| 姓名 | 黃于禎(Yu-chen Huang) | 電子郵件信箱 | s9211633@mail.cyut.edu.tw | |
| 畢業系所 | 營建工程系碩士班(Department and Graduate Institute of Constrction Engineering) | |||
| 畢業學位 | 碩士(Master) | 畢業時期 | 93學年第2學期 | |
| 論文名稱(中) | 營造業法中專業營造業設立制度之研究 | |||
| 論文名稱(英) | The Study on Enactment of Specialized Construction Enterprises in Construction Industry Act | |||
| 檔案 |
請遵守中華民國著作權法之相關規定，切勿任意重製、散佈、改作、轉貼、播送，以免觸法。 |
論文使用權限 | 校內外完全公開 | |
| 論文語文/頁數 | 中文/117 | |||
| 摘要(中) | 營造業法歷經十多年，終於在民國九十二年二月七日正式由總統公布實施，全文七十三條。營造業法的通過，讓原本營造業之法源依據由行政命令躍升至法律位階。該法之立法精神為強化營造業之經營管理，除著重於工程品質、技術及施工責任外，更強調其專業分工，即專業技術、人員之管理及公共安全之維護。 相較於營造業管理規則，營造業法之變革有諸多特色，其中之ㄧ即為營造業法將「專業營造業」制度納入營造業規範中。此舉之意，除可增進工程品質與提升營造業整體技術水準外，更可藉由專業技術分工來落實營造產業之管理。但縱觀營造業法規定中，申請為專業營造業之權益、資格、專業工程項目等，皆有與實務不符或不公平之處，例如營造業法第二十五條第一項規定受轉交之專業營造業並就轉交部分負連帶責任，與政府採購法第六十七條相較之下，此項規定有過於保護定作人權利之疑。復條文第二項規定受轉交之專業營造業的權益問題，此規定原係有鑑於往昔得標廠商領取工程款後，未對分包商付款之情形而設之條文。然而，觀其條文似加重了專業營造業（分包商）之責任，卻未給予相對的利益規定，實為顯失公平之舉。 再者，營造業法第二十五條之轉交工程似乎僅針對專業工程項目而言，但實務上較大型的工程除了將專業工程項目分包給專業營造業外，亦會將其他非專業工程分包給小型綜合營造業或土木包工業，營造業法卻忽略了對其他非專業工程項目分包與工程禁止轉包之相關規定。如此不僅會造成管理上之困難，發生工程爭議時亦無法源依據可循。建議未來修法方向應將營造業法第二十五條專業營造業權益問題、連帶責任之劃分作一完整修正及採政府採購法之分包精神來訂定分包制度；至於政府採購法禁止轉包之規定不盡完善，為了避免得標廠商將工程分為若干部分，再逐一分包出去之小分包行為發生，營造業法應更加嚴謹規定禁止轉包，以免工程層層轉包，導致工程品質不佳、萌生弊端進而使人民生命財產遭受威脅。 另，同法第二十五條第三項說明專業營造業不僅承攬受轉交之工程，也可依登記之專業工程項目，向定作人承攬專業工程及該工程之必要相關營繕工程。其中所謂「必要相關營繕工程」乃屬於法律不確定概念，因此關係到專業營造業者向機關承攬公共工程時，恐因公務機關在製作標案時之保守心態，使專業營造業不易直接向機關承攬到工程之情形。再者，申請專業營造業之資本額及專任工程人員資歷之標準規定中，其專業工程項目之資本額均與丙等綜合營造業相等，有些甚至高於丙等綜合營造業，且亦須設置技師一人以上，如此設立不但對專業營造業無實益反而還限制其營業範圍（項目）。因此會造成營造廠商不願登記成專業營造業，而使營造業法難以施行的窘境。 本研究主要目的即在現行及歷史法規基礎上並輔以行政解釋令函及法院裁判之實務運作下，將專業營造業設立之其權利義務及設立實益等問題探討後，解決目前實務操作層面因法規不明或不備而產生之爭議與矛盾的建議途徑，期能使專業營造業設立之制度更為完善，方能符合營造業法第一條之提高營造業技術水準並符其專業分工之制定精神，促進營造業健全發展，增進公共福祉。 | |||
| 摘要(英) | After a long
discussion made in the past over ten years, the Construction Industry
Act in 73 articles was finally approved and put in effect by the
President on February 7th, 2003. The approval of the Construction
Industry Act has made the basis of law of the Construction Industry Act
be promoted from the administrative decree up to the level of law and
regulation. The legislation spirit is to strengthen the running
management of the construction industry, not only on the quality of
engineering, technical know-how, and responsibility of construction, but
also more on the professionalized diversification, i.e., the
professional technique, the management of labor and staff, and the
safeguard of public safety as well. Compared to the Management Rules of Construction Industry, there are many characteristic appeared through the reformation of Construction Industry Act. One of them is to include the system of 「Specialized Construction Enterprises」into the management of construction industry. The purpose of such a reformation will improve not only the engineering quality and overall technical level, but also to fulfill the management of construction industry through the specialized division technically. However, throughout the rules and regulations as stipulated in the Construction Industry Act, a lot of points were found unfair and unrealistic in the rights, interests, qualifications, items of specialized construction for the one who wishes to apply for being the specialized constructor. For example, as specified in the Clause 1 of Article 25 of the Construction Industry Act that the transferee of the specialized construction Enterprises should be responsible for and in relation to the part of the job that transferred. Such regulation seemed to have over protected the rights and interests of the specialized constructor, in comparison to Article 67 of the Procurement Act. However, in view of the payment which usually can’t be shared with the sub-contractor after the receipt of the payment by the contractor, the Article 2 of the same Article also is set to confine the rights and interests of the transferee of the specialized construction Enterprises. And it seemed unfair that