The Discussion on the Dispute Handing Mechanism of Private Participation Infrastructure Projects based on the Contractual Properties: A Case Study of Electronic Toll Collection Project

• Main Authors: Yi-hsien Chen, 陳怡先
• Other Authors: Chia-yin Hung
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/93569044783606834341

碩士 === 東吳大學 === 法律學系 === 99 === The Electronic Toll Collection system (ETC) at our National Freeway system was implemented by Taiwan Area National Freeway Bureau (TANFB) of the ministry of Transportation and Communication as a private participation infrastructure project in 2003. Fareast Electronic Toll Collection Co., LTD. (FETC) was selected as the concession company for the ETC project. However, the Supreme Administrative Court affirmed the verdict and disqualified FETC as the ETC concession company. The verdicts from the administrative court have greater influences on the promotion of ETC. Its conclusion that the ETC contract is an administrative contract causes a lot of disputes in the law circle. The purpose of this research is trying to find a possible solution for the ETC project based on the contractual properties. In this thesis, it is concluded that Government Procurement Act (GPA) complies with the two-stage theory (Zweistufentheorie). The degree of supervision carried out by government sectors for both Built-Operate-Transfer (BOT) projects and traditional government procurement projetcts are identical. And the administrative arrangements in the BOT contract have no direct relationship with the contract itself but with the Law for promotion of private participation in infrastructure projects (LPPPIP). Therefore, it is concluded in the thesis that BOT contract and the government procurement contract are all considered as private law contracts. The collection of National Freeways toll is a public action taken by TANFB based on Charges and Fees Act. TANFB commissions the private company, FETC, to accomplish this collection work. It is considered as administrative commission. However, the BOT contract is a private law contract. It raises the conflicts that the content of ETC contract is more likely regarded as an administrative contract. The operation mode of ETC project is a combination of GPA and LPPPIP. FETC collects its revenue from both the public and private sectors. To solve the current problems of ETC and balance the interests for both sides, the On-Board-Unit (OBU) must be given to the road users free of charge and FETC collects its revenue only from the government. Furthermore, to achieve the goal and have FETC operate sustainably, extending the period of ETC contract should be applied. Due to the facts that there is already a priority for FETC to enter a new contract with TANFB based on LPPPIP, free charge of OBU can be taken into consideration when evaluating the operational performance. And this will help FETC to get the priority and the contract can be substantially extended. The executive agency may be a feasible solution, if the ETC project could not be implemented under the current BOT contract,. The Establishment Act of National Electronic Toll Collection Center (NETCC) shall be codified to authorize NETCC to be responsible for the construction and operation of ETC system at National Freeways. And the OBU shall still be free of charge and sponsored by the government budget. This could be a better mode for the continuation of the ETC project.