(영문) 서울행정법원 2020.7.3. 선고 2019구합57589 판결

1. On January 25, 2019, the Defendant’s revocation of the Plaintiff’s participation in competitive tendering process open only to small and medium entrepreneurs, restriction on the acquisition of participation eligibility, and revocation of the disposition of imposition of participation fees.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff is a corporation that runs the commercial printing, marketing, and book business.

B. B is a company incorporated for the purpose of a prop business, etc. on November 2, 2016, which is divided from C on November 1, 2016, and established on November 2, 2016. A company B was converted into a holding company on December 13, 2016, thereby holding 10% of the Plaintiff’s shares.

C. On March 17, 2017, the Plaintiff filed an application with the Defendant for confirmation of small and medium enterprises (hereinafter “instant application for confirmation”). The instant application for confirmation was filed by the small and medium enterprise division through the process of issuing a certificate of small and medium enterprise under the current status information system of small and medium enterprises operated online, and the Plaintiff indicated that the “written confirmation of participation in competitive bidding between small and medium enterprises” generated during the preparation of the application and the “written confirmation of participation in competitive bidding between small and medium enterprises” as the “written confirmation of participation in competitive bidding” under Article 8-2 of the Act on the Promotion of Development of Small and Medium Enterprises and Article 9-3 of the Enforcement Decree of the same Act.”

D. On March 27, 2017, the Defendant issued a small and medium enterprise confirmation document stating that “The Plaintiff is a small and medium enterprise pursuant to Article 2 of the Framework Act on Small and Medium Enterprises” (for the purpose: bid for the public institution, the term of validity: from April 1, 2017 to March 31, 2018; hereinafter “instant confirmation document”).

E. From March 27, 2017 to December 31, 2017, the Plaintiff supplied public institutions with 2,260,190,560 won of competing products (other printed matters, brochures, etc.) among small and medium entrepreneurs, as indicated in the attached Table 2, as indicated in the attached Table 2.

F. On January 25, 2019, the Defendant indicated that the Plaintiff constitutes a person subject to the restriction on participation in competitive tendering procedures conducted by small and medium enterprises under Article 8-2(1)2 and Article 9-3 subparags. 1 and 2(a) of the Enforcement Decree of the Act on the Development of Agricultural and Fishing Villages, and that the Plaintiff is not subject to the restriction on participation in competitive tendering procedures conducted by small and medium enterprises at the time of the instant application for the restriction on participation. Thus, the Plaintiff constitutes “a person subject to the restriction on participation by fraud or other improper means” under Article 8(3)1 of the Act, and “a person subject to the restriction on participation by the Defendant” under Article 11-2(1)1 of the Act, and “a person subject to the restriction on participation by small and medium enterprises” under Article 8(3) of the same Act, and “a person subject to the restriction on participation by the Plaintiff” under Article 8(5) of the same Act, and “a person subject to the restriction on participation by the Plaintiff’s 10-205%.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, 6, 9, Eul evidence Nos. 1, 2, 3, 9, 10, and the purport of the whole pleadings

2. Relevant statutes;

Attached Table 1 shall be as stated in the relevant statutes.

3. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) The non-existence of the grounds for each disposition of this case

A) On or before December 13, 2016, a stock company B converted into a holding company constitutes a small or medium enterprise under Article 2(1) of the Framework Act on Small and Medium Enterprises, and thereafter, it constitutes a small or medium enterprise under Article 2(3) of the Framework Act on Small and Medium Enterprises for three years thereafter. Therefore, each of the instant dispositions based on the premise that B is a large enterprise under Article 2(2) of the Act on the Promotion of Collaborative Cooperation between Large Enterprises and Small and Medium Enterprises

B) The Plaintiff’s act, at the time of filing an application for confirmation of the instant case, indicated as “not falling under all of the items in the “written confirmation of restriction on participation in competitive bidding between small and medium entrepreneurs” does not constitute “any false or other unlawful means” under Articles 8(3)1 and 11-2(1)1 of the Act on the Promotion of Development of Agricultural and Fishing Villages, and thus, each of the instant dispositions is unlawful.

