工程契約條款不備不明衍生爭議之探討 ─以工程採購契約範本為中心

政府機關與得標廠商成立契約通常以簽訂契約書之方式，以書面確認契約雙方已建立之承攬關係，當工程發生糾紛時，較能有一實質依據向第三方證明契約成立與否及契約約定內容。公共工程契約書之型式以工程會工程採購契約範本為主，因工程會之版本為較周延之契約範本，被政府機關廣泛使用，然而因時代變遷或技術進步等原因使契約條款之約定事項產生不具備或不明確之情形，契約雙方發生爭議時，對於同一項目無法達成合意，容易導致爭議之衍生。營建工程因涵蓋項目及範圍廣，工程契約規定內容相對於一般契約複雜性高，更容易存在契約條款不備不明之問題。舉例來說，保固條款僅以結構物與非結構物區分保固期限，然而條款中結構物與非結構物定義並不明確。當某項結構物與非結構物界定不清之工作物出現瑕疵，定作人基於契約規定向承攬人要求負保固責任時，契約雙方對於此工作物之保固期限無法達成共識，因而衍生爭議。基於上述原因，本文欲探討實務上工程契約條款不備不明之情形，並以保固條款為中心，提出得以完備保固條款不具備或不明確之對策，盼能藉由此類型工程爭議發生為目的之探討，啟發其他領域對於契約條款訂定之參考。

關鍵字

工程採購契約範本；不備不明；保固；爭議

並列摘要

Under the construction procurement system in Taiwan, the government agency and winning tenderer are required to sign a contract in order to officially establish a contractual relationship between the two respective parties. If construction disputes were to occur, this contract would then serve to validate the contractual relationship and contract details agreed upon between the parties, as well as to provide credible evidence for any third parties as needed. For public construction project contracts, the “Model Contract for Construction Procurement” issued by the Public Construction Commission is used as a foundation. Because of the comprehensiveness of this model contract, many government agencies have adopted it for use over the years. However, as the construction industry and technology has advanced, clauses in the model contract may become unclear or even absent with respect to modern practices and circumstances. This becomes problematic when disputes arise and the parties cannot agree on definitions of a certain contractual language due to such unclear or absent clauses. Due to the comprehensive nature of construction projects encompassing a vast range of disciplines, the content of construction contracts tend to be more complex, thus leading to greater probabilities of encountering unclear and absent clauses. For example, contract clauses involving warranty period coverage are often determined by designations of elements as either structural or non-structural, yet the definition of what is considered structural or non-structural is frequently unclear in and of itself. If defects were to happen involving elements at interfaces of such structural and non-structural areas, the unclear or absent clauses and lack of relevant definitions may lead to disputes and a failure to compromise between the contractual parties when one side demands warranty responsibility from the other. Based on the situation described above, this study examined real-world circumstances where unclear and absent clauses occurred in construction contracts. With a focus on warranty clauses, the study aimed to establish a complete and thorough set of countermeasures for dealing with unclear and absent warranty clauses in construction contracts. Through the examination of such occurrences of construction disputes, this study aspires to invoke and stimulate considerations for establishing clauses in other areas of construction contracts.