민간투자사업의 실시협약과 관련 행정계약의 법적 성격에 관한 판례에 대한 비판적 고찰

In this paper, we examine the consistency of Supreme Court precedents that determine whether similar contracts, such as Public-Private Partnership (PPP) contracts, government procurement, and infrastructure management agreements, are classified as Public Law Contracts or Civil law Contracts. There are two types of judgments from the Supreme Court that conclude whether each contract should be interpreted as a Public Law Contract or a Civil Law Contract. We believe that it is more appropriate to conclude that a contract is a Civil Law Contract only when it is formed under conditions of equal bargaining power by examining the substance of the contract. In addition, we conclude that it is advisable to avoid using the concept of “Public Law Contract” in Supreme Court precedents, except for the classification of Public Law Contracts. This is becauseit is difficult to establish a unique legal framework that applies consistently across a wide variety of contracts, with differences in subject matter, counterparties, and the substance of the contract. We also find that in some cases, the court has not sufficiently examined the underlying legal framework. For example, in the precedent concerning the legal relationship in public sewage facility management, it is not reasonable to classify a contract as a Public Law Contract when the court considers the Public Property and Commodity Management Act, and as a Civil Law Contract when the court considers the Local Autonomy Act. Had the court thoroughly examined the relevant laws, it would have identified the legal basis for the public sewage management agency contract under the Sewage Act, in addition to the Public Property Act and the Local Autonomy Act, and would have applied the Sewage Act as a special law rather than general laws. In addition, the current state of case law was examined regarding the differentiation of legal remedies as a practical implication of distinguishing the legal nature of administrative contracts into Public law contracts and Private law contracts. Finally, we discuss the issue of “application by analogy” in relation to the recent Supreme Court en banc decision on the termination of a PPP contract. According to the majority opinion of the Supreme Court, courts are granted the authority to exclude the application of explicit provisions of the Debtor Rehabilitation and Insolvency Act to PPP contracts. While the scope of a law’s application is a matter for the legislature to regulate through legislation, it is not appropriate for the court to develop such interpretations during judicial review.(However, the co-author does not oppose the legal principles on the application of analogy applying to the Public Law Contract.)