公共建設民間投資契約性質之比較分析---從公私協立觀點看司法判決

Abstract

促參法在民國八十九年制定，其精神為提昇公共服務水準，加速社會經濟發展，並促進民間參與公共建設。施行至今已有許多案例，並經法院引用促參法第五十五條將施行前政府依法公告徵求民間參與案件亦適用促參法規定，使促參法成為規範政府與民間投資間權利義務之基本法，並影響促參法實施前所有案件。 公共建設通常具有壟斷性質，工業革命後為避免財團壟斷基礎公共建設人民無法與之對抗，由政府投資公共建設以保障公共利益。但高度的民主過程中直接民主-選舉，讓政治人物一面不斷擴大公共建設一面減稅，未有良好評估，造成政府財政負擔過大；另因公共事業或公營事業因在長期保護下效率不彰為人民所詬病。所九0 年代以民營化及公私合夥成了政府治理的新方向，在〝新的治理〞觀念形成下行政機關不需也不必成為公共服務的唯一提供者。公私合夥的基本機神在講求對等、效率及風險分擔，以往高權之行政觀點在此應有調整必要，而政府可以退去執行的角色，但在指導及公平選擇公共服務的責任是加重的。如何慎選民間投資人、如何由投資人間競爭獲取最大公共利益是新的治理重點，評估與程序是執行民間投資公共建設案件公部門所掌握，在促參法中以第一階段甄審過程作為規範，其甄審決定在國內學者及實務除少數外皆認同其具〝行政處分〞之效果。 第二階段投資契約部份到底屬〝民事契約〞或〝行政契約〞則引起許多不同看法，而契約性質判斷亦影響將來契約的效力及司法救濟，甚至於執行公務的角色。而投資契約對促參案件的影響常有學者稱之為〝王〞，它是規範政府與民間及民間與民間〝契約叢〞權利義務之起點。有稱促參案件常伴隨公權力的介入故應由政府積極介入，自得保留高權行為得以控制契約；有稱促參案件投資金額大、期間長是另一特色，若動輒以調整契約為手段對其穩定性及法律風險有過多不利影響並違反公私合夥基本精神，到底誰是誰非。本研究試著從國內判決中尋找個案對契約性質的判斷及其影響，比對學說及其他國家實施方式，希望不要以純粹之法律觀點討論契約性質，提出看法希望能有利促參案件執行並得以避免以〝契約自由〞原則出賣公權力等疑慮。

Laws for promotion of private participation in infrastructure projects was set up in 1990.Its purpose is promote quality of public service and economic development, and purpose development of the private participate in infrastructure projects. laws for promotion of private participation in infrastructure projects had be bring into practice and there are many cases about that, and quote the 55rd of laws for promotion of private participation in infrastructure projects let the cases that are the govern accord to the rules to solicit private participate in infrastructure projects also conform with laws for promotion of private participation in infrastructure projects before the laws for promotion of private participation in infrastructure projects were bring into practice by the court, that make laws for promotion of private participation in infrastructure projects became the basic law for the rights and duties between government and private, it also had effects to the cases executed before laws for promotion of private participation in infrastructure projects promulgated. Infrastructure usually have monopolistic property, After industrial revolution, for avoid syndicates monopolize Infrastructure make the folk can not resist them, invest Infrastructure by government to protect benefit of public. But in the process of high degree democracy, the direct democracy make the people participate in politics participate in politics expand Infrastructure and reduce taxes, did not make a faultless estimation, lead the government’s to bear too much finance burden. People censure the low efficiency of the public undertakings or publicly-operated undertakings because of they are under the protect from government for a long time .As that, run the public undertakings by the private and government enter into partnership with private became a new aspect ,departments of government need not to be the only one of public service provider under ‘governance’. The basic object of government enter into partnership with private is reciprocation, efficiency and share the risks , the point of view about ‘top-down’ in the past should be adjust ,and government could not to play the role of executants, but the duty on guidance and choose public service is get more weight. How to choose the investor carefully from privates, and how to get the maximum public benefit between the investors is the new manage point, the estimate and procedure are under control from government, in laws for promotion of private participation in infrastructure projects, it take the evaluative process in the first phase to be the rule, most of scholars think its decisions from evaluation is have effect for administrative disposition. In second phase, the property of contract is civil or administrative contractual bring many kinds argument, and that also affect the efficacy and judiciary relief even the roles in the execute process. Scholar defined the efects of Invest contracts to promotion of private participation in infrastructure projects “King”, it is the starting point that set rules about rights and duties for government to private and private to private contractual. Someone said that civic rights usually intervene in cases of PPP and the government should intervene in them. so that can retain state power to control contracts; Someone said that cases of PPP involve great fund and long time for operation is the other feature, if adjust them casually would bring more bad effects to stable property and risks of judicature and violate the basic objects of partnership between government and private, which one is right and which one is wrong. This research try to find the decisions and effects to properties of contracts from the cases, and compare with theories and operate ways of other countries, hope not discuss the properties of contracts by law point only, and recommend attitudes hope that could have benefits for operation of PPP cases and avoid violating state power by freedom of contract.