公共工程物價調整爭議處理機制之探討

A Study on Resolutions for Price Adjustment Disputes in Public Construction Contracts

柯蕙茹(Hui-ju Ke)

指導教授 ： 周慧瑜

朝陽科技大學/理工學院/營建工程系/碩士(2010年)

摘要

根據行政院主計處統計資料，營造工程物價總指數(年指數)從民國91年之77.52，持續上漲至民國97年之124.25，6年間營建物價漲幅達60.3%，波動幅度相當大，但公共工程契約對物價波動風險之分配，主管機關與營造業卻一直未能取得共識，以致民國93-98年間物調爭議訴訟案件之數量逐年增加，且高達211件，另外，本研究搜集物價上漲爭議訴訟案件之判決書並經統計後，得知承包商因物價波動遭受之損失金額(即承包商請求補貼金額)，平均佔契約總金額比例為8.09%，但再根據行政院主計處之統計資料，營造業在95年承攬工程之平均利潤為7.57%，90年利潤更僅為2.28%，由此可見，物價波動風險可能造成之損失，平均來說已超過承包商之承攬利益，因此風險責任是否受到合理的分配，而公私部門為何又爭議多年卻依舊找不到平衡點，是本研究擬探究的課題。
基於上述背景動機，本研究主要內容包括彙整物價調整爭議在調解、仲裁及訴訟等不同救濟途徑中所出現的各種法律見解，並探討契約兩造在面對物調爭議時各自因立場不同而出現何種態度與作法上之衝突，導致爭議僵持多年仍未能有效的化解。再針對物價調整相關法規提出修訂建議，使物價調整相關規定在實行上能符合實際需求，讓物價波動風險在契約雙方獲得合理的分配。本研究結果發現，承包商在物調爭議中通常是居於弱勢狀態的。首先就調解來看，承包商尋求調解的可能性雖然高，且調解會依契約有無規定物調情形來決定承包商獲得補償機會之高低，使得承包商在調解途徑獲得補償機會有一半之可能性；但問題在於，公共工程契約中規定可物調的情況屬於少數，因此實際上承包商經由調解可獲得之補償仍然偏低。再者就仲裁途徑而言，過去仲裁案例顯示，承包商只要能佐證物價上漲，經仲裁獲得補償的機會較高；但由於採購法第85條之1設計之「先調後仲」機制，會導致實務上承包商其實不易獲得仲裁機會，因此承包商可藉由仲裁管道獲得補償的機會也低。最後再看訴訟途徑，承包商只要起訴自然可進入訴訟程序，但過去判決案例中法官對物調爭議之見解，多採對承包商不利的看法，因此承包商藉此獲得的補償機會也不高。綜合上述三種途徑即可發現，整體而言，在現行法令提供的爭議處理途徑之下，承包商明顯處於相對不利的位置，但物價上漲風險在實務上其實大多並非承包商所能自主預防或控制，因此本研究認為，現行物調處理機制對承包商而言並不公平。至於針對物調處理原則及爭議處理機制存在之問題，本研究建議：(1)現有物調處理原則宜提升法令層級，強化其對工程主辦機關之約束力，以落實契約中對物價波動風險之合理分配；(2) 物價差異是否應作追加或減扣工程款之調整，對於現行物價爭議處理機制之建議，強調應以「該次物價波動是否為承包商所能預見而得以控制損失之風險」為判斷基準。

