공법상 계약의 특수한 법적 규율

Abstract

Notwithstanding the usefulness of contracts in public law, Korea has yet to have specific legislation on this issue. Therefore, it is difficult to facilitate contract in public law in administrative practice and difficult to expect the transparency and fairness in the course of entering into a contract or its performance thereof. This article reviewed the nature of a contract in public law in the Korean legal system with the reference to the principles on contracts in public law of Germany and France. Firstly, the article researched how to distinguish the concept of a contract in public law which has the special nature of public law with the concept of a contract in private law. The study also examined whether the parties of a contract have choice between the contract in public law and the contract in private law by their agreement. Secondly, with respect to the performance of a contract in public law, the study reviewed whether a party for administrative agency or both parties can have the right to demand the change of any term or condition of contract if the factual or legal relationship that is the basis of a contract is changed. Furthermore, it reviewed how to treat the issue of compensation in this case. Thirdly, regarding the validity of defect in a contract in public law, the article reviewed whether to allow the cancellation other than invalidity. It also examined the special nature of public law if the provisions of the civil law is applied on the case of the defect in the declaration of intention. Finally, with respect to the protection of the third party whose rights and interests are interfered from a contract in public law, the study examined whether to allow the standing to bring a lawsuit under the provisions of a certain law as in the German Federal Administrative Procedure Act or allow the standing to bring a lawsuit of appeal litigation under the theory of the 'severable act' of French law.