| 姓名 | 詹菡心(Han-Sin Jhan) | 電子郵件信箱 | E-mail 資料不公開 | |
| 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 | 96學年第1學期 | |
| 論文名稱(中) | 由不可預見與顯失公平探討工程採購契約範本之履約效果 | |||
| 論文名稱(英) | A Study on the Contract Execution Disput For the Construction Procurement Contract Model from Unpredictability and Obvious Unfairness | |||
| 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/183 | |||
| 摘要(中) |
公共工程履約期間冗長，工程成本金額甚高，且各工作項目之介面繁雜，由規劃設計、履約期間直到驗收保固，皆存在許多雙方當事人無法預估知之風險。為此，業主往往以預先擬定條款之優勢將風險及責任轉嫁於承包廠商，甚至將契約中存在之疑義或無法預知災害之情事，亦將損失風險全由承包廠商承擔，對承包廠商而言顯失公平。 公共工程所採之工程採購契約範本雖無拘束力或強制性，但工程主辦機關皆參考此範本之規定訂定契約條款，甚至一字不漏，影響力甚大。公共工程契約之訂定方式，係由政府機關預先訂定，再與前往投標之承包廠商進行締約，且承包廠商對於契約內容僅能附和，無法對條款內容做任何建議或更改，因此契約中存在許多爭議，如條款內容不公平、不合理或規定事項不明確、不完整；另，公共工程具有專業性、不可預測性、高風險等不確定且無法預知之因素，如工程履約過程中常見不可抗力之自然災害、物價暴漲、工地異常、民眾抗爭等不可預見之情事，所造成之損害程度並非為有經驗之雙方當事人可以合理預見，且通常所造成後果之責任歸屬最難以釐清；然而，工程採購契約範本常見業主為免除承擔風險及責任，訂定轉嫁風險之條款，或是契約訂定雙方權利義務風險不均；再者，履約情事發生後進行變更，須調整契約之工期及價金，倘若仍依原有契約效果履行，則對其中一方當事人顯失公平。 蓋為防範履約過程因不可預見情事而造成顯失公平之爭議產生，即針對現行工程採購契約範本條文中之缺失與疏漏等爭議問題做為分析探討。本文首先將工程契約爭議問題分為契約價金、履約期限、契約變更、契約終止及解除、工程品管及保固、災害處理及保險及其他相關等七項類型，探討相關條款訂定權利義務及責任歸屬之公平、合理、明確及完整性。藉由整合國內外工程契約相關風險之分配，與學者論述不可預見及顯失公平之法律不確定概念，依工程實務情形提綱切領列舉兩者概念之評斷標準。最後，配合有關上述工程履約過程常見之爭議，探討工程採購契約範本相關問題條款，再依不可預見及顯失公平評斷標準，判斷實際情形是否適用情事變更原則，並依此請求調整價金及工期，且不得以原有契約效果限制承包廠商之權益。最後，本文並提若干相關改進建議，以供參考。 |
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| 摘要(英) |
Because the period of executing the public construction contract
is too long, the construction cost is extremely high and the
interface for each task is complicated, there exist many
unpredictable risks for both parties from planning & design and
contract execution to examination & acceptance and
warranty. Thus, the owner often shifts the risk and the
responsibility onto the contractor by taking the advantage of
drafting the article in advance and even also shifts the risk of
losses resulted from any problematic point in the contract or
any unexpected disaster onto the contractor fully, both of which
are obviously unfair for the contractor. Although the construction procurement contract model adopted by the public construction is not binding or enforceable, all construction authorities make the conditions of contract by referring to such model, even without any word omitted. It is seen that its influence is significant. For the method of making a public construction contract, the public agency first makes a draft contract in advance and then concludes the contract with the contractor who tenders a bid. Such contractor only can agree to the contents of contract but cannot make any suggestion or amendment for the conditions of contract. Therefore, there are many disputes in such contract, for example, unfair and unreasonable clauses of the conditions or indefinite and incomplete regulations. In addition, the public construction involves such uncertain and unexpected factors as professionality, unpredictability and high risk. For example, the degree of damage caused by such unpredictable circumstances as act of God, inflation, differing site condition and mass demonstration, which are often seen in the process of executing a construction contract, is not reasonably anticipated by both experienced parties. And, it is the most difficult to divide the responsibility for such resulted consequences. However, it is often seen that the owner make a risk-shifting clause in the construction procurement contract model or make a contract, where both parties have unequal rights & obligations, in order to be exempted from bearing any risk and responsibility. Moreover, it is necessary to adjust the contract duration and payment if any change after executing the contract. If the contract was executed according its original effect, then it would be obviously unfair for one of both parties. In order to prevent from any dispute about such obvious unfairness resulted from unpredictable circumstances in the contract execution process, this research will study and analyze the disputes such as defects and omissions in the conditions of existed public procurement contract model. This article first will divide the disputes over the construction contract into seven categories: contract payment, contract duration, contract amendment, contract termination & dissolution, construction quality control & warranty, disaster management & insurance, to study the fairness, reasonableness, explicitness and integrity of the division of rights, obligations & responsibilities provided in the related conditions of contract. With the integration of relevant risk allocations of domestic and foreign construction contracts and with the legal uncertainty concepts for both unpredictability and obvious unfairness discussed by some scholars, we bring out the main point and particularize the standard for judging both concepts according to the real construction situation. Finally, according to such disputes often seen in the process of executing the construction contract, we study the related issues about the conditions of the construction procurement contract model. Further, we judge if the actual situation is applicable to the principle of change of circumstances based on the standard for judging both unpredictability and the obvious unfairness. And then, we adjust the payment and the duration according to such request and cannot restrict the rights & interests of contractor within the original contract effect. In the end, this article provides some related suggestions for reference. |
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| 口試日期 | 2007-10-31 | 繳交日期 | 2008-01-07 | |