공법상 계약의 판단기준과 해석방법 - 대법원 2023. 6. 29. 선고 2021다250025 판결에 대한 평석을 겸하여 -

Establishing criteria for determining and interpreting public law contracts is a practically significant issue as it determines jurisdiction and applicable legal principles in disputes. Against this backdrop, the Supreme Court recently delivered two important decisions. This paper examines these decisions' development regarding criteria and interpretation methods for public law contracts. Regarding determination criteria, Germany adopts a hierarchical structure primarily considering contract content with purpose as a supplementary criterion, while France recognizes administrative contracts if either content or purpose criteria are met. The Korean Supreme Court traditionally focused on contract content but recently presented comprehensive criteria considering both content and purpose. This approach differs from Germany and France in that it organically examines various elements to determine the public law nature of contracts, though issues remain regarding the relationship with traditional criteria and the relative weight of elements. Concerning interpretation methods, Germany and France basically follow private law interpretation principles while reflecting public law specificity through statutory interpretation and public interest considerations. The Korean Supreme Court recently established that interpretation of public law contracts should consider the purpose and content of underlying statutes and basic principles of administrative law. While all three countries show similar approaches in respecting private law principles while reflecting public law characteristics, further discussion is needed on how to incorporate administrative law principles and specific statutory characteristics into contract interpretation.