2012Kahap323. Provisional disposition suspending a tender by a housing management operator

Applicant

Daegu Northern-gu

Respondent Council of Residents

Daegu Northern-gu

Representative President****

Attorney**

September 13, 2012

1. The motion of this case is dismissed.

2. The litigation costs shall be borne by the applicant;

On July 11, 2012, the effect of the resolution selected by the respondent as a housing management operator on July 11, 2012 by the non-party company 1 shall be suspended until the final judgment on the lawsuit demanding nullification of the selection of the housing management operator

1. Facts of vindication;

According to the overall purport of the record and examination of this case, the following facts are substantiated:

A. The respondent is the council of occupants' representatives of the apartment located in Daegu North-gu, and the applicant is the occupant of the apartment of this case.

B. Article 16 of the Management Rules of the apartment of this case stipulates that the representative of each Dong, who is a member of the council of occupants' representatives, shall be elected from eight to one unit. Thus, the members of the council of occupants' representatives shall be eight (1). On June 2012, the respondent had resigned from 101 Dong and 103 Dong Dong Dong representative and six (6) Dong representatives.

C. On August 2, 2011, the respondent entered into a multi-family housing management contract with Nonparty 2 to terminate the contract when the contract period is from August 3, 2011 to August 2, 2014, on condition that the contract period is from August 3, 2011 to August 2, 2014.

D. After that, the respondent held a meeting on June 19, 2012 and conducted an evaluation of the performance of duties with respect to the non-party company 2, the respondent failed to obtain the consent of a majority of the non-party company 2 from five participants and four dissatisfactions. The respondent decided to terminate the contract with the non-party company 2 as of August 2, 2012.

E. On June 26, 2012, the respondent publicly announced a housing management operator selection under the limited competitive bidding method 2). On July 11, 2012, 2012, two companies among the six participating companies were excluded from the qualification to participate publicly notified by the respondent. Each bid price of Nonparty 1 or 4, each of which satisfies the qualification to participate, was equal to one won per meter.

F. On July 12, 2012, the respondent made a decision to select a housing management operator through consultation with five representatives present at the bidding place to leave the bidding place, and as a result, the voting conducted by Nonparty 1 and Nonparty 2 obtained 3 marks and 1 marks, respectively, and the respondent decided to select Nonparty 1 as a housing management operator (hereinafter referred to as the “resolution for the selection of this case”). On July 12, 2012, Nonparty 1 and the consignment management contract (hereinafter referred to as the “instant consignment management contract”).

G. The Housing Act, Enforcement Decree of the Housing Act, housing management operator and business operator selection guidelines (No. 2010-445 announced by the Ministry of Land, Transport and Maritime Affairs, No. 2010-445, hereinafter referred to as "the instant selection guidelines"), and each corresponding provision of the instant apartment management rules are as listed in

2. Summary of the applicant's assertion

An act of the respondent who has determined a successful tenderer through a vote other than a lottery, and an act of determining a successful tenderer after having the head of the management office and a participating company leave the bid place, which violates Articles 12(2) and 28(1) of the Selection Guidelines, and it is an unlawful act that interferes with the affairs of the head of the management office who executes the management of

In addition, the decision of June 19, 2012, which decided to terminate the contract with the non-party company 2 and the decision of selection of the non-party company 1 as the successful bidder, is defective without obtaining the consent of a majority of the number of representative members, which are the resolution requirements stipulated in the apartment management rules of this case.

Therefore, since the selection resolution of this case is null and void, it is sought a provisional disposition such as the purport of the application.

3. Determination

A. As to the assertion of violation of the instant selection guidelines

1) First of all, the instant selection guidelines were enacted to enhance the transparency and fairness in the selection process of housing management operators, which is merely an administrative rule that has no legal nature, with respect to the illegality of the selection of housing management operators by voting, which is not a lottery, and the instant selection guidelines were merely established to enhance the transparency and fairness in the selection process of housing management operators. However, even if some defects were found in the process of selecting housing management operators were found in violation of the instant selection guidelines, insofar as there were no significant defects to the extent that the transparency and fairness in the selection process would be significantly infringed, it shall not be deemed null and void. As seen earlier, Article 12(2) of the instant selection guidelines stipulates that the successful bidder shall be determined by lottery if two or more persons bid the same price at the same time. However, the respondent decided to select housing management operators by bidding at the same price, and the respondent obtained three of Nonparty 1 and Nonparty 5’s voting as a result of Nonparty 1’s voting, and the respondent verified the instant selection resolution.

