민간투자법 제3조 제1항- “관계법률에 우선하여 적용”에 대한 해석

Abstract

This article presents the interpretation on the Paragraph (1) of the Article 3 (hereinafter, the “Article 3.1”) of the Act on Public-Private Partnerships in Infrastrucure(hereinafter, the “PPP Act”), which is the first trial. The Article 3.1 provides that the PPP Act shall prevail over the 63 acts governing the relevant infrastructures(hereinafter, the “Relevant Acts”). The meaning of the Article 3.1 is not clear when being applied to a specific case because it is not clear when the PPP Act will exclusively apply and when not. In the latter case the Relevant Act can apply subsidiarily, which will create uncertainty as to whether and in what degree the specific clauses of the Relevant Acts will apply despite the existence of the PPP Act. This possibility means that the purpose and original plans of PPP projects may be impaired by the intervention and operation of the Relevant Acts that are made not for PPP investment but for fiscal investment. This uncertainty may greatly reduce the attractiveness of PPP investment and discourage the investors, which will inevitably entail the increase of required rate of return and the toll level that will make citizens and the government end up paying more. There have been two ways in interpreting the Act 3.1; One is to set the scope of PPP Act prevailing broadly in consideration of the purpose and the overall systematic activating mechanism of the PPP Act. The other is to set narrowly making much weight on the languages of the PPP Act. Analyzing the precedents such as the rulings of Ministry of Legislature, Constitutional Court, the broader way of interpretation seem to have been prevailing in the past. However, the Seould Administration Court rendered a ruling recently in the Seoul Metro 9 case to the effect of the way of narrow interpretation, wich increased considerably the uncertainty on this issue. This uncertainty is not desirable in that such uncertainty will be a great obstacle for the Act 3.1 to play its role as a key enabler in inducing PPP investors. This issue is recurring issue in PPP projects including expropriation case and delegation issue. In this regard, this issue should be discussed and settled as soon as possible so that the uncertainty should be decreased and PPP projects be more invigorated. This article aims to contribute to the above purpose and provide reviews and submmaries of major precedents with respect to the Article 3.1, which is the most important gate provision to the PPP Act.