공법상 계약을 둘러싼 쟁점별 판례의 경향 및 실무상 난점

This study comprehensively analyzes the legal nature of public law contracts concluded by administrative agencies in the course of performing administrative functions, focusing on recent Supreme Court decisions and practical challenges. Due to the historical development of Korean administrative law, particulary in relation to administrative litigation, systematic doctrines concerning public law contracts have not been firmly established, resulting in continued uncertainty regarding litigation types and jurisdiction. This paper examines the criteria distinguishing public law contracts from private law contracts, the forms of litigation arising from such contracts (civil suits versus public party suits), and the relationship between public contracts and administrative dispositions. In particular, although the Supreme Court Decision 2021Da250025 decided June 29, 2023 explicitly articulated the criteria for recognizing public law contracts, this paper argues that these criteria remain too abstract, making it difficult to predict appropriate form of litigation. The paper recognizes substantial benefits in recognizing public law contracts and public party suits in disputes arising from public law contracts. However, it also argues that greater legal clarity and procedural improvements are necessary to enhance predictability. Additionally, with respect to the relationship between public law contracts and administrative dispositions, this study examines and analyzes the difficulties arising in the following contexts: (1) the permissibility of concluding a contract instead of an administrative disposition in the absence of a statutory ground; (2) the relationship between the conclusion, modification, or termination of a public law contract and an administrative disposition when such a contract is grounded in law; (3) whether a sanction imposed under a public law contract should be regarded as a contractual measure or as an administrative sanction when it overlaps with or resembles a statutory administrative sanction; and (4) the judicial approach to situations in which a public law contract and an administrative disposition are executed sequentially.