(영문) 서울행정법원 2011.1.13. 선고 2010구합16127 판결

(1) On April 27, 2006, the Defendant (the Minister of Government Administration and Home Affairs) entered into a service contract with C (hereinafter referred to as “C”) on the three-stage pre-sector development project (hereinafter referred to as “instant development project”) with B (hereinafter referred to as “B”).

(2) The development project of this case is a project that constitutes a phase of "C establishment project," which started from January 2, 2003 and started step by step, and constitutes "C establishment project," and its contents are 15 linked functions development, including "6 institutions/systems and 15 connected functions development, including development of 13 business units such as import management (80 functions) and "C and D (hereinafter "D")."

(3) In particular, the instant connected function development project is a project to develop the function of automatic transmission of contract information stored in D to resolve such inconvenience, as it is difficult for the accounting officer to re-enter the contract information stored in D for the registration of the act of incurring expenditure, etc., as the relationship in which the local government concludes a contract through D before C is developed through D of the Public Procurement Service, and the contract information stored in D is stored only in D.

(4) On June 16, 2006, the Plaintiff entered into a contract for supervision with the former National Computerization Agency (former National Computerization Agency), which is an exclusive organization in charge of electronic government support projects (hereinafter “instant supervision service contract”), with the term of supervision from June 19, 2006 to December 26, 2006 (hereinafter “instant supervision service contract”).

B. Preparation and submission of the Plaintiff’s supervision report and written confirmation of the supervision result

(1) After conducting final supervision from November 27, 2006 to December 8, 2006, the Plaintiff prepared and submitted a supervision report (hereinafter referred to as “instant supervision report”) to the Defendant on December 14, 2006. The Plaintiff confirmed that no linkage program was installed between C and D, and entered the details that the linkage program should be installed and the linkage test should be conducted.

(2) After undergoing a virtual link test between C and D, B prepared and submitted a detailed statement of the supervision measures, including the contents of “the implementation of the connection test and the preparation of the results of the connection test,” after consultation with the agency subject to connection,” which includes “the Plaintiff.” At the time, B did not install a connection program between C and D with the Public Procurement Service.

(3) On December 22, 2006, the Plaintiff confirmed the details of the above measures, and prepared and submitted a written confirmation of the measure of supervision (hereinafter “written confirmation of the measure of supervision results”) to the Defendant and B, and completed supervision. The Plaintiff stated that all corrective measures were taken regarding the corrective measures according to the supervision report, including the fact that the implementation of a test of linkage with the institution/system subject to linkage was to be completed, and that the results of the inspection of the current status of the test of information linkage (the part of the government procurement agency) were completed in relation to the physical link test in the development environment, the logical link test in the development environment, the research of the relevant institution/system, and the transmission and reception test.

(4) On December 26, 2006, B filed an application with the Defendant for the completion inspection of the instant development project along with a written confirmation of the instant supervision results, and on December 28, 2006, C and D installed a connection program with the Public Procurement Service.

(5) Accordingly, on January 9, 2007, the Defendant treated that the instant development project was developed according to the content of the business.

(c)Audit Board.

(1) From January 1, 2008 to December 16, 2008, as C’s unification, local governments are bound to enter more than 169,39,390 items of construction, goods, and services contract data into C for the registration of activities incurring expenditure, etc., and thus, waste of administrative power was caused on April 22, 2009 until the above function is developed.

(2) On December 2008, the Board of Audit and Inspection conducted an audit of the entire C Construction Project and sent a written request for disposition of audit results to the Defendant on May 2009. Of them, the part against the Plaintiff is as follows.

- B not only did the linkage program were not installed, but also carried out virtual linkage test between C and D, and prepared a detailed statement of the results of supervision measures and submitted it to the Plaintiff on December 21, 2006, as if the linkage test was actually carried out.

The Plaintiff did not test the connection function of this case and completed the development with knowledge that the development was not completed, and the Plaintiff prepared a written confirmation of the measure of supervision of this case differently from the facts, and submitted it to the Defendant on December 22, 2006.

