定作人協力義務之類型化及定性標準與架構 -以近年司法實務為中心

Abstract

現代工程日趨複雜，定作人與承攬人多會簽訂工程契約以明確雙方義務及分配風險。如工程契約有清楚、完整之約定，則依契約處理原則上較無疑義。 然而，實際上，工程契約本難盡善盡美地將所有情況涵括，尤其，定作人就其協力行為往往不願明訂於契約之中，或雖有約定但有所保留或有要求承攬人棄權之條款等，導致實務上定作人未履行協力行為之爭議不斷。 定作人協力行為未履行之法律效果，實須視該協力行為之性質為何。是以，實有探討定作人協力行為之定性，始能正確適用法律效果。而對於定作人協力行為之性質，我國學說及實務雖向來有所爭議，惟其大多僅單純攏統地就「定作人協力義務」之定性為討論，然定作人協力之態樣及內涵形式多端，對於工程之影響也難謂一致，故宜就定作人協力行為先予類型化後再為定性。 是以，本研究嘗試以近來為主的司法實務見解為基礎，參酌國內外工程實務，以歸納出在現今司法實務下就定作人協力行為性質之「定性標準」，並依司法實務見解之思考路徑整理具可操作性之「定性架構」，使定作人或承攬人在締約之初即得相對明確知悉及有效控制所面臨之法律風險。

The modern engineering projects are becoming increasingly complex, and it's common for contracting parties and contractors to sign engineering contracts to clearly define their obligations and allocate risks. When engineering contracts have clear and comprehensive provisions, there is generally less ambiguity in their processing according to contractual principles. However, in reality, engineering contracts often cannot comprehensively cover all situations. Especially with regard to the contracting party's collaborative actions, they may be unwilling to specify these actions in the contract, or there might be clauses that include reservations, requirements for the contractor to waive certain rights, etc. This leads to ongoing disputes in practice regarding the contracting party's failure to fulfill collaborative obligations. The legal consequences of a contracting party's failure to fulfill collaborative obligations depend on the nature of those collaborative actions. Therefore, it is necessary to examine the nature of the contracting party's collaborative actions in order to apply the legal consequences correctly. While there has been ongoing debate in our country's academic circles and practice about the nature of contracting parties' collaborative actions, most of these discussions have generally revolved around the categorization of the "contracting party's collaborative obligations." However, given the diverse forms and implications of such collaborative actions, especially in the context of engineering, it is more appropriate to first classify the types of contracting party's collaborative actions before determining their nature. Hence, this study attempts to build upon recent judicial perspectives, while referencing domestic and international engineering practices, to deduce the "categorization criteria" for the nature of contracting parties' collaborative actions under current judicial practices. It further organizes an actionable "categorization framework" based on the thought process outlined in judicial perspectives, allowing contracting parties or contractors to clearly understand and effectively manage the legal risks they face from the outset of the contract.