公共工程履约爭議之案例研究

Abstract

國內公共工程履約爭議事件層出不窮，究其緣由，或因規劃設計之疏漏，導致工程執行之困難或項目增加，或因業主承辦人員經驗不足，無法判斷承包商與監造設計單位孰是孰非，甚或有刻意刁難者，導致履約爭議頻傳，儼然為承包商難以逃避之宿命，因而周轉不靈倒閉者時有所聞。遇此情況，承包商如何應對、避免犯錯，使業主依法行政、秉公處理爭議，是一個相當值得探討的課題。

本研究以一實際之公共工程履約爭議且承包商終遭業主解約之案例，探討兩造發生履約爭議導致工程無法繼續進行時，在應對策略上應如何改進，以避免爭端擴大，化解僵局。此外，並討論當業主拒絕「磋商」、不接受「調解」、拒絕合議「仲裁」的情況下，應該如何因應救濟，以有效解決公共工程履約爭議的可能做法，作為爾後處理公共工程履約爭議之對策。希望提供給工程界參考，降低履約爭議之衝擊，廠商權益得到應有之保障。

Compliance disputes in public works during the construction period occur frequently in Taiwan. The disputes may attributes to the omission in design considerations resulting in difficulties of practical enforcement for the contractor, or lack of experience of the undertaker in judging the conflicts between the PCM and the contractor, or the undertaker may even deliberately make things difficult for the contractor. These disputes often lead to insufficient cash-flow of the contractors and bankruptcy as a consequence. This apparently has become an inevitable fate for many contractors. Once happened, it is critical for the contractor to explore the ways to react to the situations appropriately without making mistakes and thus making the owner impartially deal with the disputes by law.

Based on a true compliance dispute case of public work in which the contract is eventually terminated by the owner, this thesis discusses the possible improvements of the responding strategies for the contractor to settle the interruption of public construction projects in dispute by avoiding further complicating the disputes to allow for resolving the deadlock. Furthermore, this study also discusses the possible alternatives when the owner refuses to take on measures of negotiation, mediation, and arbitration that are common to resolving compliance disputes. This study is meant to provide suggestions to compliance disputes as a reference for the industry to help in reducing the impacts of disputes and hopefully protect the contractor’s right and interest.