C) Since the Plaintiff did not acquire the “qualification for participation” under Article 8(1) of the Act due to the Plaintiff’s act indicated in each item of “a confirmation of participation restriction between small and medium enterprises” at the time of the application for confirmation of the instant case, the revocation of the instant eligibility for participation and the restriction on acquisition of the instant restriction are unlawful on the premise that the Plaintiff’s act constitutes “a case where the Plaintiff acquired the qualification for participation by false or other unlawful means” under Article 8(3)1 of the Act.

D) The term of validity of the instant confirmation is from April 1, 2017 to March 31, 2018. As such, from the sales that serve as the basis for the calculation of penalty surcharges, the amount of KRW 159,180,000 should be excluded from the contract price of March 30, 2017, No. 159,180,000 as indicated in the attached Table 2 supply details No. 1-3

(ii) the deviation and abuse of discretionary power;

Even if the grounds for the disposition regarding each of the dispositions of this case are recognized, the restriction on the acquisition of the participation eligibility of this case and the imposition of penalty surcharges are unlawful in deviation from and abuse of discretion.

B. Determination

1) An overview of the laws and regulations on the grounds of each disposition of this case

A) Under laws and regulations on the revocation and limitation of acquisition of ‘qualification for participation' in competitive tendering process open only to small and medium entrepreneurs

(1) Article 8(1) of the Act on the Support of Development of Agricultural and Fishing Villages provides that "qualifications for small and medium enterprises eligible to participate in competitive tendering process open only to small and medium enterprises under Article 7 (hereafter referred to as "qualifications for participation" in this Article) shall be determined by Presidential Decree in consideration of the scale of business performance, etc." Article 9(1) of the Enforcement Decree of the same Act provides that "any small and medium enterprise owner (excluding cooperatives) who participates in competitive tendering process open only to small and medium enterprises under Article 8(1) of the Act shall meet all the following requirements" and "requirements under Article 12(1) of the Enforcement Decree of the Act on Contracts to Which the State is a Party" in subparagraph 2 of Article 12(1) of the Enforcement Decree of the Act on Contracts to which the State is a Party" refers to cases where permission, authorization, registration, license, report, or qualification requirements are required or where it is necessary to conduct a security measurement, etc., it shall obtain the pertinent license, registration, etc. or obtain the pertinent qualification requirements (Article 18(1)4) of the Act).

On the other hand, Article 8 (2) of the Act on the Development of Agricultural and Fishing Villages provides that "a cooperative that intends to participate in competitive bidding among small and medium enterprises (referring to a small and medium enterprise cooperative under Article 3 of the Small and Medium Enterprise Cooperatives Act (hereinafter "small and Medium Enterprise Cooperatives Act") shall file an application for confirmation of eligibility for participation with the Minister of SMEs and Startups in accordance with the procedure determined by the Minister of SMEs and Startups, and the Minister of SMEs and Startups shall confirm it." Article 9 (2) of the Enforcement Decree of the Act provides that the cooperative shall meet the requirements that it shall meet in detail

(2) Article 8(3) of the Act on the Support of Market Development provides that "the Minister of SMEs and Startups may revoke the participation eligibility of small and medium enterprises participating in competitive tendering process open only to small and medium enterprises, or suspend the participation eligibility for a period not exceeding one year, if a small and medium enterprise falls under any of subparagraphs 1 through 3, it shall be revoked: Provided, That in cases falling under any of subparagraphs 1 through 3, it shall be revoked; and Article 8(5) provides that "the Minister of SMEs and Startups may restrict the acquisition of participation eligibility within one year from the date of revocation where the participation eligibility is revoked."

(3) Article 8 of the Act on the Development of Market Support was enacted by Act No. 9685 on May 5, 2009. Article 8 of the Act on the Development of Market Support provides that "the qualifications of small and medium enterprises eligible to participate in competitive tendering process open only to small and medium enterprises pursuant to Article 7 shall be determined by Presidential Decree in consideration of the size, business performance, etc." and Paragraph (2) of the same Article provides that "the Administrator of the Small and Medium Business Administration may cancel or suspend the eligibility to participate in competitive tendering process open only to small and medium enterprises where a small and medium enterprise participating in competitive tendering process open only to small

