(영문) 서울행정법원 2017.8.18. 선고 2016구합83372 판결

On December 5, 2016, the Defendant revoked the Plaintiff’s disposition on December 5, 2016 regarding the revocation of qualification for participation in competitive tendering process open only to small and medium entrepreneurs and six months restriction on acquisition

Reasons

1. Details of the disposition;

A. The Plaintiff is a corporation that runs the production and sales business, etc. of BB and B; C was the representative director of the Plaintiff from March 2008 to October 1, 2016; D is a business-related director who has been in charge of the Plaintiff’s business and bidding business from around 1997 and from around 197.

B. The E Association (hereinafter referred to as the “Association”) consists of 17 companies including the Plaintiff producing B (the Plaintiff, F Co., Ltd., G Co., Ltd., H, I Co., Ltd., H, J Co., Ltd., K Co., Ltd., K Co., Ltd., Ltd., L Co., Ltd., Ltd., M Co., Ltd., Ltd., 00, P Co., Ltd., QR Co., Ltd., Ltd., S Co., Ltd., Ltd., T., Ltd., Inc., Inc., Ltd., and U.S., Inc., Ltd.

C. From July 201 to May 24, 2016, the Plaintiff: (a) had the instant association and the instant member companies enter into the bid for government-grade B purchase (hereinafter “instant bid”); (b) had the instant association and the instant member companies choose a successful bidder in advance (the instant association or the instant member companies); and (c) deposited the bid in the bid at a higher price than the pre-determined bid price; and (d) had the remainder companies receive the successful bidder by the method of not participating in the pertinent bid; or (e) had the authority awarding the contract publicly announced in the initial limited competition method not to select the successful bidder in excess of the pre-determined bid price; and (e) had the specific company receive the contract by a negotiated contract after converting the contract method into the negotiated contract method (hereinafter “instant collaborative act”).

D. On September 21, 2016, in collusion with the representative director, etc. of the instant member company, C, and D were sentenced to imprisonment for one year, three years of probation, and two years of probation (Seoul District Court Decision 2016Da4187, 5376, hereinafter referred to as "the instant criminal judgment") and two years of probation (hereinafter referred to as "the instant criminal judgment"), and C and D appealed appealed against the instant judgment, but they were sentenced to a judgment of dismissal on February 3, 2017 by the appellate court (Seoul District Court Decision 2016No3816,316, 639, and 639).

E. On December 5, 2016, the Defendant issued a disposition to revoke the Plaintiff’s eligibility to participate in competitive tendering process open only to small and medium enterprises and restrict the Plaintiff’s acquisition of participation eligibility (hereinafter “instant disposition”) for six months (from December 8, 2016 to June 7, 2017) on the ground that the instant collaborative act committed by the Plaintiff constitutes “the case where the Plaintiff committed an unfair act, such as collusion,” as stipulated in Article 8(3)3 of the Act on Promotion of Purchase of Small and Medium Enterprises and Support for Development of Markets.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, 2, Eul evidence 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(i) the first argument;

In order to impose administrative sanctions, even if the different types of dispositions were to be prescribed by the amendment of the statutes after the relevant violation, they should be imposed on the basis of the statutes that were enforced at the time of the violation unless there exist special provisions on the application of the statutes, and thus, the Defendant should have exercised appropriate discretionary authority in accordance with Article 8(3) of the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Support for Development of Market Markets (amended by Act No. 10504, Mar. 30, 201; hereinafter referred to as the “former Sales Support Act”) which was enforced at the time of the instant collaborative act.

However, the Defendant’s disposition was unlawful since it applied Article 8(3) of the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Support for Development of Market Support (amended by Act No. 13866, Jan. 27, 2016; hereinafter “the Sales Support Act”) that stipulates that the Defendant’s eligibility for participation in competitive tendering process open only to small and medium enterprises shall be revoked, without exercising discretionary power, by applying Article 8(3) of the former Act.

(ii) the second argument;

A) Due to the characteristics of B, it is difficult for public institutions to supply all of the small and medium enterprise owners who requested B to supply the small and medium enterprise through competitive tendering process open only to small and medium enterprise proprietors. Nevertheless, public procurement contracts related to B with respect to B were concluded by one small and medium enterprise owner to supply all the necessary products after concluding a contract on the relevant bidding. Therefore, in order to prevent the occurrence of a situation that B is excluded from competitive tendering process open only to small and medium enterprise proprietors because the competitive tendering process itself is repeated because there are no more than two bidders, or there are no more than two bidders, and eventually, there is a need for collusion between B manufacturers (the motive of the agreement).

