입찰참가자격제한처분의 이면에 관한 연구

It is taken for granted that the Restriction on Eligibility for Participation in Tendering (hereinafter “REPT”) is an administrative disposition in Korea. However, what has been overlooked is the effort to offer a theoretical basis to support the rather contradictory situation where REPT, tantamount to nonperformance of a state contract, which is a private law contract, is deemed the object of an administrative disposition. Deeming a state contract to be a private law contract leads to the proposition that the state or a local government too, as a party to a transaction, has the freedom to choose its counterparty. Being blinded by REPT’s nature as an administrative disposition would dictate that the state strictly apply the grounds of disposition, thereby assuming the risk of having to go forward with a transaction with a counterparty in whom it has already lost confidence along the contractual process. Against this backdrop, this paper is aimed at the following: (a) reveal that REPT features a special status relationship between the state and the contracting party, as its basis implies a contractual relationship on the other side of the positive law; (b) posit that there are reasons to treat REPT differently from general administrative dispositions, backed up by differences in such areas as the interpretation of the grounds of administrative disposition, the application of discretionary exercise rules, and the allocation of burden of proof; (c) based on its nature as a private law contract, the counterparty of REPT should go beyond the nominal contractor to reach the person liable for civil responsibility; (d) point out that the provisions under the Act on Contracts to Which the State is a Party dictating all public institutions to impose an automatic and across-the-board restriction on the eligibility for participation in tendering for the reason that a given contractor falls under a single ground of disposition might risk constituting a joint refusal of transaction in violation of the Monopoly Regulation and Fair Trade Act (hereinafter the “Fair Trade Act”); and (e) identify the problems associated with suspension of effect, which is relatively easily granted in REPT litigations, and propose ways to address them. By so doing, this paper seeks to strike an optimal balance of interests between the state’s attainment of its administrative goals, on the one hand, and the contracting parties’ freedom of business, on the other.