2012Nu26380 Corrective order and revocation of penalty surcharge payment order

A Stock Company

○○○○

Law Firm (Limited) ○○○○

[Defendant-Appellant]

Fair Trade Commission

Representative ○○○○

Law Firm ○○○○

[Defendant-Appellant]

July 12, 2013

August 23, 2013

1. All of the plaintiff's claims are dismissed.

2. The litigation costs shall be borne by the plaintiff.

The Defendant’s disposition No. 2012 - 141 of the [Attachment 1] List No. 2 against the Plaintiff as of July 27, 2012

The corrective order, payment order, and penalty surcharge payment order under paragraph (9) shall be revoked.

1. Details of the disposition;

A. Status and general status of the plaintiff

The plaintiff is a small and medium enterprise that runs a construction business under the Framework Act on the Construction Industry, an electrical construction business under the Electrical Construction Business Act, and a fire-fighting system business under the Construction Business Act at the time of fire-fighting. The number of regular employees or the appraised value of execution capacity of the subcontractor exceeds 18 times the appraised value of the subcontractor B (hereinafter referred to as "B") and the subcontractor is a business operator who is in excess of two times the appraised value of the execution capacity of the subcontractor. Since part of the construction work is entrusted to the above subcontractor, it constitutes "the prime contractor under Article 2 (2) 2 of the Fair Transactions in Subcontracting Act (hereinafter referred to as the "subcontract"), and the 18 business operators, such as B, constitute "the subcontractor under Article 2 (3) of the Subcontract Act as the small and medium enterprise owner." The general status of the plaintiff is as shown in Table 1 and Table 2.

The general status of the Plaintiff (unit: KRW 00,000, KRW 200) under the general status of the subcontractor (unit: KRW 1:00, KRW 2). The Plaintiff’s act

From April 15, 2009 to May 11, 201, the Plaintiff, as shown in Table 3, concluded a subcontract with seven subcontractors, such as B, who are the successful bidders in the form of competitive bidding, with respect to the total 8 construction works, such as the “Packing construction,” as shown in Table 3, from among the construction works for the construction of the urban planning road ○○ Construction, and determined the subcontract price at the price at a price of at least 3.1% to a maximum of 21.6% below the initial bid price.

In addition, from May 29, 2009 to June 22, 2011, the Plaintiff concluded a subcontract with 11 subcontractor, such as ○○ Construction Project, in the form of a competitive bid, as the minimum price for the total of 11 construction works, including ○○ Construction Project, as shown in Table 4, from May 29, 2009 to June 22, 201, when the successful bidder in the form of a competitive bid fails to comply with any additional price negotiation, the Plaintiff entered into a subcontract with 11 subcontractor, such as ○ Construction Project, which is a third party that did not participate in the relevant competitive bid, and (hereinafter referred to as '2 subcontract' in combination with the first subcontract) and the Plaintiff determined the subcontract price at a minimum of 3% or maximum of 2.2% or less than the initial successful bid price.

On July 27, 2012, the court below held that the plaintiff's act of determining the subcontract price at a price lower than the original bid price as stated in the above paragraph (2) 7 of Article 4 of the Subcontract Act constitutes "act of determining the subcontract price at a price lower than the lowest bid price without justifiable grounds when concluding a subcontract through competitive bidding," and issued a corrective order, payment order, and penalty surcharge payment order as stated in Paragraph (2) of Paragraph (9) against the plaintiff in the attached Table 1 list (hereinafter referred to as "the disposition of this case").

[Reasons for Recognition] The facts without dispute, Gap evidence No. 1, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① The above 19 construction contract was concluded by a private contract, and the plaintiff's tender (hereinafter "tender") merely intended to select a priority bidder to enter into a private contract, and does not fall under "competitive bidding" under Article 4 (2) 7 of the Subcontract Act. ② Even if the plaintiff's act falls under competitive bidding, the plaintiff's act is to reduce the possibility of collusion between subcontractors, to change the ordered quantity, etc., and to notify in advance the subcontractor of the fact that the subcontract price was decided through additional negotiations, so there is a justifiable reason for the plaintiff's act. ③ The defendant ordered the plaintiff to pay the amount of money listed in attached Form 2 related to the 1 subcontract pursuant to Article 25 (1) of the Subcontract Act, but it was finally appropriate for the subcontract price determined between the plaintiff and subcontractor (hereinafter "the payment order of this case").

B. Relevant statutes

Attached Form 4 is as shown in the relevant statutes.

C. Determination

1) Whether the plaintiff's act constitutes an act of determining unfair subcontract consideration is conducted by " competitive bidding"

In full view of Gap evidence Nos. 2, Eul evidence Nos. 1 through 8, testimony of the committee to find witness diseases, and the purport of the whole pleadings, the plaintiff notified the subcontractor that he would finally decide whether to conclude a subcontract after consultation with the subcontractor who submitted the lowest price bid at the site site. The plaintiff's allegation in this part of the plaintiff's allegation is without merit, since the plaintiff's tender is "for the purpose of concluding a subcontract agreement as provided in Article 4 (2) 7 of the Subcontract Act" among the site descriptions distributed to the subcontractor by the plaintiff, the plaintiff submitted a tender stating the bid price at the lowest price, and submitted the bid price at the bidding conducted accordingly, stating the bid price at the lowest price, and signed a subcontract with the bidding company. As long as the bid was awarded by submitting a bid sealed by multiple companies after the bidding was notified through the site site consultation, the bidding is for the purpose of concluding a subcontract agreement as provided in Article 4 (2) 7 of the Subcontract Act in terms of its form and content.

