국가계약법상 물가변동에 따른 계약금액 조정규정의 법적 성질-대법원 2017. 12. 21. 선고 2012다74076 전원합의체 판결을 중심으로-

Abstract

The majority opinion of the Supreme Court 2017.12.21. Judgment (hereinafter referred to as “this ruling”) is based on the adjustment of the contract amount due to the price fluctuation of article 19 of the law concerning the contract with the country (hereinafter referred to as the “national contract law”) The regulation sees in the internal regulation that stipulates matters to be observed by contract managers etc. so that the state and others can process contractual relationships with private persons fairly, rationally and efficiently. In addition, countries that are contracting parties can unilaterally eliminate the application of article 19 of national contract law. Its main reasons are public contracts are private contracts, legislative objectives of Article 19 of the national contract law, and principles of private autonomy. On the other hand, the opposition to this ruling shall be invalidated in the mandatory provision of Article 19 of the national contract law, which shall exclude it. The grounds mentioned are the invalidity of the principle of a contract which violated the law, the wording form of Article 19 of the national contract law, the circumstances of legislation and the purpose. contracts that violate the law can not in principle agree with the position of ineffectiveness. However, in light of theories and judicial precedents on the distinction criteria between mandatory provisions and enforcement provisions, I think the majority opinion is more convincing than the dissenting opinion.