한탄강 사랑 :: 공개 질의서(대림산업 시공업자 자격 유무효여부)

이름: 강원

2006/9/14(목)

공개질의서(대림산업_시공업자_자격_유무효_여부).hwp (19KB, DN:192)

공개 질의서(대림산업 시공업자 자격 유무효여부)

공개 질의서

1. <대림 건설의 한탄강 댐 건설 시공업자 자격의 무효, 유효 여부 ?>

최근 한탄강 홍수조절댐 건설과 관련해 2002년 12월 시공업자로 선정된 대림건설의 공사 수주 권리가 유효한 것인지 논란이 되고 있습니다.
그 동안 진행되었던 한탄강 댐 건설 사업을 살펴보면서 문제가 되는 점을 지적해 보면 다음과 같습니다.

1. 수자원공사가 한탄강댐 건설 시공자로 대림 건설을 선정한 과정

- 1999. 12 : 수해복구비로 급히 조달된 추경예산으로 한탄강댐 기본설계 발주
- 1999. 12 ~ 2000. 12 : 기타공사로 결정, 한탄강댐 기본설계 용역 마침(21억원)
- 2001. 10 : 수자원공사 입찰방법 재심의
(기타공사 ▶ 설계․시공 일괄입찰인 턴키방식으로 변경함)
- 2001. 12. 15 : 한탄강댐 환경영향평가 협의시작
* 2002년 7월 및 12월, 2003년 4월 등 3차례에 걸쳐 보완
- 2002. 2. 1 : 한탄강댐건설단 사무실 개소
- 2002. 2. 5 : 댐 타당성 재 검증
- 2002. 4. 3 : 한탄강 댐설계 시공업자선정을 위한 입찰공고
- 2002. 10. 9 : 한탄강댐 턴키 입찰
- 2002. 11. 5 : 한탄강댐 설계 시공업자로 대림 산업(주)을 실시설계 적격업체로
선정 (턴키방식)
- 2003. 7. 28 : 환경영향평가 등 협의 완료

가. 절차의문제점

○ 정상적 추진절차

* 관련법령과 지침
- 건설기술관리법 제21조의3, 건기법 시행령 38조의5, 6, 8, 9, 11
- 국가를 당사자로 하는 계약에 관한 법률 제80조 제1항, 제2항
- 댐건설및주변지역지원에관한법률 제7조, 제8조 등
- 대형공사입찰방법심의기준(건교부 2001. 6. 1)

기본구상 ▶ 타당성조사 ▶ 환경영향평가협의 ▶ 기본계획 및 수몰(하천)예정지 고시 ▶ 공사수행 방식의 결정(턴키 등) ▶ 시공사 선정 ▶ 기본설계 ▶ 실시설계 ▶ 실시설계 고시 ▶ 시공 ▶ 준공

건설교통부는 환경 영향 평가가 끝나기 전에 공사 입찰 공고를 내서 행정 행위를 문란 시켰고 2002년 12월 1일 한탄강댐 설계 시공업자로 대림 산업을 우선계약대상자로 선정 함.

건설기술관리법 시행령 제38조8의 규정에 따라 사업기본계획을 고시한 뒤 기본 실시설계와 시공자를 결정하는 절차를 밟아야 함에도 불구하고 이런 절차를 모두 무시했음.

○ 한탄강 댐 추진절차
기본구상 ▶ 타당성조사 ▶ 입찰방법선정 ▶ 시공사 선정 ▶ 환경영향평가협의(조건부승인) ▶
기본설계

※ 공사 발주 후 잦은 설계변경으로 인한 예산 낭비도 문제임
- 수자원공사가 열린우리당 노영민 의원에게 제출한 ‘최근 5년간 설계변경 공사 내역 및 사유’에 따르면, 설계변경 횟수가 총 196회로, 당초 2조9100여억원이던 금액이 3조500여억원으로 1350여억원 증가했음.
- 수자원공사가 제시한 설계변경 사유를 보면 ‘수량증가 및 기타’(45.99%), ‘현장여건 반 영’(40.69%) 등 불투명한 것들이 대부분임.

* 한탄강댐 사업비의 경우 당초 기본설계에서는 1조 7,650억원이었으나, 2001년 환경영향평가서를 제출할 당시에는 2조 7,912억원으로 기본설계보완보고서에는 1조 6,852억원으로 제시되어 있음.

나. 감사원의 지적(2005년 5월 23일)

- 추진과정에서는 환경영향평가협의 완료와 기본계획 고시도 되지 않은 상태에서 한탄강댐의 기본설계(기본설계비 16억 원) 완료와 턴키방식(설계․시공일괄입찰)을 실시한 후 실시설계 적격자를 선정하는 등
- 정상적인 추진 절차를 위반하여 사업을 추진함으로써 상호 신뢰를 바탕으로 추진되어야 할 국책 사업에 대한 정부 불신만 초래하였다.

2. 대림 건설의 시공업자 자격 점검

법리의 원칙상 기존의 사업이 백지화 되면 그 동안 진행되었던 행정 절차들이 무효가 되어야 한다. 즉 한탄강 댐 건설의 경우ꡐ조건부로 받은 군부 동의ꡑꡐ입찰 경쟁 업체의 시행 공사 권리ꡑ가 자동으로 소멸 되는 것이 타당하다.
현재 법절차를 무시하고 시공업자를 먼저 선정하여 재벌건설회사의 로비의혹이 제기되고 있고 감사원 및 지속가능발전위에서 ꡒ엉터리 계획ꡓ임이 판명됨.

가. 대통령 자문기구인 지속가능발전위원회의 결정문(2004. 11. 2)

- 2004. 11. 2 임진강 유역 홍수 피해 방지를 위한 결정문으로
- 『기존의 한탄강댐 건설계획』은 자료의 신뢰문제와 기술적·절차상 오류로 무효화 하되~~

나. 지속위의 결정문 의미

- 결정문을 문리적(文理的)으로 해석을 하면 그 동안 추진되던 한탄강 댐 건설 계획이 백지화 되었다는 의미로 해석 되며

- 한탄강 댐 건설과 관련된 모든 행정 행위들이 실효 되었다고 판단 됨.

다. 지속위 결정문을 부정할 경우 문제점

A. 원칙적인 문제

지속위가 대통령 자문 기구로 결정의 법적인 효력에 대해서는 법적인 다툼이 필요하지만 법학 개념을 인용해 보면 ‘특별법은 일반 법률보다 우선 적용한다는 원칙’에 비추어 기존의 행정기관보다 특별한 지위에 있는 지속위의 결정이 유효하다는 판단이 됨.

B. 지속위 결정문을 부정하고 대림 건설의 시공권을 인정할 경우 문제점

지속위 결정문을 인정하지 않을 경우에는 그 동안 대통령 자문기구로서 활동하면서 지속위가 내린 모든 결정이 무효 되는 국가 혼란 상태를 발생함.

또한 한탄강 댐 관련 지속위의 결정이 무시될 경우 댐 건설 문제는 국회가 예산을 전액 삭감한 시기로 소급해서 다시 논의 되어야 하는 사태에 직면함.

지속위에서 한탄강 댐 건설 관련 업무를 2005년 5월 지속위에서 이관 받은 국무조정실 환경정책팀에 설치한 임진강 특위 소속 검증평가실무위원회도 무자격 상태가 되는 기가 막힌 일이 됨.

3. 결론

철원군투쟁위에서는 대림 건설의 한탄강 댐 건설 사업에 시공권에 관해 행정정보공개요청 이후 법원에 ‘사업자 자격 확인 소송 신청’을 추진할 것임.

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