterprise pursuant to Article 8-2 of the Act on the Support for Development of Small and Medium Enterprises Products

E. On the other hand, on June 28, 2013, the Defendant notified the Plaintiff that the Plaintiff constitutes an enterprise subject to the restriction on participation as follows (hereinafter “Notice”).

Private title: Article 8-2 of the Competition Support Act, subparagraph 2 (c) of Article 9-3 of the Enforcement Decree of the same Act, other public institutions: The head of a public institution intends to restrict participation in competitive tendering process open only to small and medium enterprises because the grounds for restrictions on participation in competitive tendering process open only to small and medium enterprises have ceased to exist, and to participate in competitive tendering process open only to small and medium enterprises due to the elimination of the grounds for restrictions on participation in competitive tendering process open only to small and medium enterprises, it is difficult to inform the local Administrator of the Small and Medium Business Administration having jurisdiction over a place of business subject to restrictions on participation in competitive tendering process open only to small and medium enterprises in accordance with Article 8-2 (3) of the Act on the Verification of Small and Medium Enterprises,

F. On the other hand, some small and medium entrepreneurs notified of the restriction on participation in the same day as the Plaintiff filed a lawsuit seeking the revocation of the restriction on participation in the first place on September 16, 2013 with the Seoul Administrative Court 2013Guhap23546 (hereinafter referred to as the “first case”), claiming that the notification corresponding to the restriction on participation in the first place was unlawful, and filed an application for suspension of execution on November 6, 2013.

G. On October 18, 2013, the first case, where the first case was in progress, the defendant sent an official letter stating that the notification was not a disposition of competitive participation restriction but a disposition of participation restriction to the plaintiffs' company subject to participation restriction. However, the defendant sent an official letter stating that this is an administrative disposition with the effect of restriction of participation restriction and that it is an administrative disposition with the effect of restriction of participation restriction and thus the notification is withdrawn in order to prevent it. For the same reason, the public institution withdraws the existing official document to prevent legal disputes, and the list of enterprises subject to participation restriction will provide convenience for public institutions to decide whether to restrict participation in competitive tendering process open to small and medium enterprise proprietors. Meanwhile, at that time, the defendant failed to state that the plaintiffs in the first case were issued a small and medium enterprise confirmation document.

H. On December 13, 2013, the above court: (a) premised on the fact that the Defendant’s measure to include the phrase of restriction on participation in a small and medium enterprise when the company subject to restriction on participation applies for the issuance of a small and medium enterprise’s confirmation document is an administrative disposition subject to appeal litigation; (b) concluded that the above measure was lawful and dismissed on the ground that the Defendant’s measure was unlawful, since it was taken to prevent the entry of the phrase of restriction on participation in a small and medium enterprise’s confirmation document issued after October 18, 2013. The above judgment became final and conclusive on January 1, 2

I. Meanwhile, the following are the details of changes in the terms regarding the restriction on participation in the letter of small and medium enterprise confirmation issued by the Defendant to the Plaintiff pursuant to Article 8-2 of the Support for Small and Medium Enterprise Products Sales

A) A small and medium enterprise confirmation document issued by the Defendant to the Plaintiff on May 2, 2013 is valid from April 1, 2013 to March 31, 2014, and does not contain any phrase on restriction on participation at the bottom thereof. B) Meanwhile, the confirmation document issued by the Defendant after sending to the Plaintiffs of the first case on October 18, 2013 does not contain any phrase on restriction on participation.

