지방자치단체 민간투자사업에 대한 최근 판례의 평가

Over recent years, private investment business was criticized to become a typical project that wastes money as the facts that demand overestimating and MRG issues, and the high rate of return caused social infrastructures to be poor and excessive preference was instead given to the concessionaires were identified. Therefore, some municipalities such as the Seoul Metropolitan Government have conducted the capital restructuring that changed MRG(minimum revenue guarantee) into SCS(standard cost support) and completed it successfully. In the process of conducting the capital restructuring, disputes and lawsuits between the authority relevant and the concessionaire on application and interpretation of ‘Private Investment Act Relative to Social Infrastructure’ happened and the court’s rulings were recently made. Thus this paper introduces and evaluates recent court’s judgements(Seoul High Court May/30/2012, Seoul Administrative Court May/30/2013, Gwangju High Court Jan/09/2014) in order to enable the local authorities to normalize the existing concessions. In the evaluation of the Seoul High Court’s judgement on May/30/2012, I point out that as for the type of litigation about concession period, party litigation is more desirable than appeal litigation. Despite of the Seoul Administrative Court’s judgement on May/30/2013, it can be illegal for the authority relevant to reject the fare report of concessionaire, if the concessionaire reports the fare under the lawful fare guideline of the authority relevant. Related to the Gwangju High Court’s judgement on Jan/09/2014, I interpret that the authority relevant can order dismissal of concessionaire executives as well as cancellation of concessionaire according to the supervising power, if concessionaire violates the “Private Investment Act relative to Social Infrastructure” and imperatives of the authority relevant based on the act. I hope that the ongoing court’s judgements on application and interpretation of ‘Private Investment Act Relative to Social Infrastructure would be introduced as soon as possible so that the authorities relevant can normalize the existing private investment projects by utilizing them early.