促進民間參與公共建設法上之議約制度

促參案於主辦機關評選出最優申請人後至簽訂投資契約前，主辦機關及最優申請人會針對招商文件中之投資契約草案，依據甄審結果，再為具體的檢視與商議，如有必要將進行修改，此為促參案的議約制度。在促參案實務中，常發生主辦機關與最優申請人在議約程序中，對於投資契約草案條款內容未能達成意思表示一致，以致議約未果而使促參案破局，最優申請人將面臨申請保證金被主辦機關沒收的風險。此外，近年亦陸續發生主辦機關因政策變更，於簽訂投資契約前決定不續辦促參案，而引發主辦機關是否需賠償（補償）最優申請人損害（損失）之爭議。爰本文將針對促進民間參與公共建設法中之議約制度，探討上述因議約所生之問題應如何解決。本文從促進民間參與公共建設法係採取公私協力精神及雙階段架構切入，分別討論主辦機關與最優申請人彼此間之法律關係及權利義務，闡述議約未果時，雙方是否具有可歸責。此外，本文亦研析最優申請人就主辦機關不續辦促參案及被沒收申請保證金時，最優申請人得採取之救濟方式。最後，因行政院會於民國111年2月提出促進民間參與公共建設法部分條文修正草案，故本文復評析修正草案與議約有關之條文，並提出本文對於如何解決議約爭議的修法建議，以期完備我國促進民間參與公共建設法中之議約制度。

關鍵字

促進民間參與公共建設法；公私協力；雙階理論；議約；政策變更

並列摘要

In the case of "Public-Private Partnership in Infrastructure Projects of Taiwan" (PPP case), the negotiation of contract takes place "after the authority in charge has selected the best applicant" and "before the concession agreement is signed". Prior to signing the concession agreement, the authority in charge and the best applicant have to specifically review and negotiate the draft concession agreement contained in the tender documents based on the evaluation results, and if necessary, the draft concession agreement will be further revised. This is the negotiation of contract system in the PPP case. In the practice of PPP case, it often happens that the authority in charge and the best applicant fail to agree on the terms and conditions of the draft concession agreement during the contract negotiation process. As a result, the outcome of the contract negotiation is difficult to produce and the PPP case is broken. In this regard, the best applicant is at risk of having the authority in charge recover or confiscate the earnest money he has applied for. In addition, in recent years, there have been cases where the authority in charge has decided not to proceed with the PPP case prior to the signing of the concession agreement due to the change of government policy. This has led to a controversy as to whether the authority in charge should compensate the best applicant for the damage (or loss) suffered. Therefore, this thesis examines the above-mentioned problems arising from the negotiation of contract in Taiwan’s PPP act and how to solve them. Taiwan’s PPP act adopts the spirit of public-private partnership and the two-stage framework, consequently, this thesis is based on those legislation frames to examine the legal relationship between the authority in charge and the best applicant, as well as the rights and obligations of them, and the imputability of both parties in the event that the negotiation of contract does not achieve any result. In addition, this thesis examines the remedies available to the best applicant in the event that the authority in charge dose not proceed with the PPP case or forfeits the earnest money applied for by the best applicant. Finally, in February 2022, the Executive Yuan proposed draft amendments to some provisions of the "Act for Promotion of Private Participation in Infrastructure Projects". Therefore, this thesis also analyses the provisions of the draft amendment related to the negotiation of contract and proposes amendments to resolve the dispute over contract negotiation in order to improve the provisions of PPP act in Taiwan.