EU법의 부정당업자제재제도에 대한 연구

Disqualification system in Korean public procurement is heavily criticized in many aspects, and two crucial critics are as follows: 1) this sanction does not attain its intended purpose effectively, 2) this sanction is not proportionate to misconduct of enterprises. To address these issues, comparative analysis of disqualification system between foreign and domestic one is necessary, and this paper deals with disqualification system in European Union (EU) Law which has limited literature. Three main features of disqualification system in EU Law can be indicated. First, EU Public Procurement Directive distinguishes ‘mandatory exclusion’ ground and ‘discretionary exclusion’ ground. The former requires final judgement of the criminal court in principle, while the latter only requires procuring agencies investigation result by appropriate means. Second, 2014 EU Public Procurement Directive adopts ‘self-cleaning system’ which exempt disqualification from bidding when an enterprise proves rehabilitation activities such as compensation for damages or disciplinary action against misbehaved staffs. Third, maximum time limit to disqualification is three years of five years in principle, although wide discretion is allowed to EU Member States to decide on this issue. EU disqualification system shows many implications for improving Korean disqualification system in public procurement. Based on these lessons, Korean disqualification system should improve compatibility with principle of proportionality and enhance effectiveness of the sanction.