- 期刊
承攬人完成無瑕疵工作之義務與瑕疵擔保責任之構成
The Contractor's Obligation to Complete the Defect-Free Work and the Composition of Defect Warranty Liability
摘要
我國民法債編各種之債於承攬一節，明文規定有承攬人瑕疵擔保責任，但承攬人瑕疵擔保責任是否為債務不履行責任之一環，抑或為獨立於債務不履行責任之外的另一單獨的法定擔保責任，有所議論，而此責任性質之定性問題，則會進一步影響到當完成之工作有瑕疵時，定作人得否主張不完全給付債務不履行責任，更會影響到當完成之工作有瑕疵時，定作人得否主張同時履行抗辯拒絕給付報酬，因承攬人瑕疵擔保責任若為獨立於債務不履行責任之外的另一單獨的法定擔保責任，則承攬人完成工作即已履行其承攬契約之義務，定作人即須給付報酬，完成之工作有瑕疵須另依承攬人瑕疵擔保責任救濟。本文以承攬人瑕疵擔保責任之責任性質定性為中心，分析承攬人有否完成無瑕疵工作之義務，若肯定承攬人有完成無瑕疵工作之義務，則承攬人瑕疵擔保責任即定性為債務不履行責任，則完成之工作有瑕疵時，即為債務不履行，定作人除了得主張同時履行抗辯拒絕給付報酬外，更得依承攬人瑕疵擔保責任之救濟方法主張救濟。本文同時亦分析構成民法債編各種之債承攬人瑕疵擔保責任之救濟方法，與民法債編通則債務不履行責任之救濟方法間，於適用上之關係。
並列摘要
In Section 8 - Hire of Work in Taiwan Civil Code, it is expressly stipulated that the contractor shall bear the warranty of defects, but whether the contractor's liability for defects is part of the liability for non-performance of obligations or is independent of the liability for non-performance of obligations. However, there is some discussion as to whether the contractor's liability for defects is part of the liability for non-performance or another separate legal liability independent of liability for non-performance of obligations. This issue of the nature of liability will further affect whether the proprietor can claim non-performance of obligations when the completed work is defective. It will also affect whether the proprietor can assert the defense of simultaneous performance when the completed work is defective. The defense is to deny payment to the contractor. Suppose the contractor's liability for defects is a separate statutory warranty independent of the liability for non-performance of obligations. In that case, when the contractor completes the work, it has fulfilled its contractual obligations, and the proprietor should pay remuneration. If the work is defective, the contractor shall remedy it according to the liability for defects. This article focuses on the characterization of the nature of the contractor's liability for defects and analyzes whether the contractor has the obligation to complete the work without defects. If it is affirmed that the contractor has the obligation to complete the work without defects, then the contractor's liability for defects will be characterized as liability for non-performance of obligations, if the completed work is defective, it will be characterized as non-performance of obligations. At this time, in addition to claiming simultaneous performance as a defense and refusing to pay remuneration, the proprietor may also claim relief based on the defect warranty liability. This article also analyzes the applicable relationship between the remedies that constitute liability for defects and the remedies for non-performance of obligations under Taiwan Civil Code.