B) Whether there was a justifiable reason

Even in cases where a bid is conducted to select a person subject to preferential bargaining, in order to determine a subcontract price at a price lower than the lowest tender price at the time of concluding a subcontract contract with a bidder, the "justifiable cause" under Article 4 (2) 7 of the Subcontract Act is required. In such cases, the "justifiable cause" refers to an objective and reasonable reason to justify the determination of a subcontract price at a price lower than the lowest tender price, such as construction site conditions, reasons not attributable to the principal contractor, or reasons attributable to the subcontractor, etc. Therefore, the principal contractor shall assert and prove such fact, and whether there is a justifiable reason shall be individually and specifically determined in accordance with the issue from the point of view of establishing a fair order in subcontract transactions (see Supreme Court Decision 2011Du2337, Feb. 23, 2012, etc.).

In light of these legal principles, it is difficult to view that the Plaintiff’s act was justifiable in light of the following circumstances acknowledged by the evidence as seen earlier, and therefore, the Plaintiff’s assertion on this part is without merit.

1. ① Even if there was no change in circumstances, such as the change in the volume of order or the unit price of materials after the bidding in this case, the Plaintiff appears to have selected a priority bidder through the bidding to enter into the contract at a price lower than the minimum bid price, and also, in such a case, the Plaintiff was required to have publicly announced in advance that additional negotiations may have been inevitably made if at least the estimated bid price was objectively and reasonably calculated and the bid price considerably exceeds that, but did not take such measures.

② 처음부터 입찰예정가격을 산정하지 않아 추가협상이 필요한지를 전혀 예측할 수 없는 상태에서 현장설명서를 배포하며 구두로 추가협상이 있을 수 있다고 고지한 경우에도 하도급법 제4조 제2항 제7호 소정의 ' 정당한 사유 ' 가 있는 것으로 본다면, 원사업자가 객관적 · 합리적인 사유 없이 추가협상의 가능성을 구두로 고지함으로써 하도급법 제4조 제2항 제7호의 제한을 임의로 회피할 수 있게 되고 그 결과 최저가로 입찰한 수급사업자는 원사업자의 부당한 가격인하 요구를 거부하기 어렵게 되어, 경쟁입찰 과정에서의 부당한 하도급대금 결정행위 간주 규정을 두어 불공정거래행위에 효과적으로 대처하고 공정한 하도급거래질서를 정착시키려는 위 규정에 중대한 공백이 생기게 된 ③ 원고가 주장하는 바와 같이 2004. 5. 경 ㅇㅇ 광역시 ㅇㅇㅇ구 소재 ㅇㅇ 아파트 신축공사와 관련하여 입찰절차에 참여한 일부 업체들 사이에 담합이 있었다는 사실을 확인하여 계약을 취소한 사실이 있고 입찰참가 업체들이 대부분 부산 지역에 소재하고 있으며 상호간의 친분이 두텁다고 하더라도, 위와 같은 사정만으로 이 사건 하도급계약에서도 입찰참가 업체들 사이에 입찰가격을 담합할 가능성이 있었다고 보기 어렵다 . 2 ) 이 사건 지급명령의 재량권 일탈 · 남용 여부

If an act of determining the subcontract price at a price lower than the minimum tender price without justifiable grounds, it should be viewed as a decision of unfair subcontract price regardless of whether it separately uses the method, and whether it has determined the subcontract price at a remarkably lower level than the ordinarily paid price (see, e.g., Supreme Court Decision 2008Du14296, Apr. 29, 2010). Therefore, in this case, the order of corrective measures to order the principal contractor to pay the subcontract price is allowed.

In light of all the circumstances, including the fact that the plaintiff's final decision on the subcontract price is difficult to see the amount determined solely by the evidence submitted by the plaintiff, and the plaintiff committed a violation of the Subcontract Act other than the act in this case, as a whole, it cannot be deemed that the payment order in this case deviates from or abused discretion. Thus, the plaintiff's assertion on this part is without merit. [Article 25 of the Subcontract Act is alleged to be in violation of the principle of freedom of contract derived from Article 10 of the Constitution, but the purpose of the Subcontract Act is to establish fair order in subcontract transactions and guarantee the equal status between the principal contractor and the subcontractor (see Article 1 of the Subcontract Act). However, it is reasonable to see that the subcontract price in the subcontract which is normally concluded through competitive bidding is the lowest bid price, and 2) if the principal contractor can re-determine the subcontract price after excluding the initial bid price by additional negotiation, it is difficult to protect the subcontractor due to the difference between the principal contractor's initial bid price and the final subcontract price, and it is difficult to protect the subcontractor's liability for remedy and remedy.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

Judges Lee Jae-won

Judges Gangseo-Appellee

Judge Shin Jae-hun

1) The Plaintiff is compared to the number of regular employees and the assessed value of execution capacity in 2009, not “the immediately preceding business year” established on December 1, 2008.

2) Of the total 55 subcontractors, only 18 subcontractors related to the instant lawsuit shall be stated.

A person shall be appointed.