2019Guhap71738 Demanding the revocation of the disposition imposing penalty points

1. A stock company;

2. B

[Judgment of the court below]

Seoul Special Metropolitan City Mayor

November 15, 2019

January 10, 2020

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

The defendant issued two points to the plaintiffs on June 27, 2019, respectively, to revoke the imposition of penalty points.

1. Details of the disposition;

A. On February 10, 2015, Plaintiff A Co., Ltd. (hereinafter referred to as “Plaintiff”) entered into a contract with Seoul Special Metropolitan City and the service period from February 11, 2015 to February 10, 2016, with two crosssections and two subsections and two subsections and two subsections, and designated Plaintiff B as a responsible engineer.

B. The content of the service of this case includes the following contents:

Part 1.3 Section 3: 1.2. On March 2, 1 and 1.3. 4: On the basis of frequent traffic accidents; 4. on the basis of the master plan and examination services for points of traffic safety diagnosis (1) and the proposed improvement through on-site surveys and analysis, the basic plan for short-term improvement and the preparation and examination of construction cost, on-site plans and on-site plans and on-site plans; 3.1.6. on the date of the modification of existing facilities, the detailed design and construction specifications shall be clearly indicated. On March 2, 201, traffic signals (8) specifications and specifications shall be purchased under the ground and 4. On the basis of 4. on the basis of frequent traffic accidents; 1. on the basis of the detailed design specifications and specifications of each construction site; 2. on the basis of the detailed design specifications and specifications of each construction site, the detailed design specifications and specifications shall be prepared separately for each type of traffic accident to be prepared, 1.4. on the basis of the detailed design specifications and specifications of each construction site;

C. Construction specifications prepared and submitted by the Plaintiff Company under the instant service contract (hereinafter “construction specifications”) include the following:

The criteria for the application of this Chapter 2.1. Base Map 2.1 shall apply to the following relevant laws, guidelines, and construction methods. On January 19, 201, the criteria for the application of this Chapter shall be subject to the following relevant laws, guidelines, and construction methods. On February 19, 202, the Seoul Special Metropolitan City Standards for Traffic Signals (Seoul Special Metropolitan City, Seoul Special Metropolitan City, January 1, 2014) (hereinafter referred to as the "Standard Map") 2.2.4, the criteria for the application of Standard Map 1.2. the standards for the production, specifications, and testing of major machinery and materials shall be subject to the standards for the application of Standard Map 2.2.2. the cause person shall review and manufacture all the conditions (quality, structural calculation, painting, etc.) if he/she does not use the product based on the above Standard Map. The basic destruction of the base on the base of the base on the 29.2.3rd and concrete 1.2.2.000 poppy shall be installed with concrete installed with concrete installed with concrete installed by the foundation.

D. According to the standard drawing, the props of the traffic signal are divided into 26 types, and the assembly drawing is divided into 68 types depending on whether to install a sign board, etc. The basis for fixing the props of the traffic signal apparatus is in which the standard drawing is written according to the type of the prop and the sign board, etc., and the form of "L-type poppy (on the surface map and the side map)" (e.g., the surface map) is written as shown in the attached Form 1, and there is a statement that each detailed drawing is "(flexly applied by the structural review document according to on the on-site conditions)". However, the detailed drawing is not presented in the standard drawing (attached No. 13) where the sign board is extended to 7 meters in an integrated week with 200 meters wide, but the detailed drawing is not presented in the standard drawing (where the detailed drawing is extended to 7 meters in a single share of 200 meters).

E. After conducting a self-audit from March 30, 2017 to July 27, 2017, the Defendant: (a) prepared a construction cost calculation sheet based on the unit price of the standard L-type poppy adopted by the construction specifications (hereinafter “assessment sheet”); (b) did not present drawings, manufacturing and installation standards for foppy; and (c) according to the standard level, the size of the basic concrete purchased by foppy differs depending on the length of the signal, etc., and the length of the attachment 10.0.0.0.0.0.0.0.0.0.0.0.0.0.0.0.0.0.0.0.0.0.0.0.0.0..0.0.0..00.0..0.0.0.00..00..00..00..01.0.00..00..00..00.00...010.00..0.0.0..0.0..0..0..0.0....010...

F. On June 27, 2019, the Defendant imposed two points on the Plaintiffs (hereinafter referred to as “instant disposition”) pursuant to Article 53(1) and (4) of the former Construction Technology Promotion Act (Amended by Act No. 15719, Aug. 14, 2018); Article 87(5) [Attachment 8] of the former Enforcement Decree of the Construction Technology Promotion Act (Amended by Presidential Decree No. 29360, Dec. 11, 2018); and Article 87(5) [Attachment 8] of the former Enforcement Decree of the Construction Technology Promotion Act (Amended by Presidential Decree No. 29360, Dec. 11, 2018).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 13, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(i) procedural defects;

In accordance with Article 22(3) of the Administrative Procedures Act and Article 4.d. of the Rules of this case, the Defendant granted at least 30 days’ submission period to the Plaintiffs when prior notice of the instant disposition was given. However, the Defendant violated the notification of the review results within 15 days from the time the Plaintiffs submitted their written opinions.

