민간투자사업 관련 보상가능성에 대한 연구 - 우선협상대상자 지정취소시 보상여부와 범위를 중심으로 -

The present paper analyzes possibility and scope of compensation to a preferred bidder when a competent authority cancels Public Private Partnership project implementation. In this case, compensation can be justified from the law and economics perspective when the cost of compensation is outweighed by the benefit of reducing transaction cost through strengthening competition and facilitating stable negotiation. Since failed bidder is eligible for compensation of preparation cost, preferred bidder could be eligible for compensation by analogy if competent authority stops a project. Also preferred bidder in that case would resort to the clause of disposal by public interest in the Act of Public Private Partnerships by analogy. In setting the scope of compensation, decisions of the Supreme Court of Korea on pre-contractual liability gives some standard. Reliance interest should be the maximum of compensation. And reliance investment before and after designation as a preferred bidder should be considered. However, the above approach of analogy has explicit limitation. Hence we need to rectify relevant legal frameworks as well as policies. With clear compensation rule for preferred bidder, legal and financial risk on private party can be lessen.