| dc.description.abstract | The “Act for Promotion of Private Participation in Infrastructure Projects” was promulgated in 2000, and was revised in 2001. The purpose of the Act is to improve the standard of public service, accelerate the social economical development, and to promote private participation in public construction. There are many cases implemented since the establishment of the Act and there are many disputes emerged and were seen on the newspaper and reports. Some of the problems that the responsible agencies facing are the flaws existing in the tendering process which have made the execution of contract stalled or made the contract executed under disputes. In such situations, the disputes will affect the validity of the contract. The key point of the validity of contract is very much related to the legal characterization of the contract.
According to the appeal procedures in the Act, to select the best applicant and to sign a concession agreement are separated into two phases. The process and procedure of appeal mechanism are dependent of the legal characterization of the contract. Therefore, it is necessary to distinguish the legal characterization of the contract.
Take the project “Private Participation in Electronic Toll Collection” (as project ETC thereinafter) as an example, Taipei Superior Administrative Court rescinded the qualification of the best applicant right after that the contract has been signed, and the selection committee should evaluate afresh. But the installation of the ETC system has been completed on the National Freeway No.1 and No.3 and has began to operate since February 2006 till now. Over 320 thousand vehicles has installed the OBU unit. The average utility rate was 13% per day for the smaller vehicles and 63% for the larger vehicles.
If the ETC concession agreement is an administrative contract, it is probable that all the ETC facilities must be dismantled in order to restore to the original situation. If this situation happened, it will greatly reduce the traffic efficiency on freeway and frustrate those drivers who have bought OBU units. It will also increase public cost. Thus, the responsible agency of the contract and court may not be willing to declare the contract to be invalid thoughtlessly. If the ETC concession agreement is a civil contract, it may be valid. Consequently, the practical benefit of the second best applicant in the appeal procedures may be limited.
So, there are two purposes of this study. First, investigate the legal characterization of ETC contract, and propose a feasible solution for judgment. And according to that we may be able to suggest a legal norm of the fellow-up solutions. Second, use the Economic Analysis of Law to analyze the fellow-up solutions, to reduce the impact to community and to maintain justice. | en_US |