소위 ＂공익사업법＂상 협의취득의 법적 성질 - 대상판례 : 대법원 2006. 10.13. 2006두7096 건물철거대집행계고처분취소 -

From a point of spirit of the legislative which regulate administrative contract, if the administrative contract mainly take aim at public interest, it shall belong to the public law(namely "public law contract") on the following ground; First, Public interest takes precedence of private interest in connection with §37 ② Constitution. Second, any administrative contract shall stay within the boundary of legalism as possible, because current constitution exceptionally approves administrative contract to ensure the participation of citizen in the administrative process under the representative system. Finally, in comparison with right relief procedures, current administrative litigation system, which adopt inquiry by virtue of judge, easy system of provisional relief, very strict administrative proxy execution procedure and so on, is more convenient for citizen and friendly with human right than civil litigation system. Therefore, it is reasonable and consistent with the spirit of the so-called "Public Utilities Act" to conclude that the contract of land acquisition by agreement for public interest belong not to civil law but to public law. Considering that §3 supplementary provisions of "the Public Utilities Act", "any disposal․procedure and the others taken under the late act are considered to be taken under the correspond provisions of this act", do not exclude the written promise to remove the built voluntary and the duty to remove the built voluntary due to the written promise, it is reasonable to conclude that the duty due to the written promise belong to the duty of current law, namely public law duty based on §89 "Public Utilities Act".