(영문) 대전고등법원 2018.1.31. 선고 2017누12665 판결

[] On January 11, 2017, the Defendant’s revocation of the qualification to participate in competitive tendering process open only to small and medium enterprises, and revocation of the restriction on the acquisition of qualification to participate in competitive tendering process for one month (the grounds falling under Article 13(2) of the Administrative Litigation Act regarding the qualification to participate in the appellate trial). This court revised the Defendant from “the Administrator of the Small and Medium Business Administration” to “the Administrator of the Small and Medium Business Administration” upon request of the party concerned pursuant to Article 14(6) of the Administrative Litigation Act. The court did not separate

[Purpose of appeal] Revocation of the first instance judgment. The plaintiffs' claim is dismissed.

Reasons

1. Quotation of judgment of the first instance;

This Court’s explanation of the instant case is identical to the grounds for the judgment of the first instance except for the following modifications. As such, this Court’s assertion is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Revised parts

○ 3rd page 1 "The former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Support of Market Support (amended by Act No. 13866, Jan. 27, 2016; hereinafter "former Act on the Support of Market Support")" is "the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Support of Market Support (amended by Act No. 11690, Mar. 23, 2013; hereinafter "former Act on the Support of Market Support") 2).

○ up to Class 3 19 up to 5 pages 19 up to

In full view of the following points, the meaning of "unfair conduct, such as collusion," as stipulated in Article 8 (3) 3 of the former Act on the Development of Market Support shall be construed as "an act which can be assessed as "an act which can be assessed as harming the fairness of bidding and causing considerable damage to the bidder by pre- and subsequent determination of the bid price or the successful bid price among the bidders by preventing them from forming a reasonable price by participating in the competitive bidding and by preventing them from forming a reasonable price".

A) The competitive bid system of small and medium entrepreneurs established in the former Act on the Promotion of Market Support was established to secure markets for small and medium entrepreneurs to a certain extent and to improve their competitiveness. Therefore, whether a small and medium enterprise is eligible to participate in competitive bidding will be an important element related to the failure of the business. However, Article 8(3) of the former Act on the Promotion of Market Support constitutes an influence disposition to allow the Defendant to cancel and suspend the eligibility to participate in competitive bidding already acquired by a small and medium enterprise. In light of such circumstances, the above provision should be interpreted strictly in accordance

B) In a literal interpretation of the above provision, it is reasonable to see that the "unfair act such as collusion" referred to in subparagraph 3 is an unfair collaborative act between the bidders related to the participation in the competitive bidding, in full view of the following: (a) the reason under each subparagraph other than subparagraph 3 applied in this case among the grounds that the defendant may revoke or suspend the participation of the small and medium enterprise; (b) the acquisition or loss of the participation in the competitive bidding; and (c) the appropriateness of the participation; and (d) the literal meaning of Article 8 of the former Act on the Support of Agricultural and Fishing Villages that includes the above provision is the "qualification for participation in the competitive bidding"; and (b) the "jointness" referred to in subparagraph 3 of the above provision is the "unfair collaborative act of the enterpriser." However, it is not appropriate in light of the context and purport of the provisions to comprehensively interpret the above provision as an unfair collaborative act and unfair collaborative act among the small and medium enterprises that are conducted in the market regardless of the relation with the participation in the competitive bidding.

C) In addition, Article 9-2 of the former Enforcement Decree of the Act on Promotion of Purchase of Small and Medium Enterprise Products and Support for Development of Market Markets (amended by Presidential Decree No. 22988, Jun. 27, 2011; hereinafter “former Enforcement Decree of the Act on Promotion of Market Support”) provides three cases where it is inappropriate to participate in a competitive tendering procedure conducted by small and medium enterprises under paragraph (1) while Article 9-2 of the former Enforcement Decree of the Act on Promotion of Market Support is "requirements for cancellation or suspension of eligibility to participate in the competitive tendering procedure conducted by small and medium enterprises". Article 3 of the former Enforcement Decree of the Act on Contracts to Which the State is a Party or Article 92(1)4 of the Enforcement Decree of the Act on Contracts to Which the State is a Party, provides that "where the Government is subject to restrictions on participation in the competitive tendering procedure by the head of a central government agency or the head of a local government by committing an act falling under any of the subparagraphs of Article 76(1) of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act, the former Enforcement Decree of the Act.

Therefore, even if it is not related to participation in competitive bidding under Article 8(3)4 of the former Act on the Development of Market Support, there are separate cases of violation of the Monopoly Regulation and Fair Trade Act where a request for restriction on participation in bidding is deemed necessary. However, if it is interpreted that "in the case of unfair conduct, such as collusion," under Article 8(3)3 of the same Act includes "in the case of a series of unfair conduct without relation to participation in competitive bidding, it would result in an unfortu

D) Furthermore, Article 8(3) of the former Act on the Development of Market Support was amended to the effect of Article 8(3) of the former Act on the Development of Market Support as follows. In other words, Article 8(3) of the former Act on the Development of Market Support provides that a small and medium enterprise participating in a competitive bidding falling under subparagraphs 1 through 3 should revoke the participation eligibility. In the case of subparagraph 4, the above provision provided for a discretionary act by stating that the participation eligibility may be revoked or suspended for a period not exceeding one year. Therefore, in light of the above contents of the above amendment, it is unreasonable to comprehensively expand the scope of the act falling under subparagraph 3 of the above provision as in the case of this case into an unfair collaborative act that

2) Therefore, the plaintiffs' refusal of this case is not an act detrimental to the fairness of bidding between bidders in relation to competitive tendering process open only to small and medium entrepreneurs. Thus, the plaintiffs' act does not constitute "unfair acts, such as collusion under Article 8 (3) 3 of the former Act on the Development of Agricultural and Fishing Villages," regardless of whether it constitutes unfair trade practices under the Monopoly Regulation and Fair Trade Act. Ultimately, the disposition of this case was made without any legal basis, and the remaining arguments of the plaintiffs

3. Conclusion

Therefore, the plaintiffs' claims should be accepted due to the reasons. The judgment of the court of first instance is justified with this conclusion. Therefore, the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges

The presiding judge shall be a judge.

Judge Shin Dong-chul

The name of the judge

Note tin

1) The first Administrator of the Small and Medium Business Administration issued the instant disposition, but the Government Organization Act was amended on July 26, 2017, and its affairs were attributed to the Minister of SMEs and Startups.

2) In the case of a so-called punitive administrative disposition imposing sanctions on the person in violation of a certain statute, if there is no special provision regarding the application of the law after the violation, such disposition shall be based on the law that was enforced at the time of the violation, unless there is a special provision regarding the application of the law (see, e.g., Supreme Court Decision 86Nu63, Jan. 20,