The Application of Constructive Changes Theroy under the Law of the United States to Public Construction Contracts in Taiwan

• Main Authors: Sun, Yu-Shan, 孫玉珊
• Other Authors: Huang, Chu-Chen
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/58202691639011705913

碩士 === 國立清華大學 === 科技法律研究所 === 99 === ABSTRACT Due to the impossibility of perfect planning in advance in every construction work, and also to the various potential problems in the process of performing the work, Constructive Changes are inevitable. As the Law of Taiwan advocates free contracting, it is applicable under the condition in which construction clauses can be used to solve the change problem, however, when the change problems cannot be thoroughly listed in the construction contract norms, chapters of contracting in Civil Laws in Taiwan can be applicable. But the chapters in Civil Laws stated above are not established exclusively for construction work, particularly there are no further rules of contract changes. Furthermore, even it is with the principle of good faith, and the principle of chang of circumstance, that the court determines whether the changes and sum changes should be made or not, there still exists ambivalence. In order to manage this kind of change controversies, a change theory that is more just and conforms to current situations was proposed in the U.S. practice. The theory manages the problems such as informal orders and unjust situations in accordance with the theory of “Constructive Change”, and then with the contract change clauses. According to the theory that was developed forty years ago under the Law of the United States, as well as the past cases, it is assumed that the theory can solve the emerging particular change problems in construction work. Thus, this study aims to investigate the development and content of the current Law of the United States, and then discuss the differences of actual judgments concerning the similar change controversies between the United States and Taiwan, with the attempt to understand the problems and inadequacies of Taiwan’s contract rules and civil laws in this regard. Finally, it is hoped to apply Constructive Changes under the Law of the United States to public construction contracts in Taiwan, in order to solve this kind of change controversies in a more just and reasonable way.