(영문) 서울행정법원 2017.10.13. 선고 2016구합83518 판결

The Defendant’s revocation of the Plaintiff’s eligibility to participate in competitive tendering process open only to small and medium entrepreneurs on December 8, 2016 and the restriction on the acquisition of eligibility to participate (six months) shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff and B Co., Ltd. (hereinafter referred to as “B”) are corporations that engage in the production, sale, etc. of high-Robbery concrete files (Phc file). B is the Plaintiff’s subsidiaries.

B. The Korea Primary concrete Industry Cooperatives (hereinafter referred to as the "Union of this case") consists of 17 companies, including the plaintiff who produces phc files (including the plaintiff, Eul, Dongjin Industries Co., Ltd., dongjin Industry Co., Ltd., Sungwon File Co., Ltd., Ltd., YMM Co., Ltd., Ltd., hereinafter referred to as the "Co., Ltd."), and individual companies consist of 17 companies, including the plaintiff who produces phc files (excluding the plaintiff, Eul, Dongjin Industries Co., Ltd., Ltd., dong Co., Ltd., c., Ltd., c., c. and the limited liability company).

C. On July 1, 2016, the Seoul Central District Public Prosecutor's Office (hereinafter "the Seoul Central Public Prosecutor's Office") held office as a representative director who is the representative director of the Plaintiff, and D, who is an executive director in charge of business in C and B, in collusion with the executives of the instant union, the representative director of the instant member company, or the bid officer. From July 201 to May 24, 2016, the instant association and member companies designated the government-funded pHc file purchase bid among the instant association and member companies in advance, and designated the government-funded pHc file purchase bid as a successful bidder (association or individual member company) with the advance bid bid price and the bidder scheduled to win the bid at a higher price, and the remaining company failed to participate in the bid in the bid in question, caused the instant association to obtain the successful bid price by intentionally failing to participate in the bid in question and to obtain the successful bid price exceeding the original bid price, thereby inducing them to enter into the bid through a negotiated bid with the contract price of 3606.

D. On December 5, 2016, the Defendant revoked the qualification to participate in competitive tendering process open only to small and medium enterprises, and notified the Plaintiff on December 8, 2016 that six months (from December 8, 2016 to June 7, 2017) would restrict the acquisition of the said qualification (hereinafter referred to as “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 20 evidence, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

In light of the characteristics of the Phc file, it is difficult for public institutions to supply all of the Phc files to small and medium enterprises through competitive tendering process open only to small and medium enterprises. Moreover, the Phc file is a product that requires a large amount of transportation cost, and it is difficult for the manufacturers to participate in competitive tendering process to the supply site located in a remote place. The member companies, including the Plaintiff, etc., such as the Plaintiff, etc., do not constitute an act of collusion under Article 8(3) of the Act on the Promotion of Collaborative Acts and subordinate statutes, because the competitive tendering process of the small and medium enterprises is repeated in order to prevent the occurrence of a situation that is excluded from the competitive tendering process of the small and medium enterprises, or the competitive tendering process of the small and medium enterprises is repeated due to the repeated supply of the Phc file in accordance with the “tender contract,” and ultimately, it does not constitute an act of collusion under Article 8(3) of the Act on the Promotion of Collaborative Acts and Subordinate Affairs.

2) Illegal application of law

Although Article 8 (3) 3 of the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Development of Market Support (amended by Act No. 13866, Jan. 27, 2016; hereinafter referred to as the "former Act on the Promotion of Development of Market Support"), a bid subject to the current Act on the Promotion of Development of Market Support (amended by Act No. 14839, Jul. 26, 2017; hereinafter referred to as the "Revised Act on the Promotion of Development of Market Support"), which provides for the revocation of the necessary participation eligibility among the details of the Plaintiff's bidding, is merely a bidding on the "EM site" on May 23, 2016, the Plaintiff cannot be deemed to have committed a collaborative act on the said bidding, and Article 8 (3) 3 of the former Act on the Promotion of Purchase of Purchase of Small and Medium Enterprise Products and the Act on the Promotion of Development of Market Support, which apply to the remaining activities.

