2017Nu7663 Revocation, etc. of revocation of qualification to participate in competition.

A Stock Company

The Minister of SMEs and Startups

Seoul Administrative Court Decision 2016Guhap83563 decided October 13, 2017

March 30, 2018

April 27, 2018

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. The defendant shall revoke on December 8, 2016, both the cancellation of the qualification to participate in competitive tendering process open only to small and medium entrepreneurs and the restriction on the acquisition of qualification to participate (six months)

1. Quotation of the first instance judgment

The reasoning of the judgment of this court concerning this case is as stated in the reasoning of the judgment of the court of first instance, except where the plaintiff or the plaintiff added a judgment on the argument in the trial below, and thus, this court cited it as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure

However, all of the parts described as "Defendants" shall be filled by the Administrator of the Small and Medium Business Administration.

2. Parts to be dried;

○ Judgment of the first instance court 2 8 to 14 lines shall be drawn up as follows:

B. A cooperative (hereinafter referred to as the "cooperative of this case") is a non-profit organization consisting of 47 small and medium enterprises producing concrete products, such as telegraph, fume, phc file, etc. The cooperative members producing phc file are 17 companies including the plaintiff (the plaintiff, B, D, E, F, G, H, H limited liability company, I, J, K, K, L, M, N, P, P, P, P, Q, Q, R, and limited liability company; hereinafter referred to as the "member company of this case"), and each company is specified as the "stock company" and the "limited liability company".

3. The judgment on the additional assertion

A. The plaintiff's assertion

Among the instant collusion acts, it is unlawful that the Defendant included a bid without the authority to dispose of the Defendant, but the Defendant’s disposal reason is illegal. Article 8(3)3 of the former Act on the Development of Agricultural and Fishing Villages provides that “In the event a small and medium enterprise owner participating in competitive bidding among small and medium enterprises, such as collusion, can be revoked.” As such, “in the event a small and medium enterprise owner does not participate in competitive bidding among small and medium enterprises” does not constitute grounds for disposition, the Defendant included a reason for disposition. The instant collusion acts 1,360 cases subject to disposition include the case where the Defendant entered into a contract by means of collusion in general bidding rather than competitive bidding between small

B. Determination

1) In light of the following circumstances, the meaning of “where a small and medium business proprietor participating in competitive bidding among small and medium business proprietors has committed an unfair act, such as collusion” under Article 8(3)3 of the former Act and Article 8(3)3 of the former Act should be construed as “where a small and medium business proprietor participated in competitive bidding directly among the small and medium business proprietors and has committed an unfair act, such as collusion,” but it includes not only the case where “in the event of having participated in competitive bidding directly among the small and medium business proprietors and conducted an unfair act, such as collusion,” but also the case where a certain person has committed an unfair act

① Article 8(3) of the former Act on the Support of Market Development and Article 8(3) of the former Act on the Support of Market Development provide that “In cases where a person commits an unfair act, such as collusion, due to the revocation or suspension of eligibility for participation (Article 3),” other than “in cases where a person has acquired eligibility for participation by fraud or other improper means (Article 1(1)1),” “in cases where eligibility for participation has been lost (Article 2(2)2),” and “in cases prescribed by Presidential Decree as inappropriate for participation in competitive bidding among small and medium entrepreneurs (Article 4).” The above provision cannot be deemed as a provision premised on a small and medium entrepreneur who participates in competitive bidding among the small and medium entrepreneurs

It is not necessarily premised on the direct participation in competitive bidding between small and medium entrepreneurs, even in the case of "unfair conduct, such as collusion," under subparagraph 3 of the same paragraph.

② Unlike the fact that Article 76(1) of the Enforcement Decree of the Act on Contracts to Which the State Is a Party stipulates the subject of restrictions on bidding participants as "contractors, bidders, or persons who submit estimates using the Electronic Procurement System", Article 8(3) of the former Act on Support of Development of Market Organizations and the amended Act provides that a small and medium entrepreneur who participates in a competitive bidding between small and medium enterprises and small-medium enterprises has engaged in an unfair act, such as collusion, and thus, it is more widely recognized as subject to disposition than the Enforcement Decree of the Act on Contracts

③ In order to achieve the legislative purpose of the Act on Supporting Development of Market which intends to promote the purchase of products of small and medium enterprises and support markets to contribute to the enhancement of competitiveness of small and medium enterprises, it is necessary to take measures such as cancelling and suspending eligibility to participate in competitive bidding by applying Article 8(3) of the former Act on Supporting Development of Market Support and the former Act on Supporting Development of Market Support even in cases where not only small and medium enterprises engaged in direct bidding through collusion but also certain enterprises engaged in illegal acts such

2) According to the evidence Gap evidence No. 1, while rendering the instant disposition, the defendant stated that "the act of the parties to the instant disposition constitutes "the act of unfair conduct, such as collusion," as stipulated in Article 8 (3) 3 of the Act on the Promotion of Development of Market Organizations," the defendant appears to be the grounds for the instant disposition, since it appears that "the act of the parties to the instant collaborative act constitutes "the act of unfair conduct, such as collusion," in the process of participating in the tendering procedure, by means of concrete files (the name of three parts: 2010280201) designated as the item for direct purchase of competing products and construction materials among small and medium enterprisers."