Therefore, the defendant would like to prepare measures to punish the plaintiff pursuant to Article 16 (1) 7 of the former Act on the Efficient Introduction and Operation of Information System (amended by Act No. 10012, Feb. 4, 2010; hereinafter referred to as the "former Information System Act").

D. The defendant's business suspension against the plaintiff

On March 29, 2010 pursuant to Article 16(1)7 and (2) of the former Information System Act and Article 6(1) [Attachment Table 2] of the Enforcement Rule of the same Act, the Defendant issued a disposition to suspend business operations for 1.5 months (the period from May 1, 2010 to June 15, 2010) to the Plaintiff (hereinafter referred to as the “instant disposition”) on the ground that the Plaintiff prepared a false confirmation of the measure as a result of the instant supervision as seen above (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Gap evidence 3, 4, Eul evidence 5 and 6, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The supervisor’s confirmation of the instant supervision is not a supervisory report.

Where a supervision corporation prepares a false supervision report, the "supervision report" under Articles 16 (1) 7 and 13 (2) of the former Information System Act that provides for the disposition of business suspension, etc. is not included in the "supervision report" under Article 16 (1) 7 and Article 13 (2) of the same Act, and thus, the instant disposition based on the premise that the confirmation of measures taken as a result of the supervision

(2) The assertion that the instant supervision results did not falsely prepare a written confirmation of the measure

The scope of “B” related to the development of the connection function of this case does not include the development of the data to be performed by the Public Procurement Service, and in order to test the development of the connection function of this case in the actual operating environment, the said program must be developed. At the time of the completion of the supervision report of this case, the Public Procurement Service did not develop the said program. Accordingly, after installing the connection program developed by the Public Procurement Service to the Public Procurement Service, B created a virtual environment as if the sampling information was stored in the contract execution table of the Public Procurement Service, and there was no choice of verification by the method of virtual connection test, i.e., testing whether the sample information is sent and received through the Public Procurement Service’s connection line of the Public Procurement Service where the said information is installed through the Public Procurement Service. In addition, the supervision plan prepared and submitted by the Plaintiff at the time of the supervision service contract of this case, the Plaintiff did not enter the connection function of this case in the actual operating environment of the Public Procurement Service, and the Plaintiff did not enter the connection test in the operation test report of this case in the development test report of this case.

At the time of the connection test, the Plaintiff told B that “the person in charge of the Government Procurement Service and the person in charge of the National Information Society agreed to install the connection program at the end of December, 2006,” and responded to the same content from the person in charge of the Defendant. Accordingly, the Plaintiff confirmed that the data were received and received appropriately as a result of the test by organizing a test environment similar to the actual environment, and that the data were received and transmitted appropriately in the connection system with the Board of Audit and Inspection, etc. using the same linkage method as D, and confirmed that the connection data with C were received and received appropriately in the connection system with the Board of Audit and Inspection, etc. using the connection method as D, the Plaintiff made a judgment from an expert point of view that it could be linked without any problem if the connection program was installed in the Public Procurement Service D at the end of December 206, 206, and prepared a written confirmation of the measure of supervision of this case after explaining it verbally to the Defendant and the person in charge of the National Information Society Agency. In fact, B installed the connection program on December 28, 2006, and there was no problem.

(3) A deviation from or abuse of discretionary power

The scope of the entire operation of the instant development project is about 750 and about 15 linked functions. Among them, supervision of only one function was problematic. In addition, unlike the contents of the written confirmation of measures to be taken as a result of supervision of the instant development project, the connection function of the instant development project was planned and constructed as a single direction-receiving function (local government) on the 15 connected items. The Plaintiff’s supervision service was changed to the form of a two direction-receiving function (government office-local government) in the year 2007 after the completion of all of the supervision services. As the Plaintiff’s supervision service was changed to the form of a two direction-receiving function (government office-local government) in the year 2007, the connection function is not opened. Even if there is any portion different from the facts in the written confirmation of measures to be taken as a result of supervision of the instant development project, such violation is extremely minor, and the Plaintiff suffered enormous economic disadvantage due to the instant disposition, so the instant disposition is excessively excessive in light of the degree of

