(영문) 서울고등법원 2018.5.10.선고 2018누33304 판결

The judgment of the court of first instance shall be revoked. On December 8, 2016, the defendant revoked the qualification of the plaintiff to participate in competitive tendering process open only to small and medium enterprises and revoked the disposition (six months).

Reasons

1. Quotation of the first instance judgment

The reasoning for the court's explanation on this case is as follows. Thus, the court's findings of fact and determination of the court of first instance that rejected the plaintiff's assertion, even if all of the evidence presented in the court of first instance are examined, is justified, since Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act are the same as the grounds for the court of first instance except for the following parts of the court of first instance.

[Supplementary Use]

The Administrator of the Small and Medium Business Administration (the Administrator of the Small and Medium Business Administration) stated that "the defendant shall file an order with the Administrator of the Small and Medium Business Administration."

Then, "The authority of the Administrator of the Small and Medium Business Administration related to the disposition, etc. was succeeded to the defendant, as amended by Act No. 14839 on July 26, 2017" was added to "The last three main sentence of the judgment of the first instance."

○○ 6th of the 13th of the judgment of the first instance, "the defendant, etc." shall be replaced by "the Administrator of the Small and Medium Business Administration, etc."

○ From 17th to 11th of the judgment of the first instance, 10th of the 17th to 10th of the 11th of the 11st.

In principle, “1) The legality of an administrative disposition shall be determined based on the relevant statutes and facts at the time when the administrative disposition was taken (see, e.g., Supreme Court Decision 80Nu412, Dec. 8, 1981). However, in cases of a punitive administrative disposition, in principle, the legality of the administrative disposition should be determined based on the statutes and facts at the time of the unlawful act (see, e.g., Supreme Court Decisions 83Nu383, Dec. 13, 1983; 86Nu63, Jan. 20, 1987). The instant disposition is a punitive administrative disposition that “the qualification for participation in competitive bidding between small and medium entrepreneurs is revoked, and the acquisition of qualification for participation is limited for six months, and thus, the Act at the time of an act should be applied in principle

Article 8(3) of the former Act on the Development of Agricultural and Fishing Villages (amended by Act No. 10504, Mar. 30, 201; Act No. 13866, Jan. 27, 2016; hereinafter referred to as the "former Act on the Development of Agricultural and Fishing Villages") provides that "the Administrator of the Small and Medium Business Administration may cancel the participation eligibility or suspend the participation eligibility for not more than one year if a small and medium enterprise participating in competitive bidding between small and medium enterprises falls under any of the following subparagraphs. The Administrator of the Small and Medium Business Administration may restrict the acquisition of participation eligibility for not more than one year from the date of cancellation, and subparagraph 3 of Article 8 provides that "the acquisition of participation eligibility may be restricted by not more than one year from the date of cancellation," and Article 8(3) of the former Act on the Development of Agricultural and Fishing Villages (amended by Act No. 13866, Jul. 26, 2016; hereinafter referred to as "the former Act on the Development of Agricultural and Fishing Villages").

On the other hand, Article 4 [Attachment 1] 3 of the Enforcement Rule of the Act on the Development of Agricultural and Fishing Villages provides that "in the case of unfair conduct, such as collusion, etc. under Article 8 (3) 3 of the Act," and six months of the restriction period on the acquisition of participation eligibility (the above Enforcement Rule was amended by Ordinance of the Ministry of Knowledge Economy No. 193 on July 8, 201, and has not been amended after July 1, 201). The fact that the instant collusion was conducted from July 201 to May 24, 2016 is as seen earlier. As such, among the instant collusion, from July 201 to April 27, 2016, Article 8 (3) 3 of the former Act on the Development of Agricultural and Fishing Villages, Article 4 [Attachment 1] subparagraph 3 of the Enforcement Rule of the Act on the Development of Agricultural and Fishing Villages, Article 3 [Attachment 3] of the Enforcement Rule of the Act on the Development of Agricultural and Fishing Villages shall apply.

2) In full view of the facts acknowledged prior to the act from July 201 to April 27, 2016 and the following circumstances revealed to the purport of the entire pleadings, it is difficult to recognize the instant disposition as unlawful by abusing and abusing discretion. Accordingly, the Plaintiff’s assertion is without merit.

○○ The last three cases of the 11st judgment of the first instance court are as follows: “The Plaintiff, therefore, from July 201, to April 7, 2016, 201, referring “the Plaintiff” to “from July 2011, to April 7, 2016.”

The enforcement rules of the former Act on the Development of Market Support shall be amended to "Enforcement Rules of the Sales Market Support Act" in 12th of the first instance judgment.

○ The 12th 12th 10 joint contractors shall be called "joint contractors".

○○ The 13th one of the 13th two parallels in the judgment of the first instance are “confiscing,” and the 2-4th parallels stipulate that “The following is added between the 13th parallels and 6th parallels in the judgment of the first instance, during which the period during which the restriction on the acquisition of participation eligibility due to the instant disposition (from December 8, 2016 to June 7, 2017) falls within the scope of the restriction period of participation restriction (from September 9, 2016 to September 8, 2018).”

Article 8(3) of the amended Act on the Support of Development of Agricultural and Fishing Villages applies to the instant collaborative act from April 28, 2016 to May 24, 2016. However, the Administrator of the Small and Medium Business Administration may revoke the participation eligibility or suspend the participation eligibility for not more than one year in any of the following cases: Provided, That in cases falling under any of subparagraphs 1 through 3, the Administrator of the Small and Medium Business Administration shall revoke the participation eligibility; and Article 8(3)3 of the same Act explicitly states that "in cases of the instant collaborative act, such as collusion, it shall be prohibited to revoke the participation eligibility of the small and medium business proprietor only if the act was committed." Thus, there is no need for discretion to revoke the participation eligibility for the instant collaborative act after April 28, 2016 to the Administrator of the Small and Medium Business Administration. Accordingly, the Plaintiff’s assertion that the remaining part of the instant collaborative act subject to the disposition from April 28, 2016 is without reason for examining the abuse of discretion.

2. Conclusion

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