Article 8 of the Act on the Development of Market Businesses (hereinafter referred to as "qualification for participation") is amended by Act No. 10504 on March 30, 201 and Article 105 of the Act on the Development of Market Businesses. Article 8 of the Act on the Development of Market Businesses (hereinafter referred to as "qualification for participation") refers to "qualification for small and medium enterprise owners prescribed by Presidential Decree in consideration of the size, business performance, etc. of small and medium enterprise owners under Article 7, and includes an abbreviation of the definition of "qualification for participation" applicable under Article 8. In light of the amended history, structure, and text of Article 8 of the Act on the Development of Market Businesses, "qualification for participation" refers to "qualification for participation of small and medium enterprise owners prescribed by Presidential Decree" and "qualification for participation in the business" refers to "qualification for small and medium enterprise owners under Article 2 subparagraph 1 (a) of the Act on the Development of Market Businesses," and in detail, it shall be interpreted as "qualification for participation in the relevant business where it has been granted or necessary to obtain permission for participation from relevant institutions."

B) Under statutes on restrictions on participation and sanctions in competitive tendering process open only to small and medium enterprises

(1) Article 8-2(1) of the Act on the Support of Development of Agricultural and Fishing Villages provides that "the head of a public institution shall restrict the participation of persons who operate any of the following small and medium enterprises to participate in competitive tendering process open only to small and medium enterprises," and provides that "small and medium enterprises (excluding cooperatives) who intend to participate in competitive tendering process between small and medium enterprises shall apply to the Minister of SMEs and Startups for verification of whether they are subject to restrictions on participation in competitive tendering process open only to small and medium enterprises, and the Minister of SMEs

(2) Article 8-2 of the Act on the Support of Development of Agricultural and Fishing Villages was amended by Act No. 11462 on June 1, 2012, and Article 8-2 of the Act on the Support of Development of Agricultural and Fishing Villages newly established to promote fair competition by restricting participation in competitive bidding between small and medium enterprises and small and medium enterprises that engage in the same kind of business as a company established by division, merger, or spin-off and engage in the same type of business as a large enterprise, and by restricting the participation in the competitive bidding between small and medium enterprises. At the same time, Article 8-2 of the Act on the Support of Development of Agricultural and Fishing Villages newly established, and at the same time, Article 8-2 (1) 1 and 2 of Article 8-2 (1) 1 and 2 of the Act on the Support of Development of Agricultural and Fishing Villages was not subject to restriction on participation in the competitive bidding between small and medium enterprises, and Article 8-2 (1) 1 and 20 of the Act on the Support of Development of Agricultural and Fishing Villages was newly established and newly established to impose penalty surcharges within the scope of Article 10.

C) The relationship between "qualifications for participation" under Article 8 and "restrictions on participation" under Article 8-2 of the Act on the Development of Market Support.

(4) Article 8 of the Act on the Promotion of Development and Support of Agricultural and Fishing Villages is amended by Act No. 10504 on March 30, 201, which is the following circumstances that can be known in light of the history, structure, and language of the Act, and Article 8 of the Act on the Promotion and Support of Development and Support of Agricultural and Fishing Villages provides that "an act which constitutes "an act subject to restrictions on participation" under Article 8 of the Act shall be excluded from "an act subject to restrictions on participation" under Article 8 of the Act, and "an act subject to restrictions on participation" under Article 8 of the Act shall be excluded from "an act subject to restrictions on participation" under Article 8 of the same Act and "an act subject to restrictions on participation" under Article 8 of the Act on the Promotion and Support of Development and Development of Agricultural and Fishing Villages, and "an act subject to restrictions on participation" under Article 8-2 of the same Act shall be excluded from "an act subject to restrictions on participation" under Article 8-2 of the Act on the Promotion of Development and Development of Small and Medium Enterprises.

2) Whether the revocation of the instant participation eligibility and the restriction on acquisition are legitimate

A) On March 17, 2017, the Plaintiff filed an application for confirmation of a small enterprise with the Defendant to participate in competitive tendering process open only to small and medium entrepreneurs. During that process, the Plaintiff submitted the application by indicating that it does not fall under all of the items falling under Article 8-2 of the Act on the Support of Development of Agricultural and Fishing Villages and the subparagraphs of Article 9-3 of the Enforcement Decree of the same Act, and that the Defendant issued the instant written confirmation stating that “for the purpose of use: A public institution tender: the Defendant issued the instant written confirmation to the Plaintiff on March 27, 2017.”