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Whether the instant supervision result certificate is included in the supervision report under Article 16(1)7 of the former Information System Act

(A) Article 2 subparag. 3 of the former Information System Act defines that a person who is independent of the interest of a supervising entity and a supervisor shall comprehensively inspect and improve the matters relating to the construction of an information system from a third party perspective in order to improve the efficiency and safety of the information system, and Article 11(6) of the former Information System Act delegates the scope of duties of a supervising entity to the Presidential Decree. Each subparagraph of Article 12(1) of the Enforcement Decree of the Information System Act provides that the scope of duties of a supervising entity shall be determined, and Article 12(2)7 of the former Information System Act provides that "verification and notification of the results of supervisory measures" shall be conducted by a supervising entity in accordance with the procedures for performing the duties provided for in paragraph (1). In addition, according to Article 12(4) of the former Information System Standards established pursuant to Article 11(4) of the former Information System Act, an ordering entity and a supervisor shall provide the supervising entity with necessary measures based on the results of the supervision report and the review of a plan for measures.

Article 16(1)7 of the former Information System Act provides that a supervisory corporation may order the suspension of business in cases where a supervisory corporation prepares a false supervision report. The purport of the provision is that, even if an agency that has no expertise in information system is not built in accordance with the content of business, there is no way to know it even if the information system was not built in excess of the content of business, so that a supervisory corporation, an expert and a third party, should be professionally supervised and supervised the service company. However, if a supervisory corporation prepares a false supervision report, it is difficult to properly carry out the information system project and thereby preventing damage, such as waste of administrative power, etc.

In light of the duties of supervision corporations as above and the purport that the former Information System Act requires supervision corporations to prepare supervision reports, and the confirmation of supervision results prepared by the supervision corporations as part of supervision is an important document to determine whether the ordering entity properly completed the information system building project, etc., it is reasonable to view that the confirmation of supervision results prepared as part of supervision by the supervision corporation is also included in the “supervision report that shall not be prepared falsely by the supervision corporation pursuant to Article 13(2) of the former Information System Act.”

(B) According to the statement in Gap evidence No. 1, since the scope of supervision services to be performed by the plaintiff under the supervision services contract of this case includes confirming the result of corrective measures on the results of supervision, the confirmation of supervision measures of this case prepared by the plaintiff constitutes "supervision report" under Article 13 (2) of the former Information System Act.

(2) Whether the Plaintiff prepared a false confirmation of the instant supervision result

(A) Scope of the instant supervision service agreement

According to the development of the connection function of this case, if the contract information to be linked to D's business table is created, the data life/compact program is stored in the connection reception table of the Public Procurement Service, and the above information is regularly transmitted to the defendant's connection server through the connection program installed in the connection server of the Public Procurement Service. The received information was stored in the connection table, and is transferred to C's business table by the data life/compact program.

B The scope of the instant connected function development project is to develop the function of transferring information to the connecting program for system connection, the connecting test for storage of information received, and the business table of C, and to install the connection program in the Ministry of Public Administration and Security and the Public Procurement Service, and the data life/competing program to create information to be transmitted from D to C and provide the connection program to the above connection program is not a dispute between the parties concerned.

Therefore, the scope of the instant supervision service agreement is also examined to determine whether B properly performs the task to install the connection program to the connection server of the Public Procurement Service, and whether the production/conform program provided in the connection program has been properly installed is not the scope of the supervision service.

(B) Circumstances leading to the virtual connection test of this case

In light of the following facts, each of the evidence mentioned above, evidence No. 15, and evidence No. 3, it is recognized that B had no choice but to conduct the linked function development test in the actual operating environment, rather than the testing in the actual operating environment.

① In light of the scope of the instant supervision service agreement, in order to examine whether the contract body decision report is actually connected in the actual operating environment, the actual operating environment should be created through the development of data/contestation programs by the Public Procurement Service. However, the aforementioned program was not developed at the Public Procurement Service until the time of preparation of the instant supervision result certificate.

