2018Nu5389 Revocation of designation of items subject to competing products between small and medium enterprises, etc.

A Cooperatives

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Park Young-ju

The Minister of SMEs and Startups

Attorney Lee Jong-hoon et al., Counsel for the defendant

Seoul Administrative Court Decision 2017Guhap50645 decided June 22, 2018

October 11, 2018

November 1, 2018

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance is revoked. The Defendant’s announcement of the details of the designation of products eligible for direct purchase of competing products and construction materials among small and medium enterprises on January 4, 2017 (Public Notice No. 2017-9; hereinafter “Public Notice No. 2017-3 of the Small and Medium Enterprise Administration”) and public notice of the details of the designation of products eligible for direct purchase of competing products and construction materials between small and medium enterprises (Public Notice No. 2017-3; hereinafter “Public Notice No. 2017-4, Jan. 4, 2017”) (excluding C file No. 4: D), the Defendant’s announcement of the details of the designation of products eligible for direct purchase of competing products and construction materials between small and medium enterprises on January 26, 2017 (Public Notice No. 2017-9, Jan. 26, 2017) shall be revoked by 205.37.

1. Quotation of the first instance judgment

The reasoning for the court’s explanation on the instant case is as stated in the reasoning of the judgment of the first instance, as well as the following (2). Thus, the grounds for appeal filed by the plaintiff under Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act are cited as they are (a). (b) The grounds for appeal filed by the court are not significantly different from the allegations in the first instance court, and even if all evidence submitted by the first instance court and this court are examined, the judgment of

2. Parts to be dried;

A. A. Of the reasoning of the judgment of the court of first instance, the part of paragraphs (a) through (c) of the first instance (the part from 18 to 18 of the appeal No. 3 of the first instance judgment) of the first instance judgment shall be followed as follows.

A. The Plaintiff is a non-profit organization consisting of 47 small and medium enterprises that produce C products, such as E files (E; hereinafter referred to as E; hereinafter referred to as “E files”), sewage pipes, Ffume pipes, and electricity transmission and distribution telecommunications poles, etc.

B. During the period from July 201 to May 24, 2016, 17 companies producing E files among the Plaintiff’s members companies (I, J, K, L, and M&A), N Co., Ltd., Ltd., H Co., Ltd., P, Q&2), H Co., Ltd., Ltd., S Co., Ltd., Ltd., V, W Co., Ltd., Inc., Ltd., and X Co., Ltd. (hereinafter referred to as “member companies”), and the former and present officers and employees of the 3rd Co., Ltd., Ltd. (hereinafter referred to as “Co., Ltd.,” and the 3rd Co., Ltd., Ltd., Ltd., Ltd., Ltd., Ltd., and the 3rd Co., Ltd. (hereinafter referred to as “Co., Ltd. and the 36th Co., Ltd., Ltd.) were designated as the bid price in advance, and the 36th Co., Ltd., Ltd. did not participate in the bid price in the bid at 86th bidding.

C. On September 21, 2016, the Seoul Central District Court rendered a judgment of conviction on the facts constituting a crime of interference with bidding against the above executives and employees (2016Da4187, 5376 (combined). The above executives and employees appealed against the appeal, but the Seoul Central District Court reversed the judgment of the first instance on February 3, 2017 on the grounds of the ex officio reversal of the amendment of the indictment and unfair sentencing as to some of the above executives and employees, and subsequently rendered a new punishment on the grounds of the reversal of facts and misapprehension of legal principles as to the above executives and employees, and dismissed all appeals by the remaining executives and employees (2016No3816), and the Supreme Court dismissed all appeals by the above executives and employees on October 25, 2018 (hereinafter collectively referred to as the “instant criminal trial”).

B. Part 7 of the judgment of the court of first instance, the plaintiff, who has 16 small and medium enterprises as members of the 16 small and medium enterprises, shall be appointed as "the plaintiff who has 16 small and medium enterprises as members".

C. No. 10 of the first instance judgment No. 10 was recommended, and "(the written application contains 16 remaining excluding Q, among the members of the instant member companies as the members of the instant product)" was recommended.

D. Article 3-3(c)-2(b) of the judgment of the court of first instance (the part from 10th to 18th of the judgment of the court of first instance) of the same Act (the part from 10th of the judgment of the court of first instance to 10th of the judgment) has

B) The 17 E file producers, both of the instant member companies, participated in the instant working-level council. Among the instant working-level council, 10 companies, including H, Q, I, T,O, P, X, L, and J4, M, 4 companies, including N, V, U, and W, and 5 companies, including S, R, K, L, L, and J, among the working-level councils of the instant working-level councils, were affiliated with the Youngnam Council.