C) A small and medium enterprise confirmation document issued by the Defendant to the Plaintiff on April 15, 2014 stated that the term of validity from April 1, 2014 to March 31, 2015 is from March 31, 2015 (hereinafter referred to as “the confirmation of the Defendant’s confirmation act indicated in the above small and medium enterprise confirmation document”) and written at the bottom of the restriction on participation. 【The confirmation of the Defendant’s confirmation act” is without dispute, and the judgment as to the defense prior to the merits of the lawsuit, including the evidence No. 1, evidence No. 2, evidence No. 2, evidence No. 2, evidence No. 2, and evidence No. 3 through 5, evidence No. 6-1, evidence No. 7, and evidence No. 8-1 through 5, and the purport of

A. Summary of the defense prior to the merits

1) The Defendant confirms whether the small and medium enterprises seeking to participate in competitive tendering process open only to small and medium enterprises pursuant to Article 8-2(2) of the Act on the Support of Development of Small and Medium Enterprise Products, are subject to restrictions on participation in competitive tendering process. However, such confirmation act itself does not affect the small and medium enterprises’ rights and interests, and the head of a public institution separately limits their rights and interests. Accordingly, the Defendant’s confirmation act is not a disposition subject to appeal procedure (hereinafter “pre-appeal to the first proposal”).

2) Even if the phrase of the restriction on participation itself is subject to disposition, a public institution can resolve a dispute at once by disputing the disposition of restriction on participation in a competitive bidding conducted, so there is no benefit of lawsuit to independently dispute the phrase of the restriction on participation in a competitive bidding itself (hereinafter referred to as “pre-appeal of the

3) According to Article 8-2(1) of the Act on the Support of Support for Development of Small and Medium Enterprise Products Products, a public institution, other than the Defendant, is the entity that restricts the participation of small and medium enterprises in competitive bidding. Therefore, the instant lawsuit is unlawful since it was filed against the Defendant, other than the administrative agency that issued an administrative disposition (

B. Determination

1) All defenses before the merits of the first case

A) The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally. In specific cases, an administrative disposition is a law enforcement with respect to a specific fact conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people. In mind, the decision should be made individually 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 actual 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, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18,

B) In full view of the relevant laws and regulations, including the Act on the Support of Development of Small and Medium Enterprise Products and the Enforcement Decree of the same Act, which serve as the basis for the Defendant’s act of confirmation,

(1) According to Articles 7(1), 8(2) and 8-2(2) of the Act on the Support of Development of Small and Medium Enterprise Products, a small and medium business proprietor who intends to participate in a competitive tendering procedure open only to small and medium enterprises by directly producing and providing products that are ordered by the head of a public institution shall be subject to verification as to whether the small and medium business proprietor is subject to participation eligibility or participation restriction on competitive tendering procedures from the Defendant.

If it is confirmed that the public institution is actually unable to participate in a bid for competing products ordered by the public institution. Therefore, the Defendant’s aforementioned confirmation act is, independent of the disposition of restrictions on participation in competitive bidding, thereby limiting the rights and interests of the small and medium enterprise owner by itself.

② Article 8-2(1) of the Act on Assistance to Small and Medium Enterprise Promotion provides that the head of a public institution shall restrict participation of a person operating a small or medium enterprise in any of the following cases. At the same time, Article 8-2(2) provides that a small or medium enterprise who intends to participate in competitive bidding between small or medium enterprises shall apply to the Defendant for verification as to whether a small or medium enterprise is subject to restriction on participation in competitive bidding between small or medium enterprises; and the Defendant shall confirm such fact. As such, the Act on Assistance to the Development of Small and Medium Enterprises of Small and Medium Enterprises allows public institutions to allow small or medium enterprises to participate in competitive bidding between small or medium enterprises in certain circumstances, and verification as to whether a small or medium enterprise is subject to restriction on participation in competitive bidding between small or medium enterprises is subject to restriction on participation in the competitive bidding between small or medium enterprises. According to the regulatory structure and contents, determination as to whether the relevant small or medium enterprise is actually subject to restriction on participation in competitive bidding between the Defendant and public institutions based on such confirmation appears to be subject to restriction on participation in competitive bidding.

