하도급법상 입찰참가자격제한 등 요청결정의 처분성과 회사분할시 제재사유의 승계에 관하여

Abstract

In the event of a company split, the Supreme Court ruled on April 27, 2023, regarding whether a new company or surviving company can be subject to sanctions (hereinafter referred to as “sanctions”), such as a request for restrictions on eligibility to participate in bidding, and restrictions on eligibility to participate in bidding. The target judgment was that the Fair Trade Commission (hereinafter referred to as the “Fair Trade Commission”) decided to limit the eligibility to participate in the bidding and request suspension for the company's violation of the Subcontracting Act. This is based on the subcontracting law's imposition of penalty points and the legal nature of the request decision, the status of accumulated penalty points, the company division process, the content of the split plan, the identity of the business sector transferred to the new company. The target judgment identifies the legal nature, requirements, and effects of the FTC's request for corrective action, penalty points, and bidding qualification under the Subcontracting Act, and reveals the meaning of public law rights and obligations transferred to the split company. The target judgment is also useful in that it can set a standard to distinguish between cases where public law obligations are specified enough to succeed and cases where there is no room for succession by comparing and considering the succession of reasons for restricting bidding participation. However, it is important to note that the reasons for the decision to request restrictions on bidding participation and whether or not to succeed to the reasons for restrictions on bidding participation depend on the provisions and facts of the relevant disposition. The target judgment is also meaningful in that it clarified the meaning of the disposition as the subject of an appeal suit in relation to the interim decision by confirming the disposition of the request decision on January 12, 2023 and February 2, 2022, such as the imposition of penalty points by the Fair Trade Commission and restrictions on bidding participation. Despite the target judgment, there are still a lot of things to be clarified about the meaning of the status under the public law transferred according to the division of the company, including the succession of reasons for sanctions, so follow-up research and discussion should be continued.