지방계약과 판례법- 사법상 계약, 공법상 계약, 처분의 구별을 중심으로 -

There is need to facilitate the enforcement of local government contracts to enable local autonomous bodies to flexibly and efficiently perform various administrative duties. To do so, a theoretical basis ought to be presented under administrative law for the development of an “institutional framework.” In reviewing judicial precedents handed down by the Supreme Court of Korea since 2012, this paper aims to closely examine external legitimacy that is permissible under the current legal order involving local government contracting activities. As noted in precedents, the Supreme Court has maintained the basic stance of deeming public procurement contracts as constituting “a contract under private law” in the context of including state contracts and local government contracts. Such established position means that contract-related disputes ought to be dealt with through instigation of a civil suit, not construed as the exclusion of judicial review. Provided, however, inasmuch as another Supreme Court precedent presents a rigid criteria for determining whether a contract is void, courts appear to be somewhat passive in providing remedy for unqualified competitors bidding to win a contract. The Supreme Court generally regards contracts other than public procurement contracts that are concluded according to a special law to constitute a contract under public law. In practice, the emerging issue is whether a notice of termination of such contract under public law may be regarded as the subject matter of appeal litigation. Of note, recent judgments handed down by the Supreme Court appear to be contradicting one another, when in fact the Court (a) deems a notice of contract termination as an exercise of superior public authority, thereby constituting administrative measures, in cases where relevant statutes provide for compulsory administrative measures, i.e., collecting government contributions, restricting participation in future projects, charging for compelling performance, and imposing fines, to compulsorily effectuate the legal effect (duty of restoration) that occurs upon the termination of a contract under public law while (b) presenting a clear determination standard that deems a notice of termination as an expression of intent by a contractual party in an equitable position in cases where the foregoing compulsory administrative measures are not stipulated under relevant statutes. Moreover, in other precedents, the Supreme Court distinguishes between “disposition restricting participation in tendering by unqualified bidders” and “notice of refusal to conclude contracts in the future” as prescribed in the State Contracts Act, Local Government Contracts Act, and the Act on the Management of Public Institutions based on two pivotal elements ― that is, whether external administrative disposition exists and whether the effect of a disciplinary measure is confined to restraint on transaction with the relevant public institution. In the realm of administrative litigation law, “distinction between contracts under private law and public law, and classification of administrative dispositions” is a common and typical theme that continues to evolve. Inasmuch as an administrative legal relationship ought to be pre-established in disputes regarding contracts under public law, issues pertaining to the conclusion of a contract (determination of winning bidder), refusal of contract conclusion, termination of contract, refusal of contractual change, etc. ought to be dealt with as the subject matter of appeal litigation via adopting Germany’s “two-step theory” or France’s “divisibility theory” rather than depending on party proceedings. Among domestic administrative legal scholars, there exist concerns and strong opposition as to the aforementioned issues (conclusion, termination or refusal of a contract, etc.) being regarded as administrative dispositions. However, such concerns may be considerably alleviated if dispositions under litigation law were not recognized as having official authority (namely, non-succession of flaw in administrative disposition and binding force of subsequent disposition) and the duty of compliance with dispositive procedures under the Administrative Litigation Act is deemed as having softened. The conundrum arising therefrom is distinguishing dispositions under litigation law and substantive law. A key determinant to setting a clear boundary is whether the competent administrative agency followed the necessary dispositive procedures (i.e., advance notice and opportunity to submit opinion) or equivalent thereof under the Administrative Procedures Act. Therefore, administrative agencies need to actively undergo such dispositive procedures in order to establish official authority (that is, establish administrative legal relationship in advance) and to be granted special authority to bar related parties from contesting a prior disposition during the process of issuing a subsequent disposition. This ensures the procedural legitimacy of an administrative action, which is not only desirable from a constitutional state perspective but also from the interest-based standpoint of administrative agencies. There are two readily available options that administrative agencies can choose from: (i) establish official authority by complying with the necessary procedures under the Administrative Procedures Act and providing the relevant party the opportunity to instigate a suit seeking revocation within 90 days, or (ii) avoid revocation suits and instead bear the brunt of party proceedings or civil suits that are likely to be instigated within five years. “Affirmative administration” is not only confined to the selection of legal structure but is also applicable to the resolution of disputes related to local government contracts. Rather than deviating from bringing the issue to the surface, ensuring administrative legitimacy and legal stability is more appropriate from both a legislative and administrative policy standpoint.