해외건설공사에 대한 하도급법의 적용가능성 및 FIDIC 표준계약조건의 하도급법 위반가능성

Abstract

Korean subcontractors - which are facing financial difficulties recently due to the prolonged recession in both the domestic and overseas construction industries - are actively responding to Korean main contractors' violation of Fair Transactions in Subcontracting Act (“Subcontracting Act”) in overseas construction projects by referring such unfair subcontracting practices to Korean Fair Trade Commission (“KFTC”). In practice, as it is already not uncommon for KFTC imposing administrative sanctions against the violations of Subcontracting Act in overseas construction projects and Korean main contractors contesting the sanctions by filing administrative suits thereto, new legal issues are arising. This article addresses first whether Subcontracting Act - as is a statutory domestic law - can be applied to overseas construction projects and thereby led to administrative or criminal sanctions and, if such application is possible, what the legal basis is. To this end, this article examines relevant provisions of Subcontracting Act along with KFTC and Korean courts' positions on the application of Subcontracting Act to overseas construction projects, and thereby analyses what theoretical basis the current KFTC's practice has in terms of theory of state jurisdiction. This article addresses further the legal theoretical and practical validity of the application of Subcontracting Act to overseas construction projects in the light of Korean Supreme Court's recent rulings regarding the territorial scope of application of administrative laws and administrative criminal laws that lack an express provision for exterritorial application, as well as the practical problems which arise in overseas construction projects due to the application of Subcontracting Act. Meanwhile, in the case of overseas construction projects, it is not uncommon that even sub-contracts between Korean construction contractors are written and entered into in English based on FIDIC Conditions of Contract for some practical reasons. As FIDIC Conditions of Contract was, however, drawn up regardless of Korean Subcontracting Act, this article addresses the possible violation of Subcontracting Act by the use of FIDIC Conditions of Contract. First, it discusses 'pay-when-paid' clause, 'Retention Money' clause and 'set-off by main contractor' clause of FIDIC Conditions of Contract as to whether these clauses may cause violation of Article 13 of Subcontracting Act which prohibits non-payment or withholding of payment for any reasons save for certain statutory exceptions. In addition, other possible violations of Subcontracting Act by the use of FIDIC Conditions of Contract are examined as well, in respect of Article 3 (Issuance and Retention of Documents), Article 8 (Prohibition of Unreasonable Cancelation of Entrustment) and Article 3-4 (Prohibition against Unfair Special Agreements) of Subcontracting Act.