公共工程物價調整規定與情事變更原則之比較研究

Abstract

在公共工程實務上，廠商往往因為資金或風險等考量，不會在工程起初即購買全部施工物料，而是分期購買，因而公共工程契約之雙方當事人勢必面臨施工期間內營建物料價格變動之風險。而公共工程契約通常標的金額龐大，其施工物料價格變動所牽涉之價金少則幾百萬多則數十億，對廠商或機關而言影響至鉅，故物價變動可否請求調整工程款，實為公共工程領域之常見紛爭。 鑑於此，公共工程契約之其中一方當事人在調解、仲裁未果後，往往以民法情事變更原則作為請求權基礎而向法院起訴，而行政機關因應當時之物價劇烈變動，亦陸續頒佈了一系列的物價調整規定，肯認在公共工程契約下，於營建物料價格上漲時廠商可向機關請求調整工程款；於營建物料價格下跌時機關亦可向廠商扣減工程款，使物價變動而生之風險能被雙方公平合理的分擔。 惟一系列之物價調整規定頒佈後，有關公共工程物價調整之爭議仍未減少，究其原因實為民法情事變更原則與物價調整規定本身適用上之疑義，以及兩者間之適用爭議未予釐清。因而本文乃就民法情事變更原則與物價調整規定各自之常見疑義予以整理，並提出本文見解，另就該兩者間之適用爭議，則分析歸納實務判決，嘗試將實務判決常提及之「合理預見範圍」的概念具體化，並認為現行工程採購契約範本之物價調整規定應強制納入公共工程契約。

In the practice of public construction, due to the concern of cash flow and potential risks that may occur, the contractors would commonly refuse to purchase all the materials needed at the very beginning of the construction. The purchases will rather be conducted in accordance with its progress. Therefore, the parties of the public construction contract, will bear the risk of price fluctuation of the materials during the construction. Such risk is bound to be tremendous. As the large amounts of money involved in a construction, the increase of expenses caused by the price fluctuation of construction materials, which may range from millions to billions, will have significant impact on both the contractor and the owner-builder. Therefore, whether or not the price fluctuation can be a justifiable ground for the parties to make a payment adjustment, becomes a common dispute in the field of public construction. Normally, the parties would settle such dispute in mediation or arbitration. Failing that, the party which is unsatisfied with the given result would file a lawsuit pleading for adjustment of the payment on the ground of change of circumstances, which is stipulated in Article 227-2 of the Taiwan Civil Code. Additionally, to respond to the then drastic price fluctuation of construction materials, the Public Construction Commission, Executive Yuan issued a series of Principles of Payment Adjustment on the Price of Materials successively. On the one hand, the Principles affirmed the contractor’s right to request the owner-builder to adjust the payment when the price of construction materials rises. On the other hand, it also affirmed the owner-builder’s right to reduce the payment when the price falls. Such principles are aiming at fairly distributing the risk of price fluctuation to the parties. However, the disputes of payment adjustment on the price fluctuation of construction materials appear undiminished even after the issuing of the said Principles. The main reason is under which situation could Article 227-2 of Taiwan Civil Code and the Principle of Payment Adjustment on the Price of Materials be adopted remain unclear. Besides, the contradiction between the law and the Principles remain unsolved, either. Aiming at clarifying the ambiguities, this thesis categorizes the common ambiguities of Article 227-2 of Taiwan Civil Code and the Principle of Payment Adjustment on the Price of Materials respectively, then provides possible solutions. Furthermore, dealing with the contradiction between the law and the Principles, this thesis analyzes and induces the court opinions from the relevant judgments, and attempts to describe the meaning of a commonly raised standard - “the Range Reasonably Foreseeable”. The position of this thesis is that, the provisions of payment adjustment on the price of materials stipulated in the current Model Contract for Engineering Procurement should be included in all the public construction contracts.