공법상 계약과 국가계약법의 관계 및 부당특약에 대한 고찰 -서울행정법원 2018. 8. 17. 선고 2017구합86125 판결에 대한 평석

Abstract

「General Act on Public Administration」, which was enacted recently, provides ‘contract under public law’ in article 27, and the number of disputes on ‘contract under public law’ is on the rise. However, the theory and practice of this type of contract is not established yet. In this context, State Research & Development (R&D) agreement case which produced 6 decisions, needs to be examined in the context of ‘contract under public law’ regime. In this case, the plaintiff filed a civil lawsuit(payment claim) initially, first trial court(Seoul Central District Court) and appeals court(Seoul High Court) considered this R&D agreement as ‘contract under private law’ and made decion in favor of the plaintiff. However, Supreme Court decided that this agreement is a ‘contract under public law’ and returned this case to first trial court(Seoul Administrative Court). After that, first trial court(Seoul Administrative Court) rejected the plaintiff’s claim, and this result was confirmed both by appeals court(Seoul High Court) and the Supreme Court. Among theses 6 decisions, this paper reviews the Seoul Administrative Court’ decision(Seoul Administrative Court 2018. 8. 17. 2017Gyhap86125). The essence of this decision is as follows. First, 「Act on the Contracts in which the State is the Party」(State Contract Act) does not apply to ‘contract under public law’, Second, ‘approval’ in Special Contract Clause 9(1) of this R&D agreement, should be deemed as a must-procedure for change of contract, and implicit approval cannot be acknowledged, third, Special Contract Clause 9(1) of this R&D agreement is not ‘unfair special clause’ in Decree of State Contract Act (before revision) Article 4[ current State Contract Act Article 5(3)], fourth, rejection of the payment does not violated principle of legitimate expectation or principle of proportionality. However, decision of Seoul Administrative Court does not reflect the ‘contract under public law’ regime. First, as Korean State Contract Act deals with broader contract types in comparison with other jurisdictions, there is no ground that ‘contract under public law’ is exempted from application of State Contract Act in principle. Second, State Contract Act Article 19, which provides change of payment, should be deemed as a mandatory provision, and this R&D agreement should be interpreted in compatible with State Contract Act Article 19. In this case, ‘approval’ in Special Contract Clause 9(1) of this R&D agreement should be interpreted that payment claim itself can be accepted but to confirm the exact amount, approval is necessary. Third, if Special Contract Clause 9(1) is interpreted as “in any case payment is not allowed when the Defendant refuses approval”, this clause should be deemed as ‘unfair special contract clause’ because this clause violated the principle of fairness. Fourth, when considering various context after conclusion of R&D agreement, rejection of payment should be deemed as violation of both principle of legitimate expectation or principle of proportionality.