B) In addition, the bid price B awarded in the bid in which the Plaintiff participated was not higher than that of the B supply price in the private supply market. The government supply demand in B since 2011, for which the instant collusion began, the supply price has increased, but the increase rate is a private demand for the pertinent period.

Since the supply price increase rate was lower than that of the instant collaborative act, it cannot be deemed that the supply price of the government-funded demand particularly increased due to the instant collaborative act, and the Plaintiff’s increase in the Plaintiff’s relevant business profits since 2011, which was due to the increase in B’s sales and the decline in the manufacturing cost, but is not due to the instant collaborative act, and otherwise, the Plaintiff’s profits derived from the instant collaborative act are excessive.

In light of the fact that there is no data to see that the bid price rate for the above bidding, the bid price rate for the above bidding, the bid price rate for the government-funded market (general competitive bidding) in which large enterprises participate, and the bid price rate are similar to the bid price rate and the bid price rate, so it cannot be deemed that the instant collaborative act had influenced bid rate and the bid bid price rate, etc., it shall be deemed that the instant collaborative act did not cause losses to the end-user institution

C) In addition to the above motive of the collusion, the result of the collusion, and the fact that the E Union merely led the collusion and did not actively participate in the collusion, and that the Plaintiff is likely to suffer enormous damage to the instant disposition, it is highly likely that the instant disposition is more infringed than the public interest to be achieved by the instant disposition.

D) Therefore, there is an error of law that deviates from and abused the discretionary authority in the instant disposition.

(iii) the third assertion;

separate from the Defendant’s disposition, the Administrator of the Public Procurement Service rendered a two-year disposition of restriction on participation in the instant collaborative act against the Plaintiff on September 1, 2016. Therefore, the instant disposition constitutes a disciplinary disposition that was conducted again as a ground for the same disposition, and thus, is unlawful.

B. Relevant statutes

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

C. Determination

1) Determination on the first argument

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 the administrative disposition was taken (see Supreme Court Decisions 80Nu412, Dec. 8, 1981; 80Nu412, Dec. 8, 198). However, in the case of a punitive administrative disposition, the legality of the administrative disposition should be determined on the basis of the relevant statutes and facts at the time of the unlawful act (see, e.g., Supreme Court Decisions 83Nu383, Dec. 13, 1983; 86Nu63, Jan. 20, 1987). The instant disposition is a punitive administrative disposition, “a small and medium enterprise owner’s qualification for participation in competitive bidding is revoked, and the acquisition of participation eligibility

Article 8(3) of the former Act on the Development of Agricultural and Fishing Villages provides that "the Administrator of the Small and Medium Business Administration may revoke the participation eligibility of small and medium business proprietors or suspend the participation eligibility for a period not exceeding one year if a small and medium business proprietor participating in competitive bidding falls under any of the following subparagraphs." The Administrator of the Small and Medium Business Administration may restrict the acquisition of participation eligibility within one year from the date of revocation of the participation eligibility."

Article 8 (3) of the Act on the Development of Agricultural and Fishing Villages stipulates that "the Administrator of the Small and Medium Business Administration may revoke the participation eligibility or suspend the participation eligibility for a small and medium business proprietor participating in competitive tendering procedures only in any of the following cases for up to one year: Provided, That in cases falling under any of subparagraphs 1 through 3, he/she shall revoke the participation eligibility." Paragraph (5) stipulates that "if the Administrator of the Small and Medium Business Administration cancels the participation eligibility, he/she may restrict the acquisition of participation eligibility within one year from the date of cancellation," and the above provision was enforced from April 28, 2016, and there was no separate transitional provision on the above provision in the Addenda.

On the other hand, Article 4 [Attachment 1] 3 of the Enforcement Rule of the Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Support for Development of Market Support (hereinafter referred to as the "Enforcement Rule of the Sales Support Act") provides that "in the case of unfair conduct, such as collusion, etc. under Article 8 (3) 3 of the Act, the revocation of the qualification for participation" and "six months during which the qualification for participation is restricted" (the above Enforcement Rule was amended by Ordinance of the Ministry of Knowledge Economy No. 193 on July 8, 201, and was not amended since July 1, 201).

