(영문) 서울고등법원 2018.4.11. 선고 2017누69672 판결

1. The plaintiff's corrected defendant's part of the lawsuit against the defendant seeking revocation of the disposition of restriction on the acquisition of qualifications for participation in competitive bidding between small and medium enterprises (six months);

2. The plaintiff's remaining claims against the corrected defendant are dismissed.

3. Of the costs of this Court, the part arising between the Plaintiff and the Defendant corrected is assessed against the Plaintiff.

Purport of claim

On December 5, 2016, the Administrator of the Small and Medium Business Administration revoked all the disposition of revoking eligibility for participation in competitive bidding among small and medium enterprises against the Plaintiff (six months) and restricting the acquisition of eligibility for participation (this court was corrected as the Minister of SMEs and Startups from the Administrator of the Small and Medium Business Administration, and the lawsuit against the previous Defendant is deemed to have been withdrawn under Article 14 of the Administrative Litigation Act. Therefore, the lawsuit against the previous Defendant, for which the first instance judgment was pronounced, was withdrawn (the first instance judgment against the previous Defendant's Administrator of the Small and Medium Business Administration was invalidated) and the lawsuit against the new Defendant is subject to adjudication of this court.

Reasons

1. Quotation, etc. of the judgment of the first instance;

The reasoning for the court's explanation on this case is as follows, and the corresponding part of the judgment of the court of first instance is amended as follows, and the "ex officio decision on the part concerning the claim for revocation of a disposition on the restriction (six months) on the acquisition of qualification for participation in competitive bidding among small and medium enterprises" is the same as the part concerning the reasons for the judgment of the court of first instance (including the attached Form, but excluding the "3. conclusion" part). Thus, it is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act

○ 3 below the Defendant’s “The Administrator of the Small and Medium Business Administration” shall be regarded as “the Administrator of the Small and Medium Business Administration.”

○ 6 below the 3rd page add “Revocation of the Qualifications to participate in the competitive tendering procedure” to the right side (hereinafter referred to as “instant action”).

○ 3 and 4 to 5 (hereinafter referred to as the “disposition of this case”) will be deleted from each other.

"On the other hand, the defendant, revised by the amendment of the Government Organization Act, has succeeded to all the powers of the Administrator of the Small and Medium Business Administration related to the disposition of this case and the restriction on acquisition of participation eligibility."

○ 6 pages 6’s “the first argument” refers to “the first and the second argument.”

0 The 6th 12th 12th am "dispositions which restrict the acquisition of participation eligibility for six months" shall be considered as "dispositions".

0. In the event that the Administrator of the Small and Medium Business Administration cancels the participation eligibility, he/she may restrict the acquisition of participation eligibility within one year from the date of cancellation."

The Administrator of the Small and Medium Business Administration may limit the acquisition of participation eligibility within one year from the date of cancellation when the participation eligibility is canceled.

0 The 7th 9th 10th 7th 7th 9th 10th 'the revocation of participation eligibility' and the 6th 'the restriction on the acquisition of participation eligibility' are defined as ‘the revocation of participation eligibility'.

○ From the last 7th one to the 8th one, the cancellation of the participation eligibility and the restriction on the acquisition of the participation eligibility for six months shall be taken into account as “in order to cancel the participation eligibility”.

○ 8. The following shall be added to the 3 pages below:

C) In addition, the Plaintiff committed the instant collaborative act even after April 28, 2016, in which the amended Act on the Support of Development of Agricultural and Fishing Villages was enforced, and the amended Act also became the basis for the instant disposition. Article 8(3) of the amended Act on the Support of Development of Agricultural and Fishing Villages provides that “The Administrator of the Small and Medium Business Administration may cancel the participation eligibility or suspend it for a period not exceeding one year where a small and medium enterprise owner participating in competitive bidding falls under any of the following subparagraphs: Provided, That where a small and medium enterprise owner falls under any of subparagraphs 1 through 3, he shall cancel the participation eligibility.” Article 8(3)3 of the amended Act provides that “Where a small and medium enterprise owner engaged in any of the following acts, such as collusion,” it is clear that the former Act provides that the former act of collusion shall be cancelled the participation eligibility between the small and medium enterprise owner, and thus, it is not necessary to have discretion to cancel the participation eligibility, as alleged by the Plaintiff, even if the latter did not exercise its discretionary power on the previous collaborative act.

○ 8 5 m 2) to 15 m m 15 m m m m m m m s 8 m m s.

0) The 15th 15th 2 parallel "(3)" shall be regarded as "(2)".

Until 16th 1st 1st 1st 1st '3th 1st 2th 3th 2th 2th 3th 2th 3th 2th 3th 3th 2th 3th 3th 3th 20

2. Ex officio determination on the part of a request for revocation of a disposition restricting the acquisition of qualifications to participate in competitive bidding between small and medium entrepreneurs (six months);

Where the effective period of an administrative disposition is fixed and its validity or execution is not suspended, there is no legal interest in seeking cancellation of such disposition, barring any special circumstance to deem that any legal interest is infringed upon by the remaining disposition after the lapse of the said period (see, e.g., Supreme Court Decisions 201Du1470, Apr. 26, 2012; 2002Du1946, Jul. 8, 2004). Meanwhile, in cases where the court decides to suspend the execution of an administrative disposition ordering restriction on qualifications for a certain period of time, the period of restriction prescribed in the said administrative disposition is not suspended, but its effect of suspension on the grounds that the original disposition becomes invalid due to the expiration of the period of suspension or cancellation of the said decision, and there is no legal interest in seeking cancellation of such disposition (see, e.g., Supreme Court Decision 201Du1681, Jul. 16, 2006).

Therefore, it cannot be said that there is a legal interest to seek the revocation of the disposition that the plaintiff would be entitled to participate in competitive bidding between small and medium entrepreneurs (six months).

3. Conclusion

Therefore, the part of the plaintiff's corrected lawsuit against the defendant demanding the cancellation of the disposition of restriction on the acquisition of qualification for participation in competitive bidding between small and medium enterprises (six months) is unlawful and dismissed. The plaintiff's remaining claims are dismissed as they are without merit.