工程契約文件在工程糾紛處理上之應用探討

Abstract

由於我國目前營建工程業是處於一個買方強勢導向的市場狀態，一般來說，各機關招標時所採之工程契約偏重機關的權益保護，以致得標廠商在履約後，受不公平條款而生損害，工程爭議便不斷發生。工程與法律，原是截然不同的專業領域，工程師需要鑽研大量的工程契約條文，常是咬文嚼字的工作，遇到了合約糾紛，可能還要出入法院或仲裁機構，為所參與的工程事務提出說明或辯解，再者，大型工程專案所需文件種類及數量龐大，管理不易，工程承辦人員常常因不熟悉法律，對各項工程文件證據內容之完整性或證據力之強弱認知不足，輕忽各項文件的重要性，且因工程時間長，各項作業製作方法及格式不一，造成整合困難、文件保存不易。在面對工程糾紛爭議處理的過程中，常發生的問題如下： 1.工程專案承辦人員對各工程文件之意義及重要性認知不足，輕忽於製作及草率地簽名，造成日後工程在糾紛工程文件舉證時的不利益。 2.在面對工程糾紛處理時，無法適時地針對不同工程爭議提出具關鍵證明力之工程文件。 目前國內營建管理於工程契約的研究多著重於文件的管理，且大多簡單介紹合約文件，缺乏對於文件的功用、種類以及應用之研究，因此擬研究一個工程契約文件的應用，分析各類契約文件的意義及對權利義務的影響，更進一步供業界爾後在辦理合約管理以及面對工程爭議的時候，能夠對應該要準備的文件有更清楚的了解，而此研究亦能協助業界在訂定合約或履約的過程中有所依循。

Construction contracting is becoming increasingly complex and litigious. Owners are reacting with 500-page or more contracts which attempt to place all responsibilities on the contractor. Contractors are reacting with pages and pages of exception and classification to the terms and conditions.The dispute in public construction works during performing contract stage has been increased over the years. During tendering, the draft contract prepared by various institutions mainly concentrates on protecting their own rights and interests; therefore, the contractor who won the tender has to incur damages due to the unfair provision in the contract. This subsequently results in contract disputes unceasingly. In large construction projects, the amount of documentation is massive. This causes management of construction disputes a very difficult issue. Often, the contractor do not realize the importance of documentation, until the late stage in the construction, only to find out that the needed piece of document had been missing. A dispute occurs when the contract documentation is sometimes interpreted differently by the two parties; events that were considered unlikely occur and variations are valued differently by each party. Even one dispute can substantially increase project cost and duration and consume an enormous amount of project resources and time. The most concerned issues are as following： 1. Most of the contractors have limited ability in contract management and knowledge. Commonly, a contractor incurs loss while executing projects, but is unable to prove that the loss is due to the owner’s breach of contract, or the behavior of unite efforts by the owner, or the incompleteness of keeping daily working records. 2. The contractor is usually unable to provide a complete documentation and the evidence for expenses due to the duties of other contract parties. This makes the contractor suffer from invisible damages. This study acknowledges the technique of case studies and selected local large-scale construction companies as the study target, had also interviewed the professional contractors whom are experienced in construction contract. This study applies not only the reality situation about contractual dispute, but can provide the contractor to encounter those problems, but also the meaning and function of contractual documentation to resolving disputes. Keyword：Construction Disputrs；contractual documentation；arbitration；Case Study