建築師民事責任之基本問題－以德國法制及我國實務見解回顧為觀察基礎

作為專門職業人員，由於建築設計、施工之良窳事關一般民眾身體、財產之保護，建築師工作具有高度公益性，故對其責任要求為高。惟建築師與委託人間契約關係究為承攬、委任、僱傭抑或混合契約；對於建築師所應負擔之契約責任內涵應如何具體化確定，是否包括德國法上發展之諮詢、建議、指示、闡明、協商、守密、協調及整合等義務，於我國實務上未見定論；就建築師民事責任之請求權基礎，於建築師與委託人間，基於契約內容之不確定，而出現多數之主張，就建築師與建物買受人或第三人間，究應以侵權行為或消費者保護法處理，我國實務皆有採用。基於我國對上述問題討論仍未見明朗，本文擬藉助德國法上實務及學說所形成之共識進行說明，並整理我國目前實務見解，而能提供不同比較法視野，供實務及學說參酌。

關鍵字

建築師；建築師民事責任；建築師契約；建築師契約義務；給付瑕疵

並列摘要

As a professional, on account that the building design and construction are related to the protection of human body and property, the architect burdens greatly public interest so as to undertake higher responsibility. However, the nature of contract between architect and consignor is hire of work, hire of service, mandate or mix contract, has not been decided yet. Besides, there is no final conclusion in our courts whether the contract obligations that the architect undertakes include consultation, recommendation, instruction, clarification, negotiation, confidentiality, coordination and integration as developed in German legal system. Owing to the uncertainty of contract nature, the claim grounds against architect's civil liability during the disputes between architect and consignor are multiple and diversified. Furthermore, the courts adopt the concept of torts and consumer protection in different cases regarding the disputes between architect and purchaser of construction or the third party. Gi ven that all of the questions mentioned above are not clarified yet, this article would make a description with the introduction of German law practice and theory, as well as organize the opinions of our courts, hoping to provide diversified comparative law aspect to the whole study.