요청조달계약에서의 부정당업자 입찰참가자격제한 처분권한의 귀속주체- 대법원 2017. 6. 29. 선고 2014두14389 판결을 중심으로 -

Abstract

In this case the problem ist the legal grounds and subject of disposition of restriction of prequalification to an unlawful person in the request procurement contract. The Appeal of Court judged that the parties to the contract are the defendant Public Procurement Service (PPS) and the plaintiff Kyeryong Construction Industry Co. and accordingly, the Chief Prosecutor of the central office, under Article 27 of the National Contract Act, could issue a right of disposition of restriction of prequalification to an unlawful person. But the Supreme Court concluded that the parties to the contract are the other public agency, Pusan National University Hospital and Kyeryong Company and the PPS is only an assistant in the contract. Therefore, according to the aims and provisions of Operation of Public Institution Act the Chief Prosecutor of PPS has no authority to dispose of the bids without legal grounds. The Supreme Court ruling emphasizes the Principle of Legal Reservation (Gesetzvorbehalt) in the area of public law, which is helping to guarantee the fundamental rights of the people, but it remains a bit lacking in that it does not express a clear position on the legal nature of disposition of restriction of prequalification to an unlawful person by the other public agency.