ODM契約性質之研究

Abstract

ODM之特性為設計兼製造，其與OEM，即純粹代工製造、組裝間之差異，在於增加「研發設計」之服務，職是，ODM可分為前階段之研發設計，與後階段之採購及出售，並以前階段之存在為前提，但其最終且最主要之目的為產品之取得及出售，前階段之研發設計乃係促成該產品得以現實化之過程，而此階段之契約其性質無法歸類為現行法律所示之有名契約其中任一者，且亦未有習慣或慣例可供為認定其性質之依據，故前階段之研發設計其契約之性質應係屬無名契約。至若後階段之採購及出售，其契約之性質則可定性為買賣，按後階段其產品之製造、交付、收受、檢查、檢查結果通知、價金支付等，已如同民法上買賣之移轉、交付、受領、檢查等事務，因此，ODM之當事人就產品之採購及出售，已無異於民法上買賣之買受人及出賣人。 而民法上之買受人與出賣人間，其權利及義務有移轉財產權、給付、瑕疵及品質擔保、解除契約、減少價金、另行交付無瑕疵之物、不履行之損害賠償、交付價金、受領標的物、同時履行之抗辯、利益及危險之承受負擔，以及負擔費用等，且該等權利及義務所對應之範圍包含動產、不動產及權利之買賣，然ODM當事人間之權利義務唯限於其中關於動產買賣之部分。 是以，本文除試就ODM其契約性質予以定性外，亦有就民法上買賣之買受人及出賣人，析述其權利義務，並解析民法上買賣有關之規定適用於ODM之結果，且在我國實務上迄今仍未對於ODM契約明確予以定性之情況下，本文於末後並提出ODM其研發設計所得適用之民法債編通則之規定，本即係屬ODM其採購及出售階段所可引據之基本規範，故可將ODM之關係概以買賣視之，祇不過出於需要而重複適用該通則其中部分規定之拙見，以供酌參。

The defining characteristic of the ODM (Original Design Manufacturing) lies not only in its manufacturing and assembly services, but also the categorical importance of the research, development, and design services that are provided and performed as part of the ODM process. The explicit difference between the ODM service and its often-compared OEM service counterpart is that it provides the additional effort in research, development, and design on top of the common manufacturing and assembly services. The typical sequence of events that accompanies an ODM service can be divided into two phases: the first performs the research, development, and design; and, the second performs the manufacturing or assembly actions. Simultaneously, while the preceding phase is a prerequisite for an ODM service, this is only to serve the ultimate purpose of creating products and goods to turn a profit via making these products and goods available for purchase. In view of the aforementioned feature of the ODM relationship, the said preceding phase shall be governed by the contract which is in the nature of the innominate contract because none of the provisions, rules, requirements relating to the nominate contracts described and stipulated in existing laws is applicable to this preceding phase, and none of the legal customs or practices can be applied to clarify the nature of the preceding phase; furthermore, the nature of the contract governing the said subsequent phase shall be the contract of sale, and thus the parties of the ODM relationship are no different from the buyer and seller in the relationship undertaken by parties during a sale, under the Civil Code since the affairs of manufacture, delivery, receipt, inspection and examination, notice of the result of examination, and payment of the price of the products undertaken during the subsequent phase are the same as those affairs of transfer, delivery, payment, receipt, inspection and examination pertaining to the sale of products and goods under the Civil Code. Moreover, the transfer of rights over property, performance, warranties against defects, warranties of quality, rescission of contracts, reductions in price, delivery of the thing without defects in exchange for a defective thing, compensation for any injury arising from non-performance, payment of the sale price, accepting delivery of the object sold, defense of simultaneous performance, assumption of the profits and dangers of the object sold, and cost burden are the rights and liabilities of the parties in the sale relationship defined in the Civil Code, and the said sale relationship shall include the relationship of sale of personal property, real property and right; provided that only the rights and liabilities, described in the Civil Code, in relation to the relationship of sale of the personal property can be applied to the ODM relationship. Accordingly, the purpose of this thesis is to clarify the nature of the contract governing the ODM relationship, and to specify the rights and liabilities of the buyer and seller in a sale relationship under the Civil Code, and to study the results of applying the provisions and requirements described and set forth in the Civil Code regarding the sale relationship to the ODM relationship. Ultimately, since the nature of the contract governing the ODM relationship still has not been clarified by any decision or judgment of the court of R.O.C. to present date, a perspective has been brought out in the Chapter 5 Conclusion of this thesis, which states that the provisions and requirements described and set forth in the General Provisions of the Part II Obligations of the Civil Code can be applied to the research, development, and design phase of the ODM relationship are essentially the basic rules and criterions applicable to the manufacturing and assembly phase of the ODM relationship, and therefore some provisions and requirements described and set forth in the above General Provisions will be applied repeatedly if necessary and, in consequence, the entire ODM relationship can be defined equally to the sale relationship.