the Article 25 made the specialized construction Enterprises (sub-contractor) who should bear more of the responsibility without enjoying the rights and interests they should have relatively. Further more, the transferred engineering as confined in the Article 25 of Construction Industry Act seemed to only point to the items of specialized construction. In reality, the construction of larger scale usually not only transferred all the specialized items to the specialized constructors, but also have some non-specialized jobs transferred to the general constructor of smaller scale or even to the ordinary civil engineering constructor. The Construction Industry Act seemed to have ignored the related regulation between the sub-contracting of specialized engineering and the engineering construction that are prohibited to transfer. This will make not only the management difficult, but also make the dispute unable to resolve without the basis of law. We wish to suggest that the modification to be made with regards to the Article 25 of the Construction Industry Act in the future should expressly split the relationship between the rights and interests and the related responsibility. The sub-contracting system should be properly established in accordance with the sub-contracting spirit. As for the imperfect regulation set to the Government Procurement Act that prohibits the sub-contracting, the Construction Industry Act should confine strictly the non-transference of the construction to prevent from the bad quality engineering and the threat to life and wealth of the people due to the even smaller in numbers of the sub-contractors that happened already. Besides, the Clause 3 of Article 25 in the same law stipulated that the specialized constructor may undertake not only the transferred construction, but also ask the owner for the specialized engineering and its necessary and related construction according to the specialized items that registered. The said 「necessary and related construction」is surely some kind of uncertainty in law. This will make the specialized constructor difficult or even unable to undertake the civil construction from the authority due to the conservative mental status of the officials in the authority. Further more, among the capital amount and the qualification of the specialized engineers that required in the application for the specialized constructor, some of the capital amount required for the specialized constructor is equal to those required as a Class C General Constructor, while some of them are even higher than those required as a Class C General Constructor. Also over one (1) engineers is required for being the specialized constructor. The aforesaid regulations will be not only useless with the specialized constructors, but also limit the business ranges (items) of the specialized constructor. As a matter of result that many of the constructors will not be interested in becoming the specialized constructors, and that the Construction Industry Act can’t be easily put in effect. The purpose of this study is trying to realize the problems of the rights and interests, and the real benefit of the establishment of the specialized constructor on the basis of the existing and historical laws and regulations coupled with the administrative decrees and the judgment made by the court of law. The purpose of this study is also trying to resolve the dispute and conflict caused by the unclearness and incompleteness in the actual operation of the relating laws and regulations currently to ensure the perfect of system of the Specialized Constructor which may lead to meet with the spirit set forth in the Article 1, and to improve the healthy development of construction industry, and to promote the social welfare as well. | |||
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| 口試委員 |
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