(영문) 서울고등법원 2018.4.24. 선고 2017누78782 판결

The judgment of the court of first instance shall be revoked. The defendant revoked the qualification of the plaintiff to participate in competitive tendering process open only to small and medium enterprises, and the disposition of restricting the acquisition of qualification for participation for six months shall be revoked.

Reasons

1. Quotation of the first instance judgment

The reasoning for the judgment of the court in this case is as stated in the reasoning of the judgment of the court of first instance, in addition to the parts added or used by the court below, and thus, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420

At the bottom of the 3rd judgment of the first instance, the following is added, '5 '1' from the 3rd bottom to '2 '2', '4 9 '2' to '3', '3 '3 '4 '4 '3' to '4 '4 '4 '4' respectively:

1) Non-existence of disposal authority

According to Article 8 (3) 3 of the Act on the Development of Agricultural and Fishing Villages, where a small and medium enterprise owner participating in a competitive bidding between small and medium enterprises has committed an unfair act, such as collusion, the defendant may revoke the qualification for participation or suspend it for up to one year. However, the subject of disposition by the defendant includes the collusion in a bidding case which is not a competitive bidding between small and medium enterprises without the authority to dispose of the defendant,

○○ The 9th 12th 12th '26th 'the 12th 'the 12th 'the 12th 'the 12th 'the 12th 'the 26th ''

○ At the bottom of the 9th judgment of the first instance, the following shall be added at least six:

1) Whether the disposition authority exists

A) The Plaintiff was indicted on the ground that the instant collaborative act was committed in collusion with the executive officers of the instant association, the representative director of the instant member company, or the person in charge of tendering affairs from July 201 to May 24, 2016 on the “tender for the purchase of government-funded files” case from July 2011, and was convicted in the Seoul Central District Court Decision 2016Kadan4187,5376 (merged). As seen earlier, the PHc file is designated as a competing product only to a small and medium enterprise proprietor pursuant to Article 6 of the Act on the Development of Agricultural and Fishing Villages, and the Plaintiff was given an opportunity to participate in the procedures for the purchase of government-funded files, and thus, it cannot be deemed that the Defendant’s disposal subject to the Defendant’s disposal includes general tendering cases, not subject to competitive bidding, which are not subject to the exclusive competitive bidding. Accordingly, the Plaintiff’

B) According to the evidence evidence No. 25, the fact that a member files of this case, a member company, concluded a contract through a closed number of negotiations, not through competitive bidding, on August 10, 2015 and December 29, 2016, on two occasions. However, the fact that the member companies of this case failed to intentionally select a successful bidder in excess of the expected price, and that the contract publicly notified by the initial limited competitive bidding method was failed to meet the contract publicly notified by the initial limited competitive bidding method, thereby allowing the ordering agency to convert the method of contract into a negotiated contract, and thereby interfering with the bidding by a specific company, etc.

In addition, unlike Article 76 (1) of the Enforcement Decree of the Act on Contracts to Which the State Is a Party is a Party, the parties to the contract, bidders, or persons who submit estimates using the Electronic Procurement System shall be limited to cases where a small and medium enterprise participating in an unfair act, such as collusion, etc., is limited to cases where a small and medium enterprise participating in a competitive bidding only at a small and medium enterprise participating in an open competitive bidding, and thus, it is recognized that the target of disposition is wider than the Enforcement Decree of the Act on Contracts to Which the State Is a Party. Therefore, even though the first public notice was made for a competitive bidding, it is reasonable to view that the act of a small and medium enterprise participating in a competitive bidding by hindering the formation of the competitive bidding itself through collusion constitutes "an unfair act, such as collusion, committed by a small and medium enterprise owner participating in a negotiated competitive bidding" as stipulated in Article 8 (3) of the Act on Support of Agricultural and Medium Enterprises. On other premise, the first party's assertion on this part is without merit (it cannot be seen as unlawful since the Defendant's disposition was abused discretion).

○ 11 '3', 11 '8 '3', '13 '8 '4', '5' and '15 '5 '10 '5 '5', '6 '6', respectively, shall be '3', '11 '8 '3', '13 '8 '4' and '5 '6', respectively.

○ The following is added to the 9th page of the judgment of the first instance.

F) Even if the Plaintiff’s assertion that the Defendant did not have the authority to dispose of the collusion in the process of concluding a contract under a negotiated contract, it is difficult to deem the instant disposition to have exceeded and abused the scope of discretionary authority. Even if some of the grounds for several dispositions are lawful in the course of an administrative disposition, such disposition cannot be deemed unlawful if it is acknowledged that the disposition is justifiable on other grounds (see, e.g., Supreme Court Decisions 96Nu1184, May 9, 1997; 2010Du15674, Dec. 9, 2010). In light of the above circumstances, the number of winning a contract by the Plaintiff alone constituted a joint contractor is 26 cases, and the bid price is 7,018,115,480 won, it cannot be deemed that the instant disposition is too harsh to the Plaintiff on the sole basis of such reasons.

2. Conclusion

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit.

Judges

Awards and decorations for judges;

Judges Lee Jong-chul

Judge Cho Jae-soo

Note tin

1) Supreme Court Decision 2007Du13791, 13807 Decided February 28, 2008 is interpreted and applied strictly, and it shall not be excessively expanded or analogically interpreted or analogically interpreted to the disadvantage of the party against the other party to the administrative disposition. Even if the teleological interpretation taking into account the legislative intent and purpose, etc. is not entirely excluded, such interpretation shall not go beyond the ordinary meaning of the language and text. In light of the fact that the Enforcement Decree of the Act on Contracts to Which the State is a Party stipulates the subject of limitation of participation in bidding as "contractor or bidder", it is reasonable to view that "the person who has participated in the competitive bidding" as "the person who has participated in the competitive bidding," and that "the person who has participated in the competitive bidding for the purpose of getting a specific person to be successful in the bidding in question." Even if the act of interference with the establishment of competitive bidding itself due to the failure to participate in the competitive bidding was for the purpose of concluding a negotiated contract, it shall not be deemed as a "contractor or bidder."