Critical Review of precedent and theory that Public Law Contracts are Equal Relations

The position of the Supreme Court precedent and the general theory sees public law contracts as consensus between equal parties. However, it is difficult to agree with these arguments of the Supreme Court precedent and conventional wisdom for the following reasons. First of all, not a few scholars belonging to the conventional wisdom call a contract concluded between an administrative entity and a private individual a “subordinate contract” and at the same time explicitly recognize it as a “contract between non-equal parties.” The same is true of the arguments that state public rights are rights to be held in the position of superior subject without distinguishing the case established by a public law contract from other cases. Second, if the “theory of power”(Über-Unterordnungstheori) is correctly understood as a theory that sees the law applied to the power relationship (not legal relations or acts of power) between the exercise of state power and the other party as a public law, whether the area of action is a benefit administration or a public law contract, it is all in the area of public law. The ‘contract’ is only a form of action, and the ‘public law’ contract cannot be equal like a ‘civil law’ contract. As long as public law and civil law are recognized as separate legal systems, the argument that the social benefit provider and beneficiary are equal in public law contracts in an era when social benefits are important for the survival and prosperity of the people cannot be valid. In this regard, there is a misunderstanding that public power or power relations do not correspond to a democratic rule of law, but it should not be forgotten that “state power” is a basic concept of constitution and administrative law even in a democratic rule of law, such as explaining the “attribution theory”(Zuordnungstheorie) focusing on the subject of public power. Third, it is logical to view the unilateral action with the other party as an equal relationship, and the public law contract and administrative action as an unequal relationship.