The legal nature of the Master Plan for Public-Private Partnerships in Infrastructure and the need for public legal control over its application

The Act on Public-Private Partnerships in Infrastructure, which plays a central role in building and operating infrastructure with private investment funds, is structured around raising funds from the private sector, revealing a strong characteristic of financial procedure laws. Unlike government-funded projects centered on an administrative agency, private investment projects do not regulate rights and obligations through “disposition” from the administrative agency, but define relations between the public and private sectors based on contracts under public law called “concession agreements.” If a concession agreement is not yet signed, the Master Plan for Public-Private Partnerships in Infrastructure affects private businesses in a situation where no legal relationship has been formed, but the Master Plan is only an administrative rule and is in principle not externally binding. In negotiations between the public and private sectors, the Revised Master Plan for Private Investment Projects often has adverse consequences for private businesses. We examine this through the recent revision of the Master Plan for Private Investment Projects in connection with the requirements for a Re-investigation of Private Investment Qualification. The Master Plan for Private Investment Projects was revised in 2023 to partially supplement the Re-investigation of Private Investment Qualifications; however, this process differs from the case of government-funded projects. For government-funded projects, specific laws and regulations related to feasibility re-examinations exist because of the application of the National Finance Act, but there is no such supporting law for private investment projects, and the institutional void that occurred in the process of revising the Master Plan for Private Investment Projects became an interpretation problem. Through these examples, we discuss ways to overcome the procedural legal limitations of the Act on Public-Private Partnerships in Infrastructure for financing purposes based on contracts under public law.