E. Article 3-3(3)-2(b) of the judgment of the court of first instance (Article 11(3)-2(3)-2 of the judgment of the court of first instance) (Article 11(5)-2 of the judgment of the court of first instance)-2(1)

B) Such collusion was conducted in a different way according to the scale of the bidding. The instant member companies, where the bidding price is at least one billion won, constituted a joint supply and demand organization through the instant working group council, and the Plaintiff entrusted the bidding to the Plaintiff, distributed the supply volume after being awarded a contract in the name of the partnership to the relevant member companies in accordance with the ratio of the agreed volume distribution, and was paid fees. If the instant member companies participated in the bidding price less than one billion won, the instant member companies selected a joint supply and demand organization or participated independently, and determined a successful bidder through the instant working group by directly bidding according to the results of the consultation and was awarded a successful bid. In the event of a participation in the bidding in the name of an individual company without forming a joint supply and demand organization, the companies located at the construction site due to transportation costs were preferentially allocated.

F. Article 3-3(c)(5) of the reasoning of the judgment of the court of first instance (Article 13 of the judgment of the court of first instance) of the same Act (Article 13 of the judgment of the court of first instance, 2 to 14 of the same Act) shall be added as follows.

(C) On the other hand, H, one of the member companies of the instant case, filed a lawsuit seeking revocation of the disposition of the instant Administrator of the Public Procurement Service by Seoul Administrative Court 2016Guhap74521. On April 27, 2017, the said court rejected the appeal on the ground that “H, despite the recognition of the grounds for restricting participation in the instant collaborative act by engaging in the instant collaborative act, does not constitute a person who led the instant collaborative act, and thus, it cannot be deemed that the disposition of the instant Administrator of the Public Procurement Service, which erroneously applied the specific disposition standards, was unlawful.” Although the Seoul High Court appealed against this, the Seoul High Court was found to have led the instant collaborative act on June 12, 2018, although it was recognized that the instant disposition of restricting participation in bidding for two years was taken by all relevant enterprises, it cannot be deemed that the relevant enterprises have reasonably determined the period of sanctions as well as that it constitutes a disposition deviating from and abusing discretionary power (2017Nu50340).”

G. On No. 14 of the judgment of the court of first instance, the letter "No. 10, 13, and 14" was written with "No. 10, 11, 13, 14, and 20."

H. On January 4, 2017, the first instance judgment No. 16, No. 21 of the Act on the Promotion of Development of Support for Small and Medium Enterprises (hereinafter “No. 16”) did not follow the following. Even if five new file production was made after the Plaintiff’s announcement of Jan. 4, 2017, Article 8 of the former Operational Guidelines (amended by Presidential Decree No. 2010, Jan. 4, 2017). If a small and medium enterprise directly produced in the Republic of Korea does not have more than 10 or more than 5, it is possible to obtain designation recommendation, and if necessary for protecting and fostering domestic small and medium enterprises, it is recognized that the administrative agency wide discretion is recognized as the matters belonging to the technical and professional area. In addition to the purport of the Act on the Promotion of Development of Support for Small and Medium Enterprises (hereinafter “No. 16”) to contribute to improving the competitiveness of small and medium enterprises and stabilizing their business management, all members of the instant member companies, who directly produced electronic files, shall be subject to the subsequent notification of the revocation and 17.

It is difficult to regard it as an exception under Article 8 of the Decree, which is necessary for protecting and fostering small and medium enterprises.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

The presiding judge, senior senior judge;

Judges Park Jong-young

Judges Lee Jong-hwan

1) M Co., Ltd is a member of the Plaintiff from April 2014.

2) Qu Co. does not seem to belong to the Plaintiff’s members.

3) On April 7, 2017, T Co. was dissolved by a resolution of the general meeting of shareholders.

4) L and J were affiliated concurrently with the Honam-do Council and the Seoul Metropolitan Area Council.

5) According to the corporate register of each company and the Plaintiff’s website, Y, among the newly incorporated companies asserted by the Plaintiff, was established by dividing Y, one of the members of the instant company on August 31, 2016 after the issue of the instant collaborative act. Z and AA up to the recent period, Z and AA are classified into the Plaintiff’s website as a pre-production company (based on the above website, 14 companies, among the members of the instant company, and 18 companies, including AB, AC, Y, and AD). Furthermore, in light of the trends of the companies that directly produce E files for the past two to three years, it is difficult for the Plaintiff and the small and medium enterprise owner to simply establish and maintain the instant public announcement and the instant public announcement that exclude E files from pre-existing competing products, etc., and that five new small and medium enterprise owners newly produced E files, unlike the transfer in business instability, were very likely to start production of the instant file.