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. |