② According to the detailed inspection table by supervision field of the supervision plan formulated and submitted by the Plaintiff at the time of the instant supervision service agreement, the Plaintiff planned to review whether the instant connecting function was properly developed with the information on sampling contract in the test environment that reflects the actual operating environment, not the actual operating environment.

③ In the instant supervision report (Nos. 5 and 116), the direction of improvement is stated as follows: “The test must be completed within the project period as far as it is possible to conduct the test of connection with the institution/system subject to the linkage; and in cases where it is inevitably difficult to complete the test of connection with the institution/system subject to the linkage within the project period due to external factors, the plan of connection (draft) shall be formulated within the project period after consultation between the institution in charge and the development institution; as the test environment is prepared during the period of operation/maintenance, the connection test shall be conducted by the institution/system subject to the linkage; and the results of the connection test by the institution/system subject to the linkage and related data shall be secured and managed; and the Plaintiff does not necessarily recommend B to conduct the connection test in the actual operational environment.

(4) Meanwhile, at the time of the Plaintiff’s conduct of the connection test according to the instant supervision report, the Plaintiff was well aware of the circumstances where B, as well as the working person of the Public Procurement Service, agreed to install a connection program at the end of December 2006, due to the failure of B in the business schedule of the Public Procurement Service, and that B, as well as E, was conducting a virtual connection test on the same purport.

In light of the above facts and the following circumstances revealed in the present argument, it is reasonable to deem that the Plaintiff prepared a false certificate of measures taken as a result of the supervision of the instant case. The Plaintiff’s assertion in this part is without merit.

(1) The term "supervision on information systems" means that an independent person from the interest of a person ordering a supervision and a supervisor shall comprehensively inspect matters concerning the construction of information systems from a third party perspective in order to improve the efficiency and safety of information systems (Article 2 subparagraph 3 of the former Information System Act). This is intended to ensure that an ordering agency that has no expertise in information systems can easily verify whether an information system is properly built. As such, a certificate of supervisory results shall be clearly prepared in a manner that can be understood by the ordering agency and the supervisor, and whether a written confirmation of supervisory results has been prepared in a false manner shall be determined objectively from a third party perspective depending on the content itself.

As a result of the supervision of this case, the Plaintiff stated that the supervision report of this case must complete a test of connection with the institution/system subject to the connection, and that all corrective measures were taken against the recommendation of improvement in accordance with the supervision report. The results of the inspection of the status of progress of the information linkage test (the part of the Government Procurement Service) also stated that the physical linkage test in the development environment, the logical linkage test in the development environment, the relevant institution/system, and the transmission and reception test are completed.

However, as a result of the link test, the above indication means confirming that the link function of this case normally operates and that it is appropriate to complete the construction. In such a case, the link test ordinarily conducted the test in the actual operating environment, and it is interpreted to the effect that it was confirmed that the system was established normally according to the terms of the original development contract, since there is no problem in its function as a result of the test. Therefore, if B conducts a virtual linkage test rather than the actual operating environment, and the Plaintiff knew that it was a virtual test while preparing and submitting a written confirmation of the measure of the supervision of this case, and the Plaintiff did not entirely state that the above linkage test was a virtual linkage test, the confirmation of the measure of the supervision of this case itself should be deemed to have been falsely prepared.

In light of the purport of the argument in Eul evidence 2, the defendant held a technical committee composed of incumbent supervisors and professors of related departments around February 10, 2010 in order to confirm whether the confirmation of the measure of the supervision of this case was prepared falsely, the above technical committee evaluated that "the part indicated as completed even though it was not tested in the actual circumstances" was stated as different from the fact (However, the above technical committee planned a test environment test reflecting the actual operational environment in the supervision plan submitted by the plaintiff, and the test result contains the result of the link test with the Public Procurement Service, and it cannot be deemed that the test was conducted without the link test in the actual operational environment, and therefore it is difficult to view that the plaintiff prepared a false confirmation of the measure of the supervision of this case as a result of the supervision of this case."

