독일의 부정당업자제재제도에 대한 연구

‘Act on the Contracts in which the State is the Party’ provides disqualification system for strengthening anti-corruption of vendors. However, there are critics that disqualification system does not efficiently prevent corrupt practices, and furthermore disqualification itself is not effective due to high success-rate of preliminary injunction. To address these issues, it is necessary to conduct comparative legal research. This paper see the law and practice of disqualification system in German public procurement law. Main characteristics of disqualification in German public procurement law are as follows. First, disqualification is divided into mandatory and elective one, and application of principle of proportionality is different according to this two types. Second, self-cleaning (Selbstreinigung) system is implemented when the vendor clarifies the facts, indemnifies the damage, and takes disciplinary measure to personnel who committed illegal acts. Third, disqualification gives effect to each procuring agency, but enlarged effect of disqualification to other procuring agency is recommended. Fourth, procuring agency’s discretion (Beurteilungsspielraum or Ermessenspielraum) is recognized in application of disqualification or self-cleaning, and limited control by civil court is allowed. Disqualification system in Germany gives many implications to Korea. First, mandatory disqualification and elective disqualification should be divided to manage disqualification system more compatible with the principle of proportionality. Second, self-cleaning system should be introduced in limited scope considering compliance culture of Korea. Third, the effect of disqualification should be limited to each procuring agency in certain trivial circumstances. Fourth, monetary sanction instead of disqualification and mitigating the period of disqualification should be reasonably controled by the court.