公共契約에서 契約金額調整을 排除하는 特約의 效力

Abstract

The Supreme Court ruled that the special terms excluding the application of the provision on the adjustment of contract amount under the Act on Contract to Which the State Is a Party(hereinafter "State Contract Act") is not always invalid but the special terms which unjustifiably limits the counterparty's contractual interests in violation of Article 4 of the Enforcement Decree of State Contract Act is deemed invalid. Under the framework that public contract belongs to the domain of civil law, the validity of the special terms excluding the adjustment of contract amount is a matter of the freedom of contract and the extent of private autonomy. Under the framework of public contract. However, the framework that public contract belongs to the domain of administrative law, the analysis should be made in terms of control over the discretion of contracting officer in forming the content of the contract. Article 19 of the National Contract Law does not seem to exclude the discretion of the contracting officer to form a contract on the contract amount adjustment for the public interest. Rather, the Supreme Court considers Article 4 of the Enforcement Decree of State Contract Act to be a provision on the effect of the special terms excluding the adjustment of contract amount. Therefore, the judgment of the Supreme Court can be accepted from the viewpoint of public law because the discretion of contracting officer can be controlled through the interpretation of Article 4 of the Enforcement Decree of State Contract Act. However, in order to secure the legitimacy of these conclusions, it is necessary to apply Article 4 of the Enforcement Decree of State Contract Act more strictly, so that substantial judicial control over the special terms excluding the adjustment of contract amount should be made. In fact, it is impossible to effectively control the abuse of the discretion of contracting officer, if the contract is not deemed unfair by the fact that the counterparty only takes the burden about the adjustment of contract at the bidding stage without detailed and accurate information. Furthermore, in order to realize the rational allocation of the risk related to the adjustment of contract, the bidding process is improved so as to provide the information for pricing as much as possible. And the general provisions should be improved to clearly specify which provisions are mandatory and the special terms in violation of such provision must be invalid.