지방계약과 지방자치- 지방계약의 자치보장적 함의에 관하여 -

Abstract

The purpose of this paper is to analyze the relation between administrative contract and local autonomy. To this end, the following issues are reviewed step by step. First, why is the Local Contracts Act separated from the Local Financial Act? Second, what distinguishes the Local Contracts Act from the National Contracts Act? Third, what is the reason for linking the Local Contracts Act with the Procurement Service Act? Fourth, what are the effects of the Local Contracts Act on the Local Government Act? This paper derives the following conclusions, by a comparative method and from a historical review. First, the Local Contracts Act is the general basis of local contracts under the public law. Second, local contracts are forms in which local governments do their own work. Third, local procurement is functionally differentiated from national procurement. Fourth, local contracts are a key means for institutional guarantee of local autonomous affairs. The implications of this are as follows. First, local governments may enter into local contracts that are subject to public contracts as well as private contracts as provided under the Local Contracts Act. Second, local governments may enter into local contracts as provided under the Local Contracts Act, even if they do not have the authority to contract under other laws to carry out their business under the Local Government Act and other laws. Third, even from the point of view of procurement as a private contract, local procurement can be differentiated from national procurement to the extent necessary to enhance the autonomy of the business belonging to local governments. Fourth, local contracts, particularly public contracts for the performance of local autonomous affairs, need to be interpreted as not to violate the compulsory regulations as far as possible, considering that they are institutional guarantees of local autonomous affairs. Propositions such as these require more fundamental reflection on existing approaches that treat government contracts as simply a matter of technical procedures or consider local contracts as subservient to national contracts.