The facts that the instant collaborative act had been from July 201 to May 24, 2016 are as seen earlier. As such, among the instant collaborative act, Article 8(3)3 of the former Act on the Support of Agricultural and Fishing Villages, Article 4 [Attachment Table 1] 3 A, and Article 4 [Attachment Table 1] of the Enforcement Rule of the Act on the Support of Agricultural and Fishing Villages, and Article 8(3)3 of the Act on the Support of Agricultural and Fishing Villages, and Article 4 [Attachment Table 1] 3 of the Enforcement Rule of the Act on the Support of Agricultural and Fishing Villages shall apply to the act from July 201 to April 27, 2016.

B) The facts that the Defendant was only the applicable provisions of the Act at the time of the instant disposition, and did not explicitly indicate the applicable provisions of Article 8(3)3 of the Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Development of Market Support, by distinguishing them from the time of the instant collusion.

However, Article 4 and [Attachment 1] 3 of the Enforcement Rule of the Act on the Development of Market Support, which was applied even at the time of the enforcement of the former Act on the Development of Market Support, provided that the revocation of participation eligibility and the restriction on the acquisition of participation eligibility for six months, and the defendant seems to have taken the instant disposition in conformity with the above discretionary rules. Thus, the mere fact that the defendant did not enter the former Act on the Development of Market Support in the instant disposition does not necessarily mean that the instant disposition was taken without exercising discretion.

C) Therefore, we cannot accept the Plaintiff’s above assertion on a different premise.

2) Judgment on the second argument

A) Facts of recognition

(1) The designation of competing products B between small and medium enterprises is designated as competing products between small and medium enterprises pursuant to Article 6 of the former Act on the Development of Markets, etc., and the defendant and other public institutions were given the opportunity to participate in the bid procedures for B purchase ordered by the public institutions such as the defendant only to small and medium enterprises. In particular, the purchase of B by entrusting the defendant with mandatory purchase by a public corporation and quasi-governmental institution pursuant to Article 44 of the Act on the Management of Public Institutions newly established on December 29, 2009, led

(2) Around April 2009, the member companies of this case, such as the working-level council, representative council, and W Council, established the operational rules of the B Working-level Council (hereinafter referred to as the "Operational rules of this case") consisting of B production companies at the time of the instant association, and consulted on the allocation of quantities and price maintenance in the supply market B including the supply market among the members companies. On a regular basis as the representative of the instant association, the working-level council (hereinafter referred to as the "working-level council of officers in charge of the instant member companies; hereinafter referred to as the "working-level council of this case"), representative council (the group of representative directors of the instant member companies), V committee, and W Council, etc., exchanged information on the monthly production and sales performance and inventory status of the instant member companies, maintained supply unit price in the government-funded market higher than the competing products among other small and medium enterprises, and conducted a joint reduction plan as a method of implementation, and checked the production volume of B by checking whether the supply unit complies with the implementation schedule.

All members of the instant working group including the Plaintiff participated in the instant working group. Among the working group councils of the instant working group, 10 companies, including Plaintiff, F, L, J, Q, K, U, U, H, and G (which were concurrently affiliated with the Seoul metropolitan area council and the Seoul metropolitan area council) and M were 10 companies, four companies, such as I, S, R, T, etc., and the Yong-Naman Council were affiliated with five companies, such as P,O, N, H, and G.

(3) The method of the instant collusion

(A) In relation to the government-grade B purchase bid, the instant member failed to determine the level of successful bid price by taking into account the activity areas, production and inventory volume, bidding eligibility points, etc. of the members, and then failed to enter into a negotiated contract. The members, other than the successful bid-holder and the bidder, did not participate in the pertinent bid, and the members, other than the bidder, failed to enter into the bid in the form of “intest, single bid, and bid exceeding the estimated price” in order to enhance the basic amount publicly notified by the agency awarding the contract, so that a specific member can enter into a negotiated contract.

