공법상계약의 활용을 위한 법적 기반의 검토 - 독일 연방행정절차법상 공법상계약과 그 활용을 중심으로 -

The fact that the legal basis for public law contract was created with the enactment of the General act on Public Administration is significant in that it is a stipulation of public law contract. However, the General act on Public Administration alone is not enough to utilize public law contract in practice. For public law contract, the precedents cite ombudsman public servant employment contracts, national research and development agreements, and concession agreements under the Act On Public-private Partnerships In Infrastructure. However, procurement contracts are consistently viewed as private law contracts. There is no clear criterion for determining what is a public law contract and a private law contract. It has to be decided on a case-by-case basis by looking at the contents of the contract. Usually, agreements between local governments are classified as public law contract. Articles 54 to 61 of the German Federal Administrative Procedures Act(Verwaltungsverfahrensgesetz, VwVfG) stipulate public law contract. public law contract are permissible within the scope of not contradicting the law. And contracts replacing administrative acts are also permitted. There are two types of contracts: conciliation contracts(Vergleichsvertrag) and exchange contracts(Austauschvertrag), and the presentation of both types is useful for utilizing public law contracts. However, this does not apply to all areas, and public law contract are not allowed in tax administration under the tax act(Abgabenordnung) in principle. The social welfare administration, which belongs to Title 10 of the Social Code(SGB X), is the main field where public law contracts are applied. Construction and development under the Construction Act(BauG) may also conclude public law contracts. However, the establishment of a plan isnot permitted under the Construction Act. In Germany, public law contracts between local governments are frequently concluded. Public law contracts can also be used in environmental administration, and their main targets are protection of the natural environment under the Natural Environment Protection Act(BNatSchB), purification of contaminated soil under the Soil Environment Conservation Act(BBodSchB), or burden of waste treatment costs in relation to development. Although explicit provisions on public law contracts have been introduced in the General act on Public Administration, it is not yet sufficient in terms of utilization, and research on application areas other than legal system and dogma is insufficient. The use case in Germany can be a clue for future research.