계약자유의 관점에서 본 경쟁입찰의 문제점― 건설공사도급계약을 중심으로 ―

A competitive bidding is one of the way of contract that the state is a party. This could be a restriction to Liberty of Contract by forcing of certain method. Then it needs to examine whether the restriction is legal in the Civil Law. Following ‘Act on Contract that the State is a Party’, it is regulated that a successful bidder should be decided in order of who bidded for the lowest price. Lowest Bidding System is an outstanding example of such bidding. By the way Lowest Bidding System has a problem which is indirectly forced to orders received with a low price. So a bidder have to conclude a contract with loss. It is occurred to two problems, unfair exploitation of Article 104 Korean Civil Code and asymmetric information between contracting parties. And these are connected to a violation to Liberty of Contract. The common factor is that the price is the decisive factor in the bidding. Therefore the solution is needed. The one is that another factors are considered in the decision of successful bidder besides the price, and the other is that information exchanges are formed to be symmetric information by free dialogue between contracting parties. This can be made to an institutional form of Best Value Bidding System and Contract by Dialogue. This kind of institutional methods exclude a possibility of violation from Lowest Bidding System on free contract and can be approved as legal restriction of Liberty of Contract.