‘법과 개발’의 관점에서 본 공공조달법제의 현황과 과제

'Law and Development(L&D)' is a term usually used to describe legal assistance programs for developing countries and related academic works. Researching public procurement law in L&D context is meaningful in that this regime is essential basis for economic development. For this reason, international institutions, such as World Bank, OECD, UN, are making efforts to assist the reform of public procurement law in developing countries. We can learn some lessons from these discussions. First, recently, Korean public procurement law is focusing on enhancing efficiency rather than on transparency. MAS(Multiple Award Schedule) is typical example of this trend. From the arguments in international society, we can learn that enhancing efficiency should be based on transparency in public procurement. Second, Korean Supreme Court deems public procurement contract principally as a private law contract. But for the long-term development of this regime, we should carefully consider the public law element in public procurement contract. While more emphasis was laid upon the public law particularity in contract 'formation' stage traditionally, we should also consider the public law element in contract 'administration' stage. Third, when we see the development stage of Korean economy, using the public procurement as a active means of industrial policy is not wise choice. Because it tends to degrade the efficiency of public procurement itself. However, using the public procurement as a tool for environmental or technological policy can be evaluated meaningful when we consider the importance of 'sustainable development' and 'critical role of technological innovation in highly sophisticated economy'. From the international discussions and the history of Korean procurement law, other developing countries can learn following lessons. First, emphasis in procurement law was shifted from transparency to efficiency in Korea. MAS implementation in Korea shows the good example that efficiency cannot be attained without guaranteeing transparency. Second, Korea is making effort to attain both goals(transparency and efficiency), but in some aspect it was not successful. It is due to the lack of viewing the public procurement in public law perspective. Developing countries should view the public procurement as a essential regime for strengthening transparency and efficiency of public financial law-as a branch of public law. Third, Korea used public procurement as a tool for protecting small and medium sized companies in early industrialization period, although this policy is criticised recently for harmful effect to efficiency in public procurement. Certain form of industrial policy can be evaluated beneficial to some developing countries depending upon their economic development stage.