(3) Article 6 (1) (attached Form 2) of the Guidelines for Confirmation of Small, Medium, Air, and Disabled Enterprises (hereinafter referred to as the "Notice of this case") (attached Form 2) of the Small and Medium Business Administration, a public announcement of the Small and Medium Business Administration based on Article 8-2 (2) of the Act on the Development of Small and Medium Enterprise Products, if it falls under a company subject to restrictions on participation,

The phrase "the main time is" is to be stated as a company subject to restrictions on participation in competitive tendering process for small and medium entrepreneurs. According to this, although evaluation of whether the defendant's competitive participation is subject to restrictions on participation in competitive tendering process has been made in the form of "verification", it can be seen that the phrase of the above restrictions on participation in competitive tendering process in the letter has been externally indicated.

④ In addition, a small and medium business proprietor confirmed that he/she is subject to restrictions on participation in a competitive bidding by the Defendant is in a state of legal uncertainty that he/she would be unable to participate in the competitive bidding at that stage. Therefore, it is appropriate for the principle of rule of law to allow a small and medium business proprietor to escape from the risk of the future by having the small and medium business proprietor evadeing the legality of the act of confirmation at the above stage of confirmation, and by getting him/her participate in the competitive bidding.

C) In full view of the above circumstances, it is reasonable to view the Defendant’s instant confirmation act as a disposition subject to revocation litigation (hereinafter “instant confirmation disposition”). 2) The Defendant’s defense prior to the second draft of the second draft text.

As seen earlier, as long as it appears that the determination on whether the relevant small and medium enterprise is subject to restrictions on participation in competitive tendering process open only to small and medium enterprise proprietors is conducted at the Defendant’s stage, it is difficult to readily conclude that the dispute is resolved once by merely disputing the above disposition against the public institution subject to restrictions on participation in competitive tendering process based on such determination. Rather, the Defendant’s assertion of confirmation is to resolve the Plaintiff’s legal instability and is in line with the principle of administration in the rule of law. Therefore, it

3) Defenses prior to the 3th proposal

The Plaintiff’s intent is unlawful, and it is apparent that the Defendant’s act of confirmation is unlawful. Therefore, the instant lawsuit against the Defendant who rendered the instant disposition of confirmation cannot be deemed unlawful.

3. Whether the instant confirmation disposition is lawful

A. The plaintiff's assertion

Article 8-2 (1) 2 of the Act on Support for Development of Agricultural and Fishery Products of Small and Medium Enterprises (hereinafter referred to as the “instant provision”) which served as the basis for the instant disposition against the Plaintiff is in violation of the Constitution for the following reasons.

Therefore, the above disposition based on the unconstitutional law is also illegal.

1) Article 8-2(1)2 of the Support for Sales of Small and Medium Enterprise Products Act is controlled or subordinate to a large enterprise.

However, without specifying the meaning of substantial control and subsidiary, it is contrary to the principle of prohibition of comprehensive delegation (hereinafter referred to as "section 1").

2) Article 8-2(1)2 of the Act and Article 9-3 subparag. 2(c) of the Enforcement Decree of the same Act based on the delegation thereof set forth as an index of dominant or subordinate relationship where a large enterprise lends assets or guarantees its obligations to a small and medium enterprise in excess of the total number of outstanding stocks or total amount of investments (in the case of an individual enterprise, referring to the total amount of assets) of the small and medium enterprise. However, this is against the principle of excessive prohibition by excluding a certain small and medium enterprise from competitive bidding on the basis of the inappropriate standard of “asset lending”, thereby infringing the Plaintiff’s freedom of business (hereinafter “section 2”).

3) If there is no substantial difference between a small and medium enterprise that leases assets from a large enterprise and other small and medium enterprises, it infringes the Plaintiff’s right to equality by discriminating between the two without reasonable grounds (hereinafter referred to as “third-party Chapter”).

4) Violation with the contents and intent of the Act on the Promotion of Collaborative Cooperation between Large Enterprises and Small-Medium Enterprises that encourage human and material cooperation between large enterprises and small-medium enterprises (hereinafter referred to as “instant Chapter”).

