| Summary: | 碩士 === 朝陽科技大學 === 營建工程系碩士班 === 96 === Because the period of executing the public construction contract is too long, the construction cost is extremely high and the interface for each task is complicated, there exist many unpredictable risks for both parties from planning & design and contract execution to examination & acceptance and warranty. Thus, the owner often shifts the risk and the responsibility onto the contractor by taking the advantage of drafting the article in advance and even also shifts the risk of losses resulted from any problematic point in the contract or any unexpected disaster onto the contractor fully, both of which are obviously unfair for the contractor.
Although the construction procurement contract model adopted by the public construction is not binding or enforceable, all construction authorities make the conditions of contract by referring to such model, even without any word omitted. It is seen that its influence is significant. For the method of making a public construction contract, the public agency first makes a draft contract in advance and then concludes the contract with the contractor who tenders a bid. Such contractor only can agree to the contents of contract but cannot make any suggestion or amendment for the conditions of contract. Therefore, there are many disputes in such contract, for example, unfair and unreasonable clauses of the conditions or indefinite and incomplete regulations. In addition, the public construction involves such uncertain and unexpected factors as professionality, unpredictability and high risk. For example, the degree of damage caused by such unpredictable circumstances as act of God, inflation, differing site condition and mass demonstration, which are often seen in the process of executing a construction contract, is not reasonably anticipated by both experienced parties. And, it is the most difficult to divide the responsibility for such resulted consequences. However, it is often seen that the owner make a risk-shifting clause in the construction procurement contract model or make a contract, where both parties have unequal rights & obligations, in order to be exempted from bearing any risk and responsibility. Moreover, it is necessary to adjust the contract duration and payment if any change after executing the contract. If the contract was executed according its original effect, then it would be obviously unfair for one of both parties.
In order to prevent from any dispute about such obvious unfairness resulted from unpredictable circumstances in the contract execution process, this research will study and analyze the disputes such as defects and omissions in the conditions of existed public procurement contract model. This article first will divide the disputes over the construction contract into seven categories: contract payment, contract duration, contract amendment, contract termination & dissolution, construction quality control & warranty, disaster management & insurance, to study the fairness, reasonableness, explicitness and integrity of the division of rights, obligations & responsibilities provided in the related conditions of contract. With the integration of relevant risk allocations of domestic and foreign construction contracts and with the legal uncertainty concepts for both unpredictability and obvious unfairness discussed by some scholars, we bring out the main point and particularize the standard for judging both concepts according to the real construction situation. Finally, according to such disputes often seen in the process of executing the construction contract, we study the related issues about the conditions of the construction procurement contract model. Further, we judge if the actual situation is applicable to the principle of change of circumstances based on the standard for judging both unpredictability and the obvious unfairness. And then, we adjust the payment and the duration according to such request and cannot restrict the rights & interests of contractor within the original contract effect. In the end, this article provides some related suggestions for reference.
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