민간투자법의 입법론적 개선 필요성에 관한 연구

This study examines the 'supervision and order' system under the Act on Private Participation in Infrastructure, with particular attention to its functional obsolescence following the Supreme Court’s 2019 decision. The Court’s restrictive interpretation of “necessity for normal operation” effectively excluded administrative discretion, reduced supervisory orders to symbolic measures, and extended judicial review beyond the limits appropriate to their discretionary nature, thereby weakening the legislative aim of fostering the national economy. In projects incorporating minimum revenue guarantees(MRGs), the Court’s characterization of refinancing gains as mere matters of managerial technique departs from the Act’s intent and enables private appropriation of excess profits at the expense of public burdens. Although the refinancing gain-sharing mechanism and revisions to the Basic Plan were subsequently introduced, their limited normative authority prevents the effective restoration of supervisory functions and leaves the balance between public interest and private initiative unresolved. A sustainable framework requires legislative reform that explicitly codifies the bases and limits of supervisory orders, coupled with an interpretive approach that respects administrative determinations of necessity while confining judicial review to manifest abuses, so as to ensure that private efficiency remains aligned with public interest and the Act’s foundational objective of advancing the national economy.