| 摘要: | 公共工程之監造技術服務契約，其監造服務多約定到完工驗收結束為止，但實際常因工程工期之延宕，而衍伸出機關是否應給付監造廠商工期展延期間服務費用之爭議。關於增加監造服務之服務費用計算合理性、契約性質屬於委任還是承攬以及服務費用的請求權時效為何，目前仍尚未有一致之見解及明確之定義。
本研究自「司法院法學資料檢索系統」中蒐集民國100年初至105年底，全臺灣22個地方法院關於監造服務費用以及性質共71件之判決案例，整理出之法院對於各事由之判斷結果與依據。經統計，法院判決之爭議案件其監造費用計算方式以建造費用百分比法及總包價法為主，對於工期展延期間傾向不給付額外的服務費。至於契約性質方面，法院對於監造、設計加監造、專案管理含監造之契約性質意見分歧並無一致之見解。
本研究將各機關之監造契約範本整理比較後，製作問卷對法學教授、律師、機關、顧問公司等18位專家進行訪談。多數專家認為單純監造契約應屬委任契約；設計加監造契約屬混合型契約；以及專案管理加監造契約則亦屬委任契約。此外，多數專家認為監造技術服務契約應於契約內明訂服務期間且由雙方議定，其合理期間應為施工標之工期加上合理之驗收期間；監造技術服務應採用按月、按日或按時計酬法、服務成本加公費法，較能反應因時間而產生之成本；以及服務成本加公費法應簡化其計算方式。
本研究最後對契約面以及法規面提出改善建議，希望能給予機關與廠商做參考，減少相關之工程爭議發生，降低外部社會成本之浪費。;Within the contract of public works, supervision service is normally appointed until the project acceptance. However, in practice, the project is often delayed due to the extension of construction time. It results in dispute over the service fee that shall be paid to the supervisory company during the duration of the delay. There is still no constant understanding nor clear definition of reasonable calculation regarding supervision service fee, the nature of the contract, and the claim time limitation for the service fee.
The data collected for this study were the judgments of 22 local courts regarding fees of supervision services in Taiwan, as well as a total of 71 cases in the "Legal Court Jurisprudential Information Retrieval System" from the beginning of 2011 to the end of 2017. According to statistics, the calculation of supervision fees in court disputes were mostly based on the construction cost percentage and the consolidated pricing method. However, the court judgments tend not to allow additional service fee for the extended construction duration. As for the nature of the contract, the courts have no unanimous opinion be it for a simple supervision contract, design and supervision contract, or project management including supervision contract.
A comparison of the supervision contract models of various agencies was conducted, resulting in questionnaires for interviews. The interviews were conducted with 18 experts including law professors, lawyers, agencies, and firms of engineering consultants. Result shows most experts believe that a simple supervision contract should be defined as a contract of appointment; a design and supervision contract should be defined as a hybrid contract; and a project management plus supervision contract can also be classified as an appointment contract. In addition, most experts believe that the supervision service period should be specified in the contract, and the calculation of the period shall be negotiated by both of the owner and the contractor. The reasonable period should be the construction period and the reasonable acceptance period. The supervision service shall adopt the monthly, daily or hourly payment method, the service cost plus fee method, and it should be able to reflect the cost incurred due to length of the duration. It is suggested that the calculation of service cost plus fee method should be simplified.
Finally, the contract and the regulations are proposed to improve. The study can be beneficial to both the governments and contractors by providing a reference to reduce the occurrence of related disputes and reduce additional costs inflicted by such disputes. |
