Judicial Application of the Government's Duty to Perform its Commitments under Private Sector Promotion Law

Abstract

Articles 70 and 73 of Private Sector Promotion Law turn the performance of lawful policy commitments and government-enterprise contracts into a statutory obligation owed to private economic organizations. Even so, these provisions continue to work with the existing rules of civil and administrative law. Courts must first decide whether an agreement is administrative or civil. They must then ask how the law deals with four situations: a lawful change in the public interest, unlawful non-performance, objective impossibility, and an invalid agreement or clause. Based on decided cases and a textual and systematic reading, this article submits that the word "contract" in Articles 70 and 73 includes both administrative agreements and civil contracts. The rules applied, however, still depend on the nature of the legal relationship. Article 73 addresses "non-performance" only. An unlawful modification or termination must therefore be assessed under Article 70(1) and the rules of the relevant branch of law. Relief likewise depends on the applicable form of liability. The expectation interest, reliance interest, and actual expenditures should each receive a separate scope of protection.