(B) Specifically, in the event of a bid of at least one billion won, a joint contractor shall be organized, and the bid price shall be awarded in the name of the partnership of this case, and the partnership of this case shall be divided into the share of the joint contractors, and the bid price shall be allocated to the members of the partnership of this case who are not qualified for bidding due to statutory management. ② In the case of a bid of at least one billion won, a joint contractor shall be organized and the principal contractor shall be selected and appointed to participate in the tender under the name of the principal contractor. The principal and the principal shall be designated and allocated to each company. ③ In the case of a participation in the tender in the name of an individual company without a joint contractor, a company located close to the construction site due to the cost of transportation shall

(C) 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 then the first instance decision on whether to participate in the final tendering procedure for each case by consulting with other companies at the instant working-level council, and the instant working-level council determines that a specific member is a successful bidder for a specific B supply case, the member shall request a routing bid by notifying the routing company of its bid price or the amount of the routing bid price in color among other member companies, and the routing company shall accept the relevant contract by conducting a routing bid in excess of the bid price of the routing company.

(D) 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.

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

B.1. Coordination of the fair enforcement system and reasonable prices by mutual consultation; 2. Joint response to monitoring of unfair acts and unfair bidding practices; 4. Where the companies producing all acts for the stabilization of the B industry have committed an act in violation of the objectives of Article 2, the Council shall deal with the matters to be decided jointly by the resolution of the Council (Article 6). 1. 2. Round, the companies shall be held to the relevant representative director at the time of detection of the act of violation; 3. 4. The companies shall be held to be held to hold the same order of priority in bidding (Article 7. 1) and shall be held to be held to be held to be held at the latest two-thirds or more of the companies (Article 4). The companies shall be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held to be held.

(5) In the act of collusion in this case, the Plaintiff was awarded the bid price of KRW 54,712,30,530 in the bid of this case, including the Plaintiff’s successful bid, and the bid price of KRW 54,712,30 in total, 308,530 in accordance with the method of the act of collusion in this case. The Plaintiff was awarded the B right to receive the successful bid price by participating in the principal agent or joint contractor, and the bid price was allocated to KRW 32,115,869,952.

[Reasons for Recognition] Judgment of Non-contentious Facts, Gap evidence Nos. 12, 13, Eul evidence No. 3, and whole pleadings

(1) Whether a punitive administrative disposition exceeds the scope of discretion under the social norms or abuse of discretionary power ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the offense committed as the ground for the disposition, the public interest to be achieved by the relevant disposition, and all relevant circumstances. In this case, even if the criteria for the punitive administrative disposition are prescribed in the form of Ordinance, it is nothing more than that prescribed by the internal administrative agency’s internal rules for handling affairs, and it is not externally binding upon citizens or courts, and whether such disposition is legitimate or not should be determined in accordance with the relevant Acts and subordinate statutes, not only the above criteria for disposition but also with the contents and purport of the relevant Acts and subordinate statutes. Thus, it cannot be said that the pertinent disposition is legitimate merely because it conforms to the above criteria for disposition. However, unless there are reasonable grounds to believe that the sanction administrative disposition in accordance with the above criteria does not conform with the Constitution or laws, or that it abused discretion in light of the content and purport of the relevant Acts and subordinate statutes (see Supreme Court Decision 2007Du69646, Sept.

(2) According to Article 8(3)3 of the Act on the Development of Market Support, where a small and medium enterprise engaged in unfair conduct, such as collusion, the defendant shall revoke the qualification for participation in the competitive bidding conducted by small and medium enterprise owners, and pursuant to Article 8(5) of the above Act, the defendant may restrict the acquisition of participation eligibility within one year from the date of revocation of the qualification for participation. Article 8(3)3 of the former Act on the Development of Market Support may, where a small and medium enterprise engaged in unfair conduct, such as collusion, the defendant may cancel the qualification for participation or suspend it within one year, and may restrict the acquisition of participation eligibility within one year from the date of revocation of the qualification for participation, and Article 4 [Attachment 1] 3 of the Enforcement Rule of the Act on the Development of Market Support shall restrict the acquisition

In light of the following circumstances, it is difficult to see that the above disposition standards per se do not conform with the Constitution or laws, and in light of the aforementioned facts, there is no reasonable ground to believe that the instant disposition, which was taken in compliance with the above disposition standards, is considerably unreasonable in light of the content of the offense constituting the grounds for the disposition, and the content and purport of the relevant statutes, and thus, it cannot be deemed that the instant disposition violates the principle of proportionality or deviates from and abused discretion. Accordingly, the Plaintiff’s assertion

(A) The instant collusion is an act that has influenced or is highly likely to affect the decision of the terms and conditions of transaction, such as successful bid price, since it is intended to induce a private contract by excluding the external shape competition from a bid, or there is an external competition by excluding the external shape, but it is now implemented by a certain company by prior agreement to become a successful bidder.

