「행정기본법」상 공법상 계약에 대한 고찰

「General Act on Public Administration」 Article 27 provides ‘contract under public law’, and this article is meaningful that it provides general legal ground for conclusion of ‘contract under public law.’ From comparative law perspective, there are two types of regulating ‘contract under public law.’ One is 「Administrative Procedure Act」 provides the general ground for ‘contract under public law’(Germany, Taiwan), and the other is individual Act provides this contract without general ground in Administrative Procedure Act. 「General Act on Public Administration」 in Korea can be evaluated to be more influenced by German law. However, there are many differences between Korean law and German law on ‘contract under public law.’ Regulation of this contract in 「General Act on Public Administration」 in Korea is relatively short in comparison with German 「Federal Administrative Procedure Act」. Furthermore, Korea has 「Act on the Contract in Which the State is the Party」 and 「Act on the Contract in Which the Local Government is the Party」 which can apply both ‘contract under public law’ and ‘contract under private law.’ Although ‘contract under public law’ is regulated in 「Federal Administrative Procedure Act」 in Germany, there are critics that ‘contract under public law’, in reality, is separately regulated by individual Act. By contrast, Korea can address this ‘separate regulation’ problem by constituting complementary relationship between 「General Act on Public Administration」 and 「Act on the Contract in Which the State is the Party」 & 「Act on the Contract in Which the Local Government is the Party」. ‘Contract under public law’ should be developed using this potential in Korean law.