(iii) deviation from and abuse of discretionary power;

The Plaintiff’s act is not likely to undermine the fair enforcement of competition in the future or appropriate implementation of contracts, and the Plaintiff did not have any position to lead the instant collusion. In addition, there were inevitable circumstances to prevent the characteristics of phc file, market conditions, and phc file from being excluded from the competing products open only to small and medium enterprises, and the Plaintiff’s disposition of this case where the Plaintiff’s act of having the Plaintiff not fully participate in the competitive tendering procedure open only to small and medium enterprises for six months in the future constitutes deviation from and abuse of discretionary authority.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

1) Facts of recognition

A) PHc files designated as competing products only between small and medium enterprises pursuant to Article 6 of the Act on the Development of Agricultural and Fishing Villages, which are designated as competing products only between small and medium enterprises. In particular, the number of Phc files ordered by public institutions, including the Defendant, was increased since a public corporation or quasi-governmental institution entrusted the Defendant with mandatory purchase of Phc files pursuant to Article 44 of the Act on the Management of Public Institutions, which was established on December 29, 2009.

B) Organization of working-level council, representative council, etc.

(1) On April 2009, the member companies of this case, at the initiative of the cooperative of this case, established the operation rules of the Phc file working council (hereinafter referred to as the "operation rules of this case") consisting of members companies at the time of the establishment of the "Operational Rules of the Phc file working council (hereinafter referred to as the "Operational Rules of this case"), consulted on the allocation of quantities and price maintenance in the Phc file supply market including the private supply market among members. On a regular basis as the representative of the cooperative of this case, the working-level council (hereinafter referred to as the "working-level council of the officers in charge of the business of the member companies of this case"), the representative council (hereinafter referred to as the "member companies of this case"), the files subcommittee, and the National File Council, etc., to exchange information on the monthly production and sales results and inventory status of Phc files between members, and to adjust the unit price of the Phc file supply in the government-funded market to the level of other small and medium enterprises, and to check and implement the production method of the production.

(2) All members of the instant working group including the Plaintiff participated in the instant working group, and among the working group councils of the instant working group, 10 companies, including Plaintiff B (the Plaintiff and B were affiliated with the Seoul Metropolitan Area Consultative Council and the Seoul Metropolitan Area Consultative Council), Defendant B (the Plaintiff and B were affiliated with the Plaintiff and the Seoul Metropolitan Area Consultative Council) file, distribution file, wind file, copper industry, nuclear container, order file, trust file, Tweve, and new Asian industry development, and four companies, including amamamba industry, mountain, mountain, Samsung Industries, and SamsungM case, and the Yong-Nam Consultative Council had five companies, including the Plaintiff, B, members hub, M&T, U.S. concrete, and gold acid.

C) The instant collusion method

(1) In relation to the government-funded file purchase bid, the instant member failed to determine the level of the successful bidder's scheduled bid price, i.e., bidding price, bidding price, and bidding price by taking into account the activity areas, production and inventory volume, bidding eligibility points, etc. of the members, and the members, other than the successful bidder and the ralian, failed to participate in the bidding in question, and the pertinent bidding in the form of "non-tender, single bid, excess bid price," etc. in order to enhance the basic amount publicly notified by the agency awarding the contract, so that a specific member can enter into a private contract.

(2) ① (1) In the event of a bid of at least one billion won, a joint supply and demand company shall be organized, mainly by participating in the bid in the name of the instant partnership, and the instant partnership shall be awarded the successful bid price by dividing the bid price into the share of the joint supply and demand company, and the partnership shall also be entitled to participate in the joint supply and demand company. ② In the case of a bid of at least one billion won, a joint supply and demand company shall be organized, a joint supply and demand company shall be selected to participate in the tender in the name of the principal agent, a joint supply and demand company shall be selected and allocated to a manager and a manager, and ③ in the case of a participation in the tender in the name of an individual company without a joint supply

(3) Examining the specific process of implementation, where a specific member participates in a tendering procedure individually, the first internal decision on whether to participate in the tendering procedure is made and the first decision on whether to participate in the final tendering procedure is made at the Consultative Council of the Working-Levels of this case, and where a specific member is determined as a successful bidder for a specific phc file delivery case at the Consultative Council of the Working-Levels of this case, the member requests a bid by notifying the amount of his bid or the amount of his bid bid in color among the other member companies of this case by conducting a bidding at a price exceeding the bid price of the successful bidder.

