장기계속공사계약에서 이른바 총괄계약의 법적 성격에 관한 고찰-대법원 2018. 10. 30. 선고 2014다235189 전원합의체 판결을 중심으로-

Abstract

The issues of the Supreme Court 2018.10.30. Judgment 2014C235189 en banc decision(hereinafter referred to as “this judgment”) are as follows. in other words, the core issue is whether the ordering party should adjust and pay the contract amount to the contractor when the total construction period of the long-term continuous construction contract is extended. the majority opinion of this judgment held that the general contract was only effective as a provisional standard for determining only the contractor and the overall size of the contract. however, the general contract was deemed not to be definitively binding on the specific items of the contract. on the other hand, the dissenting opinion of this judgment recognizes the definite binding force of the general contract. In this paper, we first explored the background and purpose of the introduction of the long-term continuous construction contract system, and considered the meaning of the general contract in the long-term continuous construction contract. the purpose of introducing the long-term continuous construction contract is as follows. the first is to prevent unreasonable low-priced bids by bidders. second, it is to prevent the total construction amount and the total construction period from being increased or extended based on the contractor’s right to the free contract. we consider this judgment that the general contract is only a “provisional standard” to be unreasonable. Next, in this paper, we examined the legal nature and effect of the general contract from the perspective of reservation. a narrow understanding of the requirement for the establishment of a reservation, “certainty of the content of the contract concluded by the reservation,” may mean that the general contract is only a provisional standard for the conclusion of an annual contract. however, in one-sided reservations, the certainty of the contract contents concluded by the reservation can be widely interpreted. In conclusion, it is reasonable to understand that the legal nature of the general contract is a reservation.