계약에 기한 입찰참가자격제한에 관한 연구 — 법적 근거에 대한 새로운 모색을 중심으로 — (A study on the restriction of bidding participation procedures based on contract — Focusing on Reconceptualizing Legal Underpinnings —)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 35권 / 1호 / 1 ~ 34페이지
· 저자명 : 김상찬

초록

In public contracts, the restriction on bidding participation is mainly carried out on the basis of laws. In this regard, it is generally considered to be an administrative disposition.
However, in practice, the qualification to participate in the bidding is not based on the above laws, but on contracts. In response to this, the Supreme Court has recently ruled on this issue, and studies on its legal nature are just beginning.
The legal nature of the restriction on bidding participation due to the law is disposition, and it is also regarded as an invasive disposition. According to the principle of legal reservation, the legal reservation is necessary on invasive disposition. Then the question whether the restriction on bidding participation not by the law but by contracts is allowed, and if so, how to solve the issue of the legal reservation is raised.
In this research, the discussions on whether to allow the restriction on bidding participation by contracts and the legal nature are examined through various judgments and theories. It will focus on how to recognize the legal nature of the restriction on bidding participation by contracts and how to solve the legal issues. In particular, it is significant to attempt a new research for legal basis related to the legal reservation.
This research insists that the nature of the restriction on bidding participation by contracts has the effect of restricting the qualification to participate in the bidding, which is the right guaranteed by laws to participate in the bidding process of public institutions such as state, and the legal basis can be found in the public legal authority which is the root of disposition to manage fair competitive bidding. Also, this research asserts that the law regulating public contracts through competitive bidding can be the basis for restricting the eligibility of bidders. Based on this research, more discussions on this topic from various perspectives are suggested.

영어초록

In public contracts, the restriction on bidding participation is mainly carried out on the basis of laws. In this regard, it is generally considered to be an administrative disposition.
However, in practice, the qualification to participate in the bidding is not based on the above laws, but on contracts. In response to this, the Supreme Court has recently ruled on this issue, and studies on its legal nature are just beginning.
The legal nature of the restriction on bidding participation due to the law is disposition, and it is also regarded as an invasive disposition. According to the principle of legal reservation, the legal reservation is necessary on invasive disposition. Then the question whether the restriction on bidding participation not by the law but by contracts is allowed, and if so, how to solve the issue of the legal reservation is raised.
In this research, the discussions on whether to allow the restriction on bidding participation by contracts and the legal nature are examined through various judgments and theories. It will focus on how to recognize the legal nature of the restriction on bidding participation by contracts and how to solve the legal issues. In particular, it is significant to attempt a new research for legal basis related to the legal reservation.
This research insists that the nature of the restriction on bidding participation by contracts has the effect of restricting the qualification to participate in the bidding, which is the right guaranteed by laws to participate in the bidding process of public institutions such as state, and the legal basis can be found in the public legal authority which is the root of disposition to manage fair competitive bidding. Also, this research asserts that the law regulating public contracts through competitive bidding can be the basis for restricting the eligibility of bidders. Based on this research, more discussions on this topic from various perspectives are suggested.

참고자료

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