(4) The working-level council of the instant case allocated membership and quantity to be awarded a contract for each case of public announcement of tender, and delivered the allocated data to the employees of the instant association, and had the instant association manage the fair distribution of the contract amount by enterprise.

D) The main contents of the instant operational rules are as follows.

The council of Phc Working Council under Article 5 of the Operating Rules of the Phc File Working Council (the duties of the council) shall deliberate, determine, and execute the following paragraphs.1. 1. The coordination of the fair Serial system and the reasonable price through mutual consultation, and the head of 2. The coordination of the monitoring of unfair acts and the joint response to the illegal wholesalers; 3. The head of the agency; 4. The execution of all acts to stabilize the file industry at the meeting of the representative director is carried out by the representative director at the meeting of the council in violation of the provisions of Article 2, and the execution of all acts to ensure the stability of the file industry is carried out by the representative director at the meeting of the council.1. The visit to the representative director at the meeting of the council at the time of detection of the violation.2. 2. The visit to the relevant representative director at the meeting of the council shall be excluded from the order of priority twice the number of violations at the meeting of the government-level and private-level bidding.3. Whether the company may temporarily withdraw from the working council (permanent) with consent of at least 2/3.

1. The No. 1 of the operating rules of the No. 5(1) sets forth the sequence of each company by setting forth the no. 5(s) and setting the 1.5(s) and the 1.5(s) and the 1.5(s) and the company separately recognized by the member companies may set the 1.5(s) and separately set the 1.5(s) and may set the 1.5(s). The selection of the 2/3(s) first priority will be made on the basis of the basic order and the 1.5(s) first priority will be made prior to the initial order, and the 3rd order will also be set forth in the same rules. (3) Each member company is obliged to give notice within the prescribed time limit and at the same time to the executing body of the tender, and even if there is any disadvantage in the 2nd order of the tender, it shall be notified that the 3rd order of each bid will be able to be held more than once (4) and the 5th order of each bid will be held more than once (4).

E) Criminal judgment

The facts charged in Section 1-C (Interference with Tender) was found guilty on September 21, 2016 in the Seoul Central District Court Decision 2016Da4187, 5376 (Consolidation), and C was sentenced to a suspended sentence of three years for one year of imprisonment, and D was sentenced to a suspended sentence of two years for ten months of imprisonment. C and D’s appeal were all dismissed on February 3, 2017 (2016Do3816), and is still pending in the final appeal (2017Do3426).

F) On July 18, 2011, the instant cooperative organized a joint supply and demand organization, such as the Plaintiff’s successful bid, etc., and was awarded a bid amounting to KRW 281,264,025,739 in an amount equivalent to 96.918% of the projected price (248,112,151 won) from the bid for the purchase of PHC files in the “National Maritime Investigation Agency Construction Work” publicly announced by the Busan Government Procurement Service as an end-user of the instant collaborative act, from that time, the Plaintiff was awarded a bid for an amount equivalent to 281,264,025,739 won in total from the government-funded purchase bid to December 16, 2015. The Plaintiff was allocated in accordance with the agreed distribution ratio by participating in a joint supply and demand organization as the main agent or joint supply and demand organization

On the other hand, on February 2, 2012, through the instant collusion, the Plaintiff was awarded a successful bid of KRW 452,80,860 equivalent to 99.238% of the projected price on the ground that the Seoul Southern District Headquarters of the Korea Land and Housing was an end-user institution and publicly notified by the Gwangju District Public Procurement Service as a PHC file (specific file) purchase of the F apartment construction material PHC file (specific file) as an end-user institution, and was awarded a successful bid of KRW 26 times in the government-funded purchase tender until May 23, 2016.

As such, the sum of the amount distributed by the Plaintiff according to the share of the joint contractor is KRW 20,714,552,837.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 15, 21 through 24, Eul evidence No. 3, the purport of the whole pleadings

2) Whether there exist grounds for the disposition

A) Article 8(3) of the former Act on the Support of Development of Agricultural and Fishing Villages stipulates that "the Administrator of the Small and Medium Business Administration may revoke the participation eligibility of a small and medium business proprietor participating in competitive tendering process only in any of the following cases or suspend the participation eligibility for a period not exceeding one year. The Administrator of the Small and Medium Business Administration may restrict the acquisition of participation eligibility within one year from the date of revocation if the participation eligibility is revoked." Article 8(3) of the amended Act amended on January 27, 2016 and enforced on April 28, 2016 provides that "the Administrator of the Small and Medium Business Administration may cancel the participation eligibility or suspend the participation eligibility for a small and medium business proprietor participating in competitive tendering process only in any of the following cases: Provided, That in cases falling under subparagraphs 1 through 3, the Administrator of the Small and Medium Business Administration shall cancel the participation eligibility for a small and medium business proprietor, and subparagraph 5 provides that "where the participation eligibility is revoked, the acquisition of participation eligibility may be restricted within one year from the date of revocation."

