공법상 계약의 주요쟁점에 대한 연구동향 및 과제

The “General Act on Public Administration” contains a single provision (Article 27) regarding contracts under public law, which is significant in that it codifies public law contracts that have previously been recognized in case law and academic literatures. However, since the “General Act on Public Administration” only provides a very brief regulation, the concrete legal principles of contracts under public law remain largely shaped by case law and academic discourse. This article examines the research trends and challenges surrounding contracts under public law as follows. First, the legislative structure of contracts under public law is reviewed. The rationale for including only one provision on contracts under public law in the “General Act on Public Administration” is examined in comparison with the relevant regulations in Germany’s “Federal Administrative Procedure Act”. The relationship between the “Act on Contracts to Which the State is a Party” and public law contracts, as well as the regulatory frameworks for contracts (or agreements) in specific areas such as the “Act on Private Investment in Social Infrastructure” and the “Act on Promotion of National Defense Science and Technology Innovation,” are also analyzed. Second, contracts entered into by administrative entities are considered from the perspective of the distinction between public law and private law. Public procurement contracts have consistently been viewed as private law contracts in case law, and this position is critically examined. The analogical application of private law provisions to public law contracts is also discussed. Third, the distinction between contracts under public law and administrative dispositions is explored. Currently, case law is divided on whether the termination of a contract entered into by an administrative entity should be regarded as the termination of a contracts under public law or as an administrative disposition, and the validity of these judicial attitudes is assessed. Fourth, the relationship between contracts under public law and the principle of statutory reservation is examined. While it is generally believed that no separate statutory basis is required for the conclusion of contracts under public law, the appropriateness of applying this logic consistently to subordinate administrative contracts concluded in non-equal relationships is reviewed. Fifth, the relationship between public law contracts and the principle of statutory supremacy is considered. It is generally accepted that general principles of administrative law—such as proportionality, equality, and the prohibition of unjust linkage—also apply to public law contracts; how these principles can be concretely realized is discussed. In seeking the future direction for the development of the legal principles of public law contracts in Korea, differences with German law must be taken into account. It is necessary to establish an organic system for both the general and specific aspects of contracts under public law, to aim for a constitutional order through the complementary relationship between public law and private law, and to broaden the scope of comparative legal research on public law contracts.