關鍵字

爭議處理 ； 物價上漲 ； 物調處理原則

並列摘要

According to the statistics made by Directorate-General of Budget, Accounting and Statistics, Executive Yuan, the Construction Cost Index (CCI)-General Index (yearly index) has continued to rise, from 77.52 in 2002 to 124.25 in 2008. During the 6 years, the extent of construction price increase has amounted to 60.3%. The fluctuation range is quite large. However, regarding the allocation of price fluctuation risks stipulated in public construction contracts, the competent authority and the construction industry have failed to reach a consensus all the time. Thus, from 2004 to 2009, the number of lawsuits regarding price adjustment disputes has increased year by year, amounting to 211 cases. Besides, in this study, the court verdicts in lawsuits regarding price inflation disputes had been collected, for gathering statistics. The findings showed that contractors’ loss amount (namely the amount of subsidies requested by contractors) incurred by price fluctuation has accounted for 8.09% of total contract sum averagely. What’s more, according to the statistics made by Directorate-General of Budget, Accounting and Statistics, Executive Yuan, the construction industry had the average profit rate of 7.57% in contracted construction in 2006, but such a rate decreased to be merely 2.28% in 2001. Thus it can be seen that the loss possibly caused by price fluctuation risks has averagely surpassed the contracted benefits earned by contractors. Therefore, whether risk liability has been allocated reasonably or not and why both public and private sectors have controversy for many years but have still failed to find a balancing point, were the issues this study intends to explore.
Based on the aforementioned background and motivation, the main content of this study included the arrangement and compilation of various kinds of legal opinions occurred in different remedy means such as mediation, arbitration and litigation, regarding price adjustment disputes. Also, the explorations were made, aimed at what the conflicts in attitudes and approaches would show when both parties in a contract encountered price adjustment disputes, due to their different stances. Such conflicts have caused the disputes come to a deadlock for many years, still unable to be solved effectively. Then, aimed at the laws and decrees related to price adjustment, the suggestions for amendments were proposed, for making the stipulations related to price adjustment meet real needs in practice. Thus, both parties in a contract can get reasonable allocation of price fluctuation risks. The findings in this study indicated that contractors are usually in disadvantaged situations during price adjustment disputes. First of all, in terms of mediation, contractors may have high possibility of seeking mediation. Also, in such mediation, the extent of the chance for contractors to obtain compensation is determined depending on whether the contracts have stipulations regarding the situations of price adjustment or not. Thus, contractors may have approximately 50% of possibility to get the chance of obtaining compensation by means of mediation. Even so, however, the problem lies in: Among public construction contracts, the cases allowing for price adjustment are still very few. Therefore, in fact, contractors still get lower compensation obtained via mediation. Furthermore, in terms of arbitration means, previous arbitration cases indicated: As long as contractors could prove price inflation, they would get greater chance to obtain compensation by means of arbitration. However, in practice, it is hard for contractors to get the chance of arbitration actually, due to the mechanism “Mediation First, Arbitration Later” designed in the 1st paragraph, Article 85, Procurement Act. Thus, contractors also have lower chance of obtaining compensation by means of arbitration. Finally, in terms of the means of litigation, naturally, contractors can enter lawsuit procedures as long as a prosecution is brought. However, as for the judges’ opinions in previous judgments regarding price adjustment disputes, most of such opinions were against contractors. Therefore, contractors also have lower chance of obtaining compensation through this way. To sum up the three means mentioned above, the findings showed: As a whole, under the dispute resolution approaches provided by the existing laws and decrees, contractors are situated at relatively-disadvantaged positions obviously. However, in practice, the risks of price inflation are mostly the ones that cannot be prevented and controlled by contractors themselves. Therefore, this study was of the opinion that the existing mechanism for handling price adjustment is unfair to contractors. Aimed at the issues regarding the principle of price adjustment handling and the existence of dispute resolution mechanism, the suggestions in this study were: (1) The level of laws and decrees for the existing principle of price adjustment handling should be enhanced, while the binding force on the construction project administrations should be strengthened, in order to carry out the reasonable allocation of price fluctuation risks in contracts; (2) As for whether price variation should be applied to the adjustment in adding or reducing construction payment, regarding the suggestions for the existing price dispute resolution mechanism, the emphasis is that the judgment standard should be based on “whether such a price fluctuation can be foreseen by contractors and then the risks of loss can be controlled”.

並列關鍵字

the principle of price adjustment handling ； price inflation ； dispute resolution

參考文獻

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