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to the first proposal

A) Article 75 of the Constitution of the Republic of Korea provides that "the President may issue Presidential Decrees with regard to the matters to be delegated with the specific scope of the Act," which provides for the constitutional grounds for the delegation of the Act, and at the same time provides for the specific scope of the delegation of the Act, it is limited (see, e.g., Constitutional Court Order 2004Hun-Ga29, Apr. 26, 2007). The principle of clarity of the Act concerning the principle of clarity of the delegation of the Act to the administration is a special provision that is embodied in the administrative legislation (see, e.g., Constitutional Court Order 2004Hun-Ba29, Apr. 26, 2007). In addition, the limitation of the delegation of the Act is predictability. This means that if the basic matters of the contents and scope of the Act already stipulated in the Presidential Decree are specified in the Act, any person may predict the contents of the Act to be stipulated in the Presidential Decree, etc., and the existence of such predictability must be determined systematically and systematically.

B) According to the structure and content of the relevant statutes, such as the Act on the Development of Small and Medium Enterprise Products and the Enforcement Decree of the same Act, the following points are revealed.

① The instant legal provision was newly enacted on June 1, 2012 by Act No. 11462, Jun. 1, 2012. In order to ensure fair competition between small and medium enterprises and small and medium enterprises, it aims to promote fair competition by restricting the participation in the competitive bidding between small and medium enterprises and small and medium enterprises with the same kind of business as large enterprises for the fair competition between small and medium enterprises and small and medium enterprises. However, the types and forms of participating in the competitive bidding between large and medium enterprises, which are detrimental to fair competition between small and medium enterprises and small and medium enterprises, are very diverse. As such, in order to achieve such legislative purpose, whether certain small and medium enterprises are to be a company in a dominant or subordinate relationship with large and medium enterprises, it is difficult or inappropriate to require that all of the detailed matters be prescribed in the law enacted by the National Assembly.

② Meanwhile, Article 7(1) of the Act on Assistance to the Sales of Small and Medium Enterprises provides that public institutions shall conclude procurement contracts for competing products through limited competitive bidding for only small and medium entrepreneurs or designated competitive bidding among designated small and medium entrepreneurs (hereinafter “competitive bidding among small and medium entrepreneurs”), barring special circumstances prescribed by Presidential Decree, limiting only small and medium entrepreneurs to competitive bidding for small and medium entrepreneurs, and restricting the participation in competitive bidding for fair competitive bidding between small and medium entrepreneurs.

③ The instant legal provisions restrict the participation of a small and medium enterprise that obstructs fair competition in competitive tendering process open only to small and medium enterprise proprietors, which is in a parent-subsidiary relationship with a large and medium enterprise on the premise that it operates a business of the same kind as that of a large and medium enterprise. According to these provisions, the instant legal provisions limit the contents that constitute a premise for a parent-subsidiary relationship as a requirement for restriction on participation in the large and medium enterprise. However, the instant legal

④ In addition, Article 2 subparag. 1 of the Act on Support for Small and Medium Enterprise Products provides that small and medium enterprise owners shall be small and medium enterprise owners under Article 2 of the Framework Act on Small and Medium Enterprises or small and medium enterprise cooperatives under Article 3 of the Small and Medium Enterprise Cooperatives Act. Meanwhile, Article 2 of the Framework Act on Small and Medium Enterprises stipulates the scope of small and medium enterprise owners in detail,

The standards are specified in detail. According to the structure and contents of the relevant laws, it seems possible to sufficiently predict the outlines of dominant or subordinate relationships with large enterprises on the basis of the meaning of small and medium enterprise owners referred to in the Act on the Support of Development of Small and Medium Enterprise Products.

