公企業의 內部規定 및 私法上 契約에 의한 供給者登錄 制限措置의 處分性

Abstract

The court decision of this case have extended the concept of administrative disposition which could be the target of lawsuits by a complaint litigation according to the administrative litigation act. However, the court theory on the concept of administrative disposition has raised a lot of theoretical problems and practical confusions about the complaint litigation system. Firstly, the court decision presents a significantly subjective concept of administrative disposition. However the concept of administrative disposition should not be subjective but objective. Secondly, the court decision has put the restriction on supplier enrollment and disqualification for tender participation in the same category. But, they are conceptually different from each other. Thirdly, according to the administrative litigation act, an administrative disposition should be ‘the execution of laws’. However, the restriction on supplier enrollment has not been taken on any basis of valid law but has been based on the internal regulation of the public corporation or private law contract. Fourthly, the court decision allow not only the disqualification for tender participation based on public law but also the transaction restriction based on private law by the public corporation. But this theory could bring about great inequity between the public corporation and the plaintiff(supplier). If the court decision bring about these theoretical and practical problems, we need some solutions. I present the solutions as follows. Firstly, procurement contracts by public corporations should be reinterpreted as not private law contracts but public law contracts in order to apply public law doctrines on them. Secondly, we should make effective regulations on transaction restrictions by public entities in the light of Clause 22 of the framework act of public administration. Thirdly, the concept of administrative disposition in the court decisions should be changed so as to be more objective and consistent with the text of the administrative litigation act.