B) However, Article 8(2) of the Act on the Development of Market Support only requires verification of eligibility for participation from the Minister of SMEs and Startups in accordance with a certain procedure. However, Article 8-2(2) provides that "small and medium enterprise owners who intend to participate in competitive bidding among small and medium enterprise owners (excluding cooperatives) shall apply for verification of eligibility for participation in competitive bidding among small and medium enterprise owners in accordance with the procedure prescribed and publicly notified by the Minister of SMEs and Startups, and the Minister of SMEs and Startups shall confirm such eligibility." Therefore, the plaintiff's application for confirmation in this case is in accordance with Article 8-2(2) of the Act on the Development of Market Support. The concept of "qualification for participation" in Article 8 and "restriction on participation" in Article 8-2 is a separate concept, and the plaintiff's application for confirmation of participation in competitive bidding between small and medium enterprise owners and small enterprise owners is not subject to restriction on participation in competitive bidding (which is not subject to restriction on participation between small and medium enterprise owners and small enterprise owners)."

Therefore, under different premise, the Defendant’s act, i.e., the Plaintiff’s act in the process of the instant application for confirmation, namely, the fact that all of the items falling under Article 8-2 of the Act on the Support of Development of Agricultural and Fishing Villages and the subparagraphs of Article 9-3 of the Enforcement Decree of the same Act are not applicable to “the act of submitting an application” and, on the premise that the act of acquiring the participation eligibility under Article 8(3)1 and Article 8(5) of the Act on the Support of Development of Agricultural and Fishing Villages, the Plaintiff’s act of cancelling the qualification for participation in the competitive bidding between small and medium enterprises and restricting the Plaintiff

3) Whether the imposition of the instant penalty surcharge is legitimate

A) The premise of the discussion

Article 2 subparag. 1 and 2(a) of the Enforcement Decree of the Framework Act on Small and Medium Enterprises (amended by Presidential Decree No. 28213, Jul. 26, 2017; hereinafter “former Enforcement Decree of the Framework Act on Small and Medium Enterprises”) is a related enterprise under Article 2 subparag. 3 of the former Enforcement Decree of the Framework Act on Small and Medium Enterprises (amended by Presidential Decree No. 28213, Jul. 26, 2017; hereinafter “former Enforcement Decree of the Framework Act on Small and Medium Enterprises”). The fact that B’s representative director D, inside director E, and auditor concurrently holds office as the Plaintiff’s director or auditor is acknowledged by the evidence that there is no dispute between the parties or the above fact that B is not a small and medium enterprise under the Framework Act on Small and Medium Enterprises. Accordingly, if B is not a small and medium enterprise under the Framework Act on Small and Medium Enterprises, the Plaintiff’s act of imposing a penalty surcharge under Article 9-3 subparag. 1 and 2(a) of the Enforcement Decree of the Framework Act on Small and Medium Enterprises.

B) Relevant statutes and legal principles

(1) With respect to an application for confirmation of whether it falls under the category of restrictions on competitive bidding between small and medium enterprises under Article 8-2 (2) of the Act on the Support of Development of Agricultural and Fishing Villages, where the former Regulations on the Scope and Confirmation of Small and Medium Enterprises (Notice No. 2015-39, hereinafter referred to as the "Notice No. 2015, 30, hereinafter referred to as the "Notice No. 2015-39") upon delegation of the above Act is issued for the purpose of participating in competitive bidding between small and medium enterprises under Article 5 (5), a self-check for confirmation of whether it is restricted on competitive bidding between small and medium enterprises (attached Form 2, this is the same as the above 1.C. hereinafter.). In the current status information system of small and medium enterprises, it is stipulated that the plaintiff should submit a certificate of restriction on competitive bidding among small and medium enterprises indicating that it does not fall under all of the items in the current status information system of small and medium enterprises. In addition, Article 8-2 (3) of the Act provides for the submission of data.