⑤ On the other hand, Article 9-3 of the Enforcement Decree of the Act on Assistance to the Markets of Small and Medium Enterprises, amended by Presidential Decree No. 24492, Apr. 3, 2013, to specifically determine the scope of persons whose competitive participation is restricted after the establishment of the instant legal provision, the same type of business, and matters to be considered in determining whether to recognize restriction on participation in competitive bidding. The said provision specifically provides for the criteria for determining dominant or subordinate relationships between large enterprises and small-medium enterprises, such as ① the holding of concurrent positions or dispatch of the representative shareholders of a large enterprise, ① the performance of business and business activities entrusted by a large enterprise, ② the lending of assets exceeding the total number of outstanding stocks; ② the appointment and dismissal of representative director by agreement between large enterprises and small-medium enterprises; ② the appointment of representative director by large enterprises and small-medium enterprises; ② the

C) In full view of the above points, the legal provision of this case took a legislative method that provides for the contents of the relevant lecture and provides for partial supplement by the Presidential Decree, and it can be predicted through the legal provision of this case that can be supplemented by the Presidential Decree. Thus, it cannot be said that it violates Article 75 of the Constitution of the Republic of Korea on the prohibition of comprehensive delegation or violates the principle of clarity of the law.

2) Determination as to the second proposal

(1) Appropriateness and adequacy of legislative purpose and method

(A) As examined earlier, the instant legal provision carries on the same kind of business as a large enterprise for fair competition between small and medium enterprises and small and medium enterprise proprietors, and is controlled or subordinate to the large enterprise.

The purpose of the legislation is to promote fair competition by restricting the participation of small and medium enterprises in competitive tendering process between small and medium enterprises.

(B) However, if a small and medium enterprise that only participates in a competitive bid between small and medium enterprises and a small and medium enterprise that is in a dominant or subordinate relationship with a large and medium enterprise, it is substantially the competitive bid system introduced by a large and medium enterprise to ensure fair competition between small and medium enterprises and small and medium enterprise proprietors are participating in the competitive bidding between small and medium enterprise proprietors, not only the competitive bidding system

It also goes against the legislative purpose of the Act on the Sales of Small and Medium Enterprise Products to contribute to the improvement of competitiveness and management stability of small and medium enterprises. From this perspective, it is effective and appropriate means to restrict participation in competitive tendering process open only to small and medium enterprises belonging to large and medium enterprises and groups of enterprises with the same kind of business as large enterprises, and to achieve the above legislative purpose.

(2) the minimum of damage and balance of legal interests;

(A) According to the structure and content of the instant legal provision, the following points are revealed.

① As seen earlier, the instant legal provision aims to promote fair competition by restricting participation in competitive bidding between small and medium enterprises for fair competition between small and medium enterprises and small and medium enterprise proprietors. In light of the enhancement of the competitiveness of small and medium enterprises through fair competition between small and medium enterprise proprietors, it is difficult to see that the instant legal provision excessively infringes on their interests to prevent participation in competitive bidding between small and medium enterprises which are substantially deemed large enterprises from participating in competitive bidding between small and medium enterprises.

② Article 9-3 subparag. 2 (c) of the Enforcement Decree of the Act on the Support of Development of Agricultural and Fishery Products of Small and Medium Enterprises, which served as the basis for determining a parent-subsidiary relationship with the Plaintiff, provides that “Where a large enterprise, etc., lends assets or guarantees debts corresponding to the amount exceeding the total number of issued stocks or total investments (referring to the total amount of assets in cases of an individual enterprise) of the small and medium enterprise” (Article 9-3(2) of the Enforcement Decree of the Act on the Support of Development of Agricultural and Fishery Products of Small and Medium Enterprises, which served as

(3) In particular, in cases falling under the above provisions, a small and medium enterprise owner who borrows assets equivalent to the amount exceeding its total number of outstanding stocks or total investment amount from a large enterprise can be deemed to have actually used the assets of a large enterprise as they are. Therefore, if a small and medium enterprise owner participates in a competitive tendering procedure open only to small and medium enterprises which correspond to a large enterprise, the small and medium enterprise owner may be able to become able to benefit to himself