In addition, the instant collaborative act was organized over a long period, and the degree of the Plaintiff’s participation in the instant collaborative act is not less and less likely to gain profit therefrom (the Plaintiff could supply B equivalent to the total bid price or supply price of KRW 92.8 billion to the government-funded market due to the instant collaborative act).

Therefore, the Plaintiff’s abuse of the designation of competing products between small and medium enterprise proprietors B to significantly undermine the fairness of bidding. Therefore, there is a lot of possibility of criticism on the instant collusion act.

(B) If B is a competitive product open only to small and medium entrepreneurs and the supply company is limited to the member companies of this case, which are small and medium enterprise owners, even if the production capacity of the member companies of this case is limited, and it is difficult to supply various specifications B to the consumers, and considering the special circumstances of supply B in the government-funded market asserted by the Plaintiff, such as the fact that the member companies engaged in production activities should be supplied in the local area due to the conditions such as transportation costs, etc., even though the local demand places are more limited, the problems arising from such circumstances should be resolved through the normal process of competitive bidding, such as retender through changes in the transaction conditions after the failure, a negotiated contract based on due process after a certain number of failure, etc., so the act of excluding competition is not justified.

(C) The instant member companies had consulted on the allocation of volume and price maintenance in the “B supply market” including the “B supply market” and exchanged information on the monthly production and sales performance and inventory status of B between the members, and cannot be deemed to have caused unfair results in collusion in the government supply market compared with the B supply price in the private supply market.

In addition, B is supplied with very diverse kinds of varieties in the market according to strength, old competition, length, etc., and the supply conditions, including the kind, quantity, etc. of B subject to the bid, are very diverse for each bidding. Thus, it cannot be deemed that the instant collusion act did not affect the successful bid price or did not impair the fairness of bidding, on the sole basis of the following: (a) simply without specific comparison with the supply conditions, etc., the 'B successful bid price in the instant bidding and the average price in the private-class market; or (b) there is no big difference between the bid price and the bid price at the government-class market (general competitive bidding) in which a large enterprise participated.'

3) Judgment on the third argument

In addition to the statement in Gap evidence No. 15, on the ground that "the Administrator of the Public Procurement Service committed the instant collusion" on September 1, 2016, on the ground that "the Plaintiff committed the instant collusion," Article 27(1) of the former Act on Contracts to Which the State Is a Party (Amended by Act No. 14038, Mar. 2, 2016; hereinafter "former State Contracts Act"); Article 76(1)7 of the former Enforcement Decree of the Act on Contracts to Which the State Is a Party (Amended by Presidential Decree No. 27475, Sep. 2, 2016); Article 76(1) [Attachment 2] of the former Enforcement Rule of the Act on Contracts to Which the State Is a Party (Amended by Ordinance of the Ministry of Strategy and Finance No. 573, Sep. 23, 2016); Article 9(1) [Attachment 9] of the former Enforcement Rule of the Act on Contracts to Which the State Is a Party.

① However, the former State Contracts Act, which is the basis of the instant disposition, aims to contribute to improving the competitiveness of small and medium enterprises and stabilizing their management by facilitating the purchase of products of small and medium enterprises and supporting markets (Article 1). However, the former State Contracts Act, which is the basis of the instant disposition, aims at facilitating the smooth performance of contracting affairs by providing for basic matters regarding contracts to which the State is a party (Article 1). The instant disposition and the disposition of restricting the participation of small and medium enterprises under Article 8(3)3, etc. of the Act on the Promotion of Development of Agricultural and Fishing Villages, are different. ② The instant disposition under Article 8(3)3, etc. of the former Act on the Promotion of Development of Agricultural and Fishing Villages is to revoke or restrict the acquisition of the qualifications for participation of small and medium enterprises who are entitled to participate in competitive bidding. The above disposition of restricting the participation of small and medium enterprises under Article 27 of the former State Contracts Act is not subject to the restriction of participation in a contract to which the State is a party (Article 2 of the former State Contracts Act).

Therefore, we cannot accept the Plaintiff’s above assertion on a different premise.

3. Conclusion

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