Defense procurement is a type of public procurement, and by procuring goods, equipment, and services required by the military at a time when the military requires it, supporting the military to preserve combat power and enhances the morale and welfare of the soldiers. Such defense procurement goes t...
Defense procurement is a type of public procurement, and by procuring goods, equipment, and services required by the military at a time when the military requires it, supporting the military to preserve combat power and enhances the morale and welfare of the soldiers. Such defense procurement goes through multiple processes until it reaches the hands of soldiers, and in particular, the contracts are of interest to both the government and companies.
The Act on Contracts to which the state is a party, which is applied to such defense procurement contracts, has regulations that restrict the qualifications of participating in bidding to delinquents in order to prevent various illegal acts committed by companies participating in bidding to obtain successful bids. In order to maintain the fairness and transparency of the contract and to safely implement large-scaled national projects, this regulation is inevitably put in place.
On the other hand, the restriction on the qualification to participate in the bidding of the delinquents will prevent the sanctioned company from participating in all procurement projects ordered by the government for a certain period in the future, which will conclude in economical damage for the company.
A defense procurement contract is distinguished from dominant administrative actions such as administrative actions unilaterally performed by an administrative agency in a superior position in that it is made by the agreement of intentions between equal parties. As a result, opinions are divided on the legal nature of the defense procurement contract, but the position that emphasizes that the defense procurement contract is made by agreement between equal parties rather than an action of power argues that it is a judicial contract, From the perspective of paying attention to the characteristics of a procurement contract, it is understood as a contract under the public law.
However, in light of the fact that the fundamental purpose of a defense procurement contract is the realization of the public interest of national security, and for this reason, a legal characteristic difference from that of a contract between private parties is recognized. Therefore, it is reasonable to understand the legal nature of the defense procurement contract as a contract under public law, and to understand that disputes related to this are subject to administrative litigation.
As mentioned earlier, the regulation that reflects these special characteristics of public law in the National Contract Act is a representative example of the regulation on illegals. This system not only sets standards and procedures in the National Contract Act, but also has firm public law characteristics in that it is a typical administrative act under public law and is a compulsory rule with a binding character. Therefore, the legal nature of the defense procurement contract as a contract under public law should be further emphasized in terms of securing fairness through intrusive sanctions.
Before the revision on September 3, 2016, there was a lot of discussion about whether the National Contract Act complied with the limits of the mandated legislation by enumerating the reasons for restricting the qualification to participate in bidding in the enforcement decree, not the law. As it was significantly revised, Article 76 of the Enforcement Decree of the same Act also had many changes. Nevertheless, if the relevant administrative agency misinterprets the law and sanctions it, the court cancels it because the law does not clearly stipulate the requirements and procedures for restrictions on participation in bidding, which are sanctioning measures that infringe on the rights of citizens. Institutional and legislative supplementation is necessary because it may cause confusion in project implementation.
Throughout the past, most of the research or countermeasures on sanctions against delinquents has been about how to deal with sanctions if outlaws occur. However, recognizing that if sanctions are excessive or unreasonable, the defense industry shrinks and on the contrary, it can lead to the mass production of illegal workers, the goal of sanctions against illegal workers in the defense procurement contract is ultimately to develop the defense industry and efficiently procure excellent munitions. Therefore, the system should be developed to contribute to this goal.
Defense procurement is a type of public procurement, and by procuring goods, equipment, and services required by the military at a time when the military requires it, supporting the military to preserve combat power and enhances the morale and welfare of the soldiers. Such defense procurement goes through multiple processes until it reaches the hands of soldiers, and in particular, the contracts are of interest to both the government and companies.
The Act on Contracts to which the state is a party, which is applied to such defense procurement contracts, has regulations that restrict the qualifications of participating in bidding to delinquents in order to prevent various illegal acts committed by companies participating in bidding to obtain successful bids. In order to maintain the fairness and transparency of the contract and to safely implement large-scaled national projects, this regulation is inevitably put in place.
On the other hand, the restriction on the qualification to participate in the bidding of the delinquents will prevent the sanctioned company from participating in all procurement projects ordered by the government for a certain period in the future, which will conclude in economical damage for the company.
A defense procurement contract is distinguished from dominant administrative actions such as administrative actions unilaterally performed by an administrative agency in a superior position in that it is made by the agreement of intentions between equal parties. As a result, opinions are divided on the legal nature of the defense procurement contract, but the position that emphasizes that the defense procurement contract is made by agreement between equal parties rather than an action of power argues that it is a judicial contract, From the perspective of paying attention to the characteristics of a procurement contract, it is understood as a contract under the public law.
However, in light of the fact that the fundamental purpose of a defense procurement contract is the realization of the public interest of national security, and for this reason, a legal characteristic difference from that of a contract between private parties is recognized. Therefore, it is reasonable to understand the legal nature of the defense procurement contract as a contract under public law, and to understand that disputes related to this are subject to administrative litigation.
As mentioned earlier, the regulation that reflects these special characteristics of public law in the National Contract Act is a representative example of the regulation on illegals. This system not only sets standards and procedures in the National Contract Act, but also has firm public law characteristics in that it is a typical administrative act under public law and is a compulsory rule with a binding character. Therefore, the legal nature of the defense procurement contract as a contract under public law should be further emphasized in terms of securing fairness through intrusive sanctions.
Before the revision on September 3, 2016, there was a lot of discussion about whether the National Contract Act complied with the limits of the mandated legislation by enumerating the reasons for restricting the qualification to participate in bidding in the enforcement decree, not the law. As it was significantly revised, Article 76 of the Enforcement Decree of the same Act also had many changes. Nevertheless, if the relevant administrative agency misinterprets the law and sanctions it, the court cancels it because the law does not clearly stipulate the requirements and procedures for restrictions on participation in bidding, which are sanctioning measures that infringe on the rights of citizens. Institutional and legislative supplementation is necessary because it may cause confusion in project implementation.
Throughout the past, most of the research or countermeasures on sanctions against delinquents has been about how to deal with sanctions if outlaws occur. However, recognizing that if sanctions are excessive or unreasonable, the defense industry shrinks and on the contrary, it can lead to the mass production of illegal workers, the goal of sanctions against illegal workers in the defense procurement contract is ultimately to develop the defense industry and efficiently procure excellent munitions. Therefore, the system should be developed to contribute to this goal.
Keyword
#국방조달 군수품 부정당업자 입찰참가자격 제한 국가계약법 national defense procurement munitions delinquents restriction of qualification to participate in bidding national contract law
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