公共工程驗收爭議之研究

公共工程契約性質為承攬契約，有危險負擔之探討，依民法第508條規定，工作物毀損、滅失危險的分配，原則上以定作人受領工作物的時點作為界線。即於工作物受領前，由承包商承擔；工作物受領後，則由業主承擔。實務之多數見解仍認為，機關驗收通過，始為受領之表示；因此未經驗收，工作物被機關占有或者使用，並未移轉其危險責任。但驗收前如發生工作物毀損或滅失，因危險負擔並未移轉，原則上承攬人不得請求報酬；但應視機關有無受領遲延、拒不驗收或者先行使用判定之。如機關受領遲延或拒不驗收，依民法第508條第1項後段規定，既然危險由業主負擔，自應以受領遲延發生之時作爲危險負擔移轉的時點，則業主除應給付報酬外，承攬廠商亦無重作工作物的義務。若因機關需求，雙方當事人事後協議重作並另行給付報酬，亦為可行方式；而另一種情形則為先行使用，機關已使用該工作物，而又未辦理驗收或部分驗收，如遇不可抗力因素，導致工作物毀損或滅失，因已由機關先行使用，將導致廠商難以向保險公司申請理賠，但此時危險負擔並未移轉，此部分之報酬無法向機關取得，造成廠商之莫大損失，必須經由訴訟請求給付，對於廠商而言恐失公平。本文最後以實務四個判決作為說明，提醒機關於定作人角色時，留意危險負擔之規定，避免違反工程採購契約範本及民法契約精神，造成後續訟累並影響工程品質。

關鍵字

公共工程契約；危險負擔；先行使用；遲延驗收；拒不驗收

並列摘要

The nature of Construction Work Procurement Contract is contract of forwarders, and there is a discussion about the risk of loss. According to Article 508 of the Civil Law, the distribution of the risk of damage to and loss of work is based on the time point when the contractor receives the work in principle. That is, the contractor shall bear the responsibility before the work is accepted. After the work is received, it will be borne by the entity. In practice in our country, most opinions insist that construction work should be accepted as an indication of acceptance. Therefore, possession and use without acceptance will not transfer risk responsibility. However, if the construction is damaged or lost before the final acceptance, the contractor may not request payment because the burden of risk has not been transferred; however, it should be determined based on whether the entity has used the construction before the final acceptance, delayed the final acceptance, or refused the final acceptance. If the entity delays or refuses the final acceptance, according to the latter paragraph of Article 508 of the Civil Law, since the risk is borne by the owner, the time when the delay in acceptance occurs should be used as the time point for the transfer of the risk of loss. The entity shall pay, and the contractor also has no obligation to rework the work. Due to the needs of the entity, it is also feasible for the parties to reconstitute the agreement afterwards and pay another remuneration. In the other case, the entity has used the construction without the final acceptance or the partial acceptance. In case of force majeure, the damage or loss of the construction has been used by the entity first, which will make it difficult for the contractor to apply for compensation from the insurance company. However, the dangerous burden has not been transferred at this time. It may be unfair to the contractor to request payment through litigation. In the end, this article discuss on the practical judgments as an explanation, reminding the entity to pay attention to the provisions of the risk of loss when it comes to the role of the proprietor, to avoid violating the contract model of the public construction procurement contract and the spirit of the civil law contract, causing subsequent litigation and affecting the quality of the public construction.