B) Comprehensively taking into account the above facts and the purport of the entire pleading, the following circumstances are as follows: ① the method of the collusion in this case is to induce a free contract by excluding external competition from bidding; although there is external competition, it seems that a certain enterprise has influenced or is highly likely to affect the determination of price, etc. by excluding competition from bidding; ② in light of the frequency of the collusion in this case’s bid price totaling 656,387,023,639 won through 1,360 times, and the amount of the successful bid contract, it is difficult to see that the act of the collusion in this case was merely one of the bidders’ intent and compromise within the scope recognized in light of general transaction norms to prevent reckless competition, as alleged by the Plaintiff, and it is difficult to see that the act of the collusion in this case constitutes a limited number of bidding products, which are small and medium enterprise owners, and thus, it is difficult to view that the Plaintiff’s act of the collusion in this case’s implementation of due process, such as the amendment of due process law, such as 's demand for free bid.

3) Whether the application of law is unlawful

A) In principle, whether an administrative disposition is lawful shall be determined on the basis of the relevant statutes and facts at the time when such administrative disposition was taken place (see, e.g., Supreme Court Decisions 80Nu412, Dec. 8, 1981; 83Nu383, Dec. 13, 1983; 86Nu63, Jan. 20, 1987; etc.). The instant disposition is subject to the applicable law at the time of the act, since it is a restrictive administrative disposition for which acquisition of participation eligibility is revoked between small and medium entrepreneurs, and it is a "disposition restricting acquisition of participation eligibility for six months". Article 4 [Attachment 1] [Attachment 1] 3 of the Enforcement Rule of the Act on the Promotion of Purchase of Small and Medium Enterprises and Support for Development of Agricultural Products (hereinafter referred to as the "Enforcement Rule of the Sales Support Act"), and Article 8(3)3 of the Act provides for the criteria for disposal of participation in a new disposition for 10 months after its implementation.

The facts that the instant collaborative act had existed from July 201 to May 24, 2016 are as seen earlier. As such, (i) from July 2011 to April 27, 2016 among the instant collaborative act, Article 8(3)3 of the former Act on the Support of Development of Market, Article 4 [Attachment 1] 3A, and Article 4 [Attachment 1] of the Enforcement Rule of the Act on the Support of Development of Market, and (ii) from April 28, 2016 to May 24, 2016, Article 8(3)3 of the amended Act on the Support of Development of Market, Article 4 [Attachment 1] 3 of the Enforcement Rule of the Support of Development of Market, and Article 4 [Attachment 1] of the Enforcement Rule of the Support of Development of Market Act apply to the instant collaborative act (the Plaintiff’s assertion that the instant collaborative act occurred prior to the enforcement of the former Act on the Support of Development of Market. However, the Plaintiff’s assertion to the purport of the instant collaborative act is without merit.

B) As seen earlier, the Defendant only took the applicable provisions of Article 8(3)3 of the former Act as applicable provisions at the time of the instant disposition, but did not specify the applicable provisions of the Act separately at the time of the instant collusion. As such, it can be deemed that the Defendant disposed of all the instant collusion by applying the amended Act, which was enforced at the time of the instant disposition.

However, whether the former Act on the Promotion of Market Support and the former Act on the Promotion of Market Support should cancel the eligibility for participation in the event of an unfair act, such as collusion. Article 4 [Attachment 1] 3 of the Enforcement Rule of the former Act on the Promotion of Market Support provides that "in the event of an unfair act, such as collusion, the revocation of eligibility for participation, and restriction on the acquisition of eligibility for participation for six months," among the reasons for the disposition in this case, is consistent with the above discretionary rules. Even if the part to which the former Act on the Promotion of Market Support should apply is excluded, some of the reasons for disposition in this case should be subject to Article 8 (3) 3 of the former Act on the Promotion of Market Support, and the defendant should cancel the eligibility for participation to the plaintiff. Thus, it cannot be said that the issue of the disposition on the revocation of qualification for participation has changed depending on the application of the former Act on the Promotion of Market Support, even if the defendant applied the amended Act on the whole of the collusion in this case.

