부정당업자에 대한 입찰참가자격제한과 법률유보원칙 ― 입찰참가 제한범위 확장을 중심으로 ―

When there is the disqualification of an contract authority, the range of restrictions to other authorities to increase the effectiveness of the sanctions. But except a few cases, almost all restrictions are based on sub regulations without statutes, So the ploblem of non-delegation doctrine arises. Recently the judgment of the korean lower court said that the restrictions based on sub regulations without statutes violate non-delegation, but the Supreme Court ruled that the disqualification measure of the Contracting Authority is separated from bidding participation restriction of the other authorities and did not make a direct judgment as to whether statutory grounds are required for expanding the scope of the restriction and whether non-delegation doctrine is violated. On the other hand, the Supreme Court ruled that the public procurement contracts were basically civil contracts, but the qualifications was administrative measure and under the scope of administrative litigation. It was mainly because the restriction effect of the qualifications was expanded to other authorities. But recently the Supreme Court ruled that the restriction to other authorities was not related with the qualifications, so a new standard was required for the legal character of restrictions to other authorities. The Constitutional Court has the position that if there is a legal obligation for the contract authority to conduct a bidding procedure with transparency and fairness in a competitive bidding system, the company has the freedom of business, and in the lower trial, if the public institutions with the obligation of competitive bidding limited the participation of bids only for that institution for a certain period, that limitations were recognized as administrative measures. In such a situation, it can not be assumed that a contracting authority’s restriction of participation in bidding only to that authority is just civil notice. It must be admitted as an administrative measures that restricts the freedom of business to participate in open competitive bidding and such a restriction must comply with non-delegation doctrine. In particular, from the viewpoint of the effectiveness of sanctions of disqualified companies, the range of restriction has been expanded without consideration of non-delegation doctrine in individual statutes or the electronic procurement system. However, since the scope of restriction falls under the essential content of sanctions, comprehensive and systematic examinations should be conducted at the legislative level, and therefore it is necessary to review and improve the expansion of the restriction range from the viewpoint of non-delegation doctrine.