| Summary: | 碩士 === 國立中正大學 === 法律學研究所 === 100 === Abstract
After administrative contract was acknowledged by substantive law, the administrative practice widely used form of this behavior in the various administrative areas, especially about the field of Act for Promotion of Private Participation in Infrastructure Projects in practice. The concession agreement that the administrative agency and the private institution sign often causes controversies due to contracting behavior in the contracting process, for example, the administrative provides false information to the private institution for damage resulting on the preparation and consultation stage of contract negotiation. This lead to the legal relationship can be described as “administrative law on the legal relationship of culpa in contrahendo”. It’s the same with concept of culpa in contrahendo from the field of civil code. It’s the meaning that the parties each other produce duty of protective and deliberate in the process of contractual relationship and the contact of preparation phase, and the person who encroaches the duty of care at fault has the liability for damage compensation of culpa in contrahendo. By the many administrative cases we can know it’s not hard to imagine that culpa in contrahendo takes place in the field of administrative contract, such as the ETCcase, the BOT project of Ou Hsin company and the Taipei County Government, but this subject of debate has not been fully discussed in doctrine and practice. After administrative contract generally was used for the form of administrative behavior in administrative law, the theory of culpa in contrahendo how to apply to the field of administrative contract is worthy to discuss nowadays.
This title is culpa in contrahendo of administrative contract, and this article is to confer how it was made use of the field of administrative contract. This article mainly divides into three parts. The first, the theory of culpa in contrahendo is concept from the field of civil code, and it’s brought up by the German jurist Rudolf v. Jhering. It’s commended the “Juristische Entdeckungen”. After the reciprocal effect of centuries of practice and doctrine, it’s legislated by the German law of obligation 2002. The doctrines and practices of our civil law is influenced by German law, and the Article 245-1 of civil code also enactes culpa in contrahendo. Culpa in contrahendo of administrative contract is rare discussed in our doctrine and practice, so this article constructs culpa in contrahendo of administrative contract by the correlative theory of culpa in contrahendo of civil code.
The second, this article is to discuss issues about the formation and legal basis of precontractual liability, the category of culpa in contrahendo, the constitutive requirement and legal effect, and it’s the main part of this article. In addition, respecting the fact that culpa in contrahendo of administration contract is discussed rarely. This article expounds to quote mainly the discussion of German law, because the Administrative Procedure Act in Taiwan is derivative acquisition from the Administrative Procedure Act in German. However there are issues practically in Taiwan different from in German, this article expounds issues practically to establish culpa in contrahendo of administrative contract in Taiwan.
The third, this part criticizes a certain number of practical cases in Taiwan integrating with regulations of the current law in Taiwan, and compares with ways of doing practically in Taiwan.
Finally, this article arranges the issues of cases in doctrine and practice, and generalizes the conclusions. This article hopes to bring up some helpful advice about confronting issues of culpa in contrahendo of administrative contract practically in Taiwan.
KEYWORDS：Administrative Contract, Culpa in Contrahendo, Two-stage Theory, Contrac- tual Liability, the Principle of Legitimate Expectation.
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