조달행정에 대한 경쟁법적 시각과 공법적 함의- 독일의 논의를 중심으로 -

The purpose of this article is to review Germany’s competition law solution regarding procurement administration and to discover the public law significance of procurement administration from the perspective of economic competition. The main points that this article aims to emphasize can be presented in three aspects. First, for the continuous development of competition in the procurement market, it is necessary to establish the principles of competition. This requires a normative approach to select fundamental rights values that support procurement competition and to minimize elements that restrict competition. Furthermore, there is no justification for the non-application of fundamental rights in procurement administration, which is a proposition accepted without doubt in the field of administrative law. In this regard, it is noteworthy to emphasize the practical significance of binding fundamental rights for the protection of competition, thereby providing a more expanded public law perspective, as demonstrated in Germany. Second, it is necessary to seek legislative and policy measures to prevent competition restrictions in strategic procurement based on demand power. As legislative will to implement strategic procurement has recently been shown in the public procurement system, it is necessary to establish the direction of strategic procurement activities by taking the German case as an example, while also preparing public legal means to overcome the problems and limitations of strategic procurement for competition protection. In particular, the principle of proportionality is given major significance. Furthermore, the Fair Trade Commission should strive to improve competition-neutral legislation through competition advocacy, and at this time, it is very important to develop measures to strengthen competition policy through cooperation between related organizations. Third, finding ways to protect bidders from arbitrary abuse by procurement entities and to ensure effective competition is an important task. To this end, Germany's example of integrating public procurement law into competition law and granting (potential) bidders a "right to claim compliance with procurement regulations" can be referenced. However, foreign examples are not always the best solutions, and it may be more persuasive to refine the operational direction of the system while respecting the existing legal framework.