論公共工程契約定作人之協力義務

Abstract

公共工程契約雖屬私法契約，因其締約前階段涉及公法法律關係，締約後履約期間所涉之法律關係複雜，在此承攬關係下，承攬人需依債之本旨交付契約約定之工作，定作人除負有給付報酬義務外，於履約期間定作人尚須盡其協力行為，承攬人方能依約完成工作交付，其依據為民法第507條。但究竟定作人應於何時負擔協力義務，以及協力之內容範圍為何，甚至定作人倘違反協力義務時，承攬人可否據以主張定作人債務不履行而提起損害賠償請求權，於學說及通說實務見解各異，實有必要深入探討民法第507條中定作人協力義務之義務性質，若定作人違反該義務時，承攬人如何主張其權利及承攬人有何救濟方式均有待釐清探討。 對於上述問題，本文將以公共工程定作人協力義務為主軸，探究定作人之協力行為性質，深入分析定作人所應負之義務、範圍、內涵，並輔以相關法條與民法第507條間之關聯及解釋分析，相關學說、實務判決見解並分析公共工程契約是否為定型化契約?再進一步檢視公共工程契約免責條款規定之合理性，深入省思我國公共工程契約管制之合理性與公平性，分析定作人協力義務違反之法律效果及救濟方式與建議。 本文認為定作人協力義務非對己義務之不真正義務而已，係屬具有對他義務之真正義務性質，故適用債務不履行之相關規定，方能衡平保障定作人與承攬人之權益。

Although public construction projects are contracts governed by private law, such contracts are related to legal relations governed by public law in its pre-contracting stage, and that the legal relations involved during contract fulfillment after contract signing were complicated. Under such an undertaking relation, an undertaker must perform the contracted work in accordance with the tenor of the obligation, and the proprietor has to cooperate in the fulfillment of such a contract during the contract time in addition to bearing the obligation of payment, so as to aid the undertaker in delivering the work as contracted. The legal basis for the aforementioned relation is Article 507 of the Civil Code. However, theories and general practice differ regarding the time and the range of cooperation the proprietor is obligated to perform, and whether the undertaker can claim that the proprietor fails to perform his obligation of debt and file a claim for damage compensation because he fails to perform the duty to cooperate. Therefore, an in-depth discussion of the nature of the proprietor’s duty to cooperate as stipulated in Article 507 of the Civil Code is warranted. In the case that the proprietor violates his duty to cooperate, how should the undertaker claim their rights and what relief measures the undertaker has remain to be clarified. To answer these questions, this study focused on the proprietor duty to cooperate in public construction projects to investigate the nature of proprietor’s cooperation and to conduct an in-depth analysis of range and content of the proprietor’s duty to cooperate. Associations between Article 507 of the Civil Code and relevant regulations were then analyzed, and that relevant theories and practical judgements were adopted to determine whether public construction projects are standard contracts. Furthermore, this study examined the reasonableness and fairness of the disclaimers included in the contract of public construction projects; the legal effects of proprietor’s violating of his duty to cooperate were also analyzed, and the relief measures and other suggestions were proposed. This study contended that the proprietor’s duty to cooperate is not simply a nonreal duty to oneself, but a real duty to others. Therefore¸ the debt nonperformance regulations can apply to ensure equal protection of the proprietor’s and the undertaker’s rights.