요청조달계약에 따른 입찰참가자격제한 조치의 법적 제문제에 관하여- 대법원 2017. 6. 29. 선고 2014두14389 판결 -

Abstract

‘Restriction on Qualification for Participation of Inappropriate Business Entities in Tendering Procedures’ is formally negative sanctions that inappropriate business entities are excluded from Public procurement contract as party to a contract within a fixed period, and in substance postive sanctions that parties to a contract are punished for inappropriate business. According to Supreme court precedents, ‘Restriction on Qualification for Participation of Inappropriate Business Entities in Tendering Procedures’ is administrative disposition that State agencies, local governments and Public corporations․Quasi-governmental institutions decide on laws and administrative regulations but notice act of private law that non-classified public institutions decide on administrative rules. In cases Of the Requested-Public procurement contract, Public procurement contract made by The Administrator of the Public Procurement Service to which The head of each end-user institution(the state, local governments, Public Institutions, local public enterprises etc.) requests for entering into a contract under GOVERNMENT PROCUREMENT ACT, there are a lot of lawsuits and debates about the legitimate arbiters and the applied laws on ‘Restriction on Qualification for Participation of Inappropriate Business Entities in Tendering Procedures’ According to the Objected Supreme Court's Decision (29 June 2017) 2014두14389, in cases of Public procurement contract Requested by non-classified public institutions under ACT ON THE MANAGEMENT OF PUBLIC INSTITUTIONS, Requested-Public procurement contract applied to private law is contract for the benefit of a third person under ACT ON CONTRACTS TO WHICH THE STATE IS A PARTY, but The Administrator of the Public Procurement Service isn’t the legitimate arbiters of ‘Restriction on Qualification for Participation of Inappropriate Business Entities in Tendering Procedures’ applied to public law because of no Articles on delegation or entrustment of authority. So non-classified public institutions must exert authority under ACT ON THE MANAGEMENT OF PUBLIC INSTITUTIONS on ‘Restriction on Qualification for Participation of Inappropriate Business Entities in Tendering Procedures’ that performs notice act of private law to function legally. And in the cases different from former objected cases of Public procurement contract Requested by local governments under ACT ON CONTRACTS TO WHICH A LOCAL GOVERNMENT IS A PARTY, Requested-Public procurement contract is contract of local governments under ACT ON CONTRACTS TO WHICH A LOCAL GOVERNMENT, the head of local goverments is the legitimate arbiters of ‘Restriction on Qualification for Participation of Inappropriate Business Entities in Tendering Procedures’ under the same law. But The Administrator of the Public Procurement Service can exert the same authority because of ACT ON CONTRACTS TO WHICH A LOCAL GOVERNMENT Article 31 (1). Lastly in the cases of Public procurement contract Requested by Public corporations․Quasi-governmental institutions under ACT ON THE MANAGEMENT OF PUBLIC INSTITUTIONS, Requested-Public procurement contract is contract for the benefit of a third person under ACT ON CONTRACTS TO WHICH THE STATE IS A PARTY, The Administrator of the Public Procurement Service is the legitimate arbiters of ‘Restriction on Qualification for Participation of Inappropriate Business Entities in Tendering Procedures’ law because of Articles on delegation or entrustment of authority. But the requirement and procedures of administrative regulations must be applied to ACT ON THE MANAGEMENT OF PUBLIC INSTITUTIONS. Such as this legal interpretation on ‘Restriction on Qualification for Participation of Inappropriate Business Entities in Tendering Procedures’ of which the legal characteristics are changed by laws․administrative regulations or administrative rules to administrative disposition or notice act of private law shall be expansively applied to similar cases. For example, the cases of Public procurement contract Requested by local government-invested public corporations․local government public corporations under LOCAL PUBLIC ENTERPRISES ACT can be solved follow the cases of Public procurement contract Requested by Public corporations․Quasi-governmental institutions. To conclude, the Objected Supreme Court's Decision has a legal significance and is much helpful to clarify the legal characteristics and the applied laws of Requested-Public procurement contract, the legitimate arbiters and the applied laws on ‘Restriction on Qualification for Participation of Inappropriate Business Entities in Tendering Procedures’.