국가계약법상 부정당업자 입찰참가자격 제한에 대한 고찰

「Act on Contracts to Which the State is a Party」 provides that the inappropriate business entities shall not participate in the tendering procedures to prevent business entities from committing the illegal violations only to be successful in the tendering. The projects the State carries is so public-oriented and highly effective in people’s life socially and economically that this provision is indispensable in order to maintain the fairness and transparency in the contracts and to promote the smooth implementation of the large scale national projects. On the other hand, this restriction provision brings huge financial damage to the very inappropriate business entities because they shall be prohibited from participate in all the public tendering for a specific period thereafter. Therefore, with regard to the restriction provision, the details of the requirements, effects, and procedures shall be stipulated in the law and the subordinate decrees. If the government agency imposes sanctions against business entities by wrongfully interpreting the relevant law, the court may revoke the sanctions by its decision in the lawsuit. This Article reviews the possible issues in a legislative, administrative, and interpretative fields, based on the article 27 in the Act, and article 76 in the Enforcement Decree, which provides the restriction on participation of inappropriate business entities in tendering procedures. First all, the inappropriate business entities which were prohibited from participating in the tendering were stipulated in the enforcement decree, not in the law before the amendment. This triggers the issue whether this provision stipulated in the enforcement decree violated the scope of delegated legislation, which means that the essential features restricting people’s right shall be provided in the law, not in the subordinate decrees. This article deals with that matter. To solve this potential unconstitutional situation, the article 27 of 「Act on Contracts to Which the State is a Party」 was substantially amended, and the article 76 of the enforcement decree was accordingly amended. This Article explains the detailed interpretation on the amended law and the enforcement decree in regard to which business entities may participate in the tendering. Secondly, besides the business entities which shall not participate in the tendering stipulated in the law, the detailed criteria for the restriction are stipulated in the enforcement decree. Whether these detailed criteria are binding for the courts and people in general, not just the internal criteria for the government agency shall be addressed. This is about the character of the enforcement decree, that is, whether this provision in the enforcement decree is just internal administrative standard, or legally binding to the courts and people in general. Then, because the business entities prohibited from participating in the tendering suffer from substantial legal disadvantages, they are easy file a lawsuit against the decision of the government agency. Especially there are many legal disputes in regard to the implementation of the contract. When the business entities implement the contracts, they could do it not comforting with the contracts, they could do it wrongfully, they could forge or falsify the documents relevant to contracts, they could submit false documents, or they could fail to conduct relevant to executing contract. This Article addresses these various cases with reference to the court’s decisions.