③ Although there was an inevitable circumstance that B had no choice but to conduct a virtual linkage test, and there was a test environment test that reflects the actual operational environment in the Plaintiff’s initial supervision plan, and the Plaintiff was also engaged in the instant supervision based on the virtual linkage test, it cannot be deemed that the confirmation of the instant supervision results written in the purport that B did not have any problem in its function as a result of the linkage test conducted in the actual operational environment.

(2) If the Plaintiff knew of the circumstances that B had conducted the virtual linkage test, the Plaintiff should have stated the virtual linkage test in the confirmation of the instant supervision result in a more accurate manner to the effect that (a) the virtual linkage test was conducted under the conditions and conditions to the extent that the results, such as the test in the actual operating environment, and as a result, the corrective measures on the matters pointed out as the previous supervision report, were fully completed (the Plaintiff did not submit the data to the effect that (b) the Plaintiff actually conducted the virtual linkage test under any circumstances and conditions, and (c) whether the virtual linkage test was conducted under the conditions and conditions to the extent that the results would be ensured, such as the test in the actual operating environment, and whether the virtual linkage test was conducted under the conditions and conditions to the extent that the results would be ensured).

⑤ Even if the test of the confirmation of measures taken as a result of the supervision of the instant case refers to a virtual connection test.

Even if the plaintiff's assertion is based on the plaintiff's assertion, if he intends to conduct a virtual linkage test, he first installed a linkage program with the Public Procurement Service, and conduct a virtual linkage test in the situation where the connection program is not installed with the Public Procurement Service. Thus, this alone can be deemed to have been written differently from the fact.

6) The plaintiff, after hearing words that "the connecting program was to be installed at the end of December, 2006" from the working person B or the defendant's work person and argued to the effect that the connecting data was properly transmitted and received as a result of the test under the environment similar to the actual condition, and that the connecting program was installed in the Public Procurement Service D, which confirms that the connecting data would be properly transmitted and received, and that the connecting data would be connected without any problem if the connecting program was installed in the future. However, although the defendant's working person, etc. stated that the connecting program was installed from the defendant's working person, etc., and confirmed that the connecting data would be properly transmitted and received as a result of the test conducted under the environment similar to the actual working environment, the connecting program could not be exempted from the responsibility of entering matters different from the facts in the certificate of the measures to be taken as the result of the supervision of this case would normally operate the connecting program.

(3) Whether the discretion is deviates or abused or abused

As seen earlier, the fact that there was an inevitable circumstance that B had been bound to conduct the test for the development of the connection function of this case by a virtual linked test rather than a test in the actual operating environment. In addition to the whole purport of the pleadings in the statement Nos. 1 and 2 of the evidence No. 19-2, the Defendant failed to function properly at the wind to revise the program by changing the connection method between C and D from a short direction after the completion of the development project of this case on Jan. 9, 2007 to a two direction, and as a result, it can be recognized that C was not normally opened on Jan. 1, 2008, an integrated unification, and eventually wasted the enormous administrative power ultimately. According to the above facts of recognition, it cannot be readily concluded that the connection function of this case was not operated properly, or that it was considerably wasted because C was not operated properly, due to the problem of the connection function of this case entirely developed by B.

However, Article 16(1)7 and (2) of the former Information System Act and Article 6(1) [Attachment 2] of the Enforcement Rule of the same Act provide that the period of suspension of business shall be three months if a false supervision report is prepared. According to the "general standards of 1.1." of the above attached Table, an administrative disposition authority may reduce the business suspension standard by 1/2 in consideration of the motive, content, frequency, degree of violation, etc. of the act of violation. In light of the above circumstances of the Plaintiff, the Defendant already reduced the business suspension standard by 1/2, and made the disposition in this case. In light of the size, contents, and minor errors of the development project of this case, the development project of this case prevents the Plaintiff from the role and responsibility of a specialized institution in charge of supervision of information system, and the development project of this case is completed based on the Plaintiff's confirmation of confirmation of confirmation of the supervisory results of this case, but it seems that the Defendant's excessive connection with the construction and other administrative functions of this case could not be found to have any problem.

3. Conclusion

The plaintiff's claim of this case is dismissed as there is no reasonable ground.