헌법적 문제로서 한국 정부조달제도의 몇 가지 이슈

There are not many domestic papers that discuss government procurement from the Constitutional perspective. It is because the judicial branch views government procurement regulations as internal regulations. Therefore it retains an administrative practice of viewing government procurement contracts as an area of private autonomy, which results in a lack of interest on constitutional implications of government procurement. However, the field of government procurement is an area that often experiences direct political intervention and policy changes. More specifically, if the constitutional law is the supreme law regarding fundamental rights, the government procurement law is a materialized form of the Constitution. In addition, taking into consideration of how human rights developed from the first generation into second and third generation human rights, the issue of how government procurement relates to the Korean Constitution should not be neglected. There are many constitutional issues to discuss regarding government procurement. This paper will first discuss an overview of the origin and assessment on why special attention should be given to the constitutional implications regarding government procurement. Next, this paper will discuss in detailed perspective of three constitutional issues. First, the issue of the reunification of Korean Peninsula. Peaceful reunification is a national task prescribed by the Constitution. Therefore, the process of reunification and the cost incurred after reunification should, in general, be appropriated through the government procurement system. This should be the general principle. This paper will review the example of legal issues that arose with operating the Kaesung Industrial Complex, which was a symbol of specialized effort in the course toward a reunification attempt, were resolved using government procurement law. Second, there is a need to establish a connection between international government procurement law and the Korean government procurement law, specifically regarding the issue of resolving conflicts. Therefore, if proper preparations are not taken, a confusion may arise within domestic legislations when international trade agreements are directly ratified, which gives rise to a need for protection against the principle of national treatment within specific fields. Finally, this paper will assess how the Korean government procurement has inevitably strayed from constitutionalism as a result of a lack of theoretical system on government procurement by reviewing specific and landmark cases, though they may be a bit partial. However, this is a result of the lack of legislative competence regarding the topic of government procurement. In conclusion, this paper will organize the ways in which the Constitution and government procurement law interconnect. Through this process, this paper presents consitutional law issues that may arise within government procurement law. In addition, this paper presents four ares where additional research is required regarding constitutional law and government procurement law. First, government procurement law regarding the ROK-US Special Measures Agreement; second, setting a lawful standard on a resistant cartel against the government's monopoly on demand; third, emphasizing the government procurement law approach on privatized or quasi-privatized industries such as electricity, energy, railroads, and roads; fourth, systematizing government procurement by developing the PFI standard of private investment law to the international PPP standard.