C) Therefore, the Plaintiff’s above assertion is without merit.

4) Whether the discretion is deviates or abused or abused

Even if the criteria for a disciplinary administrative disposition are prescribed in the form of Ministerial Ordinance, it has nothing to externally bind citizens or courts, and whether such disposition is legitimate or not must be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes, as well as the above criteria for disposition. Therefore, it cannot be said that the pertinent disposition is legitimate merely because it conforms to the above criteria for disposition. However, the above criteria for disposition do not in itself conform with the Constitution or Acts and subordinate statutes, or unless there are reasonable grounds to believe that the pertinent disposition is considerably unreasonable in light of the contents and purport of the relevant Acts and subordinate statutes and the contents and purport of the relevant Acts and subordinate statutes, it shall not be deemed that the pertinent disposition goes beyond the scope of discretion or is abuse of discretionary power (see, e.g., Supreme Court Decision 2007Du6946, Sept. 20, 2007).

Comprehensively taking into account the following circumstances, which can be recognized by comprehensively taking into account the facts admitted as seen earlier and the purport of the entire pleadings, the instant disposition cannot be deemed to have exceeded and abused discretion by violating the principle of proportionality. Therefore, the Plaintiff’s assertion on this part is without merit.

A) The instant disposition conforms to the sanctions prescribed in Article 4 [Attachment 1] 3 of the Enforcement Rule of the Act on the Support of Market Development. Article 8(3)3 of the former Act on the Support of Market Development and the amended Act provides that "unfair acts, such as collusion, other than "act leading to collusion" shall be subject to sanctions. Article 4 [Attachment 1] 3 of the Enforcement Rule of the Act on the Support of Market Development provides that "Revocation of Qualifications for Participation" and "six months of the period of restriction on the acquisition of qualifications for participation, regardless of whether the plaintiff led collusion, shall be subject to the disposition standards concerning the case of unfair acts, such as collusion." Thus, even if the plaintiff did not lead collusion, there is no difference in the application of these physical division standards.

B) Furthermore, in order to form and maintain the framework for the instant collaborative act, executives and employees of the instant member companies held meetings, such as the instant working-level council, etc., on a regular basis, allocated the membership and quantity to be awarded a successful tender by case of public announcement of tender, and the successful bidder was awarded a contract for the purchase of government-level PHc file by means of collusion, such as requesting a bid at a bid price, and conducting a bid at an amount exceeding the bid price of the successful bidder. Therefore, even if the instant association was in a serious mind and formed the framework for the instant collaborative act, in light of the aforementioned active attempt and method of collusion, the instant member companies can be deemed to be all the persons who led to the instant collaborative act.

C) In particular, even though the State granted preferential treatment to designate phc files as competing products with a view to supporting the competitiveness improvement and management stability of the member companies of the instant case, which are small and medium enterprises, the instant collaborative act is a case where the instant member companies, including the Plaintiff, abuse them and obtain unfair profits by systematically and systematically collusion over several years. Therefore, there is a high possibility of criticism, and there is a need to impose strict sanctions thereon.

D) The need for public interest to ensure fair enforcement of competition by restricting participation in tendering for a certain period of time to a person who has committed a collusion in tendering, and to prevent disadvantages suffered by public institutions, is greater than the economic disadvantage suffered by the Plaintiff due to the instant disposition.

E) In the case of a local demand center due to excessive transportation costs, etc., the 'specific circumstances in the government-funded phc file bidding' asserted by the Plaintiff should be resolved through the normal process of competitive bidding, such as retenders through changes of trading conditions, etc. after a failure to exhaust all the time, a negotiated contract, etc. after a failure to exhaust all such circumstances. Therefore, the instant collaborative act cannot be justified on the grounds of such circumstances.

5) Sub-committee

Therefore, the instant disposition is unlawful and lawful without any justifiable reason alleged by the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.