Meanwhile, in the case of Seoul Central District Court 2016Kadan4187,5376 (Consolidated), the Plaintiff’s representative director S et al. recognized interference with bidding as to the entire act of collusion in this case. Of the collusion in this case, 116 cases where the Plaintiff directly participated in bidding and received a successful bid or was awarded a successful bid by organizing a joint supply and demand organization. There are several cases where the contract amount was allocated according to the portion of successful bid in the name of the association in this case, and the total amount of the Plaintiff’s successful bid amount including all of them reaches 65.4 billion won. In other cases except the case where the Plaintiff was awarded a successful bid as a sole or joint supply and demand organization or where the association of this case was allocated with shares after the successful bid was awarded, the Plaintiff did not act of collusion in this case with other members except the company of this case by the method prescribed by the operating rules of this case or the discussion of the working group of the members of this case, and the agreement was executed. According to the above facts, the Defendant’s act of collusion in this case cannot be deemed unlawful.

3) If the purport of the entire pleadings is added to the statements in Gap evidence 29, Gap evidence 30, Eul evidence 32, Eul evidence 1, 2, and 3, the Phc file is designated as a competing product for small and medium enterprises under Article 6 of the Act on the Development of Agricultural and Fishing Villages, and only small and medium enterprises prescribed in the Act on the Development of Agricultural and Fishing Villages designated as a competing product for small and medium enterprises under Article 6 of the Act on the Development of Agricultural and Fishing Villages are allowed to participate in the procedures for the purchase of Phc file ordered by public institutions

Meanwhile, according to the evidence No. 33, it is recognized that F, a member company of the instant case, entered into a contract through a non-disclosure negotiation, not through a competitive bidding, on August 10, 2015 and December 29, 2016, on two occasions. However, if the purport of the entire pleadings is added to each of the evidence Nos. 29, 30, A No. 32, B No. 1, 2, and 3, it can be recognized that the member company of the instant case did not intentionally respond to, or independently respond to, the contract publicly announced by the initial limited competitive bidding method and had the ordering agency change the contract method by a private contract method and interfere with the bidding by a specific company, etc., and this constitutes a ground under Article 8 (3) 3 of the former Act on the Support of Development of and Support for Residents or the amended Act.

4) Even if some of the grounds for an administrative disposition are lawful, where the legitimacy of the disposition is recognized as the grounds for another disposition, such disposition cannot be deemed unlawful (see, e.g., Supreme Court Decision 2013Du963, Oct. 24, 2013).

Even if it is interpreted that "the case where the plaintiff committed an unfair act, such as collusion under Article 8 (3) 3 of the former Act on the Development of Market Support or the amended Act on the Development of Market Support is limited to the small and medium enterprises which directly participated in the competitive bidding, and the case of the above negotiated contract should be excluded from the subject, the act of collusion in this case, which is the ground of the disposition of this case, includes the act of collusion that constitutes a justifiable ground for disposition, such as 16 biddings, which was awarded a successful bid by the plaintiff. As such, in applying Article 4 [Attachment 1] 3 of the Enforcement Rule of the Act on the Development of Market Support based on only the collusion that the plaintiff received a direct bid, in light of the period, frequency, contract amount, contents and purport of the relevant laws and regulations, it cannot be deemed that the application of the "cancellation of the participation eligibility" and the "six-month period of restriction on the acquisition of participation eligibility" to the plaintiff

4) The Plaintiff’s assertion on this part is rejected.

4. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit, and the conclusion of the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed.

Judges of the presiding judge, Yang Sung-ju

Judges Kim Gin-han

Judges Mok-si

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 other party to the administrative disposition. Even though 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 the "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 in question and who has participated in the competitive bidding for the purpose of getting a specific person to be successful in the competitive bidding, and even if the act of interference in the establishment of competitive bidding itself by failing to participate in the competitive bidding results from the purpose of making a negotiated contract to enter into, it shall not be deemed as a "contractor or bidder".