공공기관의 계약상 제재조치와 이에 대한 사법적 통제의 경향- 대법원 2020. 5. 28. 선고 2017두66541판결을 중심으로

This paper has reviewed the Supreme Court's ruling on May 28, 2020, which recognized the disposition of the restrictions on supplier registration(according to the internal guidelines of the public enterprises) which had a similar effect to the restrictions on bidding qualifications. First, the facts and summary of the case is analyzed and reviewed, and the trend of the cases on the restriction of the qualification to participate in bidding is examined with comparing them with the discussion on whether to exercise public power, which is a requirement for legality, in the constitutional appeal case. Finally, the legal nature of the internal guidelines of public enterprises based on the cancellation of supplier registration and the disposition of registration restrictions (transaction restrictions) for 10 years is reviewed with a comprehensive examination. The background of establishing a public company to efficiently supply goods and services is a kind of organizational privatization(Privatisierung), which is considered to be more desirable for specific validity to be resolved through administrative litigation to remedy the rights of the parties. Considering the basis and purpose of establishment of public institutions, it is necessary to consider whether it is reasonable to return the legal relationship of public institutions formed by judicial relations back to the realm of public law (only in limiting the qualifications to participate in bidding). If the need for sanctions, such as the exclusion of bidding qualifications due to illegal acts of bidding participants, is undeniable, it is necessary to look at the public procurement legislation from a competitive perspective so that not only the bidding itself but also the competition in the process of bidding should be ensured. In addition to fines and restrictions on participation in bidding within two years, overseas legislation that has a separate redemption of right for public procurement contracts may be considered legislatively if the judicial system for the bid protest is insufficient and is not a reasonable means of resolving disputes. The restrictions on the qualifications to participate in bidding, which were previously regulated in the Article 70-4 of the Budget Accounting Act, has been transformed to the Article 27 of the National Contract Act, not the National Finance Act. Similarly, the Article 52-4 of the Local Finance Act, and Article 20 of the Framework Act on the Management of Government Investment Institutions has been followed by Article 39 of the Public Transport Act. The bidding qualification restriction system, which was regulated in the field of financial law in the past, has been transformed into a procurement legislation. Even though we cannot predict its future prematurely, the public procurement contracts will improve in a way that is regulated from the perspective of competition laws in a way that can harmoniously realize publicity and efficiency based on the market competition principles.