Judicial review on the restriction of participation in tendering procedures based on contract – Focusing on the poetic search for the application of administrative law to civil sanctions of public institutions –

Abstract

In addition to administrative dispositions in public contracts, restrictions on participation based on contracts are used as civil law measures. In this regard, the Supreme Court recognizes the category of civil sanctions in public contracts by seeing that civil law is applied, not administrative law, and is subject to civil lawsuits, not administrative lawsuits. Whether the administrative law can be applied to these civil sanctions is a question of whether public contracts are subject to the principles of private autonomy and contract freedom. Public institutions are not subjects of enjoyment of the principle of private autonomy and contract freedom. In addition, the public contract law is not a simple internal regulation, but rather a regulation that restricts the representative authority of the contract official. The discretion control under the administrative law may apply to the restriction of the representative authority of the contract official. Of course, it is also possible to approach civil sanctions from a civil law perspective. However, from the standpoint of administrative law, civil sanctions are assessed whether special agreements on transaction restrictions, which are the basis for civil sanctions, are permitted from the non-delegation doctrine and the principle of proportionality. On the other hand, in an administrative lawsuit, the court can only revoke or confirm invalidity of the restriction on participation in tendering procedures, but from the perspective of public contract law, similar to the reduction of penalty, it is possible to seek whether the court can directly admit the reduction of the restriction period. From this point of view, judicial standard for civil sanctions need to be established through competition and cooperation between administrative law and civil law. Furthermore, the method of litigation regarding the restriction of the restriction of participation in tendering procedures needs to escape from the current dualization of the administrative and civil suits. Civil sanctions should be viewed as ‘administrative dispositions in the aspect of litigation law’. Through this, confusion over the remedy procedure can be minimized and consistent standards for administrative and civil sanctions can be established.