행정조달계약에 있어서 공익(公益)을 위한 계약의 변경 및 해지에 관한 연구

A Study on Modification & Termination of the Contract for the Public Interest in Government Procurement Contracts

It is the basic principle of law that contracts must be followed. But it is necessary to accept the contract m odification and the contract term ination according to the public interest in the adm inistrative procurem ent contract. Therefore, in the case of contract modification or termination according to the public interest in governm ent procurem ent contracts, it is necessary to approach from the view point of the rule of just com pensation for the law ful taking of property by the pow er of em inent dom ain rather than contract theory in the judicial law . If there is a need for public interest in governm ent procurem ent contracts, the governm ent m ay unilaterally term inate the contract. In the U nited States, it perm its the term ination of convenience contracts if policies are changed, such as to prevent unnecessary spending or loss, or to w ithdraw projects for budget cuts. Therefore, it is reasonable to acknow ledge the m odification and term ination of the contract for public interest in the case that the factual or legal status on w hich the contract originally originated is significantly changed or in the case of force m ajeure such as natural disasters occurs. Even if a contract m odification or term ination for public benefit is allow ed, it should be considered contract m odification first and used contract term ination as a last resort. If the contract is term inated, just com pensation shcompensation should, in principle, fully compensate the objective value of the damaged property, but it may be less if reasonable. Therefore, in the case of contract termination for the public interest, it restricts the other party s recovery to costs incurred, profit on w ork done, and costs of preparing the term ination settlem ent proposal. Recovery of anticipated profit is precluded. If the com pensation of the expected profit is allow ed, the term ination of the contract for the public interest m ay becom e m eaningless.