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(영문) 울산지방법원 2018.06.28 2017구합5892
부정당업자제재처분취소
Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Details of the disposition;

A. On August 7, 2014, the Plaintiff concluded a construction contract with the Defendant as follows:

(hereinafter referred to as “instant construction project”). The name of the Corporation: The name of the end-user institution of the Corporation: The representative contractor of the Defendant Ulsan District Corporation: the date of commencement of construction costs of KRW 308,716,100 for the Plaintiff: the date of completion of construction works on August 11, 2014: the rate of liquidated damages on December 10, 2014: 0.1%.

B. Meanwhile, at the time of concluding the instant construction contract, the Defendant’s general terms and conditions of the construction contract (as of January 14, 2014) included the following contents.

Article 42 (Approval, etc. of Subcontract) (1) Where the other party to a contract intends to subcontract part of the contracted construction to a third party, it shall be governed by the Acts and subordinate statutes, such as the Framework Act on the Construction Industry.

C. Around June 27, 2016, the Board of Audit and Inspection: (a) conducted an audit on Defendant Ulsan mountainous district; and (b) around February 3, 2017, notified the Defendant of the fact that the Plaintiff subcontracted the instant construction project to another business entity, such as C, in violation of Article 31(3) of the Information and Communication Work Business Act; and (c) notified the Defendant of the following measures.

On May 2, 2017, the Defendant issued a disposition of restricting the participation in a tendering procedure for six months on the ground that the Plaintiff constitutes “a subcontractor without the approval of the ordering agency” against the Plaintiff.

(hereinafter “Disposition of this case”). 【Disposition of this case’s ground for recognition of this case’s existence of no dispute, Gap’s 1, 5 through 9, and Eul’s 2 through 6, the purport of the whole pleadings and arguments.

2. Whether the disposition is lawful;

A. The Plaintiff’s assertion was merely supplied with materials from other companies, such as C, and did not participate in the construction except for the supply of materials by the above companies. Thus, the Defendant’s disposition of this case on a different premise is unlawful.

(b) as shown in the attached Form of the relevant statutes;

C. The evidence presented prior to the determination and evidence Nos. 3, 17, 30, 31, 35-1, 2, 38, and 1.

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