민간투자법에 근거하여 이루어진 실시협약이 쌍방미이행 쌍무계약에 해당하는지 여부

South Korea’s public-private partnership projects (PPP) worth KRW 13.3 trillion in aggregate as of 2020; as private capital investment projects were no longer guaranteed minimum revenue since 2006 onwards, the likelihood of a dispute between the competent authority and a private investment increased in a case where the cost-benefit analysis for PPP came below the estimate. As a result, we are seeing a surge of cases where a project implementor seeks a return of investment capital against a competent authority through various legal measures. At dispute in the subject case is whether a bankruptcy trustee of a project implementor in bankrupt can terminate the instant concession agreement. If termination is granted, the project implementor has an exit option by which it can recover the investment capital from the competent authority. In such case, projects funded by private entities can be further facilitated. If termination under the instant provision is not granted and the competent authority does not terminate the concession agreement, the bankruptcy trustee of the project implementor would convert the management and operation right and distribute the liquidated assets to the bankruptcy creditors. Where the management and operation right does not have a market value, the bankruptcy trustee relinquishes conversion and ends the bankruptcy process. The subject case recognized that a concession agreement concluded pursuant to the Public-Private Partnership Act may be subject to either direct or analogous application of the instant termination clause, and determined that in the instant case, the bankruptcy trustee may not terminate the instant concession agreement on the grounds that the instant concession agreement is a bilateral contract unfulfilled by both parties, considering the details of the Public-Private Partnership Act, the instant concession agreement, and the specific progress of the agreement at the time. There were a concurrence that the instant termination clause ought not be applied by analogy and a dissenting opinion that the instant termination clause does apply and the instant concession agreement constitutes a bilateral contract unfulfilled by both parties. The significance of the subject case can be found in that: (i) it is the first ruling on whether the instant termination clause may be applied to a concession agreement under the Public-Private Partnership Act; (ii) it provided a beginning point for discussion on the standard for analogous application of the legal doctrine concerning a contract under private law to a contract under public law; and (iii) it formulated the legal doctrine applicable to the question of whether provisions under private law are applicable going forward to a contract under public law or relationships involving public authorities. Therefore, the examination of the subject case must not simply focus on the conclusion of the Majority Opinion. The Majority Opinion suggested the standard for interpretation of whether a concession agreement governed by the Public-Private Partnership Act constitutes a bilateral contract unfulfilled by both parties. The Concurring Opinion provided the standard for determining whether private law provisions may be analogously applicable in the relationships involving public entities, including a contract under public law. The Dissenting Opinion developed the general legal doctrine regarding a bilateral contract unfulfilled by both parties one step further and reasoned that previous rulings have directly applied private law provisions to a public contract, providing reasons why it should be directly applied in future. It is expected that the subject case will afford ground for further in-depth studies in the field of administrative law and bankruptcy law with regard to the legal doctrine concerning a bilateral contract unfulfilled by both parties and whether private law provisions may be analogously applied to a public contract or relationships involving a public authority.