공법상 계약과 쌍방미이행 쌍무계약의 해지권 - 대법원 2021. 5. 6. 선고 2017다273441 전원합의체 판결을 중심으로 -

Abstract

Concession contract based on the Private Investment Act for Social Infrastructures is a kind of public contracts, the purpose of which is to enhance public welfare by facilitating and maintaining social infrastructures. Public contracts are ruled mainly by each relevant act and general administrative law, but the Civil Code and general contract law can also step in public contracts in order to fill the missing gaps, subject to the public purpose and characteristics of the concerned public contracts. Debtor Rehabilitation and Bankruptcy Law also acts as a main regulatory frame for such concession contracts and article 335 thereof, as a mandatory clause, stipulates the trustee’s option to terminate executory contract in a bankruptcy process. We have to delve into the essential features of remaining unfulfilled bilateral obligations of the parties when deciding whether a concession contract falls on executory contract, rather than resting on the formalities such as that the concession is a category of realty rights or that parties’ obligations are stipulated by law. Trustee’s option to make a choice between termination and fulfillment of executory contract is not to set aside merely by the presence of the ipso facto clause in concession contract. They both can co-exist. It is highly desirable that both parties pre-arrange and align proper termination payment according to each factors of early termination in advance so that they can secure full predictability for making decisions on project financing and entering into public-private partnership projects. If not, the unpredictability might cause a huge financing risk and increase transaction costs, consequently leading to the non-bankable state. The pre-arranged termination payment is the product of policy decision and bilateral negotiations addressing multiple factors such as characteristics of concession contract(BTO or BTL), default belonging, state of financial market, market-risk of ppp projects, etc. Therefore, it is not always true that the trustee commits a moral hazard or makes an unjust attempt to shift the project risk from private sector to public sector by opting for early termination and claiming a termination payment against public authorities. The public interest should be maintained by means of pre-arrangement of proper and fully predictable termination payment system.