營建工程契約保固制度之研究

Abstract

近年來，國內雖以高科技工業如半導體產業為經濟發展核心，以往的工業火車頭「建築、營造工業」成長動能已日漸趨緩，然而，政府意識到前瞻建設計畫之運行、社會住宅及都更危老改建需求仍仰賴於營造工業，遂逐步採取許多改革措施諸如政策性擴張投資、協助技術創新與轉型、完善營造法制環境等，以期帶動營造產業之復甦。其中關於法制現況，工程履約流程中最為常見的議題，除承包商應如期完工外，莫過於工程瑕疵衍生之爭端，此殊值業主與承包商重視。事實上，民法與工程相關法令雖有瑕疵救濟規範，卻不足以因應實務上變化多端之瑕疵紛爭，因此，本論文擬以工程產生瑕疵時應如何救濟作為研究目標。\n工程生命週期中產生瑕疵並受業主發現的時點，區分為承商施工期間、業主驗收程序與業主使用階段，雙方就上述三個階段產生之瑕疵該如何處理並界定法律關係？本論文主軸承商之保固責任究係上述三項階段中之哪一階段？為何民法承攬針對工作物瑕疵已存有物之瑕疵擔保責任，還需另行創設保固制度？此兩制度之關聯性何在？應如何精準操作？均為本論文所關切之議題。正因我國工程保固法制諸多概念沿襲英美工程契約所慣用條款，並逐步發展成工程慣例，法律人員在無法正確理解保固制度發展脈絡之情況下，時常誤解法律關係進而錯誤適用法律。職此，誠有必要釐清工程保固制度之基本架構與其性質所屬，方能重新認識工程保固制度並定紛止爭工程瑕疵之疑慮。\n此外，業主若藉定型化契約之手，針對工程瑕疵設計出風險分配不甚公平、合理的保固條款，承商該如何應對？保固條款若有所缺漏，應如何進行契約漏洞之填補？此時，民法承攬之瑕疵擔保規範與FIDIC國際營建工程契約又扮演著何種要角？工程裁判實務上針對瑕疵之重要爭議又該如何精確地解決？亦為本論文研究方向。以下，本論文將陸續梳理上述爭議並提出一己之見，希冀能夠勾勒出一套完整的工程瑕疵救濟制度，創造美好的工程法制環境。

In recent years, although high-tech industries such as semiconductor industries are the core of economic development in Taiwan, the growth momentum of the former industrial locomotive "building and construction industry" has been slowing down, however, the government is aware that the operation of forward-looking construction projects, social housing and the needs of the old and dangerous renovation still depend on the construction industry, so it has gradually taken many reform measures such as policy expansion of investment, assistance in technological innovation and transformation, and improvement of the construction The construction industry is still relying on the demand for social housing and urban renewal. The most common issue in the construction contracting process, in addition to the contractor`s responsibility to complete the project on time, is the disputes arising from construction defects, which deserve the attention of owners and contractors. In fact, although there are civil law and engineering-related laws and regulations on remedies for defects, they are not sufficient to respond to the changing disputes over defects in practice, therefore, this paper intends to focus on how to provide remedies when defects arise in construction.\nThe point in the life cycle of the project when the defect is discovered by the owner is divided into the contractor`s construction period, the owner`s acceptance procedure and the owner`s use stage. Which of the above three stages is the warranty responsibility of the main bearing contractor in this paper? Why does the civil law take the responsibility of guaranteeing the defects of the workpiece and create a separate warranty system? What is the relevance of these two systems? How should they be precisely operated? These are the issues of concern in this paper. Because many concepts of the legal system of construction warranty in China have been inherited from the usual terms of the British and American construction contracts and have gradually developed into engineering practices, legal practitioners often misunderstand the legal relationship and misapply the law when they cannot correctly understand the development of the warranty system. In this regard, it is necessary to clarify the basic structure and nature of the warranty system in order to understand the warranty system again and to settle the doubts about the defects of the project.\nIn addition, what should the contractor do if the owner, through the hand of a formalized contract, designs a warranty clause that is not fair and reasonable in terms of risk allocation for construction defects? If there are any gaps in the warranty, how should the loopholes in the contract be filled? What is the role of the civil law warranty and FIDIC international construction contracts in this regard? How to precisely resolve the important disputes against defects in the engineering adjudication practice? This paper is also a research direction. In the following, this paper will sort out the above controversies and put forward its own opinions, hoping to outline a complete engineering defect remedy system and create a good engineering legal environment.