Subcontracting occupies a special position in relation to the market economy and freedom of contract. Unlike general commodity transactions, subcontracting creates a structural imbalance, breaking down the equality of the contracting parties. To address this imbalance, freedom of contract is significantly restricted by mandatory legal norms. However, the lack of bargaining power rooted in the concept of equality of the contracting parties and the importance of each party in the contract cannot be measured or determined in any other way, and can only be determined by the outcome of the contract. In other words, even if a contract is deemed unilateral or unequal, it is impossible to correct the imbalance; the imbalance can only be corrected through the outcome of the contract. However, the freedom of contract discussed in relation to subcontracting focuses on the extra-contractual element of the lack of equality of the contracting parties, necessitating a fundamental review of freedom of contract. In today's market economy, restrictions on freedom of contract do not mean that individual contracts are no longer important. Since a certain level of freedom of contract exists in subcontracting, contracts serve, at least in part, to regulate private autonomy. However, in subcontracting, freedom of contract is at risk due to the conflicts of interest of numerous agencies, committees, and, above all, stakeholders seeking to establish regulations regulating freedom of contract. Interference with freedom of contract entails serious dysfunction of the market economy and is undesirable even in light of competition law principles. Therefore, to protect private autonomy, a cornerstone of the judicial system, a balanced approach is needed between "guaranteeing the right to self-determination" and "ensuring fairness in contracts" through contractual control. This paper examines the legislative limitations of subcontracting law, which protects the interests of subcontractors in subcontracting from the perspective of freedom of contract, and, based on this, explores contractual control measures to ensure fairness in subcontracting.
Jin-Myung Chung (Tue,) studied this question.