Meanwhile, Article 11-2 (1) 1 of the Act on the Development of Agricultural and Fishing Villages provides that the defendant may impose a penalty surcharge on a person who is confirmed not to be subject to restrictions on participation in competitive tendering process open only to small and medium enterprises under Article 8-2 (1) 2 by fraud or other improper means, and Article 35 (1) 1 of the same Act provides that a person who is confirmed by the defendant as not subject to restrictions on participation in competitive tendering process open only to small and medium enterprises under Article 8-2 (1) 2 shall be punished by imprisonment for not more than three years or by a fine not exceeding 30

(2) “False or any other fraudulent means” under Article 35(1)1 of the Act on the Development of Market Support means active and passive acts that are considered unfair by social norms, such as deceptive scheme, deception, concealment, etc., and that may affect the Defendant’s determination of confirmation (see, e.g., Supreme Court Decision 2017Do6871, Sept. 7, 2017). Such a legal doctrine ought to be deemed likewise applicable to the imposition of penalty surcharges under Article 11-2(1)1 of the Act on the Development of Market Support, which stipulates the same disposal requirement.

C) Whether the Plaintiff’s act constitutes “false or other unlawful means”

In light of the relevant Acts and subordinate statutes and legal principles as seen earlier, the following circumstances acknowledged by adding the whole purport of arguments to health stand in the case, Gap evidence and evidence Nos. 12 and 15, i.e., the final authority to confirm that the applicant company is not subject to restrictions on competitive bidding among small and medium enterprise proprietors, and the defendant has the authority to request the applicant company to submit data for such confirmation. In such a case, the defendant should determine whether the applicant company is subject to restrictions on competitive bidding among small and medium enterprise proprietors based on the facts examined by the applicant company. ② The plaintiff's act is hard to find that the applicant company is subject to restrictions on competitive bidding based on the plaintiff's request by the public official in charge of small and medium enterprise venture business (a business registration certificate, statement of revenue amount after adjustment, statement of performance of withholding taxes, statement of change in stocks etc.) as well as evidence concerning the plaintiff company B (a statement of change in the name of small and medium enterprise proprietors) and the contents of the list of shareholders of this case.

D) Sub-committee

Therefore, since the imposition of the instant penalty surcharge is not recognized as the grounds for the imposition thereof, the imposition of the instant penalty surcharge must be revoked in an unlawful manner without examining the remaining arguments of the Plaintiff.

4. Conclusion

Ultimately, each of the dispositions of this case is unlawful since all of the dispositions of this case are not recognized as grounds for disposition. Thus, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.

Judges

The presiding judge, deputy judge;

Judge Ko High-han

Judges Yellow-nam

Note tin

1) The Defendant stated in the instant disposition (Evidence A No. 2) that “the Plaintiff acquired a license to participate in competitive tendering process open only to small and medium enterprises (small and medium enterprises) on March 27, 2017 pursuant to Article 8(2) of the Act on Support of Development of Agricultural and Fishing Villages.” However, as seen earlier, Article 8(2) of the Act on Support of Development of Agricultural and Fishing Villages is a provision on confirmation of the eligibility to participate in competitive tendering process open only to small and medium enterprises, and Article 8(2) of the Act on Support of Development of Agricultural and Fishing Villages should be deemed to mean Article 8-2(2) of the Act

2) The Defendant asserts to the effect that a small or medium enterprise which intends to participate in competitive tendering process open only by the Defendant can participate in verification as to whether it is subject to restrictions on participation in competitive tendering process open only to small or medium enterprises pursuant to Article 8-2(2) of the Act on the Development of Agricultural and Fishing Villages. Thus, the Defendant asserts to the effect that it is identical to the acquisition of participation eligibility by fraudulent or other illegal means. However, the Defendant’s argument is not reasonable in full view of the following: ① the acquisition of qualification to participate in the competitive process as seen earlier and the case where participation in the competitive process is restricted; ② the submission of documents related to the acquisition of production facilities, licenses, etc. of competing products at the time of application for issuance of a small or medium enterprise confirmation certificate is not submitted; ③ Article 11-2(1)2 of the Act on the Development of Agricultural and Fishing Villages separately provides for penalty surcharges against a person whose direct production is revoked by fraudulent or other wrongful means