(B) In full view of these circumstances, even if the Plaintiff is unable to participate in competitive tendering process open only to small and medium enterprises pursuant to the legal provisions of this case, the legal provisions of this case have the minimum extent of damage since there is no clear means that violates the Plaintiff’s freedom of business, etc. while achieving the legislative purpose. In addition, the legal provisions of this case make it impossible to participate in procurement contracts for small and medium enterprises (i.e., goods and services that fall short of the amount publicly notified by the Minister of Strategy and Finance; see Article 4 of the Act on the Development of Small and Medium Enterprise Products Markets) ordered by the head of a public institution, and there is no obstacle to the public procurement contracts for the part not corresponding thereto or private economic activities. In light of the private interest infringed by the legal provisions of this case, the legal provisions of this case cannot be deemed to be more than the public interest to promote balanced development of the national economy through the improvement of competitiveness of general small and medium enterprises not in control or subordinate relationship with the large and medium enterprises, and therefore, the legal provisions of this case also have legal interests.

3) Determination as to the third proposal

A small and medium enterprise that falls under the legal provisions of this case, i.e., a small and medium enterprise that is in a dominant or subordinate relationship with a large enterprise by leasing assets equivalent to the amount exceeding the total number of outstanding stocks or total investments (referring to the total amount of assets in the case of an individual business) of the relevant large enterprise, is practically participating in the competitive bidding between small and medium business proprietors, and there is a significant difference between the large enterprise and the capital and the size of assets. Therefore, it cannot be deemed that the legislators’ limitation of participation in the competitive bidding between the small and medium

4) Determination as to Section 4

A) According to Article 1 of the Act on the Promotion of Collaborative Cooperation between Large Enterprises and Small-Medium Enterprises (hereinafter “Mutual Cooperation Promotion”), the Collaborative Cooperation Promotion of Small-Medium Enterprises aims to enhance the competitiveness of large enterprises and small-medium enterprises by consolidating win-win cooperation between large enterprises and small-medium enterprises and achieve their shared growth by resolving the polarization between large enterprises and small-medium enterprises, thereby laying the foundation for sustainable growth of the national economy. In addition, pursuant to Article 2 Subparag. 3 of the same Act, collaborative cooperation refers to joint activities conducted between large enterprises and small-medium enterprises, between small-medium enterprises or between commissioning enterprises and commissioned enterprises and commissioned enterprises in order to promote their mutual interests in the fields of technology, human resources, funds, purchase, marketing

B) Meanwhile, the instant legal provision aims to promote fair competition by restricting participation in competitive bidding between small and medium enterprises and small and medium enterprises for the fair competition between small and medium enterprises and small and medium enterprises.

C) As can be seen, the Promotion of Collaborative Cooperation between Small and Medium Enterprises is aimed at promoting mutual benefits through mutual cooperation, on the premise that a large enterprise is divided into a large enterprise and a small and medium enterprise. It is difficult to view the legal provisions of this case, which aim at preventing acts that undermine fair competition by participating in competitive bidding among small and medium enterprises, contrary to the legislative purpose and purport of the Promotion of Collaborative Cooperation among Small and Medium Enterprises. Rather, the legal provisions of this case, which guarantee fair competition between small and medium enterprises through the instant legal provisions, appears to be able to strengthen the competitiveness of small and medium enterprises. Furthermore, the legal provisions of this case, which eventually conforms to the legislative purpose of the Promotion of Collaborative Cooperation

5) Sub-committee

As above, the legal provision of this case cannot be deemed to be unconstitutional. Therefore, since the legal provision of this case is in violation of the Constitution, the Plaintiff’s assertion that the disposition of this case is unlawful is without merit.

4. Conclusion

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