방산조달계약의 법적 성격과 소송관할의 문제

Abstract

Regarding legal nature of general public procurement contracts, the court precedents have been strictly distinguished it from contracts under public law, considering that the general principles on private contracts under civil law are applied as they are as private contracts between equal legal entities. In particular, the Supreme Court viewed the legal nature of the agreement to promote the Korean Helicopter Program (KHP Project) as a contract under public law, making it clear that disputes over contracts under public law are exclusive jurisdiction of the administrative court. In addition to the jurisdiction of the litigation for dispute resolution, there are practical advantages in distinguishing between contracts under public law and private contracts in matters such as the application of the principle of legal superiority and the application of the law on substantive rights and obligations. However, as seen in lawsuits related to the Korean Helicopter Program (KHP), the choice of procedures for dispute resolution between the parties is not necessarily easy, and there may be cases where years of litigation and court rulings turns out to be of no use. In this respect, it can be said that the criteria for distinguishing between contracts under public law and private contracts have great significance in preventing the parties' rights relief and waste of judicial administrative power. There have been discussions on the distinction between public law and private law, but such discussions have limitations in presenting specific standards for distinction between contracts under public law and private contracts, even if academic validity is separate. The precedent seems to distinguish between contracts under public law and private contract based on the purpose and nature of the law on which the budget for the project is spent, and the legal nature of the consideration paid to the contractor. And the precedents view cases where the law, which is the basis for the promotion of projects, is enacted for a special purpose and the cases in which the cost of promoting the project is not considered to be in return, such as 'contribution', are regarded as ‘contracts under public law’. On the other hand, the precedent is of a position that even the disputes over contracts under public law belong to the jurisdiction of the general civil court if it is determined that the public legal elements of the contract do not affect the judgment or hearing of the dispute at the trial. This view of the precedent reduces the predictability of the parties to the R&D agreement in the choice of litigation procedures and makes remedy of the rights difficult. In particular, the precedent’s attitude to expand the jurisdiction of administrative litigation and change the cases that were considered the jurisdiction of civil litigation to the jurisdiction of administrative litigation could pose a serious threat to parties to the R&D agreement. In the end, it is considered reasonable to find the distinction between the two in terms of whether the principle of private autonomy as a basic principle of civil law can be applied, and the court also needs to be more careful in changing its attitude to the jurisdiction of litigation.