Appropriateness of a disposition restricting participation in bidding against a contractor where a joint and several sureties succeeds to and completes the construction interrupted due to a cause attributable to the contractor.

In the contract for construction works, even if the joint and several sureties for the execution of construction works completed the construction within the period of completion of the contract at the request of the contractor, the contractor constitutes "a person who fails to perform the contract without good cause" under Article 130 (1) 7 of the former Enforcement Decree of the Budget and Accounts Act (amended by Presidential Decree No. 13853, Feb. 22, 1993).

Article 130 (1) 7 of the former Enforcement Decree of the Budget and Accounts Act (amended by Presidential Decree No. 13853 of Feb. 22, 1993)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

[Defendant-Appellant] Defendant 1 and 3 others (Law Firm Seoyang, Attorney Shin Young-chul, Counsel for defendant-appellant)

The Administrator of Public Procurement Service

Seoul High Court Decision 93Gu5279 delivered on December 3, 1993

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

In the contract for construction works, even if the contractor completes the construction within the period of completion of the contract at the request of the contractor, if the contractor completes the construction at the request of the contractor, the contractor is deemed to fall under the "person who fails to perform the contract without good cause" under Article 130 (1) 7 of the former Enforcement Decree of the Budget and Accounts Act (amended by Presidential Decree No. 13853, Feb. 22, 1993) (see Supreme Court Decision 85Nu793, Mar. 11, 1986). Thus, the judgment of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles as to the "person who fails to perform the contract without good cause" under Article 130 (1) 7 of the Enforcement Decree of the above Act.

In addition, examining the records of this case, it is reasonable for the court below to limit the plaintiff's qualification to participate in the contract of this case from February 20, 1993 to November 27, 193, which is the date of the disposition, and to decide on the abuse and deviation of discretionary power to the disposition of this case. The disposition of this case is to consider the circumstances of the plaintiff's non-performance of the contract of this case, the circumstances of the plaintiff's violation of the related Acts and subordinate statutes, the disadvantage that the plaintiff would suffer from the disposition of this case and the public interest that the defendant would seek, and it is reasonable to determine that the defendant's restriction to the plaintiff's qualification to participate in the contract of this case from February 20, 1993 to November 27, 199, and that there is no error of abuse of discretionary power or deviation from the scope thereof, such as the theory of lawsuit, and there is no error of law by misunderstanding the legal principles as to abuse and deviation of discretionary power.

In addition, the court below did not examine whether the plaintiff's subcontracting was a specialized construction business operator and whether the plaintiff notified the head of the Gangwon-gu branch office of the Public Procurement Service that the subcontracting was lawful. However, the disposition of this case is merely based on the plaintiff's non-performance of the construction work of this case, and it does not mean that the head of the above Gangwon-gu branch office, which is the ordering office, has not obtained written consent of the subcontract. Even if the plaintiff lawfully subcontracted the construction work of this case, it does not exempt the contractor from the contractor's obligation under the contract (Article 22 (2) of the General Conditions for Construction Contract). The above decision of the court below did not affect the conclusion of the judgment. All arguments are without merit.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice)