公共工程契約終止之退場機制模式研究

Abstract

在執行公共工程中，履約過程時常出現各種風險，例如廠商履約能力不佳、蓄意不履約、財務發生困難、設計變更爭議或其他因素造成廠商不願繼續進場施作，而使契約內原本應負擔之風險擴大，所以，採購機關除了依規定執行外，當契約執行中之風險已大到難以控制、無法降低或工程保險之承保範圍外，或是不願承保時，可能必須用契約終止方式，以終止風險；但契約即使終止，也有可能尚未達到終止風險之目的。合適的「退場機制」運用在契約終止之執行上，可以協助達成「風險終止」之目的。所謂「風險終止（Risk Termination）」，即是將契約執行中之風險阻斷或凍結，防止災害的擴大及衍生。 本研究以探討公共工程風險，以及如果要中途終止風險之情境及方式，來研議「公共工程之退場機制」，且依據相關法令及擷取臺北市政府93年以後之案例計20個，分析並找出契約終止而風險未終止以致無法順利退場之問題及風險影響因子，研析出退場機制之現況問題，依其課題建構有效退場機制之因應對策，藉由辦理契約終止之程序，達到風險終止目的，並建議納入公共工程契約內，提供政府機構參考，使採購機關對風險之防範有更佳的途徑。

While undertaking public engineering projects, various risks may arise, for instance: incompetence of the contractor, deliberate breaking of the contract, unforeseen financial difficulties, disputes regarding design modification, or other factors which make contractors unwilling to continue working on the project, which cause risks that were originally covered by the contract to be increased. Thus, choosing a strategy, other than continued operation at a time when the risk involved and continuing contract operation is difficult to control, is necessary. If it is impossible to decrease the scope of engineering insurance coverage, or the company is unwilling to insure, contract termination is a possible choice, which could end risk; but contracts, if terminated, could have yet to achieve the goal of risk termination. Appropriate exit stratagems utilize contract termination, and thus assist in achieving the goal of risk termination. So called ‘Risk Termination’, is namely when the risk of contract operation becomes blocked or frozen, thus preventing a disaster from doing further damage. This paper explores public engineering risks, and, circumstances which, if arising, would cause one to want to stop risk halfway, in which case ‘Public Engineering Exit Stratagems’ could be used. Furthermore, on the basis of related laws, and by selecting 20 documented post-2004 Taipei City Government cases, this paper analyzes terminated contracts: ones not terminated by risk, so that smoothly exiting becomes problematical and risk influence is a factor. Therefore, it has been found that current exit stratagem, according to textbook constructs, is an effective exit strategy, and, although necessitating contract termination, achieves the goal of risk termination. Additionally, it is advocated that in public engineering contracts, there should be provision for observance by government organizations, allowing companies to be on their guard and understand the risk involved in their actions.