Examining the above facts in light of the legal principles as seen earlier, it is difficult to view that the determination of a successful bidder by the vote of the respondent without drawing lots for the same price does not constitute a serious defect to the extent that the transparency and fairness of the tendering procedure would be significantly infringed. Thus, even if there is a defect in partially violating the selection guidelines of this case, it cannot be deemed that the selection resolution of the respondent who selected the non-party company 1 as a successful bidder through the voting and the contract of this case and the entrusted contract of this case

2) Next, Article 28(1) of the instant Selection Directive provides that, when the council of occupants' representatives intends to open a tender, one participant in the tender, the contracting officer of the management entity, and interested parties shall open the tender at the open place where the public is present. According to the above facts, the respondent opened the tender in the presence of the participating company and the chief of the management office, etc., and as a result, it was confirmed that the bid price of the non-party company 1 through 4 was the same as 1m per m per 1 meter. However, it is only that the respondent decided to select a housing management operator by voting of the respondent, rather than by drawing lots, and then left the participating company, etc. during the process of opening the tender, it is difficult to view that there is any defect in the violation of the instant Selection Directive.

Furthermore, even if the non-disclosure of the voting procedure violates the selection guidelines in this case, it is difficult to readily conclude that there is a serious defect to the extent that the transparency and fairness of the bidding procedure would be considerably infringed on in the instant selection resolution, and there is no other evidence to vindicate this, so the instant selection resolution cannot be deemed null and void. Moreover, pursuant to Article 43 of the Housing Act and Article 52 of the Enforcement Decree of the Housing Act, the selection of a housing management operator is a duty of the council of occupants' representatives, so the respondent cannot be deemed to have interfered with

3) Therefore, the applicant’s assertion on this part is without merit.

B. On June 19, 2012, which decided to terminate the contract with the non-party company 2 with the non-party company as to the assertion of violation of the requirement for resolution, and on whether the resolution of this case was invalid without the consent of a majority of the number of the representative members, the council of occupants' representatives in Article 27 of the apartment management rules of this case provides that the council of occupants' representatives shall adopt a resolution with the consent of a majority of the members (where at least 2/3 of the members are elected, referring to the number of elected members). According to the above alleged facts, the respondent at the time of the above resolution was composed of six representatives exceeding 2/3 of the total number of the members, and the respondent was present at the meeting of the five on June 19, 2012, and the respondent decided to terminate the contract with the non-party company 2 by presenting the opinion of dissatisfaction. On July 11, 2012, all of the five members present at the meeting to select the non-party 1 as the housing management operator who obtained the above voting.

Therefore, this part of the claimant's assertion is without merit.

4. Conclusion

Therefore, the petitioner's application of this case is dismissed as it is without merit, and it is so decided as per Disposition.

September 13, 2012

The presiding judge and the judge in order;

Judges South-Name

Judges Maximum Beneficiaries

1) Article 16 of the Management Rules of the instant apartment, “The representative of each Dong constituting the council of occupants’ representatives, shall be by Dong pursuant to Article 50(1) of the Decree.

1. The first election district: One (101 Dong). The second election shall be held in proportion to the number of persons falling under any of the following subparagraphs:

3. The election district: One (103 dong): 1 person (103 dong): 4. The fourth election district: one (104 dong); 5. The five election district: One (105 dong) (105 dong);

Gu: One person (106 Dong) 7. : One (107 Dong) (107. 8. 8: one (108 Dong).

The "won" seems to be a clerical error in the "eight quota".

2) 2) Limited Competitive Tender No. 2010-445 of the Ministry of Land, Transport and Maritime Affairs Notice No. 2010-1. b. Attached Table 1: g.

A license, registration, report, etc. under the relevant Acts and subordinate statutes for each type of business and the purpose of the contract among those engaged in business;

The method of selecting from among them after having them participate in open competitive bidding by "restriction on business performance, technical ability, capital, etc.".

at least five persons shall participate in a tendering procedure.