건설산업기본법상 하자담보책임기간에 관한 강행규정성 고찰 - 건설산업기본법 시행령 제30조 2항의 강행규정성 여부를 중심으로 -

Abstract

A contract for construction work is a bilateral contract in which each party promises to make a certain payment and bears a debt with a mutual meaning of consideration. In other words, the contract must be concluded according to the agreement of the parties in an equal relationship, and the contents must not be significantly contrary to 'good customs and other social order' or 'fairness'. In principle, if the contents of the contract violate good customs or other social order, or if it greatly impairs mutual fairness, the provision will not take effect. The Framework Act on Construction Industry, which falls under the Framework Act on Construction, is a law that stipulates all matters related to construction work and construction, and is the predecessor of the Construction Business Act enacted by Act No. 3501 in 1981.Therefore, the purpose is to determine basic matters related to investigation, design, construction, supervision, maintenance, and technology management of construction works, and to promote appropriate construction and development of the construction industry. On the other hand, in public construction contracts under the guise of the 'principle of private autonomy', unfair acts resulting from the relationship between A and B frequently occur. Even in this case, it is difficult to fight against this situation, and some contractors pass on the unfairness to their subcontractors, and the lowest class becomes the biggest victim of the unfairness. Since the Framework Act on the Construction Industry is basically a law enacted to regulate construction companies, if one of the contracting parties is not a contractor or orderer, there is no penalty clause that can sanction an unfair act even if it occurs. In addition, as the agreement between the parties is applied before the Framework Act on the Construction Industry, which is a special law of the general civil law or a special law of the civil law, it often provides the cause of unfair conduct. In addition, due to the negative effects of the relationship between A and B, there is of course a limit to the refusal of all unfair acts by the contracting party, who is comparatively inferior to the ordering party in the case of a construction contract. Although the contracting party is generally fully aware of the injustice in advance, it is often necessary to endure it due to its economic status, effectively nullifying the effectiveness of the provisions to prevent unfair acts stipulated in the Framework Act on the Construction Industry. Therefore, it is necessary to specifically and explicitly stipulate the case that falls under a remarkably unfair act in which there is an objectively large imbalance between benefits and benefits in return, etc., so that the compulsory nature can be easily identified. In accordance with Article 30 (2) of the Enforcement Decree, if the period of warranty liability is set separately and the provisions of the law stipulating 'the cause and additionally incurred defect guarantee fee' are violated, the effect of the relevant matter will not take effect. In order to do this, it would have to be specified by supplementing the clause that 'in case of violation of this, it is invalid'. In addition, it would be a way to secure legal stability to legislate as exemplary and specific regulations rather than regulations that can be interpreted enumeratedly, and to stipulate them in laws that are difficult to change rather than enforcement ordinances and enforcement rules.