(ii) substantial defects;

A) The basis of poppy and prop foundation, which are at issue in the instant disposition grounds, is not the subject of the instant service. The design of poppy and prop foundation can be limited to the electric facilities designer registered under Article 14 of the Electric Technology Management Act. The Defendant did not require the above qualification at the time of the public announcement of tender. From around 2013, the Plaintiffs, who had been performing similar services, had been able to avoid the impossibility of performing the design of poppy and prop foundation, to the Defendant, and the Defendant implieded this.

B) With respect to the grounds for Disposition 1, the standard drawing recognizes the possibility of adjusting the equipment and structure, and the plaintiffs cannot be evaluated as having formulated a calculation statement on the premise that the stability is higher than the L-type poppy poppy type, with the premise that the plaintiffs prepare a calculation statement on the premise that the L-type poppy type is used.

C) The Defendant did not prove that defective construction has occurred or is likely to occur in connection with the grounds for the instant disposition.

B. Relevant statutes

Attached Form 3 shall be as listed in attached Table 3.

C. Determination

(i) procedural defects;

A) Relevant legal principles

Article 22(3) of the Administrative Procedures Act imposes upon a party obligations or rights and interests by an administrative agency.

The provision provides that the person concerned shall be given an opportunity to present his/her opinion in the case of a disposition that is subject to the restriction, and the measuring agency shall give the person subject to the restriction an opportunity to present his/her opinion, setting a period of not less than 30 days in advance, and shall give the person subject to the restriction an opportunity to present his/her opinion within 15 days from the date of receipt of the written opinion. In full view of the language, structure, and purport of each provision, it is reasonable to interpret that the administrative agency shall give the person subject to the imposition with an opportunity to present his/her opinion within a reasonable period of time and promptly review and respond to the opinion submitted by the person subject to the imposition, in imposing penalty points, which are an infinite administrative disposition. Therefore, if an appropriate opportunity to present his/her opinion is given and it is deemed that the other party’s right to present his/her opinion has not been infringed and that the written opinion submitted by the person subject to the disposition has been promptly reviewed, it is difficult to deem that there is a procedural defect in the relevant disposition as a reason for revocation.

B) Specific determination

The Defendant sent a prior notice of disposition to the Plaintiffs by no later than October 11, 2017, which was issued by the deadline for submitting opinions by no more than 30 days on September 14, 2017, and notified the Plaintiffs of the grounds for the instant disposition. The Plaintiffs’ prior notice was received on September 20, 2017 and submitted written opinions to the Defendant on October 10, 2017. The Defendant sent a written review of written opinions to the Plaintiffs on October 25, 2017 and received them on October 30, 2017. As seen earlier, although the Defendant designated the deadline for submitting opinions by no more than 30 days, the Plaintiffs were notified of the specific reasons for the instant disposition, and the period of 20 days was given (if the period was extended as of the date of the previous notice, the period shall be extended). The Plaintiffs prepared and submitted written opinions within the deadline, and the Defendant’s submission of opinions to the Plaintiffs and promptly given them an opportunity to submit opinions to the Plaintiffs, as long as 15 days or more.

Therefore, it is difficult to deem that there is a procedural defect corresponding to the grounds for revocation of the instant disposition.

(ii) substantial defects;

A) Scope of operations of the instant service

The instant service is for designing and installing signal apparatus, and is a prop-based basis for signal apparatus.

In addition, in light of the fact that the drawings, specifications, and design budget necessary for the design and installation of poppy in order to fix the above, and the content of the business operation of the service of this case and the construction specifications and the calculation sheet prepared by the plaintiffs themselves on the basis of poppy and prop foundation, it is reasonable to interpret that the scope of business operation of the service of this case includes the design of poppy and prop foundation. The evidence submitted by the plaintiffs alone is insufficient to deem that there was an agreement or practice to exclude poppy and prop foundation from the scope of business operation of the service of this case.

B) Difference between construction specifications and calculation sheets

5.c. 6. of the instant provision provides that the part that does not coincide with the design documents shall be imposed, or where it does not comply with the actual conditions of the site or it is difficult to carry out construction works due to the unique characteristics of the relevant construction works, local conditions, construction methods, etc., without considering the characteristics of the relevant construction works.

Unlike the application of the standard drawings by L-type poppy in construction specifications, the plaintiffs had the L-type poppy use the L-type poppy, but did not perform all structural review or design drawings accordingly. Thus, even if the standard drawings recognize the possibility of changing poppy, it is inevitable to view that the L-type poppy is to be installed in construction specifications, and therefore, it is recognized that there is a disagreement between construction specifications and calculation sheets.

C) the occurrence or threat of defective construction works

Article 53 (1) of the former Construction Technology Promotion Act shall faithfully provide construction technology services, construction design, etc.

In the event that the fraudulent construction work has occurred or is likely to occur due to the failure of the work, the degree of the defect should be measured and given the penalty points.

As seen earlier, the contents of poppy and prop foundation indicated in the construction specifications and calculation sheets are different, and the design drawings according to the calculation sheets are not presented, and thus, from the standpoint of the contractor, they are likely to have been erroneously understood and executed. In particular, in light of the fact that where the base size on the calculation sheet is less than the standard drawing, such as the attached Form 2200m single week + 7m column, if the base size on the calculation sheet is less than the standard drawing, it is likely that the cause of the instant disposition may cause a problem in the structural stability after construction.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

For the transfer of sex to judge

Judges Lee Lee Jae-hoon

Judges Giving exclusive authority to judges

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.